A case brief, history, summary, and link to opinions follow for the Supreme Court Case of United States v. Robert J. Stevens.
Case Brief: United States v. Robert J. Stevens, 559 U.S. ___ (2010)
Case History: Motion to dismiss denied, No. 2:04-cr-00051-ANB (W.D. Pa. Nov. 10, 2004); defendant convicted; vacated, 533 F.3d 218 (3d Cir. 2008); cert. granted, 556 U.S. ___ (2009);Argued October 6, 2009
Decided April 20, 2010; United States v. Stevens, 559 U.S. ___ (2010)
Case Holding: United States v. Stevens, 559 U.S. ___ (2010) was a decision by the Supreme Court of the United States, which ruled that 18 U.S.C. § 48, a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals, was an unconstitutional abridgment of the First Amendment right to freedom of speech.
Majority Opinion: Roberts, joined by Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor
Case Summary: 18 U.S.C. § 48 was a federal criminal statute that prohibited the knowing creation, sale, or possession of depictions of cruelty to animals with the intention of placing the depiction in interstate or foreign commerce for commercial gain. The law had been enacted in 1999, primarily to target “crush videos”, which depicted people crushing small animals to gratify a sexual fetish. It excluded from prosecution “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value;” this language tracked the “Miller test” the U.S. Supreme Court used to determine whether speech could be prosecuted for obscenity or was protected by the First Amendment.
In 2004, Robert J. Stevens was indicted under 18 U.S.C. § 48 for creating and selling three video tapes, two of which depicted pit bulls engaged in dog fighting. The third tape depicted a pit bull attacking a domestic pig as part of the dog being trained to catch and kill wild hogs; this video included “a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig.” Although Stevens’ criminal prosecution concerned only three tapes, he had made $20,000 in two and a half years from selling nearly 700 videos. Stevens was not accused of engaging in animal cruelty himself, nor of shooting the original footage from which the videos were created. However, the footage in each of the videos “is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author.”
Stevens filed a motion to dismiss the indictment, arguing that the federal statute abridged his right to freedom of speech under the First Amendment. The District Court denied his motion in November 2004. In January 2005, Stevens was convicted by a jury.
Stevens appealed, and the Third Circuit vacated his conviction, holding that 18 U.S.C. 48 violated the First Amendment. The court stated that dog fighting, or the use of dogs to hunt hogs, may be made illegal to protect animals from cruelty. However the court ruled that the law in question, prohibiting the depiction of animal cruelty, violates the First Amendment, as it would create a new category of speech not protected by the free speech provision of the Amendment.
The Attorney General sought to overturn the Third Circuit decision and uphold the statute. The Animal Legal Defense Fund filed a brief in defense of the animals’ interests. (see blog posting http://www.aldf.org/article.php?id=1329). The brief encouraged the Court to recognize the protection of animals as a compelling government interest and uphold Section 48. Association of American Publishers (AAP) filed an amicus brief opposing the law and asking the Supreme Court to affirm the Third Circuit ruling striking the law as an important affirmation of the First Amendment’s free speech guarantee.
Petitioner’s Argument: In its brief on the merits, the government emphasizes that the fundamental test for determining whether a category of speech is protected under the First Amendment remains the one set forth in Chaplinsky v. New Hampshire. That test requires the court to balance the value of the speech against its social cost, without necessarily looking to the pre-existing categories. The Third Circuit should have applied this balancing test, the government argues, rather than seeking to analogize § 48 to an existing category of unprotected speech. Applying the balancing test, the government emphasizes that the statute was carefully drafted to limit its scope to “harmful material with little or no social utility”: it requires that the material depict a living animal that is seriously injured or killed and that the material be knowingly created, sold or possessed with the specific intention of placing it in interstate or foreign commerce for commercial gain. Moreover, the government notes, the statute contains an exception for works of serious value. Because the statute is narrowly tailored to reach only truly harmful speech with low value, the harm caused by the speech greatly outweighs its expressive value
Respondent’s Argument: Stevens argues that using “legislative ‘balancing analysis’” creates categories of unprotected speech is contrary to both the text of the First Amendment and established case law, and is “overbroad.”. § 48 clearly covers protected speech, such as documentaries about dogfighting and slaughterhouses, Spanish bullfights, popular movies with depictions of animal cruelty, and popular hunting videos. Also, animal rights groups use similar images in their own advocacy to raise awareness and support for their causes, suggesting that the only difference between their use and his use of the images is the viewpoint expressed. The law does not advance a compelling interest, and is neither narrowly tailored nor the least restrictive means of advancing its stated interest. Although the government claims that the compelling interests at issue are “animal cruelty and animal-fighting,” the legislative history specifically disavowed these broad purposes and instead focused on the specific problem of “crush videos.” In addition, the speech prohibited under § 48 is not integrally related to the underlying conduct of animal cruelty or animal-fighting, unlike in the context of child pornography. Thus, even if the legislative history did not indicate otherwise, these purposes simply do not serve as a compelling interest to justify the statute.
Decision: The Supreme Court affirmed the ruling, finding that the banned depictions are categorically protected by the constitution, stating, “However ‘growing’ and ‘lucrative’ the markets for crush videos and dog fighting 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. 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”. (see entire opinion – http://www.supremecourt.gov/opinions/09pdf/08-769.pdf ) Writing for the majority, and calling the government’s “free floating test” for First Amendment protection “startling and dangerous,” Chief Justice John Roberts said: “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.” The Court found the law to be unconstitutionally overbroad, even with its exception for materials with “serious value.” Roberts wrote: “The Government proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Calling that “a free-floating test for First Amendment coverage” and a “highly manipulable balancing test,” the Chief Justice said the test was “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.”
Justice Alito, in dissent, argued that the Court should not have used the overbreadth approach, but rather should have analyzed the 1999 law as it was enforced specifically against Roberts Stevens in this particular case — that is, the law as applied to this set of facts. While disagreeing with his colleagues that the law swept too broadly, Alito said that the Court should have sent the case back to the Third Circuit to decide whether Stevens’ videotapes were illegal under the law. Alito’s dissent suggested that the federal law should be interpreted in a way that would save its constitutionality — for example, by concluding that the law simply did not apply to any depictions of hunting. “I do not have the slightest doubt that Congress…had no intention of restricting the creation, sale, or possession of depictions of hunting,” he wrote. He added that other activities the Court found could be covered by the sweeping law could be put beyond the law’s reach by including them under the exceptions clause of the statute. On the broader question of what categories of expression should be put outside the First Amendment’s protection, Justice Alito argued that “crush videos” should not be shielded “because they are so closely linked with violent criminal conduct,” which itself gets no constitutional protection. He wrote: “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.” And, he added, Congress had before it “compelling evidence” that the only way to prevent the crime of animal cruelty was to target the sale of the videos — a perception that, Alito suggested, seemed to have been proven when the passage of the 1999 law led within a few years to destruction of the “crush video industry,” only to have it revive after the Third Circuit struck down that law.
On April 20, 2010, the US Supreme Court issued an opinion in United States v. Stevens, No. 08-769. Download 08-769.
Comments are closed.