Justices hostile to ban on animal cruelty images

Rory Eastburg | Prior Restraints | Feature | October 6, 2009

Supreme Court justices signaled their concerns about the constitutionality of a decade-old law that criminalizes depictions of animal cruelty on Tuesday during the oral arguments in U.S. v. Stevens, a case that involves the conviction of a Virginia man who made videos that included dog fighting.

The statute used to convict Robert J. Stevens provides for up to five years in prison for 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.”

Stevens was sentenced to 37 months in prison for distributing documentaries that include footage of dog fighting, but the U.S. Court of Appeals in Philadelphia (3rd Cir.) overturned his conviction last summer, striking down the entire statute on First Amendment grounds.

At today’s argument, justices questioned whether the defendant’s videos differed from speech that has long been protected by the First Amendment. Justice Ruth Bader Ginsburg pointed to the 1986 case American Booksellers v. Hudnut. There, she said, the Court ruled a statute that allowed lawsuits against those who create “depictions of women as sexual objects enjoying pain and humiliation and degradation” was unconstitutional. Deputy Solicitor General Neal Katyal argued that the current law should be viewed differently “because here Congress is not aiming at the underlying communicative impact” of the images – an idea criticized by two justices.

Several justices also worried that the statute’s exemption clause – protecting material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value” – is too vague to protect valuable speech. The Reporters Committee filed a friend-of-the-court brief on behalf of 14 press groups arguing that the exemption was not adequate to protect press coverage of animal cruelty.

Justice Stephen Breyer noted that those filming such varied activities as bullfighting, hunting, animal slaughter, and the production of foie gras “won’t know if [an image] falls within this exemption.” Breyer seemed to speak for much of the Court when he asked: “Why not do a simpler thing? Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit.”

Justice Sonia Sotomayor compared the defendant’s videos to David Roma’s 2005 documentary Off the Chain, which is sold on the website of the Humane Society of the United States, noting that the latter “had much, much more footage on the actual animal cruelty than the films at issue here.” Several justices likewise were concerned that depictions of hunting could be included in the statute’s reach, with Justice John Paul Stevens noting that “some depictions of hunting … are pretty gruesome.”

Stevens' attorney, Patricia Millett, faced tough questions from Chief Justice John Roberts and Justice Samuel Alito, focused mainly on whether the statute was really so flawed that it should be struck down in its entirety. Responding to a barrage of hypotheticals – including queries as to whether “the human sacrifice channel” and “the ethnic cleansing channel on cable TV” could be banned without violating the First Amendment – Millett conceded that a properly drawn statute could criminalize crush videos or dog fighting without violating the First Amendment. “Why isn’t that enough to say that this statute is valid on its face and then we will consider as-applied challenges” in particular cases, Roberts then asked.

Justice Antonin Scalia staked out the friendliest position to the images that the law criminalizes – sometimes going beyond even the defendant’s attorney. “I really think you should focus … [o]n the right under the First Amendment of people who like bull fighting, who like dog fighting, who like cock fighting, to present their side of – of the debate,” he told Millett. Responding to another justice’s comment about animal cruelty catering to the public’s worst instincts, Scalia replied that “it’s not up to the government to decide what are people’s worst instincts. If the First Amendment means anything, that’s what it means.”