May the government permissibly ban depictions of animal cruelty under the First Amendment?
The United States prosecuted Robert J. Stevens (“Stevens”) for violating 18 U.S.C. § 48, which states: “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.” Stevens was prosecuted for selling videos depicting dog fights. Stevens claimed that § 48 violates his First Amendment right to free speech and is therefore unconstitutional. The Third Circuit held that § 48 reached a form of protected speech and that the government’s interest in preventing animal cruelty is not a sufficiently compelling interest to justify a ban on depictions of animal cruelty. How the Supreme Court decides this case will reflect its view on the scope of the First Amendment right to speech and affect the power of Congress to identify new areas of unprotected speech.
Questions as Framed for the Court by the Parties
Whether 18 U.S.C. § 48 is facially invalid under the Free Speech Clause of the First Amendment.
Robert J. Stevens (“Stevens”) operated a business that advertised and sold pit bull-related videos and merchandise. During an investigation, law enforcement officials bought three videotapes from Stevens, the first two showing footage of pit bulls in dogfights, and the third showing footage of trained pit bulls attacking wild boar. In April of 2003, law enforcement officials searched Stevens’ residence and found several copies of the videos and other related merchandise. In March of 2004, a grand jury sitting in the District Court of Western Pennsylvania indicted Stevens for violating 18 U.S.C. § 48, which prohibits a person from knowingly creating, selling, or possessing “a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” Legislative history suggests that Congress enacted § 48 in 1999 with a view toward curbing the sale of “crush videos”— fetish videos showing footage of women inflicting torture on animals.
Stevens moved to dismiss the indictment, arguing that § 48 violated his First Amendment right to free speech and was therefore unconstitutional. However, the District Court denied Stevens’s motion, and a jury found Stevens guilty on three counts of violating § 48. The District Court sentenced Stevens to thirty-seven months of imprisonment. Stevens appealed his convictions to the Third Circuit Court of Appeals.
Sitting en banc, the Third Circuit vacated Stevens’s conviction. The Third Circuit analyzed § 48’s constitutionality by comparing this case to New York v. Ferber, in which the Supreme Court ruled that child pornography depicting actual children is unprotected under the First Amendment. The Court determined that while the government has a compelling interest in “safeguarding the physical and psychological well-being of [children]” which justifies the prohibition of child pornography, the government’s interest in “preventing cruelty to animals” is not sufficiently compelling to justify § 48’s ban on depictions of animal cruelty.
The Third Circuit based its determination on three reasons. First, the court suggested that the government’s interest in “preventing animal cruelty” is not a compelling interest because the Supreme Court previously held that a city ordinance prohibiting animal sacrifice violated the Free Exercise Clause even though the city claimed it had a compelling interest in protecting animals. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) Second, the Third Circuit pointed out that whenever the Supreme Court has restricted free speech rights to further a government interest, the interest has always related to the well-being of humans, as opposed to non-humans. Finally, the Third Circuit held that there is an insufficient link between § 48 and “preventing cruelty to animals,” because § 48 merely prohibits the depiction of animal cruelty, instead of actual cruelty to animals.
The United States petitioned the Supreme Court for certiorari, which the Court granted on April 20, 2009.
While the First Amendment protects the freedom of speech, the Supreme Court has recognized certain narrow categories of speech that are unprotected by the First Amendment. Categories of unprotected speech include fighting words, child pornography, obscenity, and words that “imminently incite illegal activity.” This case will turn upon whether depictions of animal cruelty are a category of protected speech, and if so, whether the government has a compelling interest in restricting the depiction of animal cruelty that justifies banning such depictions and whether § 48 is narrowly tailored to meet that interest.
Protected Speech or Unprotected Speech?
Petitioner, the United States, argues that depictions of animal cruelty that are made, sold, or possessed for commercial gain constitute a narrow category of unprotected speech that may be prohibited. The United States argues that under Chaplinsky v. New Hampshire, in order to determine whether a category of speech is protected under the First Amendment, courts should use a “categorical balancing analysis” that compares the “expressive value” of the speech with its “societal costs.” The government points out that Chaplinsky held that the categories of unprotected speech are those that constitute “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” The United States analogizes depictions of animal cruelty to the narrow unprotected category of child pornography. Like child pornography, the United States argues the depictions of animal cruelty that § 48 prohibits have little or no value and do not “constitute an important and necessary part of a literary, scientific, or educational work.” The United States contends that the cost of allowing this category of speech includes a direct harm to animals, an “attendant harm to humans,” and a negative impact on public morality. The United States also points out that § 48(b) contains a carve-out provision that excepts from prohibition any depictions of animal cruelty that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” According to the United States, this carve-out ensures that those depictions of animal cruelty that have genuine societal value are permitted.
Respondent, Robert J. Stevens (“Stevens”), argues that it is history and tradition rather than Congressional “ad hoc” balancing of interests that determines when a category of speech is unprotected. According to Stevens, history and tradition have allowed the categorical prohibition only of speech that leads to some kind of imminent crime or injury and speech that constitutes obscenity or child pornography. Stevens contends that unprotected categories of speech are those “for which the Constitution never intended protection” rather than “those forms of speech that the legislative majority just prefers not to protect.” As support for this contention, Stevens points out that the First Amendment makes no suggestion of a balancing test, but rather states, “Congress shall make no law…abridging the freedom of speech.” Stevens urges that the Chaplinsky balancing test does not permit Congress to prohibit speech without consideration of the “original intent, history [and] tradition” of the First Amendment.Stevens points out that while acts of animal cruelty have been traditionally outlawed, since the time of the First Amendment’s adoption, there had never been prohibitions on depicting animal cruelty until Congress passed § 48. Stevens also argues that even if a pure balancing approach is appropriate, the government’s interest analysis is flawed. He contends that because depictions of animal cruelty can be used by animal rights groups, journalists and politicians to encourage the proper treatment of animals, and to spur debate over animal cruelty, this kind of speech has expressive value and is categorically protected. Stevens also claims that the carve-out in § 48(b) for “serious value” depictions fails to make § 48 constitutional. Stevens claims that the very existence of the carve-out demonstrates that depictions of animal cruelty are not “categorically unworthy of constitutional protection.” Stevens contends that § 48 permits the Humane Society and reporters to use depictions of animal cruelty because the depictions are deemed educational or journalistic, but has led to Stevens’ incarceration simply because “his condemnations of dogfighting were not deemed enthusiastic enough.” Stevens argues that this is a form of unconstitutional viewpoint discrimination.
Strict Scrutiny and Burden of Proof
Because § 48 places content-based restrictions on speech, if the speech is protected, then the statute will be subject to strict scrutiny review. Under strict scrutiny review, a statute must be narrowly tailored to promote a compelling government interest, and if a less restrictive alternative would serve the government’s purpose, the legislature must use that alternative. The Third Circuit held that the prevention of animal cruelty was not a compelling interest that could justify § 48’s speech restriction, and that the statute was not narrowly tailored to meet the government’s purported interest.
The United States acknowledges that if § 48 governs protected speech, any of its applications would have to meet strict scrutiny. However, the United States argues that several Supreme Court cases held that when the facial validity of a speech-limiting statute is at issue, and the statute “reaches both unprotected and arguably protected speech,” the challenger has the burden of establishing that the statute is substantially overbroad because the challenger is attempting to eliminate all applications of the statute.
Stevens disagrees that he has the burden demonstrating that § 48 is substantially broad. Stevens argues that his primary concern is the constitutionality of his criminal conviction, and that it is the government who made the facial validity of the statute in issue by prohibiting an entire category of speech. Stevens argues that because the government prosecuted him for speech in virtue of the fact that it belonged to a certain category, he is simply “respond[ing] in kind by challenging the category enforced against him.” Stevens points out that the government “never tried to show that Stevens’ speech lacks constitutional protection in its own right.”
Regardless of the burden of proof, the United States argues that many applications of § 48, including its prohibition of crush videos and dog fighting videos, would withstand strict scrutiny review because the statute serves compelling government interests and is narrowly tailored to meet those interests. The United States identifies three compelling interests: “reinforcing the prohibitions of animal cruelty,” preventing criminal activities that are related to animal torture or cruelty, and the “protecting public mores from the corrosively anti-social effects” of depictions of animal cruelty. The United States claims that § 48 effectively prevents cruelty to animals by taking away the underlying financial benefit in crush videos and animal fighting videos, and that this financial benefit is what creates the significant link between enforcing animal cruelty laws and prohibiting the depictions of cruelty. In addition, the United States contends that cruelty to animals is antisocial and can lead to violence against humans. Finally, the government argues that the speech restriction is tailored to limit only a set of well-defined depictions of illegal animal cruelty made for commercial gain and that the carve-out properly narrows the scope of its restriction to depictions that have no “serious value.”
Stevens, on the other hand, contends that § 48 “does not advance a compelling government interest” and is substantially overbroad. First, Stevens argues that the legislative history of § 48 demonstrates only an interest in targeting crush videos, which are already subject to general obscenity law, and that the legislative history actually “disavows” any intent to cover animal fighting. Stevens also points out that because dog fighting itself carried a lesser penalty than a violation of § 48 at the time of his conviction, it is illogical for the government to say § 48 serves the government’s interest in prohibiting animal fighting. Stevens further argues that the government has not shown enough evidence that depictions of animal cruelty are so lucrative that banning them will reduce the underlying violence or that viewing depictions of animal cruelty leads to violence against humans.Stevens contends that the government has the burden to demonstrate that its speech restriction of animal cruelty will alleviate the harm to a substantial degree.
The Supreme Court has long recognized that the government usually cannot suppress an individual’s speech because of the message’s content. National consensus against animal cruelty is also long-standing, as all fifty states have maintained laws against animal cruelty for at least a century. In this case, the Supreme Court must balance these interests, and the resolution of this case will determine the ability of Congress to ban certain kinds of speech.
Petitioner, the United States, argues that 18 U.S.C. § 48 plays an important role in the government’s efforts to decrease the incidence of animal cruelty. Because animal fighting and “crush videos” rarely reveal the identity of perpetrators or the location of the animal killings, the United States maintains that § 48 necessarily targets depictions of animal cruelty instead of actual acts of animal cruelty. Florida and twenty-five other states argue that § 48 supplements and fills gaps in the enforcement of state laws against animal cruelty by targeting people who sell depictions of animal cruelty in multiple jurisdictions and operate outside the reach and jurisdiction of state law enforcement. The United States also argues that § 48 serves to counteract the financial incentives driving the animal killings depicted in these videos. For example, the American Society for the Prevention of Cruelty to Animals claims that dog fighting videos perpetuate animal cruelty due to their central role in the dog fighting world—videos are often used to document a fighting dog’s “success rate” and “attack specialty.” Finally, the Humane Society asserts that § 48 has been effective, arguing that the crush video industry was virtually dead in 2007, but that after the Third Circuit’s decision, crush videos are again available online.
The United States further contends that combating animal cruelty is important for preventing harm to both humans and animals. Because research has shown that animal abuse can lead to violence towards humans, the United States argues that it has an additional interest in preventing animal cruelty apart from protecting animal welfare. The United States also claims that because dog fighting and other organized forms of animal cruelty are associated with other criminal ventures, “including gang activity, drug dealing, and illegal gambling,” combating animal cruelty is an important part of the government’s efforts to eradicate all of these harms.
Respondent, Robert J. Stevens (“Stevens”), argues that depictions of intentional harm to animals can have genuine expressive value and that such depictions should not be categorically banned because some find them offensive. For example, Stevens points out that animal rights activists, journalists, and others have properly used depictions of animal cruelty to stimulate debate about the treatment of animals. Additionally, Stevens claims that § 48 could potentially reach many popular culture depictions of animal cruelty that “pervade American culture,” pointing to novels such as Ernest Hemingway’s Death in the Afternoon, which includes pictures of bulls in actual bullfights, and movies such as Fast and Furious 4, which includes footage of a Mexican cockfight. In support of Stevens, the Cato Institute argues that if the Supreme Court decides to preserve § 48, Congress would be free to ban other forms of expression, including the “defamation” of religion and depictions of criminal acts in general whenever it felt that the benefits of a speech ban outweighed the costs.
Stevens further argues that § 48 is too vague about what kind of speech is prohibited. Section § 48(b) contains an exception for depictions that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” but Stevens asserts that this carve-out would have a “chilling effect” on speech, because people will be afraid to speak for fear of inadvertently violating a law. The National Rifle Association of America (“NRA”) shares this sentiment, stating in its amicus curiae brief that it is worried that popular hunting videos and media might violate § 48. The NRA points out that since hunting is illegal in the District of Columbia, such media technically constitute “depictions of animal cruelty” since § 48(c) includes any depictions of the unlawful killing of animals. Both the NRA and the First Amendment Lawyers Association argue that § 48(b)’s carve-out for “serious value” works does not solve this problem of uncertainty because jurors will inevitably be influenced by their subjective impressions of what constitutes “serious value.”
Thus, the Supreme Court’s decision in this case will implicate the government’s and animal rights proponents’ interests in retaining the viability of § 48, as well as the interests of free speech advocates who view § 48 as an overly broad and vague statute.
In this case, the Supreme Court will decide whether 18 U.S.C. § 48 is facially invalid under the Free Speech Clause of the First Amendment. The Supreme Court will consider whether depictions of animal cruelty made for commercial purposes are a category of protected or unprotected speech under the First Amendment. If the Supreme Court determines such depictions are a form of protected speech, the Court will then determine whether § 48 survives strict scrutiny. A decision for Stevens will maintain First Amendment protection for depictions of animal cruelty, even though the underlying activities are unlawful. However, a decision for the United States may demonstrate that Congress can regulate speech depicting unlawful and “antisocial” activities if carves out exceptions for instances of “serious value.”
- Wex: Law about First Amendment
- Animal Legal & Historical Web Center: Facts and history about dog fighting
- The First Amendment Center: Free speech
- The Humane Society: Excerpts from Stevens’s videos
- Robert Barnes: “Supreme Court to Weigh First Amendment Protections for Animal Abuse Videos”