Stephen Kershnar
Animal-Cruelty Videos and the Supreme Court
Dunkirk-Fredonia Observer
May 11, 2010
A few weeks ago, the Supreme Court in United States v. Stevens, 559 U.S. ___ (2010) by an 8-1 decided that a statute (18 U.S.C. 48) that prohibited the portrayal of acts harmful to animals was unconstitutional. The law made it a criminal penalty of up to five years in prison for anyone who creates, sells, or possesses a depiction of animal cruelty if done for commercial gain. It defined “animal cruelty” as one in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where the creation, sale, or possession took place. It thus criminalized the commercial depiction of activity that is already illegal. It exempted depictions that have serious social value. Scientific, educational, and artistic videos are the sort of depictions that might have enough social value.
The defendant, Robert Stevens, sold videos of pit bulls fighting each other and attacking other animals (specifically, a wild boar and a domestic farm pig). His videos included dogfights from the 60’s and 70’s and recent dogfights in Japan, where it is allegedly legal.
There is a strong case for the law. It was intended to stop the interstate market for crush videos. These videos involve the intentional torture and killing of helpless animals such as cats, dogs, mice, hamsters, and monkeys. These videos are sexually arousing to some consumers. Justice Alito provides a graphic description of one such video involving a woman and a kitten that is absolutely disgusting.
Congress’s motivation in passing such a law was that the only effective way of stopping this criminal conduct (it is illegal in all 50 states and D.C.) is to make it unprofitable. Without the law, the filmmakers are hard to prosecute because the videos are made in secret and often do not show the faces of the women torturing the animals or the video’s time and location. In the rare cases when such perpetrators are identified, they effectively defend themselves by arguing that prosecutor cannot prove the location in which the film was made (thus, the state lacks jurisdiction) or that the statute of limitations has not run (thus, it is too late to prosecute). When President Clinton signed the law, his signing statement indicated that it would cover only crush videos and nothing else, not even dog fighting.
The majority opinion, written by Chief Justice Roberts, found the law unconstitutional. Roberts noted that there are areas of expression that are unprotected by the First Amendment, including obscenity, child pornography, and incitement. He declined to include animal cruelty on the list because it was historically unprotected. The government countered that such speech had so little value that it was unworthy of First Amendment protection. Both arguments are weak. Contra Roberts, a prohibition on expression does not become constitutionally valid just because it’s been around for a long time. On the other hand, the Constitution does not authorize Congress to decide what expression is worth protecting.
Roberts then argued that the statute was overbroad. That is, it criminalized constitutionally protected speech. Roberts argued that it banned depictions of animal suffering beyond crush videos, animal-fighting videos, and other forms of extreme animal cruelty. He reasoned that because the statute covered any illegal treatment of animals and only made exception for material with serious social value, it prohibited hunting videos. He observed that most hunting videos are recreational and thus lack serious social value. Interestingly, Roberts noted that the government provided no explanation of why videos of hunting or Spanish bullfighting have more social value than those of Japanese dog fighting.
The government responded that it would limit its prosecution to extreme cruelty. Roberts dismissed this silly argument. An unconstitutional statute should not be upheld because the government promises to use it responsibly. Roberts ducked the most difficult question, which is whether a narrow ban on crush videos and deadly animal fights would be constitutional.
In dissent, Justice Alito argued that the case should be sent back to the lower court to address whether the narrow ban was constitutional. He argued that the statute was limited to extreme animal cruelty (crush videos and deadly animal fights) and the court got it wrong when it suggested that the statute covers hunting videos. Alito argued that under the statute, such videos were protected because they do not focus on animal cruelty and have serious social value and because Congress did not intend to prohibit them. He argued that this statute was similar to the Court’s previous treatment of child pornography. Like a state law prohibiting child pornography, the ban on depicting animal cruelty was the only effective means by which to prevent horrible and already illegal activity from occurring and the harm prevented easily outweighs the social value of the videos.
Consider the issue of whether the narrow ban would be constitutional. At issue is whether, as a constitutional matter, such material may be banned if it is the only effective way to prevent such abuse. The Constitution includes the basic rule that various social goals are not to be pursued by preventing people from accessing various subject matters or ideas. The Supreme Court opened the door to this when in it allowed states and local governments to ban obscenity (hardcore pornography). It is hard to say what ideas or value obscenity and animal-cruelty videos have, nevertheless they do appear to be express a viewpoint, even if only an aesthetic one.
The sort of debate that Roberts and Alito got into over whether hunting videos had serious social value is not in the text of the Constitution. Nor was it part of the original intent of those who wrote the Bill of Rights or the original understanding of the people when it was passed. Instead, this issue looks like something the legislature should consider. The latter is better able to determine whether deer hunting videos have serious social value.
Also, there is an oddity in that while the justices and members of Congress were outraged by the dog fighting videos, and they are horrific, it is alleged by People for the Ethical Treatment of Animals (PETA) and others that factory farms treat pigs and chickens in ways that are comparably horrific. That they do so in private and for taste rather than entertainment is irrelevant.
If the statute is rewritten to be a narrow ban on crush and animal-fighting videos, the Court will not be able to duck the issue. The narrow ban might be the only effective way to protect innocent animals from being tortured for sexual entertainment. It thus falls under one of the government’s core functions: protecting individuals from harm.
On the other hand, the statute targets expression rather than the underlying victimization. It thus conflicts with the First Amendment’s text and the original intent behind it. We should hesitate to ignore the Constitution. Even when the expression has minimal value and even if the depicted conduct is filthy and destructive, carving exceptions into the Constitution lays the groundwork for the government to target other areas of free speech.
12 May 2010
28 April 2010
Professors & Students Having Sex
Stephen Kershnar
Faculty-Student Consensual Relations and the Church Lady
Dunkirk-Fredonia Observer
April 26, 2010
At state colleges and universities, the issue of faculty-student romantic and sexual relations is an issue that refuses to go away. It often pits administrators and feminists with Victorian sensibilities against those with live-and-let-live attitudes about romance and sex. I should disclose that a number of the facts and ideas for this column come from SUNY-Fredonia philosophy professor and lawyer, Raymond Belliotti.
As a legal matter, only one public institution (College of William & Mary) bans all romantic and sexual relations between faculty and undergraduate students and between supervising faculty and graduate students. Such blanket prohibitions were rejected by other universities, including the University of Virginia, University of Washington, and the University of Texas at Arlington. Some private universities (for example, Rice University and Yale University) have adopted a version of the prohibition. The complete prohibition at state institutions is likely unconstitutional because it violates people’s rights to privacy and intimate association, rights strongly affirmed in a recent Supreme Court decision, Lawrence v. Texas, 539 U.S. 558 (2003). Even if such a ban were Constitutional, consider whether state colleges and universities should adopt it.
There are two models which track the view that faculty and student are adults (the “adult model”). On one model, the libertarian model, the regulation of romances should be governed by sexual harassment rules. Sexual harassment rules prohibit faculty attempting to trade grades or other benefits for romance or sex. They also prohibit hostile working environments, whereby repeated sexual attention makes someone uncomfortable. On a second model, the supervisory model, such relations are prohibited only when the faculty member supervises or evaluates the student. This second model allows faculty-student relations to be governed by the same rules that govern relationships between senior and junior faculty and between those administrators and staff with supervisory roles over others.
The adult model has a number of advantages. First, it makes it clear that when they leave the workplace, faculty and students’ lives are their own and not subject to meddling by administrators and staff. Consider what we would think if administrators who wanted to monitor the weekend habits of the faculty, including the churches they attend and the websites they visit. Second, it protects faculty and students from degrading investigations. For example, imagine some flabby old administrator at a Southern college asking a 22-year-old female student when an English professor first touched her breasts and you get the picture. At SUNY-Fredonia, there are allegations that administrators engaged in covert searches of faculty email when investigating one or more of the cases that have come up in the last few years. Third, unlike the adult model, the blanket prohibition discourages beneficial relationships and marriages. At Fredonia, there are quite a number of past and current faculty who are married to former students (not always their students). Because the benefits of marriage and children are weighty, opponents of the adult model must show that the costs of the adult model outweigh its benefits. They are unlikely to do so. Fourth, it fits with the view that students are adults and ought to be treated as such.
Fifth, the adult model prevents further intrusion into fraternization and non-romantic friendships that are common on campuses. As various professors have pointed out, feminist professors, African-American faculty, and advisors to student clubs often supervise and befriend students, sometimes hosting events in their homes, and are encouraged and rewarded for such activity. This happens even though this brings about widespread concerns of bias and favoritism.
One objection to the adult model is that the faculty and student are in an unequal power relationship and that this inequality is bad or wrong. The idea here is that the professor carries with him (and it is almost always a male) a superior role that makes him able to control the nature and direction of the relationship. Under the libertarian model, there might also be grades that make the relationship even more unequal. This objection is often attributed to feminists in part because feminists argued against the adult model in the biggest battle over this issue, which occurred at the University of Virginia.
The power to control the nature and direction of a relationship doesn’t just depend on one’s position at work. It also depends on a person’s psychological strength, willingness to leave, and on her value in the dating market. The latter is in part a function of things like personality, intellect, and attractiveness. Because students often have far greater market value than the professor or than the other women or men he might date, it is not in the least bit clear that the professor has more power. More important, even if there were a power differential, it is not clear that this makes a relationship bad or wrong. Lots of couples differ in their power to shape the relationship (consider couples who differ in attractiveness, intelligence, and strength of personality) and no one thinks that this makes their relationship bad or wrong.
A second objection is that such relationships often involve premarital sex and such sex harms or degrades female students. The claim that such sex harms them might be an empirical claim about the psychological effects of premarital sex. I doubt there is evidence to back this up, but even if there were, an obvious solution would be to publicize the risk and then allow women to decide for themselves whether to take the risk. In general, we do this with regard to their sexual lives, so it is unclear why we should take a different approach in academia. The claim that such sex involves moral harm (best imagined coming from Saturday Night Live’s Church Lady) is the sort of lifestyle choice that is none of the state’s business. It is for this reason that the administrators and staff should not be in the business of discouraging homosexuality, promoting celibacy, and so on.
A third objection is that students are not adults. This objection is a variant on the sex-is-harmful objection, because even if this were true, protecting children against something makes sense only if it poses a significant risk of harm. As law professor Sherry Young has pointed out, the notion that mostly male administrators should ignore adult women’s own perceptions and preferences about their lives and sexuality infantilizes them. She points out that such protective rules resemble paternalistic measures like curfew restrictions and restrictions on overnight visitation that were abandoned years ago.
The administrators and feminists who seek to prohibit faculty-student relationships have a pinched and demeaning worldview. Their arguments against the adult model are unsupported by evidence, rely on false and irrelevant theories of power and sexuality, and infantilize students. As such, their arguments should be ignored and they should lose credibility.
Faculty-Student Consensual Relations and the Church Lady
Dunkirk-Fredonia Observer
April 26, 2010
At state colleges and universities, the issue of faculty-student romantic and sexual relations is an issue that refuses to go away. It often pits administrators and feminists with Victorian sensibilities against those with live-and-let-live attitudes about romance and sex. I should disclose that a number of the facts and ideas for this column come from SUNY-Fredonia philosophy professor and lawyer, Raymond Belliotti.
As a legal matter, only one public institution (College of William & Mary) bans all romantic and sexual relations between faculty and undergraduate students and between supervising faculty and graduate students. Such blanket prohibitions were rejected by other universities, including the University of Virginia, University of Washington, and the University of Texas at Arlington. Some private universities (for example, Rice University and Yale University) have adopted a version of the prohibition. The complete prohibition at state institutions is likely unconstitutional because it violates people’s rights to privacy and intimate association, rights strongly affirmed in a recent Supreme Court decision, Lawrence v. Texas, 539 U.S. 558 (2003). Even if such a ban were Constitutional, consider whether state colleges and universities should adopt it.
There are two models which track the view that faculty and student are adults (the “adult model”). On one model, the libertarian model, the regulation of romances should be governed by sexual harassment rules. Sexual harassment rules prohibit faculty attempting to trade grades or other benefits for romance or sex. They also prohibit hostile working environments, whereby repeated sexual attention makes someone uncomfortable. On a second model, the supervisory model, such relations are prohibited only when the faculty member supervises or evaluates the student. This second model allows faculty-student relations to be governed by the same rules that govern relationships between senior and junior faculty and between those administrators and staff with supervisory roles over others.
The adult model has a number of advantages. First, it makes it clear that when they leave the workplace, faculty and students’ lives are their own and not subject to meddling by administrators and staff. Consider what we would think if administrators who wanted to monitor the weekend habits of the faculty, including the churches they attend and the websites they visit. Second, it protects faculty and students from degrading investigations. For example, imagine some flabby old administrator at a Southern college asking a 22-year-old female student when an English professor first touched her breasts and you get the picture. At SUNY-Fredonia, there are allegations that administrators engaged in covert searches of faculty email when investigating one or more of the cases that have come up in the last few years. Third, unlike the adult model, the blanket prohibition discourages beneficial relationships and marriages. At Fredonia, there are quite a number of past and current faculty who are married to former students (not always their students). Because the benefits of marriage and children are weighty, opponents of the adult model must show that the costs of the adult model outweigh its benefits. They are unlikely to do so. Fourth, it fits with the view that students are adults and ought to be treated as such.
Fifth, the adult model prevents further intrusion into fraternization and non-romantic friendships that are common on campuses. As various professors have pointed out, feminist professors, African-American faculty, and advisors to student clubs often supervise and befriend students, sometimes hosting events in their homes, and are encouraged and rewarded for such activity. This happens even though this brings about widespread concerns of bias and favoritism.
One objection to the adult model is that the faculty and student are in an unequal power relationship and that this inequality is bad or wrong. The idea here is that the professor carries with him (and it is almost always a male) a superior role that makes him able to control the nature and direction of the relationship. Under the libertarian model, there might also be grades that make the relationship even more unequal. This objection is often attributed to feminists in part because feminists argued against the adult model in the biggest battle over this issue, which occurred at the University of Virginia.
The power to control the nature and direction of a relationship doesn’t just depend on one’s position at work. It also depends on a person’s psychological strength, willingness to leave, and on her value in the dating market. The latter is in part a function of things like personality, intellect, and attractiveness. Because students often have far greater market value than the professor or than the other women or men he might date, it is not in the least bit clear that the professor has more power. More important, even if there were a power differential, it is not clear that this makes a relationship bad or wrong. Lots of couples differ in their power to shape the relationship (consider couples who differ in attractiveness, intelligence, and strength of personality) and no one thinks that this makes their relationship bad or wrong.
A second objection is that such relationships often involve premarital sex and such sex harms or degrades female students. The claim that such sex harms them might be an empirical claim about the psychological effects of premarital sex. I doubt there is evidence to back this up, but even if there were, an obvious solution would be to publicize the risk and then allow women to decide for themselves whether to take the risk. In general, we do this with regard to their sexual lives, so it is unclear why we should take a different approach in academia. The claim that such sex involves moral harm (best imagined coming from Saturday Night Live’s Church Lady) is the sort of lifestyle choice that is none of the state’s business. It is for this reason that the administrators and staff should not be in the business of discouraging homosexuality, promoting celibacy, and so on.
A third objection is that students are not adults. This objection is a variant on the sex-is-harmful objection, because even if this were true, protecting children against something makes sense only if it poses a significant risk of harm. As law professor Sherry Young has pointed out, the notion that mostly male administrators should ignore adult women’s own perceptions and preferences about their lives and sexuality infantilizes them. She points out that such protective rules resemble paternalistic measures like curfew restrictions and restrictions on overnight visitation that were abandoned years ago.
The administrators and feminists who seek to prohibit faculty-student relationships have a pinched and demeaning worldview. Their arguments against the adult model are unsupported by evidence, rely on false and irrelevant theories of power and sexuality, and infantilize students. As such, their arguments should be ignored and they should lose credibility.
14 April 2010
The Moral Status of Hazing
Stephen Kershnar
Hazing: Naked in Ice Water
Dunkirk-Fredonia Observer
April 12, 2010
Hazing occurs when one person humiliates or imposes risky conditions on a second in return for some group-related benefit. The benefit might involve inclusion or promotion in the group. There is a widespread attempt to stop hazing, although the arguments for doing so are not too convincing.
At www.hazing.cornell.edu, Cornell University provides some examples of hazing. Cornell doesn’t specify which hazing acts were done by fraternities, sororities, sports teams, or military teams (ROTC groups). In one case, new members were made to do calisthenics to the point of collapse. In a second case, other new members (my guess, sorority sisters) were pressured to make out with members of the same sex. In a third case, new members were put under bright lights and interrogated. When they answered incorrectly, ketchup and mustard were thrown on them. In a fourth case, new members were made to lie down naked in a makeshift pool filled with six inches of ice water, beer, kitchen garbage, and urine.
Hazing is illegal in all but six states. In New York, depending on how it is done, hazing is a misdemeanor (Class A allows for up to a year incarceration) or violation (up to 15 days incarceration). It is also prohibited by many colleges and universities, including Cornell. Even the military prohibits hazing and classifies it as a criminal offense under the Uniform Code of Military Justice.
Despite this criminalization and other prohibitions, hazing is surprisingly common. One 2008 study by University of Maine professors Elizabeth Allan and Mary Madden found that 55% of college students (and 61% of males) involved in clubs, teams, and organizations experienced hazing. In fact, 47% experienced it before coming to college. This number goes up to 70% for those involved in a varsity team or who joined a fraternity or sorority. The most frequent types of hazing involve participating in drinking (drinking games or binge drinking), singing or chanting, and associating with specific people. The first two were the most common for varsity teams, fraternities, and sororities.
There are two main arguments for hazing. First, some defenders of hazing argue that it doesn’t wrong new members because they gave informed consent. The notion that you can’t be wronged by treatment to which you consented is widely accepted and used to explain why sex, wrestling, and surgery are not objectionable.
The second argument is that hazing is permissible because it is the best way to bring about desirable results. Proponents argue that hazing ensures that members are committed to their organization and each other, encourages bonding, and fosters a sense of exclusivity. Together these changes strengthen friendships and a sense of identification and pride in the group. Consider, for example, the commitment to each other, sense of brotherhood, and pride in their group found in Navy Seals, Green Berets, and Marines. This is likely due in no small part to the hellish training they go through.
Allan and Madden’s study provide some support for this beneficial-results view. They found that more student perceive positive than negative outcomes of hazing. In addition, a significant number (31%) said it made them feel more like a part of the group.
One objection to hazing, and probably the one that underlies criminalization and campus prohibitions, is that it causes unnecessary harm or involves coercion. The notion that it causes unnecessary harm depends on the claim that the benefits of hazing (commitment, bonding, and exclusivity) could be had in other ways. This is an empirical claim. I am not aware of any studies that support it. Perhaps there are some.
The notion that hazing usually involves coercion is a mistake. New members can avoid it simply by leaving the group. Some hazing is undoubtedly too dangerous, but from this it does not follow that all hazing is wrong.
A second objection is that hazing is degrading. Philosopher Michael Cholboi argues that a practice is degrading when its main goal is to subordinate another by getting him to accept his subordinate status. On this account, getting people to do lie in urinate-infused ice water or make out with members of the same sex (when not gay or bisexual) degrades them in this way. This might be seen as analogous to the degradation that accompanies being the submissive partner in bondage-and-domination sexuality.
The problem with Cholboi’s objection is that it is not clear that hazing does this. If enduring rough treatment is the means by which a group brings about commitment, bonding, and exclusivity, then it is not clear that hazing is, or should be seen as, subordinating. The data suggesting that students who have gone through hazing are more likely to view it positively than negatively and the data suggesting that nearly a third view it as more strongly bonding them to the group, suggests that many of those who are hazed don’t see it as degrading.
A third objection is that hazing exploits people’s desire to join fraternities, varsity teams, military units, and so on. Exploitation occurs when a person or group uses the desperation of a weaker person to make an unfair deal with the latter. The problem is that however much people want to join a fraternity, team, or military unit, they are not desperate in the relevant way (having only one reasonable option). For example, they are not similar to a starving woman who must trade sex for food. Even if new members are desperate, it is not clear that hazing is an unfair price to pay for the friendships, pride, and fun that accompanies membership in fraternities, elite military units, or varsity teams.
Despite the long history of hazing, prosecutors, military leaders, and campus administrators are trying to get rid of it. The arguments for doing so are unconvincing.
Hazing: Naked in Ice Water
Dunkirk-Fredonia Observer
April 12, 2010
Hazing occurs when one person humiliates or imposes risky conditions on a second in return for some group-related benefit. The benefit might involve inclusion or promotion in the group. There is a widespread attempt to stop hazing, although the arguments for doing so are not too convincing.
At www.hazing.cornell.edu, Cornell University provides some examples of hazing. Cornell doesn’t specify which hazing acts were done by fraternities, sororities, sports teams, or military teams (ROTC groups). In one case, new members were made to do calisthenics to the point of collapse. In a second case, other new members (my guess, sorority sisters) were pressured to make out with members of the same sex. In a third case, new members were put under bright lights and interrogated. When they answered incorrectly, ketchup and mustard were thrown on them. In a fourth case, new members were made to lie down naked in a makeshift pool filled with six inches of ice water, beer, kitchen garbage, and urine.
Hazing is illegal in all but six states. In New York, depending on how it is done, hazing is a misdemeanor (Class A allows for up to a year incarceration) or violation (up to 15 days incarceration). It is also prohibited by many colleges and universities, including Cornell. Even the military prohibits hazing and classifies it as a criminal offense under the Uniform Code of Military Justice.
Despite this criminalization and other prohibitions, hazing is surprisingly common. One 2008 study by University of Maine professors Elizabeth Allan and Mary Madden found that 55% of college students (and 61% of males) involved in clubs, teams, and organizations experienced hazing. In fact, 47% experienced it before coming to college. This number goes up to 70% for those involved in a varsity team or who joined a fraternity or sorority. The most frequent types of hazing involve participating in drinking (drinking games or binge drinking), singing or chanting, and associating with specific people. The first two were the most common for varsity teams, fraternities, and sororities.
There are two main arguments for hazing. First, some defenders of hazing argue that it doesn’t wrong new members because they gave informed consent. The notion that you can’t be wronged by treatment to which you consented is widely accepted and used to explain why sex, wrestling, and surgery are not objectionable.
The second argument is that hazing is permissible because it is the best way to bring about desirable results. Proponents argue that hazing ensures that members are committed to their organization and each other, encourages bonding, and fosters a sense of exclusivity. Together these changes strengthen friendships and a sense of identification and pride in the group. Consider, for example, the commitment to each other, sense of brotherhood, and pride in their group found in Navy Seals, Green Berets, and Marines. This is likely due in no small part to the hellish training they go through.
Allan and Madden’s study provide some support for this beneficial-results view. They found that more student perceive positive than negative outcomes of hazing. In addition, a significant number (31%) said it made them feel more like a part of the group.
One objection to hazing, and probably the one that underlies criminalization and campus prohibitions, is that it causes unnecessary harm or involves coercion. The notion that it causes unnecessary harm depends on the claim that the benefits of hazing (commitment, bonding, and exclusivity) could be had in other ways. This is an empirical claim. I am not aware of any studies that support it. Perhaps there are some.
The notion that hazing usually involves coercion is a mistake. New members can avoid it simply by leaving the group. Some hazing is undoubtedly too dangerous, but from this it does not follow that all hazing is wrong.
A second objection is that hazing is degrading. Philosopher Michael Cholboi argues that a practice is degrading when its main goal is to subordinate another by getting him to accept his subordinate status. On this account, getting people to do lie in urinate-infused ice water or make out with members of the same sex (when not gay or bisexual) degrades them in this way. This might be seen as analogous to the degradation that accompanies being the submissive partner in bondage-and-domination sexuality.
The problem with Cholboi’s objection is that it is not clear that hazing does this. If enduring rough treatment is the means by which a group brings about commitment, bonding, and exclusivity, then it is not clear that hazing is, or should be seen as, subordinating. The data suggesting that students who have gone through hazing are more likely to view it positively than negatively and the data suggesting that nearly a third view it as more strongly bonding them to the group, suggests that many of those who are hazed don’t see it as degrading.
A third objection is that hazing exploits people’s desire to join fraternities, varsity teams, military units, and so on. Exploitation occurs when a person or group uses the desperation of a weaker person to make an unfair deal with the latter. The problem is that however much people want to join a fraternity, team, or military unit, they are not desperate in the relevant way (having only one reasonable option). For example, they are not similar to a starving woman who must trade sex for food. Even if new members are desperate, it is not clear that hazing is an unfair price to pay for the friendships, pride, and fun that accompanies membership in fraternities, elite military units, or varsity teams.
Despite the long history of hazing, prosecutors, military leaders, and campus administrators are trying to get rid of it. The arguments for doing so are unconvincing.
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