By Kenneth Jost
The Supreme Court has thrown out on free speech grounds a 10-year old federal animal cruelty statute aimed at outlawing so-called crush videos - graphic depictions of intentional killing of small animals marketed to people who find the videos sexually arousing.
In a forceful opinion, Chief Justice John G. Roberts Jr. led an 8-1 majority in concluding that the 1999 law risked criminalizing too much constitutionally protected speech to survive First Amendment scrutiny. Roberts described the law as creating “a criminal prohibition of alarming breadth” and discounted the government’s assurances in briefs and oral argument to apply it narrowly.
Roberts left open the possibility of a narrower law aimed solely at crush videos, dog fighting or “other depictions of extreme animal cruelty.” In a lone dissent, Justice Samuel A. Alito Jr. argued that the law could have been upheld under a narrow construction. He warned that the decision would result in renewed production of crush videos, which had largely disappeared since the law was passed.
The law, codified as 18 U.S.C. § 48, prohibited any “depiction of animal cruelty,” broadly defined to include still photographs or audio or video recording of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” The prohibition applied if the conduct was illegal under federal law or the law of the state where the conduct took place or the material was found. It included exceptions for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
The ruling threw out the conviction and 37-month prison sentence handed down to a Virginia man, Robert Stevens, in 2005 for selling to federal undercover agents two videos depicting organized dog fights in the United States and a third showing a wild boar hunt. Stevens, the first person convicted under the law after a trial, had operated a business called “Dogs of Velvet and Steel” and maintained a Web site devoted to the pit bull breed of dogs.
Congress passed the law after hearing testimony from animal protection groups and others about the extensive market in crush videos and the difficulty of prosecuting people involved in their production. Roberts quoted a House committee report on the bill describing the videos as typically featuring women using their feet or high-heel shoes to slowly crush to death “helpless animals,” including dogs, cats, mice, monkeys and hamsters. The videos “appeal to persons with a very specific sexual fetish,” the House committee report said.
The justices agreed to hear the government’s appeal after the Third U.S. Circuit Court of Appeals in Philadelphia reversed Stevens’ convictions in October 2006. The appeals court divided 2-1 in holding that the law failed the so-called “strict scrutiny” test because it did not advance a compelling government interest nor was it narrowly tailored for that purpose. The high court heard arguments at the start of its current term in October 2009 and kept the case under advisement for an unusually long time, six-and-a-half months.
In a 20-page opinion, Roberts rejected the government’s call to define depictions of animal cruelty as categorically outside the First Amendment and then applied a well recognized “overbreadth doctrine” to find the law unconstitutional. The law could even apply to hunting magazines, Roberts said, because the District of Columbia’s ban on hunting would criminalize any publications possessed within its borders.
During arguments, deputy U.S. solicitor general Neal Katyal repeatedly said the law did not apply to depictions of hunting. But Roberts said hunting magazines and possibly other legitimate depictions of killing or wounding of animals could not be saved by what he described as the government’s “unrealistically broad reading” of the act’s exceptions clause. And he dismissed the government’s promise to apply the statute only in cases of “extreme” cruelty. “We would not uphold an unconstitutional statute,” the chief justice wrote, “merely because the Government promised to use it responsibly.”
In his dissent, Alito said the court should have sent the case back for a specific ruling on whether the three videos cited against Stevens were constitutionally protected. “I do not think the present record supports the Court’s conclusion that §48 bans a substantial quantity of protected speech,” he wrote.
The Humane Society of America voiced “disappointment” with the ruling but urged Congress to move “swiftly” to pass a narrower law. “The Supreme Court's decision gives us a clear pathway to enact a narrower ban on the sale of videos depicting malicious acts of cruelty, including animal crush videos and dogfighting,” said Wayne Pacelle, the society’s president and CEO.
Stevens’ effort to overturn the law attracted support from an unusual coalition of First Amendment advocates, media organizations and hunting groups, including the National Rifle Association. In a statement, the Professional Outdoor Media Association applauded the ruling. “The First Amendment rights of traditional outdoor sports journalists, those who cover legal hunting and fishing and promote the enjoyment of these American heritage sports, are protected,” the group said.
For more on animal-protection policies, see Marcia Clemmitt, “Animal Rights,” CQ Researcher, Jan. 8, 2010.
By Kenneth Jost