It's OK to Stop People From Discriminating: An Analysis of CLS v. Martinez

You might be wondering why it is necessary for the highest court in the land to have to hand that seemingly obvious message down from the bench in one of the last four rulings before the Court adjourns for April. Yet that's exactly what they were forced to do in Christian Legal Society v. Martinez, brought before the Court by the Hastings College of Law chapter of the CLS, who were less than pleased that they couldn't get school funds and resources if they banned gays and non-Christians from their group.

Basically, the facts of the case are this.  The law school of Hastings College has a policy that all of its student groups must accept anyone who wishes to join, or lose official recognition, money from the school's activities fund, school letterhead, and other such perks. The Christian Legal Society, which requires members to sign a code that affirms, among other things, the belief in god as savior and the rejection of any and all aberrant sexual conduct, was denied recognition and promptly sued.  They alleged that not only were they being unfairly targeted because of their religion, but that the whole policy was unconstitutional.  The Court, divided 5-4 along the familiar lines of major cases, ruled in favor of the law school. 

There was a Constitutional issue in the case, I think, flitting around the role public schools play in promoting religion and/or religious tolerance.  In fact, that's why I originally followed/decided to write about it.  But I was hard pressed to find it in the actual case.  I read all the opinions (and undertaking requiring multiple hours and countless repetitions of the Battlestar Galactica soundtracks) but couldn't quite bring myself to do more than skim the oral argument transcripts after reading through SCOTUSWiki's summaries.  Ruth Bader Ginsburg's majority opinion reads more like a lecture to the lawyers on the actual meaning of a "stipulation", specifically, the joint stipulation that Hastings' policy was "all-comers" and applied to everyone neutrally.  There was a certain amount of civic-mindedness driving the Court as well: Anthony Kennedy wrote that “A vibrant dialogue is not possible if students wall themselves off from opposing points of view" — which might be read, in less-Courtly terms, "Get over it."  Samuel Alito's dissent took a different view of the record (including the stipulation) and used the fact that only the CLS had been banned from recognition under the policy to argue that the policy unfairly singled out because of their beliefs.

Actually, no one, the Court included and especially, seems to be quite clear on what the policy — and maybe even the argument — was.  There were, as I have stated before, two issues: The policy, and the way the CLS was treated under that policy.  In the joint stipulation, it was stated that the policy was an all-comers policy that was applied neutrally and had nothing to do with religious beliefs.  Apparently just realizing that that was rather damaging to their case, the CLS lawyers tried to backtrack, only to be met by an implacable stone wall otherwise known as Ruth Bader Ginsburg who declared that the two sides had told the District judge "Here are the facts, and the facts were not qualified at all".  It was even suggested by Gregory Garre, arguing for the College, that perhaps the case should be dismissed as a mistake.

The weird part is that there is a constitutional issue here: how far colleges can go in supporting/suppressing religious groups, and that was rarely touched upon.  Actually, no.  Scratch that.  That's what the CLS lawyers were arguing.  This case has nothing to do with religion.  It has to do with a policy that is designed to promote fairness and inclusiveness.  It has to do with an appeal that merited a bare 2 sentences from the 9th Circuit because the core issue had been decided in a stipulation: If Hastings' policy was inherently unfair, and specifically unfairly applied to religious groups, then how could lawyers from both sides have written that stipulation?

What the CLS seemed unwilling to realize in this case is that Hastings' policy is not an attack on them and their religious beliefs.  It is not a restriction on their rights, it is an expansion of the rights of others.  None of the other organizations at Hastings (including, presumably, other religious organizations) had any problem adhering to the policy.  In fact, the CLS itself had held to the policy until it affiliated with a national organization and adopted the new, stricter, more discriminatory rules.  Even without this ruling, the group would not be banned, or even kicked off campus.  The verdict is a victory, in a way, because it affirms the rights of schools to make and enforce their own discrimination policies, including those which bar all forms of discrimination.  But the fact that this came before the Court, in a case where there was no circuit conflict and a barely-there constitutional issue, is a bit baffling.  As Lyle Denniston wrote for SCOTUSBlog, "When the Supreme Court is confronting a major constitutional decision, but Justice Anthony M. Kennedy begins the questioning by wondering exactly what case is before the Court, the chances that a big decision will emerge drop perceptibly at the very outset. And when Kennedy is followed by several colleagues voicing deep doubts about what the facts are, the case begins to look very much like a waste of judicial time."  Which it was.

When Animals, Federal Statutes, and the First Amendment Collide: An Analysis of United States v. Stevens

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:

• 18 U.S.C. § 48, the statute ruled unconstitutional
• U.S. v. Stevens on Oyez.org
• U.S. v. Stevens on Wikipedia.org
• ConsumerAffairs.com Article
• NPR Article (Decision)
• NPR Article (Oral Arguments)
• SCOTUSBlog Analysis (Oral Arguments)
• SCOTUS Decision (Note: PDF)