Taking a Bite Out of Speech Regulation: the Supreme Court Upholds First Amendment Protection for Depictions of Animal Cruelty in United States v. Stevens - J. Matthew Barnwell

• Citation: Vol. 62 No. 3
• Publication year: 2011

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Taking a Bite Out of Speech Regulation: The Supreme Court Upholds First Amendment Protection for Depictions of Animal Cruelty in United States v. Stevens

I. Introduction

The First Amendment¹ is tested most strenuously when called upon to protect expression that many people would find indefensible. This occurred in United States v. Stevens² when the Supreme Court of the United States refused to categorically remove depictions of animal cruelty from the bulwark offree speech.³ Further, the Court invalidated

1. U.S. CONST. amend. I. The amendment states as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Id.

2. 130 S. Ct. 1577 (2010).

3. Id. at 1586.

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section 48 of Title 18 of the United States Code,⁴ which prohibited the creation, sale, or possession of depictions of animal cruelty,⁵ as unconstitutionally overbroad.⁶ By not allowing speech to be categorically excluded from First Amendment protection because of its inherent lack of value, the Court revealed an increasingly libertarian approach to speech regulation.

II. Factual Background

Robert Stevens is a pit bull enthusiast. From his rural Virginia home, the 68-year-old ran Dogs of Velvet and Steel, a business that sold informational material and equipment on the care and handling of pit bulls.⁷ Among the items he sold were films he produced about the breed, including Catch Dogs and Country Living, Pick-A-Winna: A Pit Bull Documentary, and Japan Pit Fights.⁸ Footage from Catch Dogs shows the dogs being trained to catch wild boar and includes gruesome shots of a pit bull attacking a domestic farm pig.⁹ In Pick-A-Winna, Stevens compiled portions of footage shot by others that show modern

4. 18 U.S.C. § 48 (2006), declared unconstitutional by United States v. Stevens, 130 S. Ct. 1577 (2010). The statute read as follows:

(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.

Id.

5. Id. § 48(a).

6. Stevens, 130 S. Ct. at 1592.

7. Brief for Respondent at 2, United States v. Stevens, 130 S. Ct. 1577 (2010) (No. 08769), 2009 WL 2191081.

8. Id. at 3-5.

9. United States v. Stevens, 533 F.3d 218, 221 (3d Cir. 2008) (en banc).

2011] UNITED STATES V. STEVENS 1033

day pit bull fights in Japan as well as United States dog fights from the 1960s and 70s. Japan Pit Fights features additional fights that Stevens documented in Japan.¹⁰ In each video, Stevens, who also authored a book on pit bulls,¹¹ offers commentary about the onscreen action.¹²

Federal authorities bought copies of the films from Stevens in 2003 after he advertised them for sale in Sporting Dog Journal, an underground publication featuring articles on illegal dog fighting.¹³ Based on this evidence, a federal grand jury in the Western District of Pennsylvania indicted Stevens in March 2004.¹⁴ The grand jury charged him with three counts of violating 18 U.S.C. § 48¹⁵ by "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce."¹⁶ Stevens sought dismissal of the indictment, arguing that under the First Amendment¹⁷ the federal statute was facially invalid.¹⁸ The district court denied his motion, likening depictions of animal cruelty to obscenity or child pornography, and held that such depictions were categorically exempt from First Amendment protection.¹⁹ Stevens was subsequently convicted on all charges in January 2005 and sentenced to three concurrent sentences of thirty-seven months imprisonment and three years supervised release.²⁰

On appeal, the United States Court of Appeals for the Third Circuit, sitting en banc, ruled § 48 unconstitutional on its face and vacated Stevens's sentence in July 2008.²¹ The court did not recognize depictions ofanimal cruelty as a new category ofunprotected speech, refusing the Government's attempt to equate such depictions to child pornogra-phy.²² The Supreme Court granted the Government's petition for writ of certiorari²³ and in April 2010 affirmed the Third Circuit's ruling.²⁴

10. Brief for Respondent, supra note 7, at 4-5.

11. Bob Stevens, Dogs of Velvet and Steel: Pit Bulldogs: A Manual for Owners (1983).

12. Stevens, 533 F.3d at 221.

13. Id.

14. Id.

15. 18 U.S.C. § 48 (2006), declared unconstitutional by United States v. Stevens, 130

S. Ct. 1577 (2010).

16. Stevens, 533 F.3d at 221.

17. U.S. Const. amend. I.

18. Stevens, 130 S. Ct. at 1583.

19. Id.

20. Id.

21. Stevens, 533 F.3d at 235.

22. Id. at 224.

23. United States v. Stevens, 129 S. Ct. 1984 (2009).

24. Stevens, 130 S. Ct. at 1592.

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III. Legal Background

A. History of 18 U.S.C. § 48

In 1999 Congress passed and President Clinton signed into law 18 U.S.C. § 48,²⁵ prohibiting the creation, sale, or possession of a depiction of animal cruelty with the intention of placing that depiction into interstate or foreign commerce.²⁶ Dog fighting, however, was not at the forefront of legislators' minds when they wrote the statute. Rather, lawmakers were more intent on shutting down the growing market for crush videos, which are short films that show women crushing small animals to death, either with their bare feet or while wearing high-heeled shoes and speaking in a dominatrix fashion.²⁷ The films, designed to satiate a peculiar sexual fetish, were commonly available on the Internet and could be made to order. Yet despite their ubiquity, existing animal cruelty laws made it difficult to prosecute the filmmakers. Participants, shooting locations, and dates when animals were killed often could not be identified, enabling the accused to raise jurisdictional and statute of limitations defenses. With § 48, elected officials chose to target the market for crush videos rather than the underlying activity. The idea was to eliminate the films' profitability, thus defeating the desire for such behavior in the first place.²⁸

B. Relevant Case Law

Congress can make no law that abridges the freedom of speech.²⁹ This means that generally, the government may not restrict expression based on its message, ideas, subject matter, or content.³⁰ Even though this protection is extensive, it is not absolute. Certain narrowly defined speech categories are exempt from absolute First Amendment protection and are subject to content regulation.³¹ These categories include

25. See Act of Dec. 9, 1999, Pub. L. No. 106-152, 113 Stat. 1732.

26. Id.

27. H.R. REP. NO. 106-397, at 2 (1999). These women usually kill mice, hamsters, or other small animals, though occasionally they stomp to death dogs, cats, and even monkeys. Id.

28. Id. at 2-3.

29. U.S. CONST. amend. I.

30. United States v. Stevens, 130 S. Ct. 1577, 1584 (2010) (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002)).

31. Id.

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obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.³² Of potential import to Stevens is case law related to obscenity and speech that is integral to criminal conduct.

1. Free Speech and Obscenity. Obscenity occupies a special place in First Amendment jurisprudence. Unlike other categories of speech that are proscribed for fear of some consequential harm, obscenity is outlawed purely because its content is offensive.³³ For speech to be so offensive that it is obscene, the speech must be sexual in nature and appeal to an individual's prurient interest.³⁴ In Roth v. United States,³⁵ the Supreme Court first declared obscenity unworthy of First Amendment protection.³⁶ The defendant sold books, photographs, and magazines, using circulars and advertising media to solicit sales.³⁷ New York authorities deemed these materials "obscene" and in violation

of 18 U.S.C. § 1461,³⁸ which prohibits the mailing of such items.³⁹

The Court held that obscene material does not merely portray sex but "deals with sex in a manner appealing to prurient interest;" obscene material incites "itching, morbid, or lascivious longings."⁴⁰ Obscenity exists, the Court concluded, when the average person applying contemporary community standards feels that the dominant theme of the material, taken as a whole, appeals to prurient interest.⁴¹

The Court reframed this definition less than twenty years later in Miller v. California⁴² when it established the current view of obscenity.

32. Id. (citations omitted).

33. See, e.g., Miller v. California, 413 U.S. 15, 24 (1973); United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001); Am. Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572, 574-75

(7th Cir. 2001); United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000).

34. ...