Thursday, October 8, 2009

Moral schizophrenia and the power of affect in US v Stevens

I just got through reading the oral arguments (.pdf) in US v. Stevens. It was very interesting, to say the least. If you don't want to take the time to read around 70 pages of oral arguments, you can check out this summary from slate here (which is biased on the side opposite of mine, but entertaining to read). The oral arguments are certainly all over the place, but I wanted to highlight two interesting points from them.

(1) Gary Francione has often pointed out that most of us relate to animals in a mode of what he calls moral schizophrenia. We are willing to treat the family pet as a member of the family, while at the same time eating animal flesh on our dinner table. This moral schizophrenia is, in many ways, at the heart of the arguments made by the Justices against the law. Because we have a culture that has no real coherent way by which we determine something cruel or not (hunting, even the most vicious kind, in. Killing a cat though in the same way, probably illegal to sell images of that. Dog fighting and cockfighting, out! But bullfighting, specifically let in!). I have a lot of sympathy with the Justices on this one, it clearly is something very different from laws against depicting child pornography, which the present law is explicitly based off of. In child pornography we have an action whose exceptions are both narrow and fairly uncommon. Also, those exceptions have a certain degree of seeming coherency to them. In the case of the law about showing violence towards animals we have a law that is necessary has broad exceptions that are quite incoherent. I am not saying that the law should be overturned on this point (I really am not taking a stance on this issue), but I am pointing out that I think that advancing animal welfare legally will continue to face such issues.

(2) Another interesting part of the back and forth included two different times where there were discussions of banning speech that was not communicative. That rather than communicating to anything, appeal to something. Such as obscenity appealing to lust, or these images potentially appealing to sadism. While the term 'affect' was never used in these discussions, that is certainly what was under consideration. To what degree does the first amendment cover affect? What these backs and forths seemed to imply was that the State must not intervene on the question of content, but anything that simply advances affect can be regulated by the State.

The whole thing is pretty weird. For example, both lawyers seemed to agree that if there was a channel dedicated to broadcasting human sacrifices that were taking place outside of the US, Congress couldn't make such a channel illegal. The justices seemed all very bemused and confused by this stance, particularly this mutual stance.