The First Amendment isn’t what it used to be. It used to be an integral part of the Bill of Rights. It’s more of a slogan now. Its common meaning, once vigorous, has been slaughtered on the altar of intellectual complacency and insipid self-gratification. Its invocation today is more banal than brave; more ordinary than audacious.
One recent illustration of this is the opposition to Indiana’s Senate Bill 373. The bill would make it illegal for someone to take video or images of an agricultural operation without the consent of the owner. The bill would not apply to law enforcement officers. Since the Fourth Amendment requires a warrant, the net effect of the bill is to say that only police officers (presumably for good cause shown) can enter into private agricultural property and take pictures without the permission of the owner.
By the reaction of some, including Matthew Tully of the Indy Star, you would think SB 373 protected Abu Ghraib-style secret prison abuse of animals. Tully recently lamented the bill, arguing that it creates a society where “bad actors know they’ll be able to get away with more,” and “face less chance of public embarrassment and ridicule[.]” Of course, those playing by the rules will also face less chance of unwarranted public embarrassment and ridicule, and that’s the point the bill’s detractors are missing. But like the proverbial hammer-wielding carpenter for whom everything begins to look like a nail, Tully suggests that the weapons of free speech – “embarrassment and ridicule” – are the most effective tools society has to combat wrongdoing.
In reality, law enforcement is both more effective and better-equipped to address most criminal behavior, including animal cruelty. Aside from some specific exceptions, law enforcement officers must seek a warrant before entering onto private property. This requires probable cause, shown to a judge. Only then can the alleged wrongdoer be charged with a crime, and only if guilt is proven beyond a reasonable doubt will punishment be tolerated. These steps are rooted in protections as integral to the Constitution as the vaunted First Amendment.
But for the Über Free Speech crowd, that path is too slow and ineffective. After all, they say, what if the system protects its own and the wrongdoer escapes the justice of the First Amendment posse? Ask Richard Jewel, George Zimmerman, or the Duke lacrosse team about the “justice” of embarrassment and ridicule in lieu of thorough criminal investigations.
Tully even acknowledges that the bill creates an exception for those who turn the video over to law enforcement within 48 hours. But that’s still not good enough: “So, what, we’re going to hope that the sheriff in Farmtown, Indiana, suddenly joins PETA?” he asks. With all due respect, this question betrays the heart of the bill’s opposition. Not only is Tully impatient with Constitutional protections that happen to reside outside of the First Amendment, he doesn’t trust elected officials in “Farmtown” to uphold their oaths of office. (I’ve never been to Farmtown, but I’m guessing it lies somewhere outside of the commute between Carmel and downtown Indianapolis.) A single prosecution for animal cruelty, while effective, is not sensational. It’s not You Tube-worthy. Which means it’s dull news and not an effective fund raiser for PETA.
By the way, would Tully’s boss object to a broadcasted hidden video of the goings-on of the editorial boardroom of the Indianapolis Star? Of course he would. Hidden video is only a noble cause when it finds wrongdoing. All of the hidden video that is taken and unused–or worse, falls in the hands of competitors–doesn’t catch bad behavior at all. It erodes private property rights.