Caseflicks

Supreme Court of the United States • 2010

United States v. Stevens

559 U.S. 460 | 130 S. Ct. 1577 | 176 L. Ed. 2d 435 | 2010 U.S. LEXIS 3478

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Takeaway

In short, this case rejects a free-floating “low-value speech” exception to the First Amendment and holds that a broadly written content-based ban on animal-cruelty depictions cannot be saved by prosecutorial restraint or an implausibly narrow reading.

Background

Congress enacted 18 U.S.C. §48 to criminalize the commercial creation, sale, or possession of certain visual or auditory depictions in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, when the depicted conduct is illegal under federal law or the law of the place where the depiction is created, sold, or possessed. The statute exempted depictions with serious religious, political, scientific, educational, journalistic, historical, or artistic value. Congress was principally concerned with “crush videos,” which depict the torture and killing of animals for viewers with a particular sexual fetish.

Robert Stevens operated a business and website that sold videos of pit bulls engaged in dogfights, attacking other animals, and hunting wild boar. A federal grand jury charged him with three violations of §48. The District Court rejected his First Amendment challenge, treated depictions of animal cruelty as categorically unprotected speech, and convicted him. The en banc Third Circuit vacated the conviction and held §48 facially unconstitutional as a content-based restriction on protected speech. The Supreme Court affirmed, but principally on First Amendment overbreadth grounds.

Issues

Issue #1

Whether depictions of animal cruelty constitute a new category of speech wholly unprotected by the First Amendment.

Holding

No. Depictions of animal cruelty, as a class, are not categorically outside First Amendment protection.

Reasoning

Section 48 is a content-based restriction because it criminalizes visual and auditory expression based on what it depicts. Such restrictions are presumptively invalid, and the Government therefore had the burden to show that the regulated speech fell within a recognized category of unprotected expression.

The Court recognized that the First Amendment permits regulation of a few historic, well-defined categories, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. Although laws prohibiting animal cruelty have a long American history, the Government identified no comparable tradition of treating depictions of animal cruelty as unprotected speech.

The Government proposed a categorical balancing test under which speech would receive no First Amendment protection when its social costs outweighed its value. The Court rejected that approach as dangerously open-ended. The First Amendment itself makes the constitutional judgment that the benefits of limiting governmental censorship outweigh its costs; courts may not remove speech from constitutional protection through ad hoc cost-benefit balancing.

New York v. Ferber did not establish a general power to create new unprotected categories whenever the Government has a strong interest and the speech appears low in value. Ferber rested on the established principle that speech integral to criminal conduct may be regulated: the market for child pornography was intrinsically connected to, and helped sustain, the underlying sexual abuse of children. The Court did not decide whether a narrowly drawn ban on crush videos or similarly extreme material might be constitutional.

Issue #2

Whether §48 could be narrowly construed, through its text and exceptions clause, to reach only crush videos, dogfighting depictions, and other extreme cruelty.

Holding

No. The statutory text was not readily susceptible to the Government's proposed narrow construction.

Reasoning

The statute broadly covered any depiction in which an animal was intentionally “wounded” or “killed” if the conduct violated a federal or state law. Those ordinary terms do not themselves require cruelty. Nor did the statute limit itself to violations of animal-cruelty laws; it could cover conduct made unlawful for unrelated reasons, such as hunting restrictions, endangered-species rules, livestock regulations, or other wildlife-management laws.

Section 48 also made legality turn on the law of the jurisdiction where a depiction was created, sold, or possessed, even if the depicted conduct occurred elsewhere. Thus, material showing conduct lawful where it occurred could become criminal when sold in a jurisdiction that prohibited the same activity. The Court emphasized that animal-related regulations differ sharply among the States and territories, creating a nationwide patchwork of possible criminal liability.

The exceptions clause did not cure that breadth. It protected only material with serious value within specified categories, but much ordinary speech—including recreational hunting videos and magazines—may not have serious educational, journalistic, historical, artistic, or other enumerated value. First Amendment protection extends well beyond speech that can meet a serious-value test.

The Court declined to accept the Government's assurance that prosecutors would pursue only extreme cases. Constitutional protection cannot depend on prosecutorial grace. And construing §48 to reach only depictions of extreme cruelty would require rewriting the statute rather than adopting a permissible limiting interpretation.

Issue #3

Whether §48 was facially invalid under the First Amendment overbreadth doctrine.

Holding

Yes. Section 48 was substantially overbroad in relation to its plainly legitimate applications and therefore facially invalid.

Reasoning

In a First Amendment overbreadth challenge, a statute may be struck down when a substantial number of its applications are unconstitutional in relation to its plainly legitimate sweep. After construing §48 according to its text, the Court concluded that it reached many depictions of lawful or ordinary activities that are presumptively protected speech.

The Government defended the statute chiefly as applied to crush videos and animal-fighting depictions, arguing that such material is tied to unlawful conduct or resembles obscenity. But it did not defend the statute's application to the much larger universe of protected expression within its literal reach, such as hunting magazines, hunting videos, and depictions of other regulated animal-related conduct.

Because the statute's impermissible applications substantially outnumbered its potentially valid applications, §48 was substantially overbroad. The Court therefore affirmed the Third Circuit's judgment and invalidated the statute without deciding whether a properly limited statute targeting crush videos or other extreme depictions of animal cruelty would survive First Amendment scrutiny.

Dissents

Justice Alito

Reasoning

Justice Alito would not have reached facial overbreadth first. In his view, Stevens had raised an as-applied challenge concerning his dogfighting videos, and the lower court should have decided whether §48 was constitutional as applied to those particular videos before using overbreadth doctrine, which he described as strong medicine reserved for a last resort.

He also believed the majority read §48 too broadly. Applying constitutional avoidance, he would construe “depiction of animal cruelty” to cover only conduct made unlawful by animal-cruelty laws, not conduct prohibited for unrelated regulatory reasons. On that reading, ordinary hunting depictions would generally fall outside the statute because state cruelty statutes ordinarily exempt lawful hunting; in any event, he believed hunting depictions generally possess serious scientific, educational, or historical value under §48(b).

Justice Alito maintained that crush videos have a substantial constitutional core under the reasoning of New York v. Ferber. They record actual criminal torture; the abuse is committed to create commercially valuable recordings; and targeting the market for those recordings may be the only effective means of stopping the underlying crime because the perpetrators often cannot be identified or prosecuted directly.

He reached the same conclusion for depictions of dogfighting. Dogfights are illegal throughout the United States, and their recordings can support the clandestine dogfighting enterprise by documenting dogs' fighting ability, facilitating gambling, training organizers, and creating an economic market for the violence. Because §48 excluded material with serious value, he concluded that the statute had a broad legitimate application to crush and dogfighting videos, while the supposed unconstitutional applications were at most isolated and insufficient to establish substantial overbreadth.