Animal Cruelty Porn: Why it should receive NO protection

Speech that harms typically receives less protection versus speech that merely offends. However, this is all in reference to when the speech is directed towards humans. What happens when the speech literally harms, as in maims or kills, another living thing? What if this living being isn’t a human? What if it is an innocent animal? Does this speech still deserve protection? In my mind, absolutely not. There is no room in a civilized society for depictions of cruelty towards an innocent animal. Such speech deserves absolutely no protection.

In the case of Stevens v. U.S. the argument was made that a human’s right to free speech trumps animal rights. This statement does hold some truth; animals clearly do not have the same abilities or rights as humans. But because of this, I believe it is important to remember that just because we are smarter and capable of speech and expression does not mean that we have the right to depict the exploitation, torture and killing of animals. Depictions of intentionally harming vulnerable creatures has absolutely no role in the expression of ideas. Furthermore, it is ridiculous to believe that depictions of such acts have any protection under the First Amendment. In this article in the New York Times, it raises the question of whether or not the government can decide that some forms of expression or speech have no social value. Zechariah Chafee makes an important distinction between “worthwhile” and “worthless” speech, I believe animal cruelty depictions certainly fall under the category of worthless. Depictions of animal abuse is not advancing our society in any way, it does not lead us anywhere in the search for truth.

Depictions of animal cruelty need to be lumped in the same category as child pornography, fighting words and obscenity—this sort of speech has no place in a civilized society. Exercising the power we have over animals simply because they can turns humans into monsters.
The Court of Appeals struck down the parallels to two cases of child pornography, New York v. Ferber and Osborne v. Ohio, because they believed that there is not a compelling interest in suppressing the commercial demand for images that depict cruelty towards animals or in protecting animals from exploitation. Why would the government not have a compelling interest in suppressing both the commercial demand for the images and in protecting animals?

Justice Smith argued that animals do not suffer by having these images out in the marketplace. This is true because the animal is probably dead! While the argument Smith is trying to make is that the animals cannot comprehend that they are being exploited, this is not what is at the heart of the issue. The fact of the matter is that another LIVING and BREATHING being is subjected to treatment that is unacceptable. What part of this “expression” deserves protection? But since animals lack the ability to communicate with us in a way that we can be sure we understand, we cannot say that the portrayal of animals in such videos isn’t more harmful to them than we assume. If the animals aren’t killed, they could certainly be traumatized or harmed otherwise and we would have no way of knowing.

“While animals are sentient creatures worthy of human kindness and human care,” Smith wrote, “one cannot seriously contend that the animals themselves suffer continuing harms by having their images out in the marketplace (NYTimes.com).”

What sort of message are we sending if speech involving cruelty towards animals is even remotely protected? It is not parallel with the idea that animals are worthy of human kindness and human care if we allow such horrible imagery to be unpunished. We have a responsibility to ensure that animals are not treated in such a disgusting manner and that those who do treat them that way are punished. So why should their speech be protected? We need a law that protects animals because they do not have a voice. It is a responsibility of humans to stand up for those without a voice, this includes furry four-legged friends.

Protect Sally Mann's photography

What parent doesn’t have pictures their kids playing with toy boats in the bathtub? Or of the time their child decided it was a good idea to take off their diaper and run around in the backyard? It is a fact of nature: kids are occasionally naked and their parents are going to want to take a picture to look back on the “days of innocence” at some point down the road (or use them to embarrass you…). I have a cousin whose kids constantly get undressed at family gatherings. Everyone finds it hilarious; grandparents, aunts and uncles snap a few pictures, everyone moves on with their lives. No one is accused of producing child pornography

While family members aren’t zooming in on genitals as some of Sally Mann’s photography does (for example, Drips), and their pictures aren’t being published, I believe both deserve equal protection. Sally Mann’s artwork is showcasing her own children and Osbourne v. Ohio states that possession of or viewing a child in a state of nudity is unacceptable unless “the minor’s parents or guardians have consented in writing to such photographing or use of the minor.” Much as members of my family would expect their rights to be protected for taking pictures of my cousin’s kids running around my grandparent’s backyard without clothes on. In both cases, parents are providing consent. I believe that this should be expanded from Ohio to recognize a nationwide “parent consent” exception with the First Amendment in regards to photos of their children. However, I believe that this should only apply to photographs or other mediums in which children are NOT participating in sexually explicit behavior.

Mann’s work does indeed have artistic value; Immediate Family captures the innocence of her children through a series of photos. One particular photo I believe showcased this innocence particularly well was Wet Bed. When critics of Mann’s work have zoomed in on a particular part of a single photo and claimed that it is child pornography, it is degrading to the work and takes it completely out of context. It is possible to make many, many photographs offensive by zooming in or excluding part of the photo. It skews and degrades the photo, takes it out of context and distorts what the photograph was originally about. In the case of Mann’s photography, and in the case of all similar photography done by parents, a SLAPS test would be beneficial because this would protect and preserve the artistic nature of the photography.

In addition to taking into consideration whether or not the work lacks serious literary, artistic, political or scientific value, there is another standard that Miller v. California lays out that I believe should be applied to Mann’s photography. As I stated earlier, zooming in on a part of a photo defeats the purpose of the photo entirely. If the photographer had intended for a photo to only focus on one part of a photo, they would have taken it that way. So zooming in on it takes the photo out of context. The Court ruled in Miller v. California, that the work would not be considered obscene if “the average person, applying contemporary standards of the state or local community, would find that the work taken as a whole, appeals to the prurient interest.” Along with the fact that the work should be taken as a whole, I believe it is safe to say that photos of nude children do not appeal to the prurient interest of an average person.

This photo of Sally Mann's son has sparked some serious controversy. Under Osbourne v. Ohio, I would not consider this "graphic exhibition of the genitals." I believe that in this case, a “graphic exhibition of the genitals” would have to display the child engaging in sexual activity. It is possible to have photos that portray nudity without appealing to prurient interests. Nude photos of children is definitely one such case.

A later court case brought the Child Pornography Prevention Act of 1996 into being. It states that any visual depiction of minors engaging in sexually explicit conduct is illegal. Mann’s photography does nothing of the sort. The images in Mann’s book are not, in my opinion, patently offensive unless taken out of context or distorted in some way. And in class when some of the photos were distorted, it definitely changed my perception of the photography.

Sally Mann’s artwork should absolutely be protected. It does not showcase her children participating in sexually explicit conduct. Rather, her photos capture her children at a point in their lives where they haven’t yet been exposed to a society in which they are made to feel ashamed of their bodies. In my opinion, everyone could learn a lesson from the way that Sally Mann has clearly made her children feel comfortable with themselves and their bodies just the way that they are . I believe this is the case with any such photography of children.