Supreme Court to decide animal-cruelty video case

Rory Eastburg | Prior Restraints | Feature | June 24, 2009

The Supreme Court will decide next term whether the First Amendment applies to recordings and pictures that depict animal cruelty.

But the implications of the case go well beyond the issue of animal cruelty. The Court may also revisit two fundamental issues of First Amendment law – how easily the government may categorically ban entire categories of speech, and when a law may be struck down as “overbroad” because it has a chilling effect on protected speech.

The case, which is currently being briefed, could mark the first time in more than 25 years that the Court finds a category of speech unprotected by the First Amendment.

The case, U.S. v. Stevens, concerns a federal law that punishes with up to five years in prison  anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” The law contains an exception for “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” though the U.S. Court of Appeals in Philadelphia (3rd Cir.) found that the law is written broadly enough to prohibit even some videos of bullfighting or out-of-season fishing.

According to the appellate court, the law was intended to ban “crush videos” – fetish films in which women step on small animals with their bare feet or high heels. But the statute’s sweep is far broader. Robert Stevens, the first defendant to go to trial under the 1999 law, was prosecuted not for “crush videos” but for distributing three videos that included footage of dogfighting and the use of pit bulls to hunt wild boar.

Stevens was sentenced to more than three years in prison, but last summer the appellate court overturned the conviction. Noting that “[t]he Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years,” the court said it was unwilling to find the tapes entirely unprotected by the First Amendment without guidance from the high court. The appellate court also rejected the government’s claim that depictions of animal cruelty can be banned as easily as child pornography, finding that “[n]o matter how appealing the cause of animal protection is to our sensibilities, we hesitate – in the First Amendment context – to elevate it to the status of a compelling interest.”

The Supreme Court agreed on April 20 to review the case. Several animal rights groups filed briefs in support of the law. First Amendment groups, hunting advocates, and others are expected to file briefs asking the court to strike it down.

The Supreme Court also may decide how easily the government can ban other types of speech in the future. The government’s brief claims that a 1942 case, Chaplinsky v. New Hampshire, allows it to prohibit speech whenever the “government interest in restricting the speech” outweighs “the value of the speech.” But the appellate court rejected this claim, finding that this permissive view on restricting speech has been “marginalized” over the last 67 years and adding that “the limited number of unprotected speech categories recognized” since then “strongly suggests that the balancing test tilts in favor of protection.”

The Court also may revisit the “overbreadth” doctrine, which allows courts to strike down a statute as a whole if it regulates a substantial amount of speech protected by the First Amendment as well as unprotected speech. The appellate court suggested that the law may be overbroad because it could prohibit depictions of hunting, fishing and other common activities. But the government’s brief argues that this overbreadth is not substantial enough to invalidate the law.