http://www.theartnewspaper.com/articles ... elty/19274
In early October, the US Supreme Court will hear argument in US v Stevens, one of the most important free-speech cases to arise in years. At issue is whether a law that criminalises statutorily defined “depictions of animal cruelty” violates the First Amendment to the US Constitution, which guarantees freedom of speech against government intrusion.
Although few, if any, would advocate animal cruelty, everyone, animal lovers included, should hope that the court declares the law unconstitutional. Artists, art aficionados and all others who value freedom of expression have a particular interest in seeing the law invalidated.
The statute at issue, known as Section 48 (because of its place in the US criminal code) imposes criminal penalties (including imprisonment up to five years) on anyone who knowingly creates, possesses or sells a visual or auditory depiction of “animal cruelty” with the intention of placing that depiction in interstate or foreign commerce, unless the depiction possesses “serious” religious, political, scientific, educational, journalistic, historical or artistic value. For purposes of the statute, “animal cruelty” is defined to include all conduct in which a living animal is intentionally killed or wounded, and such conduct violates federal or state law, either where it occurred or where the depiction is possessed or sold.
Section 48 is problematic for a variety of reasons.
The statute does not criminalise animal cruelty, which is already illegal. Rather, Section 48 criminalises mere depictions of animal cruelty. But outlawing the depiction of conduct—even illegal, reprehensible conduct—is a dangerous encroachment on freedom of expression. Representations of bad acts are often central to political debates and artistic works. Few, if any, would doubt that lynching is an odious practice that should be ended, but that does not mean that depictions of lynching ought to be banned.
While proponents of Section 48 emphasise that the only depictions it penalises are those showing the intentional killing or wounding of an animal that is illegal where the conduct occurred or where the depiction is possessed or sold, that limitation is far less limiting than meets the eye. Bullfighting, for example, is illegal throughout the US. Accordingly, an illustrated edition of Hemingway’s The Sun Also Rises could run afoul of the law if the illustrations, be they photographs or drawings, depict actual bullfights. That bullfights are legal in Spain is irrelevant under the law.
Moreover, for a depiction to be criminalised by Section 48, the killing or wounding need only be illegal under some law or other. It need not violate a law against animal cruelty. Given the disparate nature of state laws in the US federalist system, this means that many depictions of conduct that is perfectly legal where it occurs and not universally condemned as an instance of ...