By Renee Gerber

I know, I know.  Posting twice in two days — where am I finding the time given that I have papers and finals just like everyone else?  Ah, the power of procrastination.

I haven’t yet had a chance to talk to anyone about this case that was granted cert last week.  In summary, the 3rd Circuit struck down as violative of the First Amendment a federal law that criminalizes depictions of cruelty to animals.  In the case before the court (and now the Court), the depictions at issue were videos of dog fighting advertised in an underground magazine called Sporting Dog Journal.   The law was passed, however, to address the problem of “crush videos,” videos of animal cruelty that apparently do pretty good business on the Internet.

If you have a queasy stomach, you may want to bypass the description of crush videos and skip to the next paragraph.  If you want to know what crush videos are, read on.  The videos satisfy a very specific brand of sexual fetish.  Basically, they are videos of women wearing high heels (or sometime barefoot) torturing animals by literally crushing them with their feet.  The animals’ squealing can be heard on the video, and sometimes the woman also talks to the animal using dominatrix patter.

While the torturing of animals is prohibited by state law in every state (through cruelty to animals statutes), the videos are made in such a way that you cannot see the women’s faces, nor the locations in which the videos are filmed.   Therein lies the conundrum: basically untraceable to law enforcement, but easily found and bought online.  Not only that, but the cruelty would almost never occur if it weren’t a money making proposition.  Congress’ reaction was to attack the means of production in addition to the cruel acts themselves, in much the same way that we criminalize the marketing/selling/buying of child pornography in addition to criminalizing the actual acts in an attempt to affect the prevalance of a crime by undercutting the economic reason for its prevalence.

But is animal cruelty the same as child abuse?  And are dog fighting videos and crush videos the same as child pornography? I am a bit appalled at my initial reaction to reading the 3rd circuit case:  when all I had read was about the dog fighting videos, I was unimpressed and my libertarian side won out, but after reading about crush videos I changed my mind.  Now I’m conflicted. 

Generally I support the very broad concept of speech espoused by the 3rd circuit, and I’m definitely not a fan of courts creating new categories of unprotected speech.  I’m also generally quite species-ist; I’m not concerned with animal rights to even a tenth of the degree to which I’m concerned about human rights.  But after reading some of Congress’s rationale, and about these crush videos, I do think I’m swayed.  Making these videos and selling them isn’t expression, it’s just making money off of incredible cruelty to animals.  We’re not talking depictions of slaughtering cows like the last scene in Sergei Eisenstein’s Strike here.  This is something beyond even that pale.  So (I think) I’m OK with criminalizing the money-making portion of the endeavor in order to cut off the impetus for the physical crime. 

 However, I’m still a little bit iffy about the parallel from crush videos to child pornography.  Child pornography is such a big exception to our First Amendment jurisprudence, and I am loathe to extend the reasoning in Ferber (the case that classified child pornography as unprotected by the First Amendment and upheld laws that prohibited it) when obviously it was supposed to stop at child porn and child porn only.  I think the parallel is much better from crush videos to, say, snuff films (videos of actual murders), though I’m not sure if snuff films are unprotected speech or not.  It seems to me that snuff films might be prosecuted under an incitement theory or a criminal conspiracy, therefore making it unprotected speech.  Maybe my ultimate opinion would turn on the legality of those fims, or whether crush videos could be prosecuted under any other alternative means more linked to other types of unprotected speech arguments rather than the child pornography exception alone.

Any insights, people?

By Renee Gerber

Yesterday morning, Professor Mary Ann Glendon sent this letter to Notre Dame, declining to accept the institution’s prestigious Laetare Medal.  By inviting President Obama to speak and to receive an honorary degree from the university, Notre Dame is acting contrary to a 2004 U.S. Conference of Bishops’ declaration that “Catholic institutions should not honor those who act in defiance of our fundamental moral principles,” specifically the Church’s position on abortion and the right to life.  That means Catholic schools like Notre Dame should not give to such people “awards, honors, or platforms which would suggest support for their actions.”  [Note:  I'm not sure if "declaration" is a term of art in the Catholic Church.  When I use it in the previous paragraph, I mean it in the common usage sense:  a declaratory statement.]

Today, the interns and judges at my clinical office had an hour-long debate over Professor’s Glendon’s refusal of the Medal, Notre Dame’s defiance of the Bishops, and of the Catholic church doctrine underpinning the whole issue. (This, folks, should be reason enough to encourage clinical participation.  Seriously, 1Ls and 2Ls, you should do a clinical.)   Personally, I think greatly admire Professor Glendon for her decision, and eventually I was able to get most of the office to agree with me.  After all, if you’re Catholic, you’re supposed to obey Catholic doctrine and the statements of bishops, right?  I think that as a devout Catholic,she’s right not to accept an honor from a Catholic school that’s thwarting Catholic bishops.

However, that leaves open the question:  Is the Church right in telling schools and other Catholic institutions not to honor those who disagree with them, no matter what other honorable things they have done?   My office was pretty well split.  Some noted that this was the Church behaving politically, not religiously, and shouldn’t that be something that Notre Dame should ignore. (Indeed, the original statement from the Bishops has a heading of “Catholics in Political Life,” signalling that they are indeed trying to influence Catholic politicians and politics in general.)  Our resident non-practicing Catholic stated that he disagreed with the Church, but had no problem with it, and thought that as long as Notre Dame is Catholic, they should obey Catholic dictates.  Others decried the Church’s intolerance in general, comparing this requirement to terrorists’ beliefs and forced conversions during the Inquisition.   I (a non-Catholic, by the way) was the only person who full out defended the Catholic Church, saying that, given its position on abortion, it is fully right in telling its own institutions that they should not honor those who fundamentally work against the Church’s position.  And I don’t mean “right” as in it is allowed to, I mean right in that it should.

I worry that, in the guise of saying “Intolerance is bad” and comparing the Bishops’ statement to statements asking people to blow themselves up, we risk telling the Church that she shouldn’t stand up for what she believes, even in a completely compassionate and rational way.  If principled adherence to religious belief is all that constitutes “intolerance,” then I have a hard time condemning intolerance.  In this case, the Church isn’t inciting bigotry, or violence, or intolerance that results in personal animosity.  The Church is not even saying that President Obama shouldn’t be invited to speak at Notre Dame; it’s just saying that Notre Dame shouldn’t appear to condone the President’s political positions when some of those positions are antithetical to the Church’s.

What do you think?  Who’s right here: Professor Glendon, the Catholic Church, Notre Dame, or some combination of the above?

By Publicola

Arm chair philosophizing served up Arthur Branch-style.

One wonders where Fred Thompson is going with this whole post-primary commentator schtick. The escapades of all the once (and future?) candidates makes for good entertainment in these serious times.

By the way, look for renewed activity here at Ex Parte after the weight of exams has lifted from campus.

By Hereford

Oh wow. That’s all I have to say about the latest post-election ad against Proposition 8. Beyond tasteless. And beyond misleading.

See it here:
“Home Invasion”
 http://www.youtube.com/watch?v=q28UwAyzU…

And here’s an excellent response I received from a friend through email:
In the aftermath of the recent election, we may find ourselves oddly on the defensive regarding our support for the Yes on Proposition 8 cause.  Our young people have been especially subject to mean spirited comments by high school friends and teachers.  We have nothing to be ashamed of.  We did nothing wrong.  In fact, we did everything that a civic minded American can and should do.  I have put together a few facts that help me to appreciate our position better.  For example:

Keep reading →

By Renee Gerber

Was just clearing out the spam from my gmail account, and saw a surprising number of “hot michelle obama pics” and “McCain [or McCane] wife at home” subject headings.  On the one hand, I suppose it’s nice that the spammers think that politicians’ wives are celebrities, too, and qualify as lures just like Hollywood stars.  On the other hand – seriously?

By Renee Gerber

I’m pretty sure there isn’t a consensus within the Fed Soc about foreign aid.  Libertarians and free market enthusiasts would advocate something altogether different from the national security-concerned, I expect.  And even those who think some aid is appropriate disagree about how much and to where and through whom.  Without discussing where I fall along the spectrum of foreign aid opinions, I’d like to make a side note on accuracy of reported figures:  Some scientific research funding should be counted towards how much money we spend on the rest of the world.  Money from CDC, NIH and other “non-foreign aid” agencies isn’t generally included in foreign aid accounts (see starred footnote on page 11), but certainly some of it should, especially when the reserach it funds affects precious few Americans.

Current case in point:  Researchers at the Institute for Advanced Computer Studies at the University of Maryland are figuring out how to track cholera outbreaks in India and Bangladesh through satellite monitoring of marine environments.  Think of it as a sophisticated Google Earth project which leads to villagers using an old piece of clothing (these papers say folded saris are used) to filter out plankton which leads to potentially thousands of lives saved every time Bangladesh floods, which is every year.  How cool is that? 

While I haven’t been able to track down Professor Colwell’s funding for her cholera research (some of the Institute’s partners are listed here), I’m pretty confident it’s not being tallied towards America’s global good-doing. 

Sure, counting scientific research towards foreign aid might be a slippery slope. Recent events have shown pretty clearly that lots of our national self-interest is linked to the rest of the world’s — can we count the bailout as partially foreign aid? — but surely funding for preventing third world diseases should included in the tally of humanitarian aid.

By Publicola 

A great article by Brad Smith on Obama’s historic haul and what it suggests about campaign finance reform. 

An excerpt: 

This suggests that partisanship, rather than principle, is what drives most support for campaign finance reform. When one side is being outspent, its partisans naturally want to limit the fundraising of the other side. But if we really are concerned about “fairness,” the best approach is probably to remove restrictions on fundraising altogether, rather than limit the speech of those who are raising money successfully.

. . . 

We should consider it a healthy thing when Americans support their political beliefs with their dollars. What we see in this election is that contributions don’t really cause “corruption” and that we don’t really want the government deciding who has spoken too much and who has not spoken enough. If Obama’s fundraising shows us the emptiness of the arguments for campaign finance “reform,” he will have done us a great service, in spite of himself.

By Renee Gerber

A couple of weeks ago, National Review published a rather bleak analysis of the history of politics and the importance of our current political climate.  Specifically, Mona Charen’s column concludes:

[T]here is a one-way ratchet in public policy. Liberal reforms are never undone. How hard have conservatives tried to eliminate the Department of Education or subsidies to public television? Would they have more success uncreating a new nationalized health-care system?

Ms. Charen asks if this is the end of conservatism.  Apparently, the march of progress (or liberalism, or the decline and fall of western civilization, depending on your point of view) is inevitable.  It is true that many acts of government are hard to undo.  Certainly any man who figured out how to dismantle the Administrative State without dismantling our country would deserve high accolades from my fellow conservatives and me.

However, I think, to paraphrase Mark Twain, reports of the death of conservatism have been greatly exaggerated.   Keep reading →

By Hereford

More on Proposition 8. A strong supporter of Prop 8 has been the Church of Jesus Christ of Latter-day Saints (the Mormon Church). The Church has now become a primary target of Prop 8 opponents, harassing and intimidating the Church’s members as they try to worship.

I’ve included a first-hand account of this below. It’s important to note that temples, to those of the LDS faith, are supremely sacred buildings, which they prize particularly because they allow church members to get away from the pressures and conflicts of the regular world. Temples are typically set back from freeways and busy areas for this reason, and their beautiful grounds and interiors are designed to promote such a feeling of calm.

So for protestors to gather outside a temple is a particularly spiteful and cruel choice. The protestors knew, I’m sure, that such an affront would strike at the very heart of freedom of worship and free speech for these LDS members.

Keep reading →

By Hereford

This is the most compelling example I’ve seen of the externalities of gay marriage edicts.

No on Prop 8