United States v. Stevens: Supreme Court Declares Animal Cruelty Statute Violates First Amendment

Digest Commentary First Amendment

United States v. Stevens, No. 08–769 (U.S., April 20, 2010)

Slip Opinion

The Supreme Court affirmed the Third Circuit Court of Appeals, which had held that 18 U.S.C. § 48, a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals, was an unconstitutional abridgment of the First Amendment right to freedom of speech and did not serve a compelling governmental interest.

In an 8-1 ruling, the Supreme Court overturned the conviction of a Virginia man who sold dog-fighting videos, holding that the First Amendment does not allow the government to criminalize whole categories of speech and expression that are deemed undesirable. The Court said that 18 U.S.C. § 48 was too broad because while some depictions of animal cruelty were appropriately exempted from the statute, other speech that should be protected, such as "most hunting videos" and photos of out-of-season hunting, was not.

Briefs and relevant court documents are available at the First Amendment Center. NPR, the Wall Street Journal, and the LA Times provide overviews of the case. The Volokh Conspiracy and the Constitutional Law Prof Law Blog analyze the decision.

Enacted in 1999, 18 U.S.C. § 48 was aimed at "crush videos." These videos, featuring women in high heels crushing small animals like mice and kittens, appeal to a certain sexual fetish. Robert J. Stevens was convicted under the statute in a Pennsylvania federal district court for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." Stevens had never filmed dogfighting or staged any fights himself, but he had compiled and sold films of pit bulls fighting with each other and attacking other animals. Included in these films were ones that were made in Japan “where such conduct is allegedly legal.”  He was sentenced to three years in prison. Stevens is the first individual in more than a decade who has been prosecuted under the animal cruelty law. While his critics argue that he was exploiting dogfighting for profit, Stevens claims that his videos were educational.

In dissenting, Justice Samuel Alito argued that the "practical effect" of the court's ruling would be to legalize "a form of depraved entertainment." He went on to say that "[t]he most relevant of [the Court’s] decisions is New York v. Ferber, 458 U. S. 747, which concerned child pornography. The Court there held that child pornography is not protected speech, and [he felt] that Ferber’s reasoning dictates a similar conclusion here."

The controversial decision was considered a victory for both free speech advocates and documentary filmmakers. In an amicus brief on behalf of the filmmakers, the Media Coalition urged the Court to rule in favor of Stevens because of the case's First Amendment implications. They argued that the decision is important to filmmakers because they need to be able to exercise their free speech rights in order to shed light on, or expose, newsworthy activities or practices to the viewing public. On the other side, the U.S. Department of Justice lawyers argued that animal cruelty videos should be treated like child pornography and given no constitutional protection. But while American law has a long history of protecting against animal cruelty, Stevens noted that it has no tradition of protecting against depictions of such cruelty. Therefore, the Supreme Court declined to exclude a new category of speech from the protections of the First Amendment.

Debbie Rosenbaum is a fourth year JD/MBA at Harvard Law School and Harvard Business School.