Supreme Court Strikes Down Law Banning Depictions of Animal Cruelty, Citing ‘Alarming Breadth’ of Statute

On April 20, 2010, the Supreme Court of the United States struck down a federal law imposing criminal penalties on anyone who knowingly "creates, sells, or possesses a depiction of animal cruelty . . . for commercial gain," saying it was overly broad and violated the First Amendment right to free speech.

The justices voted 8-1 in United States v. Stevens, No. 08-769, 2010 U.S. LEXIS 3478 (U.S. April 20, 2010), to uphold a 3rd Circuit U.S. Court of Appeals decision to throw out the criminal conviction of Robert Stevens of Pittsville, Va., who was sentenced to three years in prison for videos he made of pit bull fights.

Stevens was convicted under 18 U.S.C. § 48, which criminalized anyone who "knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of . . . commercial gain." The law had an exception for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value," and defined "depiction of animal cruelty" as "any visual or auditory depiction . . . of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place" in that State.

The opinion, authored by Chief Justice John Roberts, noted that § 48 was enacted in 1999 to limit the Internet sales of so-called "crush videos," which feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. According to the opinion, crush videos often depict women slowly crushing animals to death with their bare feet or while wearing high heeled shoes in order to appeal to "persons with a very specific sexual fetish."

Although Stevens did not make crush videos, he ran a business called Dogs of Velvet and Steel, which included a website through which he sold videos of pit bulls engaged in dog fights and attacking other animals. After he was indicted for the videos under § 48, Stevens moved to dismiss the charges against him, arguing that the law violated the First Amendment.

The district court denied Stevens' motion by comparing the videos to child pornography, which is not protected by the First Amendment. Stevens was subsequently convicted and sentenced to 37 months in prison and three years supervised release.

The 3rd Circuit reversed, and declared § 48 an unconstitutional content-based regulation of protected speech. In its analysis, the 3rd Circuit said that the statute was neither narrowly tailored to preventing animal cruelty nor the least restrictive means of doing so. The court also declined to recognize a new category of unprotected speech for depictions of animal cruelty, and rejected the government's comparison between the dog fight videos and child pornography. (For more on the lower court opinions in Stevens, see "U.S. Supreme Court Will Hear Animal Cruelty Video Case" in the Spring 2009 Silha Bulletin.)

In its opinion, the Supreme Court first analyzed whether depictions of animal cruelty were a category of speech that fell completely outside the protection of the First Amendment.

The government argued that some speech, such as obscenity, fraud, and incitement, has not been traditionally protected under the First Amendment, and that depictions of animal cruelty should be added to that list. "Depictions of illegal acts of animal cruelty . . . lack expressive value, and they are integrally linked to harms to animals, humans, and society," the government's brief to the Court stated. "Accordingly, they may be regulated as unprotected speech."

Roberts' opinion rejected this argument, saying that the Court did not have "a freewheeling authority to declare new categories of speech outside the scope of the First Amendment."

"The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits," Roberts stated. "Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."

Roberts wrote that § 48 was overly expansive, calling it a "criminal prohibition of alarming breadth," which could theoretically be interpreted to criminalize depictions of legally wounded or killed animals.

"A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful," Roberts wrote. "In the District of Columbia, for example, all hunting is unlawful . . . [and] because the statute allows each jurisdiction to export its laws to the rest of the country,

§ 48(a) extends to any magazine or video depicting lawful hunting, so long as that depiction is sold within the Nation's Capital."

Roberts wrote that the broad wording of the statute left too much discretionary power in the hands of government prosecutors. "[T]he First Amendment protects against the Government," Roberts wrote. "We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

The Court specifically declined to address whether a more narrowly tailored statute prohibiting depictions of animal cruelty would have been found constitutional.

"However 'growing' and 'lucrative' the markets for crush videos and dogfighting depictions might be, they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of § 48," Roberts concluded. "We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that § 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment."

Justice Samuel Alito wrote the sole dissenting opinion in the case, arguing that § 48 was "a valuable statute . . . that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty." Alito argued that the majority's opinion would have "the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production."

"It is undisputed that the conduct depicted in crush videos may constitutionally be prohibited," Alito wrote. "But before the enactment of § 48, the underlying conduct depicted in crush videos was nearly impossible to prosecute.. . . Thus, law enforcement authorities often were not able to identify the parties responsible for the torture."

"Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct," Alito continued. "The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos.. . . Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue."

Alito argued that the majority should have applied the reasoning of New York v. Ferber, 458 U.S. 747 (1982), in which the Supreme Court upheld a New York law prohibiting child pornography because it determined (1) that the production of child pornography, and not its content, was the target of the statute, (2) that the distribution of child pornography was "intrinsically related to the sexual abuse of children," and (3) that the speech value of child pornography was "exceedingly modest."

"All three of these characteristics are shared by § 48, as applied to crush videos," Alito wrote. "It must be acknowledged that § 48 differs from a child pornography law in an important respect: preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos.. . . But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos."

The Humane Society of the United States said in a statement that it would press Congress to adopt a narrower ban on the sale of videos showing "malicious acts of cruelty," the Associated Press (AP) reported on April 20. According to the AP, Humane Society President Wayne Pacelle said hundreds of crush videos appeared on the Internet after the 3rd Circuit ruled in Stevens' favor in 2008. "This Court ruling is going to accelerate that trend," Pacelle said. "That's why it's critical that the Congress take action."

An April 21 Los Angeles Times story reported that Rep. Elton Gallegly (R-Calif.) introduced a new, "narrowly tailored" bill in the House of Representatives aimed at animal cruelty videos the day after the Court's ruling. "Violence is not a 1st Amendment issue; it is a law enforcement issue," Gallegly said, according to the Times story. "You are not allowed to cry 'fire' in a theater; you are not allowed to possess or distribute child pornography. You shouldn't be able to create and distribute videos that glorify the senseless killing of defenseless animals."

Gallegly's bill, H.R. 5092, was referred to the House Committee on the Judiciary after it was introduced on April 21.

Free-speech advocates, meanwhile, praised the court's decision in Stevens. "Speech is protected whether it's popular or unpopular, harmful or unharmful," said David Horowitz, executive director of the Media Coalition, in the April 20 AP story.

Several media groups, including National Public Radio (NPR), the Reporters Committee for Freedom of the Press, The New York Times, the Radio and Television News Directors Association, the Society of Professional Journalists, the American Society of Newspaper Editors, MediaNews Group and the National Press Photographers Association submitted a joint amicus brief in the case, encouraging the Court to overturn the law.

"NPR's interest is not in preventing the legitimate prosecution of such crime," said Joyce Slocum, NPR's general counsel, in an April 22 NPR story, "but in the effect of the statute on NPR's ability to report on such issues." In the NPR story, Slocum said that NPR had reported on dog fighting, puppy mills, and other animal cruelty incidents, and occasionally ran photos depicting the alleged mistreatment on its website.

"While the federal statute contained some exceptions, including journalistic use, those exceptions were not adequate," Slocum said. "In NPR's view, the statute could allow the federal government and courts presiding over cases brought under the law, to substitute their own news judgment in place of the judgment of an NPR editor."

- JACOB PARSLEY
SILHA FELLOW AND BULLETIN EDITOR

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This page contains a single entry by cla published on June 7, 2010 2:17 PM.

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