Entertainment, Art, and the Social Sorting of Violent or Cruel Images
Thomas D. Barton
California Western School of Law
July 9, 2010
The adverse social and psychological consequences of media violence have never been conclusively verified, but the risks are troubling. Legal efforts to address those risks have been largely futile, as recently demonstrated by United States v. Stevens, in which the U.S. Supreme Court struck down federal legislation that sought to eliminate “crush” and other animal cruelty videos. The power to regulate these images under existing First Amendment exceptions, or by a new theory, is nonetheless evident. That eight Justices did not more strongly explore the legal possibilities reflects social reality: that the viewing public does not clamor for government regulation of violent or cruel images.
This Essay explains the relatively muted social response to the risks of media violence by positing viewers’ unconscious sorting of violent images into three categories: “entertainment;” “art;” or “offense/threat.” Only images perceived as offensive or threatening generate social and moral pressure for stronger legal regulation. Since relatively few images are so perceived, free speech concerns generally trump calls for censorship.
But why are so few violent images deemed offensive? What qualities or contexts cause violent images to be perceived as either harmless “entertainment” or as socially valuable “art?” That exploration uncovers deep intertwining of cultural values, artistic appreciation, and moral disengagement. Can and should the law undertake to re-shape cultural values by regulating such images? Have sex and violence become culturally legitimated as artistic expressions of our freedom or humanity?
This Essay’s attention to the social and psychological sorting of violent images may sharpen the focus of legal reform efforts. Yet even where public censorship remains unwise, stronger self-awareness of the phenomenon and criteria of the sorting process may make private viewing choices more thoughtful.
Keywords: First Amendment, Free Speech, Obscenity, Violence, Media, Art, Animal Cruelty
Date posted: July 10, 2010 ; Last revised: July 16, 2010