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Photographer: Vanderlei Almeida/AFP/Getty Images

Your Right to Take a Tiger Selfie

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Is New York state’s ban on “tiger selfies” the goofiest law of the year? It might be absurd for the state to pass a law banning the taking of photographs with jungle cats, but there’s nothing in the U.S. Constitution that bans absurd laws. The practical question -- at least if you’re a New York stud who wants a tiger selfie for your Tinder photo -- is whether the law is constitutional. If it is, you might have to travel to New Jersey (gasp) for your close encounter of the feline kind.

And if you aren’t on the edge of your seat already, don’t despair. Before you conclude that this is the sorriest legal column you’ve ever read, I promise there are deep free speech issues in the underlying constitutional problem. Really. And grrrr.

Let’s begin with the law. Apparently New York’s lawyers have been on the job. The state could’ve just banned the taking or distribution of photos depicting a civilian and a big cat. But that would’ve been a content-based ban that, in turn, would’ve triggered strict scrutiny from a court. The court would then have had to ask whether the law served an important government interest and was narrowly tailored to do so. That’s a high bar to reach.

Instead, doubtless on advice of legal counsel, the state set its sights lower. The law as written doesn’t ban the taking of photos or circulation of same. It bans what it calls “contact with a big cat” by a member of the public. The criminal liability falls not on the intrepid bro but on the dealer or exhibitor of the big cat.

On its face, the law seems constitutionally unexceptionable. It criminalizes conduct, not speech. And once the law is out of the realm of speech, discrimination or the like, it can be as idiotic as it wants to be, without implicating constitutional rights.

But not so fast. If the true purpose of the law is to protect people and cats from interspecies encounters, then the law is constitutionally impregnable. However, if its purpose is actually aimed at speech -- if it’s really about tiger selfies, that is -- a different legal test applies. Then it would be a law that burdens both speech and conduct.

Consider two classical examples. It was a crime to destroy your draft card, back when they had a draft. The purpose of the law wasn’t about speech but keeping the selective service system functioning. When people started burning draft cards to make a political point of opposition to the Vietnam War, the law had to consider the speech component of their actions as relevant. In the 1968 case U.S. v. O’Brien, the Supreme Court announced a new test to cover laws that barred conduct incidentally restricting speech.

The court said the First Amendment applied, as it would not if the law solely regulated conduct. When the law, however, regulates both speech and nonspeech elements of given conduct, the court first asks whether the law serves an “important” or “substantial” government interest. That interest must be “unrelated” to the suppression of speech. And the law must bar no more speech than is “essential” to the interest.

This standard was easier for the government to meet than the standard for laws directly regulating speech. But it was harder to meet -- considerably harder -- than the standard for laws that merely affect conduct.

The O’Brien standard has been especially important recently in free-speech law. In a landmark 2010 case Holder v. Humanitarian Law Project, the Roberts court held that nonviolent nonprofit organizations in the U.S. could not lawfully advise organizations on the State Department’s terrorist list to engage in nonviolent, otherwise legal speech. The court said that the law banning material support for terrorism -- a form of conduct -- extended incidentally to this form of speech. The case drastically cut back on available free speech compared with traditional doctrines protecting nonviolent advocacy of resistance to government.

So does the tiger selfie law fall within the O’Brien standard? That is, although ostensibly aimed at conduct, does it incidentally burden speech? The colloquial name of the law suggests that it does. The New York legislature was apparently concerned with images and their promulgation, not just speech. It could be argued to the contrary that the real concern was solely contact with dangerous animals. But the law against supporting terrorists wasn’t principally aimed at speech, and neither was the law against burning your draft card.

The connection to taking selfies is close enough to suggest the conduct prohibited incidentally burdened speech. After all, the people seeking the prohibited contact with tigers are seeking it for the purpose of speech, i.e. the taking and dissemination of selfies.

If O’Brien applies to the tiger selfie law, what then? First, we need to ask if banning contact serves an important governmental interest. The answer is: kinda. Protecting people from being mauled by cats seems important. Demeaning big cats seems less so. And it’s not totally clear what the law’s purpose really is.

Second, is the government interest unrelated to suppressing speech? Well, if the interest is safety, then yes. Of course, selfie-takers want the viewers of their pics to know they were in danger, but that’s a connection they make, not one the law creates. Score this one for the government.

The third part of the test is the trickiest. Does the law bar more speech than is essential to protect people and cats from harm? Well, yes, it may. If careful trainers and zoos can successfully protect the public even in moments of contact with big cats, then the law goes too far. The law prohibits all public contact -- and therefore all photographic speech recording and communicating such contact. This seems to be more than would be essential. Surely the trainers and zoos, who don’t want to be sued, can make reasonable judgments about the extent of exposure. An absolute ban functions as a ban on all tiger selfies. But an essential ban would target only the dangerous ones.

No doubt the state would say that all contact is dangerous enough to ban. That would be fine if the law didn’t implicate speech. But it does -- and so a higher standard applies.

Whether a court would actually go so far is, of course, uncertain. A court could say speech wasn’t involved. Or it could say the O’Brien standard was satisfied. Either way, the law would stand.

But the trainers and zoos have a case, should they choose to pursue it. I, and no doubt other First Amendment lawyers, would be glad to help. From a distance.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net