United States filed for Supreme Court review of the Third Circuit decision
that the federal law criminalizing the depiction of animal cruelty is an
unconstitutional infringement on the first amendment right to free speech.
The case of United States v. Stevens, 533 F.3d 218 (3d Cir. Pa. 2008):

Defendant appealed a decision of the United States District Court for the
Western District of Pennsylvania, which convicted him of knowingly selling
depictions of animal cruelty with the intention of placing those depictions
in interstate commerce for commercial gain, in violation of 18 U.S.C.S. §
48. Defendant challenged the constitutionality of § 48.

Defendant sold pit bull related videos and merchandise. Law enforcement
officers arranged to buy three videotapes from defendant. The first two
tapes showed circa 1960s and 70s footage of organized dog fights that
occurred in the United States and involved pit bulls, as well as footage of
more recent dog fights, also involving pit bulls, from Japan. The third
video showed footage of hunting excursions in which pit bulls were used to
catch wild boar, as well as footage of pit bulls being trained to perform
the function of catching and subduing hogs or boars. The district court
denied defendant’s motion to dismiss the indictment based on his assertion
that § 48 abridged his first amendment right to freedom of speech. In
vacating defendant’s conviction, the court held that § 48 regulated
protected speech and it was unwilling to create a new category of
unprotected speech. The court also held that, subjecting § 48 to strict
scrutiny, § 48 could not withstand that heightened level of scrutiny because
it served no compelling government interest, was not narrowly tailored to
achieve such an interest, and did not provide the least restrictive means to
achieve that interest.

The court struck down § 48 as constitutionally infirm and vacated
defendant’s conviction. Petition for certiorari filed at, 12/15/2008. The
Third Circuit found that there were already laws in all states against
animal cruelty. The intent of Congress was to supplant those laws (which are
hard to enforce without witnesses to the cruelty) with a law to prohibit the
depiction of the cruelty. The analogy in the briefing is made to laws
prohibiting the depiction of child pornography. The Third Circuit rejected
the analogy finding that animals are not like children when it comes to the
first amendment analysis. Part of that difference is found in the fact that
animals do not perceive the injury of the depiction of the cruel act (as
would a child) and thus the injury is not in the depiction but in the cruel
act (which is already illegal under state statutes). See, United States v.
Stevens, 533 F.3d at 230.

In sum, the speech restricted by 18 U.S.C. § 48 is protected by the First
Amendment. The attempted analogy to Ferber [New York v. Ferber, 458 U.S.
747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) (holding that child
pornography depicting actual children is not protected speech)] fails
because of the inherent differences between children and animals. Those
profound differences require no further explication here. B. §48 cannot
survive heightened scrutiny because the speech encompassed by § 48 does not
qualify as unprotected speech, it must survive a heightened form of
scrutiny. A content-based restriction on speech is “presumed invalid,” and
the Government bears the burden of showing its constitutionality. Ashcroft
v. ACLU, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004)
(citations omitted). One scholar notes that “a majority of the Court has
never sustained a regulation that was strictly scrutinized for content
discrimination reasons.” Barry P. McDonald, Speech and Distrust: Rethinking
the Content Approach to Protecting the Freedom of Expression, 81 NOTRE DAME
L. REV. 1347, 1365 n.63 (2006); see also Rosenberger v. Rector and Visitors
of Univ. of Va., 515 U.S. 819, 828, 115 S. Ct. 2510, 132 L. Ed. 2d 700
(1995) (“It is axiomatic that the government may not regulate speech based
on its substantive content or the message it conveys.”); Adam Winkler, Fatal
in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in
the Federal Courts, 59 VAND. L. REV. 793, 844-57 (2006) (discussing the
results of applying strict scrutiny in a variety of free speech contexts at
all federal court levels). Section 48 fails strict scrutiny because it
serves no compelling government interest, is not narrowly tailored to
achieve such an interest, and does not provide the least restrictive means
to achieve that interest. See Sable Commc’ns of Calif., Inc. v. F.C.C., 492
U.S. 115, 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989). United States v.
Stevens, 533 F.3d 218, 232 (3d Cir. Pa. 2008).

The Third Circuit did not challenge the premise behind the adoption of the
criminal statute, that cruelty is an indicator of other crime, and did not
challenge the right of states to criminalize the actual cruel acts.

As the House Committee Report stated: The witnesses testified that the faces
of the women inflicting the torture in the material often were not shown,
nor could the location of the place where the cruelty was being inflicted or
the date of the activity be ascertained from the depiction. As a result,
defendants arrested for violating a State cruelty to animals statute in
connection with the production and sale of these materials in that State
often were able to successfully assert as a defense that the State could not
prove its jurisdiction over the place where the act occurred or that the
actions depicted took place within the time specified in the State statute
of limitations. While all States have some form of a cruelty to animal
statute, none have a statute that prohibits the sale of depictions of such
cruelty. Accordingly, according to the witnesses, only if the person making
these depictions were caught in the act (often through some type of
undercover operation) could the State’s laws be brought to bear on their
actions, and then only for the cruelty itself, not for the production and
sale of the depictions. H.R. REP. NO. 106-397, at 3. Perhaps wary of the
federalism implications of § 48, the House Committee Report made sure to
state that “[t]he statute is intended to augment, not supplant, State animal
cruelty laws by addressing behavior that may be outside the jurisdiction of
the States, as a matter of law, and appears often beyond the reach of their
law enforcement officials, as a practical matter. Id.” United States v.
Stevens, 533 F.3d 218, 229 (3d Cir. Pa. 2008)

The ability to federalize the prosecution of animal cruelty cases has been
effectively terminated with this ruling if followed by the other circuits.