The U.S. Supreme Court today handed down its ruling on U.S. v. Stevens, 08-769, and by an 8-1 decision, upheld the decision of the Third U.S. Circuit Court of Appeals in Philadelphia, nullifying a federal law banning the practice of filming cruelty against animals, citing First Amendment speech protection.
The case centered around Robert Stevens of Pittsville, Virginia, who ran a business and website selling videos of pit bull fights. He was caught in an F.B.I. sting and was consequently sentenced to three years in prison for violating a 1999 law banning the sale of videos portraying animal cruelty.
Apparently, this law was passed to ban stop a flood of “crush videos,” which cater to a fetish and shows women crushing small animals with their feet. Since the ban, “crush videos” have all but disappeared.
However, Stevens claimed he was a documentary filmmaker, and was making documentaries about pit ball fighting. A federal judge first turned down his First Amendment claim, but the Third Circuit Court called the law unconstitutional on First Amendment grounds.
There are several aspects of this decision that are interesting outside of the subject. First, is that the Supreme Court, while affirming the Third Circuit Court’s decision, used a different line of reasoning to achieve the same end. The Third Circuit had thrown away the law as written; it was unconstitutional by any means. The Supreme Court, on the other hand, decided that the law “is substantially overbroad, and therefore invalid under the First Amendment.” In other words, it could be interpreted to ban many other subjects which would otherwise be considered constitutionally legal. One example Chief Justice Roberts, in his opinion, noted, was hunting videos (prepare for long quotation):
Moreover, §48 applies to any depiction of conduct that is illegal in the State in which the depiction is created, sold, or possessed, “regardless of whether the…wounding…or killing took place” there, §48(c)(1). Depictions of entirely lawful conduct may run afoul of the ban if those depictions later find their way into States where the same conduct is unlawful. This greatly expands §48’s scope, because views about animal cruelty and regulations having no connection to cruelty vary widely from place to place. Hunting is unlawful in the District of Columbia, for example, but there is an enormous national market for hunting-related depictions, greatly exceeding the demand for crush videos or animal fighting depictions. Because the statute allows each jurisdiction to export its laws to the rest of the country, §48(a) applies to any magazine or video depicting lawful hunting thatis sold in the Nation’s Capital. Those seeking to comply with the law face a bewildering maze of regulations from at least 56 separate jurisdictions.
Additionally, the government was unable to convince the Court that videos containing animal cruelty should be exempt from First Amendment protection because “depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection.” Instead, it found that:
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
The Court wanted to make sure that its Ferber decision (upholding the ban on child pornography) was not extended to arbitrary forms of expression, and “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
Justice Alito, in his dissent, actually makes an interesting and somewhat novel argument. He argues that the Court should not have used the overbreadth approach, but should have interpreted the case as it stood against Stevens in that particular case. In this case, Alito actually believes that the law, and the case against Stevens, is entirely constitutional. He writes first that:
The Court of Appeals—incorrectly, in my view—declined to decide whether §48 is unconstitutional as applied to respondent’s videos and instead reached out to hold that the statute is facially invalid.
In addition, in rebuking the Supreme Court’s decision:
The “strong medicine” of overbreadth invalidation need not and generally should not be administered when the statute under attack is unconstitutional as applied to the challenger before the court. As we said in Fox, supra, at 484–485, “[i]t is not the usual judicial practice, … nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily—that is, before it is determined that the statute would be valid as applied.”
He believes an overbreadth analysis, as “a potion that generally should be administered only as \’a last resort,’” when determining a law\’s constitutionality, is unnecessary. He addresses the Court\’s fears for overreaching interpretations, including a possible prohibition on hunting videos, but finds them flawed. For example, he believes when interpreted correctly, the ban would have no bearing on hunting videos:
I do not have the slightest doubt that Congress, in en-acting §48, had no intention of restricting the creation, sale, or possession of depictions of hunting. Proponents of the law made this point clearly.
He adds that other Court concerns could be dealt with either through right interpretation of the exceptions under the law, which would be preferable to throwing the entire law away.
On whether the law was, on its face, constitutional, he, in direct contradiction to the Court, applies the Ferber standard to show that the ban is, indeed, constitutional. The videos, portraying animal cruelty, “present a highly unusual free speech issue because they are so closely linked with violent criminal conduct.” First, because Ferber allowed the ban of child pornography because the making of the video was so linked to the action of the abuse of the children. Secondly, because the only way to combat the abuse was the prohibit the video, which Alito finds has been the case with “crush videos.” Third, because the value of the expression is vastly outweighed by the harm to the victim. Finally, Alito reasons that all the reasons for allowing the ban of crush videos applies to videos of animal fighting.
Alito does have a very persuasive case in his dissent. It’s actually hard to believe this case was as lopsided as it was. Chief Justice Roberts was correct: the First Amendment should not be held to arbitrary standards. However, it is hard to believe that the statute as written can rationally be interpreted to be as broad as the majority would make it. And, it seems the only way to find it unconstitutional is to apply the overbreadth argument against it, as Alito’s case for reading it against Ferber is, at least superficially, far more sound than the majority’s case against it.
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