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US versus Stevens: The Affects of Law and Protection

The Market and Production of Affects: Ruling over Non-Communicative Expression

In 1999 Congress passed a statute aimed at stamping out an estimated 2,000 to 3,000 videos of perverse sexual interest, and distinct animal cruelty. It was conceptually organized with the child pornography Supreme Court case New York vs. Ferber (1982), which was decided such that States had the right to criminalized the distribution of even non-obscene depictions of children in sexual conduct partly upon the reasoning that prosecution of distribution of material in a “market” can be justified by virtue of its chilling, deterrent effect upon the crime of child abuse itself. The majority decision had several prongs to its reasoning (among them that the act of photographing a child in sexual conduct itself formed its own measure of abuse), but distinct was the thinking that government could restrict First Amendment restrictions through the logic of attacking markets without having to invoke the standard of obscenity.

The Congress aimed its statute at the production and distribution of so-named “crush videos”. In these videos dominatrix-like women in high heels or bare feet cruelly crushed to death small animals (chicks, kittens have been named). This statute makes it a crime to create, sell, or possess “any visual or auditory depiction” of “animal cruelty” if the act of cruelty is illegal under federal law or the law of the state in which the depiction occurred. What is excluded from this criminalization is any simulation of such an act of cruelty, which is not restricted under this statute.

The statute passed with very little relevance for nearly a decade without a single case of “crush video” prosecution, and an attested “drying up” of the market it was directed towards. This until a man was arrested for making and distributing dog fight videos under the logic of the statute, his conviction brought before the Supreme Court now, US vs. Stevens. In oral arguments before the court the Deputy Solicitor General, Mr. Katyal, argues in fact that the exclusion of simulated acts shows that the statute is not concerned with limiting the content of expression, but rather only its mode of production. As he claims,

MR. KATYAL: In one sentence, if — if – if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can — they can regulate a depiction, so long as it leaves alternative mechanisms for that expression in place.

This is a compelling case filled with complex questions of Freedom of Speech and the morality of policed value, in fact reading the oral arguments was intriguing (I was surprised how incogent many of the Justice questions seemed to be), but mostly I would like to focus on the original intent of the statute and not on the question merely if the statute is overbroad. As a few of the Justices wished to know from the Respondent Attorney Patricia Millett, would Congress even be able to write a constitutional statute limiting “crush videos” if they tailored their language more distinctly – which is to say, more abstractly, can or should the production and distribution of images or sounds be limitable under a logic of controlling markets of otherwise illegal activity?

Critical Animal was the one who brought to my attention this case: Moral schizophrenia and the power of affect in US v Stevens. I went back and read the oral arguments and a few summaries (the Slate article is absurdly written). And then I went back and read the majority decisions in the Ferber case, the Miller obscenity case, and a few others mentioned in the case. And it was Critical Animal who drew to my eye the question of “affect” control which seems to lie within the question of First Amendment restrictions. Ultimately, what people (and animals) feel is the paramount concern, even though pressures of the law are directed upon other structural aspects of behaviors: in this case upon markets and production. It is upon that I really would like to place my imaginary glass. 

What is a Simulated Message?

As mentioned, part of the reasoning behind allowing simulated material of a pornographic, and otherwise criminal nature is that supposedly it distinguishes that the government is not going after the “content” of a message, but rather in the case of child pornography and then again in “crush videos” after the very modes of production which is itself criminal. The crime is in the making, not the saying. This is essential to the Ferber decision which recognized that photography itself is abuse, and also claimed as important that the perpetuation of the shame of the child through distribution perpetuated this abuse. Each of these points don’t readily apply to the subject of “crush videos”. Rather the logic is much more simple. Animals have to be cruelly killed in order to produce these real images. And the thought is that if you simply faked the cruel killing, the message would be preserved without the criminal production. This move towards simulated allowance forms one subtle part of the logic of Ferber on which the Congressional statute was built. That is to say, even though in New York vs. Ferber non-obscene material was restricted, it was the very braiding of “content” and “production” as criminal which established the government’s right.

But the stronger strain of Ferber logic that is aimed at “crush videos” (and then eventually dog fighting videos) is the notion that if indeed the photographic (or auditory) reproduction of criminal activity serves to strengthen a “market” for such material, and thus the renewed criminal acts for the production of further commercial products, the advertisement and sale itself can be targeted with the aim of drying up the market itself. (In the case of Ferber it was the sale of images of a 15 year old boy masturbating that was seen as part of an entire child pornography network of crimes.) The 1982 Ferber logic of restraint against future criminal processes itself was checked in Ashcroft vs. Free Speech Coalition (2002) which decided that simulated digital images of child pornography could not be criminalized under the logic that they could be and had been used to seduce children into sexual behavior. This is to say that, if simulated images might be used instrumentally to forward the process of a crime, in the context of a “market” of child pornography, this “speech” cannot be Constitutionally constrained (Ashcroft), but if the sale of simulated non-obscene depictions operate as part of a market of criminal act depictions this “speech” can be Constitutionally restricted (Ferber, somewhat under the Brandenburg Test). The statute against “crush videos” negotiates these two aspects, allowing simulated images (despite that such images might foment a market), under the strong notion that the government is after an illegal mode of production. In a sense, the argument against simulated material/market connection is sacrificed to bolster the “mode of production” logic of the law.

This distinction between content and production is a philosophically interesting one, for it presupposes that there is a distinct content of these crush videos (and then dog fight videos) that is left protected by the Constitution. You can go ahead and “say” whatever a crush video says, as long as you don’t commit a crime in making it. And what is the “message” that is protected under such a distinction? Or oral arguments it is summarized by Justice Alito, repeating the reasoning of Justice Scalia:

JUSTICE ALITO: What about crush videos, which apparently were the focus of Congress’s attention when it drafted these? Now, I suppose by an analogy to what Justice Scalia just said about the message of dog fighting videos, the people who produce crush videos think they have a message, and the message is that this is — this is sexually exciting or it’s exciting in some way to see a woman in high heeled shoes crushing a little animal to death.

We are given to think that this message is stateable in a great number of ways. The high heeled woman could step on a stuffed kitten, or the camera could cut away at the right moment, or the event could be drawn  or animated, or, conceivably it could be stated just as Justice Alito has stated it. But really, is this the “speech” (what I would like to think of as the “expression”) of a crush video? It seems like an odd thing to say. Indeed as the idea that a painting could be criminalized and replaced by with a word expression of its depicted without loss of its message would tell you, something is missing.

Justice Breyer actually puts his finger right on it, there is a sense that crush videos actually communicate “nothing” which is to say, they gravitate towards a pole which lacks distinct verbal (one wants to say “rational”) content. He places this idea under the question of whether there is any possible construction by which Congress could restrict the speech of crush videos (aside from the statute under review). As Beyer sees it, there might be a class of things which devoid of content rather appeal to “instincts”:

…JUSTICE BREYER: But the point — the point I guess is when you say yes to this, what you are thinking is that, just as real obscenity when depicted does nothing communicative but rather appeals to the instinct of lust, so Congress could find a category of things that do not communicate, but appeal to the instinct of sadism; and that is true when other creatures are killed for the pleasure of the people who want to see them killed. Now, that’s what you are saying. Now – and I think maybe that’s true (32)

And Beyer continues the line of thinking, rebutting the argument offered by the Respondent (and by the earlier Scalia/Alito description) that crush videos possess content:

JUSTICE BREYER: I think what — I think what’s going on is — is not — your conflating two things. One is you are trying to produce education about something that has no communicative value. In so far as you are trying to make an argument or educate, of course, it is protected, but the government, here, is saying I think the statute is intended to forbid a different thing entirely, and it’s hard to draw a line.

Maybe it’s impossible; but promoting a thing which communicates nothing, but appeals to people’s worst instinct, that is not to advocate it or not to advocate it.

It is to try to make money out of it, and that’s what they think, I believe, the statute is aimed at (49)

Aside from the value judgment offered as to which instincts are the worse ones, or even if one can make a contentless appeal to an instinct of some kind, Justice Breyer it seems has really touched on something. There is the sense that at bottom, content appeals operate in context to contentless appeals to instinctual aspects of human beings, and people make money out of this through markets. Could it be that Breyer exposes the nerve pulse of Capitalism itself: to production and exchange of goods through markets given to contentless appeals? Critical Animal, as I mentioned above, supplies the right word, “affects”. Breyer opens up the question whether the Constitution protects affects at all, that is, our capacity to feel and even to organized our feelings (or have them organized for us). Perhaps this will become more clear in the next section.

What Good is the Non-Simulated Depiction?

Here I invoke a critique I made of some thoughts forwarded by Latour and a co-author on the nature of Copies and their Original: The Copiousness of Copies. Some of the ideas forwarded there should put into bolder relief some of what is truly at stake in the arguments about speech and content in the Congressional (likely overbroad) statute against crush videos. There I argue that what distinguishes a “good copy” from a “bad copy”, each made from an “original” are three factors that are weighed against each other:

  1. The copy’s loyalty to germane causes – this means that when we appreciate an original as the source of a great many copies, this is done in the context of the preservation of traces of causes we read as germane to the importance of the original in the first place, and good copies preserve these traces. A photocopied dollar bill has effaced important traces of the causes that produced the original. Yet Warhol’s soup cans preserve important causes that produced the depicted soup can.
  2. Richness of causes to be discovered – here, a good copy is one which maintains a deep record of possibly discovered causes that produced the original, traces which may lead to causes of the original later to be found germane. A detailed digital photograph of a painting may preserve brushstroke pattern thought unimportant, later to be a valued.
  3. Fecundity of interrelations which promote its own replication – these are unto the very nature of the copy itself, and speak of the capacity of that copy to find itself replicatable, producing other copies of itself. In this sense a photograph of a painting is a good copy if it leads to further photographic duplications (put into artbooks, on post cards).

In this way a copy is good if it retains valued aspects of the original (which are themselves traces of causes), holds the capacity for the discovery of other yet to be valued aspects of the original, and itself due to its nature becomes the source for further copies. This stands in amendment of Latour’s idea that sheerly it is the copiousness of copies that establishes their good.

So where am I going on this? I want to explore the exact nature of the communication of the legislated against crush videos, just what it is that they are doing, how they are doing it, and how the notion of simulated replacement might not preserve the “speech” expression of their production.

Primary of difficulty is the Petitioner’s claim that a simiulated act in film, for instance, could retain the exact same message as a non-simulated act. The reason why this is of extreme difficulty – as I hoped to expose through my brief journey into a theory of the copy, is that one could never delimit exactly what causes are the germane ones to be captured by any one expression. This is to say, the point in watching a film of the “crush” variety is not simply to expose oneself to the “idea” of crushing, or even to the idea that such an act is good, exciting or preferred, but actually to submit oneself to the extreme details of such an act. And its given realness, the great variety of detail captured (whether it be a quality of smile of such a woman, the tempo of a hesitation, the color or grade of light on a surface, the pitch of an animal protest and the accorded response or lack thereof, all of these plastic effects), communicate themselves to the viewer with an aim to affective transformation, just as they do in a painting when compared to a prose summary. When one exposes oneself to the rich capture of the criminal act (it being criminal being secondary to it being real), provides a certain amplitude of a power of communication which defies any content definition. To say that one could simply “simulate” this process of communication by either changing the “content” of what is shown, or registers (media) is to simply lose track of what communication and ultimately expression is. The veridical nature of the expression is precisely that which contains the power of transformation that drives the expression in the first place. 

And while surely there exist simulations which could fool a prospective viewer into thinking that they are watching the Real, what drives the transaction is the actual promotion of a direct (or as near as direct) contact with a said person (the dominatrix of a kind), and that event. In the end “content” in terms of restateable “ideas” simply does not exist, any more than the notion that the content of the “Mona Lisa” is that “Women are inscrutable”. In fact the reason why we see the “original” that is hanging in the Louvre is so as to be transformed, at whatever level of awareness, by the hand that painted it, centuries ago.

This is not to say of course that crush videos should be legalized, or must be protected by the Constitution, but only that the particular argument by the government is highly flawed. More interesting perhaps is the other aspect of the Ferber decision that in fact inspired the case against Stevens, and in particular that uncovered by Justice Breyer: what the statute is aimed at is not “content” but at markets that trade on pure affects (leaving aside the notion that there is an appeal to an “instinct”  which is base or not). Indeed, this is right to the core of Capitalist endeavors, one might argue, the marketed trade of “experiences” which never can be reduced down to either a logic of “content” or “use value”. What is wrong with crush videos, at least in Justice Breyer’s view, is that they trade in just experiences meant to transform the viewer, and the problem the government faces is how to police these experiences (or that market), especially when their production involves criminal cruelty. There is a sense in which the consumer’s experiences, her or his affects, drive the market for produced experiences of another, criminal kind. The very circularity exposes perhaps the very affect-driven nature of markets themselves, all markets. In this case the affects of a cruelly killed small animal (and the imagined affects of a dominatrix) are transformed into a nexus for the affects of a perverse viewer.

What remains to be thought is Justice Breyer’s important qualification that it is not just contentless affects that mark out this case (at least in terms of the crush videos the statue was written for, but perhaps also in terms of dog fighting). It is that these products appeal to what is worst in humans, an instinct of “lust” or “sadism”. To this Justice Scalia offers the suitable defense to Ms. Millett:

JUSTICE SCALIA: I would have thought that your response to Justice Breyer’s comment about catering to people’s worst instincts in the area of the First Amendment, at least, would have been that it’s not up to the government to decide what are people’s worst instincts.

If — if the First Amendment means anything, that’s what it means.

If this is so, indeed the government has no first amendment leverage upon which to stand against markets of affects in terms of a primary value of the “instinct” they appeal to.

It cannot be over looked that this social contest I believe really does touch on the very engine of Captialist relations, and the need social justice has for restraining the kinds of affects people can purchase in trade (both in the production of products – i.e. the restriction of child labor for instance, but not animal torture in meat industries – and in the enjoyment of products). I think part of this is due to the very way that we read and interpret the behaviors and lives of others. We do this primarily through affective imagination, and the threat that there may be markets that have established themselves under the trade of certain affects – and little is as entrenched as a thriving market will be – invades the very boundaries of our interpretive bodies. If we want to understand “those perverts” to some degree, insofar as we do think we understand them, if only to reject them, we must enter into the affective states that they pursue. It is for this reason that the logic of the Ferber case makes the most social sense, lacking though perhaps the necessary argumentative, constitutional anti-market logic to extend it far beyond the exceptional case of child pornography (as the “child” stands as one of the ground work anchors of American sensibilities).

The concept of “worst instinct” really is a proxy term for the very threat that such traded affects present to the logic of markets themselves. And as Justic Scalia points out the First Amendment is poised as a leverage point between that hidden threat of Capitalist relations (that non-communicative, traded affects will transform subjects), and the necessary freedoms of expression that mark out just what constitutes a freely expressing subject or citizen. I must be free to express myself, yet the market place of expressive affects (accelerated as it has been by media technologies) risks intensity points that may subvert the very order of markets in the first place. To this degree, really, the affects involved in product production often must be masked or ideologically recoded, as best as possible. Animals who suffer for the meat industry are hidden behind happier chicken labels, while videos that expose viewers to real animal cruelty invoke traction for government action against markets. What the US vs. Stevens statute tries to do is incise the very mode of production of a market, in the logic of a child pornography in which reproduction constitutes a crime in itself, and as such under a proviso of simulated content freedoms attempts to side step the problem of freedom of expression. As the rationality of simulated replacement breaks down the true aim of the law is exposed as directed towards the markets of affects themselves, which is perhaps where all true social friction resides: the transmission and capitalization of experience.

In a certain sense crush videos hyperstate the very conditions of production, the powers of transformation of living material via its affective capacity and its representation, in trade.

Related blog post and another, and another posting around the web

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