I have to start this post off with a confession. I am a Supreme Court junkie who spends far too much time on oyez.org reading SCOTUS decisions, listening to oral arguments, and generally happily wasting my time on the internet's biggest time sink. So I can say (pretty safely) that I am the first person Justice Samuel A. Alito Jr. has ever gotten kicked out of a library, and I was not at all surprised that I was.
No, I'm not kidding. I was, as usual, reading Oyez after school, and suddenly I was reading that Justice Alito was the sole dissenter in a decision that overturned a ban on videos depicting animal cruelty. Now, as a rule, I don't like Alito that much. I disagree with his interpretations of laws and the constitution, and am not a fan of his conservative ideology. But for this one case, I find myself in total agreement with him. And when I found that out, I might have been a bit . . . loud in my surprise/agreement. And, uhhhh did I mention we have a really strict librarian at our school? So yes, Justice Alito, it is partially your fault that I got kicked out of the library.
Anyway, that aside, this case is a very important one in terms of both free speech and animal cruelty laws. According to NPR, "the law was meant to prohibit a particularly gruesome genre of video called "crush videos" in which small animals are crushed by women wearing high heels, a sexual fetish practice many people find offensive on a number of levels. The particular case that made its way to the Supreme Court was about videos that showed pit bulls fighting other dogs or attacking animals like pigs." The 8-justice majority ruled that the law was too broad, and therefore unconstitutional under the first amendment. Alito takes a different view, stating in his dissent that he would instruct the lower courts to "decide whether the videos that respondent sold are constitutionally protected" (NPR).
With that background, let's move on to the facts/specifics of the case. Robert Stevens was convicted under Title 18, Section 48 of the U.S. Criminal Code, which bans the knowing creation, sale, or possession of depictions of cruelty to animals "with the intention of placing that depiction in interstate or foreign commerce for commercial gain" (18 U.S.C. §48). There are exceptions to this: if the work has "serious religious, political, scientific, educational, journalistic, historical, or artistic value", it is permissible to create/sell/possess the work (18 U.S.C. §48). Stevens' conviction "stems from an investigation into the selling of videos related to illegal dog fighting" (Oyez). The district court convicted him, and he appealed to the Third Circuit, arguing that his conviction was not valid because the federal statute was itself unconstitutional. Third Circuit reversed the district court, the government appealed to the Supreme Court, and Stevens won a 5-4 victory with a decision that upheld the Circuit based on the fact that the statute was broad enough to be unconstitutional.
The law is rather broadly worded; there are slight grey ares. Nevertheless, I am disappointed that this law was struck down, for several reasons. First, I agree with Alito when he blasts the Court for applying the overbreadth doctrine to §48. Second, I do not see any undue restrictions on first amendment rights.
In general, for a federal statute to be considered "overbroad", it must prohibit a substantial amount of protected speech. Since those acts have already been deemed illegal, and there have been no constitutional challenges to those laws, I don't see how overbreadth can be applied. As Stevens challenged the law on its face, he would typically have to prove "that no set of circumstances exists under which [§48] would be valid" (United States v. Salerno) or that the law has no "plainly legitimate sweep" (Washington v. Glucksberg). Because Stevens is a First Amendment case (neither Salerno or Glucksberg were), the Court uses a different standard, codified in Washington State Grange v. Washington State Republican Party which states that a law is overbroad if "a substantial
number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." (Opinion of the Court, page 10).
In reading the opinion of the court, I see that they are chiefly concerned with hunting videos, and with videos of animals being killed for food. First, I see no reason why hunting videos would be covered under §48. Almost every single state has exceptions to their animal cruelty laws for wildlife/hunting (a comprehensive and specific list can be found in the appendix to Alito's opinion). Thus, they are clearly exempt under part (c) part (1) of the law, which states that the law only applies to videos depicting illegal acts. Even though the Court rather tortuously applies overbreadth because hunting is illegal in the District of Columbia, hunting would still be exempt under §48(b) because hunting can be (and usually has been) viewed as having "“scientific” value in that it promotes conservation, “historical” value in that it provides a link to past times when hunting played a critical role in daily life, and “educational” value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits" (Opinion of Justice Alito, page 7). In regards to the second worry of the Court, animals being humanely slaughtered for food: such acts are not illegal under the criminal codes of most states, and therefore §48 cannot be applied. So it cannot reasonably be argued that §48 "bans a substantial amount of protected speech in absolute terms" (Opinion of Justice Alito, page 19).
Moving on to the first amendment issue, we run into a more complex can of worms. Free speech is generally considered one of the most fundamental rights: by the preferred position doctrine, it occupies a higher consideration when deciding cases than do most other rights. However, that doesn't mean free speech is absolute. Both the Bad Tendency Doctrine and the Clear and Present Danger Doctrine restrict what speech is protected under the first amendment. Speech can be limited if it might lead to harm or to illegal action, or if there is an imminent threat to society. So if you want to yell "Fire!" in a crowded theater (a bad idea in any case) that is not protected under your right to free speech.
With that explanation of free speech and its exceptions, let's consider how those guidelines apply to animal cruelty videos, be they crush videos, dogfights, or something else. Does this "speech" lead to harm or illegal action? Obviously, yes. All states have laws (of varying strengths) against animal cruelty, and videos promoting it not only show that people can get away with breaking the law, but that it's fun, and, guess what, you can do it too! As for harm, well, the harm done to the animals is blatant, and in many cases, irreparable. Is there an imminent threat to society? That's more difficult to explain, but again, I would argue "yes". Numerous studies have shown that it is a short step from killing/torturing animals to killing/torturing humans. Representative Gallegley, the original sponsor of the 1999 bill, points out that "The FBI, U.S. Department of Education and the U.S. Department of Justice consider animal cruelty to be one of the early warning signs of potential violence by youths" (ConsumerAffairs.com). And, once again, encouraging people to break laws is in no way beneficial. In this case, I would disagree with the Third Circuit and the Supreme Court when they say that there is not enough compelling government interest for §48 to survive strict scrutiny.
I would even go so far as to question the free speech aspect of this case. The law specifically states that the animal torture videos are illegal "if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place" (18 U.S.C. §48 (c)(1)). I referenced that section above, but in essence, what this section is providing for is the arrest and (possible) conviction of people who possess videos of themselves or others committing an illegal act. Justice Alito addresses this in his opinion, while connecting the crush videos the law was intended to ban with the dogfighting videos at the core of this case: "as with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities." (Opinion of Justice Alito, page 19).
Okay, taking off my Judge hat, I will move on to the effect of this decision. First off, this decision severely limits the prosecutorial discretion of the government. As the majority of the Court says (repeatedly), §48 was originally intended to allow for the possession/sale/creation of crush videos. However, the government has used it to prosecute people for the possession/sale/creation of other videos depicting people torturing animals in ways that are also illegal -- dogfighting being just one example. In relying overmuch on original intent, the Court is making it more difficult for the government to prosecute people who wish to sell videos of themselves committing illegal acts.
Secondly, it brings into question multiple other Court decisions, most specifically those dealing with obscenity and child pornography. As noted previously, the courts have decided that some speech is unprotected; the Government asked in this case that a new category be added, saying in their brief "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." The Court reacted badly to this view, claiming that, even though they have in the past decided that in cases of unprotected speech "the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that
no process of case-by-case adjudication is required" (New York v. Ferber, child pornography case). What I find interesting, and slightly hypocritical here, is this sentence: "We made clear that Ferber presented a special case: The market for child pornography was intrinsically related to the underlying abuse, and was therefore an integral part of the production of such materials, an activity illegal throughout the Nation." (Majority opinion, internal quotations omitted). Apart from the fact that the subjects are animals rather than human children, the market's relationship to the illegal act is the same in Stevens as it was in Ferber, if not more pronounced. The Humane Society found more than 3000 animal crush videos online before the 1999 law went into effect; once the law was passed, the market vanished virtually overnight -- only to reappear with a vengeance once the Third Circuit decision came out. With such a clear correlation, how can the court continue to justify Ferber, arguable one of the most important decisions in terms of protecting those who have no voice from harm and exploitation?
The Representatives behind the §48 are working to produce a more narrow version of the law, which will hopefully satisfy these critics while still doing an effective job of both preventing criminals from profiting from their illegal acts and protecting helpless animals.
Further Reading:
, by Ralph Nader
, by John Steele Gordon
, by Valerie Plame Wilson
, by Arianna Huffington
, by Jim Newton
, by Al Franken
, by Madeleine Albright
, by Madeleine Albright
, by Peggy Noonan
, by Rashid Khalidi
, by Anita Hill
, by Charlie Savage
, by Philip Shenon
, by Glenn Kessler
, by Jane Mayer
, by Amity Shlaes
, by Senator Harry Reid
, by John J. Mearshimer and Stephen M. Walt
, by Lawrence Wright
, by Madeleine Albright
, by Jeffrey Toobin
, by Charlotte Dennett
, by William Rehnquist
, by Adam Smith
, by Scott McClellan
, by Peggy Noonan