As the Supreme Court goes back to work this week it once again will determine just how far the First Amendment stretches. But rather than the usual "prayer in school" or "mandatory pledge of allegiance" cases that generally clog the docket, the high court is weighing how far journalists and documentary filmmakers can go when depicting animal cruelty, and what ramifications that has for other graphic visuals, like violence, pornography, or, say, negligence at slaughterhouses. Cast that in the age of endless Web video, pocket digicams, and citizen journalists who instantly post videos to the Web, and the case quickly becomes personal.
The arguments stem from the arrest, conviction, and subsequent appeal by filmmaker Robert Stevens, who received a 37-month prison sentence for including footage of a Japanese dog fight in one of his films. (That's 18 months more than Michael Vick served for actually running a dog-fighting operation on U.S. soil). Stevens didn't shoot the footage or participate in the fight, which was conducted legally in Japan; he simply included it in his film Catch Dogs and Country Living (a scene pictured above), violating a 1999 statute aimed at curbing the depiction of animal cruelty. Stevens appealed the conviction and won, and now the Supreme Court is weighing whether or not a First Amendment exception for animal cruelty is constitutional.
At stake, of course, is not just Steven's freedom, but the creative process itself. The government wants depictions of animal cruelty to be treated the same as child pornography? Not only is that overreaching but it would have the sort of "chilling effect" Justice William Brennan warned about nearly five decades ago during another First Amendment case—a media afraid to speak the truth for fear of penalty quickly becomes impotent.
So where does that leave the creative process, and where does that leave, well, news? There's an argument for keeping objectionable material from the airwaves, but the backers of the 1999 Depiction of Animal Cruelty Law go a bit too far. In the Information Age, users have access to an unprecedented amount of media, some of which has cultural value, and some of which doesn't. But for the court to begin making First Amendment exceptions for certain subject matters and not others warps the whole premise of freedom of information. Should the law start making a distinction between the video of a young woman bleeding to death in an Iranian street—which news networks played repeatedly during the recent Iranian election protests—and that of a legal dog fight conducted on foreign soil? Is one considered good journalism, the other akin to child pornography?
Plenty of us wish we hadn't seen the Neda video from Iran or the widely circulated video of the beheading of U.S. contractor Nick Berg in Iraq in 2004. But they caused discomfort because they were supposed to. And if journalism and documentary film are to remain relevant, punishing creatives for shoving viewers outside their comfort zones serves no one.