By Mike Dorf
In preparation for a Cornell Law School panel yesterday on U.S. v. Stevens, I had occasion to reflect again on obscenity law as set out in Miller v. California. Here I'll draw a parallel between the two cases.
No, not the obvious one. Stevens is the case posing a First Amendment challenge to a federal statute that forbids the commercial distribution of films depicting illegal acts of cruelty to animals, with important exceptions modeled on the S Ct's account of permissible obscenity regulation. The govt defends the law on the ground that the Ct should recognize a category of proscribable speech along the lines of obscenity or child pornography. Based on the oral argument, that argument appears likely to fail.
I don't have much to add to Sherry's excellent analysis of the stakes in the case, except perhaps to expand on a point she makes. Under Miller, for material to be obscene, it is not sufficient that it appeal to an interest in sex. It must appeal to a prurient interest in sex (and satisfy other criteria). Obscenity law thus works to patrol -- and in an important sense, to define -- the border between normal interests in sex and deviant ones. That line, interestingly enough, is not about harm. A person (typically a woman) who is coerced into the production of non-obscene pornography is harmed to a much greater extent than a person who freely agrees to produce obscenity. The line the law draws here is about the appetites of the people who are interested in obscene versus non-obscene sexual material.
And likewise in Stevens. The number of animals harmed by dogfighting, cockfighting, crush videos and the other (admittedly repulsive) practices targeted by the law at issue in Stevens is tiny compared to the billions of pigs, chickens, cows, and other animals harmed by animal agriculture, and it is not at all clear that the illegal cruelty in the former cases is experienced as worse by the animals at issue there than is the legal cruelty experienced by the farmed animals. Yet the same society that permits farming practices such as debeaking, castration without anaesthesia, and of course, wholesale slaughter, of farm animals, condemns the cruelty of animal fights and crush videos.
The difference, as with obscenity is in the appetite. Just as obscenity law affirms the normalcy of non-deviant sexual interests, so the law in Stevens affirms the normalcy of animal agriculture. But of course, given the government's (and society's) enormous investment in the latter, that parallel to obscenity doctrine will not be any help in Stevens.