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First Amendment left intact

Refusing to remove another form of expression from the protection of the First Amendment, the Supreme Court on Tuesday ruled 8-1 that the government lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media.  The Court noted that it had previously withdrawn “a few historic categories” of speech from the First Amendment’s shield, but concluded that “depictions of animal cruelty should not be added to the list.”  The decision nullified a 1999 federal law passed by Congress in an attempt to curb animal cruelty by forbidding its depiction.  That law, the Court said, sweeps too broadly.

The Court, in an opinion written by Chief Justice John G. Roberts, Jr., stressed that it was not restricting the power of government to punish actual acts of animal cruelty, and it noted that such prohibitions have “a long history in American law” and now are on the books in all 50 states and Washington, D.C.  But it said there was no similar history behind Congress’s attempt to ban video or other portrayals of acts of cruelty to living creatures.

The law had been challenged by Robert J. Stevens, a Pittsville, VA, author and producer of documentary films.  He specializes in promoting the popularity of the Pit Bull breed of dogs.  His business, named “Dogs of Velvet and Steel,” sells information and dog-handling equipment about his favorite breed.  Undercover federal agents had bought from him copies of films, including one made in Japan documenting modern-day dog fights in that country and in the U.S., showing considerable cruelty.  Stevens’ had claimed that the aim of his publications was to provide historical perspective on dog fighting. On the basis of that film and other materials found in Stevens’ home, he was charged with and convicted of violating the 1999 law, and was sentenced to 37 months in prison.  A federal judge rejected his First Amendment challenge to the law, but the en banc Third Circuit Court struck it down.  That is the result the Supreme Court upheld Tuesday in the case of U.S. v. Stevens (08-769), with only Justice Samuel A. Alito, Jr., dissenting.

While the Court conceded that Congress had passed the law to try to stop interstate trafficking in so-called “crush videos,” showing the actual killing of cats, dogs and other small animals by stomping or other intensely cruel methods, it said the resulting law itself reached far more than that kind of portrayal.  Limiting the law’s reach to those depictions, the opinion said, would require the Court to give “an unrealistically broad reading” to the exceptions Congress wrote into the law.

As written, the Court said, the law “creates a criminal prohibition of alarming breadth.”  Noting that the government had given assurances that it would enforce the law only against commercial portrayals of “extreme cruelty,” the Chief Justice wrote that the Court would not uphold an unconstitutional law “merely because the government promises to use it responsibly.”

The Justice Department had defended the law by arguing that portrayals of animal cruelty, as a group, simply had no protection at all under the First Amendment, in the same way that obscenity, libel and fraud are unprotected.  The Court rejected that argument, saying that the 1999 law regulates expression of the basis of its content, its message. That makes the law invalid under the First Amendment, the Court said, unless the government can overcome that presumption.

Roberts wrote: “The Government proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘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.”  Calling that “a free-floating test for First Amendment coverage” and a “highly manipulable balancing test,” the Chief Justice said the test was “startling and dangerous.  The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits.  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.”

Recalling its precedent putting child pornography outside the First Amendment, the opinion said that the Court had done so because the depictions of such pornography was necessarily linked to actual abuse of children in the production of such materials.  That approach, and other cases discussing what the First Amendment does not protect, the Court added, “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”  While there may be some categories of speech not yet identified that could be placed outside the First Amendment, “there is no evidence that ‘depictions of animal cruelty’ is among them,” the Court said.

The Court then went on to analyze the 1999 law under traditional First Amendment principles, and found it went too far.  The law makes it a crime, with up to five years in prison, to make, seell or possess a “depiction of animal cruelty,” if any of those acts is done for commercial gain.  It defines “animal cruelty” depiction as one in which a living animal “is intentionally maimed, mutilated, tortured, wounded, or killed,” provided that the action violates a federal or state law.  The law says that it does not apply to depictions if they have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

While the Court and the Third Circuit agreed that the law was invalid, the two tribunals did so for different constitutional reasons.  The Third Circuit found the law invalid as written — that is, the words of the law itself could never be enforced, in any situation.  The Supreme Court, however, found that it could not be enforced because of its “overbreadth” — that is, it was so broadly worded that its enforcement could reach many kinds of portrayals that did not even involve cruelty, and might not even involve anything that was illegal.

Justice Alito, in dissent, argued that the Court should not have used the overbreadth approach, but rather should have analyzed the 1999 law as it was enforced specifically against Roberts Stevens in this particular case — that is, the law as applied to this set of facts.   While disagreeing with his colleagues that the law swept too broadly, Alito said that the Court should have sent the case back to the Third Circuit to decide whether Stevens’ videotapes were illegal under the law.

The Chief Justice’s opinion for the Court said explicitly that the Justices were not deciding whether the Constitution would allow a law that was limited only to “crush videos” or “other depictions of extreme animal cruelty.”  Justice Alito, however, said that the Court opinion “tacitly assumed for the sake of argument” that such laws would be valid.

Alito’s dissent suggested that the federal law should be interpreted in a way that would save its constitutionality — for example, by concluding that the law simply did not apply to any depictions of hunting.  “I do not have the slightest doubt that Congress…had no intention of restricting the creation, sale, or possession of depictions of hunting,” he wrote.  He added that other activities the Court found could be covered by the sweeping law could be put beyond the law’s reach by including them under the exceptions clause of the statute.

On the broader question of what categories of expression should be put outside the First Amendment’s protection, Justice Alito argued that “crush videos” should not be shielded “because they are so closely linked with violent criminal conduct,” which itself gets no constitutional protection.  He wrote: “The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos.”  And, he added, Congress had before it “compelling evidence” that the only way to prevent the crime of animal cruelty was to target the sale of the videos — a perception that, Alito suggested, seemed to have been proven when the passage of the 1999 law led within a few years to destruction of the “crush video industry,” only to have it revive after the Third Circuit struck down that law.