United States v. Stevens - Dogfighting Videos and the First Amendment

     This entry on United States v. Stevens principally discusses two aspects of First Amendment doctrine: how the Supreme Court determines that an entire category of speech is "unprotected" under the First Amendment, and how a law may be challenged "on its face" under the First Amendment. 
     On April 20, 2010, the Supreme Court decided the case of United States v. Stevens, striking down a federal law that prohibited the commercial distribution of depictions of animal cruelty.  Students who are registered for Professor Huhn's courses may participate in discussions about this and other topics through their account at Springboard at the University of Akron.    

     In 1999 Congress enacted and the President signed a statute entitled "Depiction of Animal Cruelty," codified at 18 U.S.C. 48, making it a crime to create, sell, or possess any video or audio recording of animal cruelty for the purpose of selling that recording for commercial gain.  Here is the entire text of the statute:

(a) Creation, Sale, or Possession.— Whoever 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, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions.— In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

     According to a posting by Adam Ezra Schulman of the First Amendment Center, the legislative history of the bill indicates that the law was directed at a very narrow problem - the appearance of "crush videos" on the internet, in which women in high-heeled shoes would torture and kill baby rats, mice, and kittens by stepping on them.  When President Clinton signed the bill, he stated that "the Act would prohibit the types of depictions, described in the statute’s legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex."  However, the law as written was not limited to "crush videos."  By its terms it applies to all depictions of animal cruelty, not simply those acts that are performed in a sexually-charged atmosphere, and the prosecution in this case was for depictions of dogfighting.

     Dogfighting is illegal in every state of the union, but some people enjoy breeding and training dogs for these events, others enjoy gambling on them, and still others like to watch.  Robert J. Stevens of Virginia caters to the tastes of the third category of dogfighting fans - the onlookers.  Although Stevens does not organize or participate in dogfighting events, he collects video recordings of them, edits them, adds commentary, and sells these recordings.  After selling three videos to undercover officers he was arrested and tried in federal curt for violating 18 U.S.C. 48.  Experts for the defense claimed that Stevens'  videos had serious educational or political value, but the jury disagreed and found him guilty.  

     Stevens won on appeal.  By a vote of 10-3, the Third Circuit Court of Appeals ruled that the law was unconstitutional under the First Amendment and it reversed Stevens' conviction.  The United States appealed the decision of the Third Circuit to the Supreme Court, and the Supreme Court affirmed.  In the course of its decision the Court ruled that "depictions of animal cruelty" are not categorically unprotected by the First Amendment, and it found that the federal law was unconstitutional on its face because it was "overbroad." 

     There is a difference between challenging a law "on its face" and "as applied."  When a defendant challenges a law "as applied" the defendant is claiming that he or she has a constitutional right to engage in the behavior in question, and that while the law may be constitutional in other circumstances, as applied to the defendant himself or herself the law is unconstitutional.  The law may be unconstitutional as applied to the defendant for one of two reasons.  The law may be "vague" as applied to the defendant - for example, Stevens could argue that it is impossible for the average person to determine whether or not dogfighting constitutes cruelty to animals.   Or the defendant may claim that the law is "overbroad" as applied to him.  In this case that would mean that Stevens would claim that he has a constitutional right to produce dogfighting videos.  Stevens did not make this argument.

     To challenge a law "on its face" is to assert that other people's constitutional rights would be affected by this law, and that is the argument that Stevens made in this case.  Stevens argued that even if dogfighting videos are not protected by the First Amendment, movies about hunting or bullfighting or programs showing how to kill and process farm animals are constitutionally protected, and the federal statute is broad enough to cover those kinds of videos too.  The Supreme Court agreed with Stevens on this point.  The Supreme Court also refused to create a new category of "unprotected speech" for depictions of animal cruelty.  As a consequence, the Court declared the law to be unconstitutional.

     Here is a link to a pdf file containing the majority and dissenting opinions of the Court of Appeals.  The majority opinion is set forth on pages 1-41 of the document, and the dissent is on pages 42-79.  Here is a link to the official transcript of oral argument before the Supreme Court.  Here are links to the ABA Preview report of this case, which is an outstanding article authored by Thomas Baker; Adam Schulman's summary of the legislative history for the First Amendment Center; and a summary of the case from Oyez's "On the Docket."