On April 20, the Supreme Court held, 8-1, that depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment. United States v. Stevens, No. 08-769. It invalidated, as unconstitutionally overbroad, a federal criminal statute under which Robert Stevens had been convicted for selling videos of pit bulls engaging in dog fights and attacking other animals.
The statute, 18 U.S.C. § 48, imposes criminal penalties for anyone who knowingly "creates, sells, or possesses a depiction of animal cruelty," if done for commercial gain in interstate or foreign commerce. A depiction of "animal cruelty" is defined as one "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," if that conduct violates federal or state law where "the creation, sale, or possession takes place." The law exempts depictions that have "serious religious, political, scientific, educational, journalistic, historical, or artistic value."
Stevens was indicted for selling videos of pit bulls fighting one another, hunting wild boar, and attacking a domestic farm pig. He moved to dismiss the indictment on the grounds that the statute was facially invalid under the First Amendment. The government argued that depictions of animal cruelty, like obscenity or child pornography, are categorically unprotected by the First Amendment. The U.S. District Court for the Western District of Pennsylvania accepted the government's argument and a jury convicted Stevens. The en banc Third Circuit reversed, declaring the statute facially unconstitutional.
The Supreme Court affirmed. It refused to recognize a new class of categorically unprotected expression, in addition to the traditionally recognized categories of obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. The Court rejected the government's assertion that whether a category of speech enjoys First Amendment protection depends on balancing the value of the speech against its societal costs, saying, "As a free-floating test for First Amendment coverage, that [approach] is startling and dangerous.… 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."
The Court applied traditional First Amendment analysis, under which a law will be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." It rejected the government's assertion that the statute applied only to limited types of "extreme" material, observing that the statutory terms "wounded" and "killed" do not suggest any limitation to cruel conduct and must be read according to their ordinary meaning. Nor did the requirement that the depicted conduct be "illegal" sufficiently limit the statute's sweep; by the plain meaning of its terms, the statute could prohibit depictions of the humane killing of an animal belonging to an endangered species, an animal hunted or fished out of season, or even depictions of conduct that was lawful where it occurred but unlawful where the depiction came to be sold or possessed.
The Court also rejected the argument that the statute could be saved through its exception for depictions that have "serious ... value." "Serious" ordinarily means more than "scant," and the First Amendment does not require the speaker to justify the value of speech in most circumstances. As the Court said, "Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value) but it is still sheltered from government regulation." The Court was unimpressed by the government's pledge to use its prosecutorial discretion responsibly, to reach only "extreme" cruelty, saying, "The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."
Because the market for protected depictions, such as hunting magazines and videos, dwarfed any market for crush videos and dog-fighting depictions, the Court invalidated the statute as substantially overbroad on its face. It declined to decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional.
Chief Justice Roberts delivered the opinion of the Court, in which Justices Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor joined. Justice Alito filed a dissenting opinion.