Justices Are Skeptical About Constitutionality of Law Criminalizing Photos of Cruelty to Animals
(October 7, 2009) – In a rare display of near-unanimity, the justices of the Supreme Court yesterday showed little enthusiasm for the government's argument that they should create a new exception to the First Amendment for depictions of “animal cruelty.”
According to The New York Times's Adam Liptak, reporting on the Supreme Court argument in U.S. v. Stevens, Justice Ruth Bader Ginsburg asked the lawyers whether videos of cockfighting would be illegal under the "animal cruelty" law; Justice John Paul Stevens asked, “what about hunting with a bow and arrow out of season?”; Justice Stephen Breyer asked about “stuffing geese for pâté de foie gras”; and Justice Antonin Scalia wondered: “What if I am an aficionado of bullfights, and I think, contrary to the animal cruelty people, they ennoble both beast and man?” None of the justices seemed impressed with Deputy Solicitor General Neal Katyal's argument that they should not indulge in an “endless stream of fanciful hypotheticals.”1
The law in question defines “depiction of animal cruelty” as
The law applies only to depictions that are intended to be placed "in interstate or foreign commerce for commercial gain,” and has an exemption for “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”2
Crush videos, the ostensible target of the law, are evidently designed to appeal to a relatively small group of people who have a bizarre sexual interest in seeing women in dominatrix apparel stomping on small animals and torturing them to death. Obviously, the definition of “animal cruelty” in the law goes well beyond the crush video phenomenon.
The defendant in the case before the Supreme Court, Robert Stevens, was criminally convicted for possessing two videos showing dogfights and one showing the training of pit bulls to catch and subdue wild boars. The dogfights were legal where they were filmed. The videos contain narration and commentary.
The U.S. Court of Appeals for the Third Circuit reversed Stevens’s conviction. The court said it had been 25 years since the Supreme Court created a new exception to the protection of the First Amendment (in that instance, for child pornography). The judges saw no compelling reason to create another exception for depictions of animal cruelty, especially since acts of animal cruelty are already illegal in all 50 states. The court noted that the law potentially bans not only documentaries about dogfighting, cockfighting, and bullfighting, but even depictions of fishing and hunting if done off-season or without the proper permit.3
The Court of Appeals added that the exemption in the law for works with “serious value” creates more problems than it solves. Outside the field of obscenity law (which defines punishable obscenity as prurient, patently offensive sexual material that lacks “serious value”), the First Amendment protects expression regardless of whether a prosecutor, judge, or jury thinks it has "serious value."
The government’s petition to the Supreme Court to review the Court of Appeals decision raised at least two questions with ominous implications for free speech. One involved Congress’s stated justification for the law: that depictions of cruelty to animals should be suppressed because they will desensitize people and lead them to be cruel to humans as well. This is an argument with very few limits.
For example, those who want to ban films and other forms of expression that contain graphic violence frequently argue that viewers will be desensitized, or will imitate the violence shown on the screen. But the First Amendment rejects the notion that speech should be suppressed because it might give people bad ideas. As as a U.S. appeals court judge explained in a decision striking down an l ordinance that criminalized pornography that seemed to advocate the subordination of women: “any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.”4
The government also argued that any danger of censorship would be averted by the law’s exemption for material with serious value. But apart from the “I know it when we see it” context of obscenity law, the question whether a work has "serious value" is one that the First Amendment puts beyond the power of local authorities to decide.
According to the brief in opposition to the government's petition for review, filed by the public defender representing Stevens, there have been only three prosecutions under the animal-cruelty-depiction law since its passage in 1999. None have been for crush videos.5
Many friend-of-the-court briefs have been filed on both sides of this case. Some animal-rights groups, arguably short-sightedly, have sided with the government and urged the Court to carve out an exception to the First Amendment for depictions of animal cruelty. Free-expression, arts, and media organizations submitted many briefs outlining the perils of such a course.6
Update: On April 20, 2010, the Supreme Court struck down the "depiction of animal cruelty" law in an 8-1 decision. Chief Justice Roberts's opinion for the Court rejected the government's argument that "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.” He explained: "As a free-floating test for First Amendment coverage, that sentence is 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 social 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."
2. 18 U.S.Code §48.
4. American Booksellers Association v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985).
5. Brief in Opposition to Petition for Certiorari in U.S. v. Stevens, p. 12, available at
6. All of the briefs can be found at http://www.abanet.org/publiced/preview/briefs/oct09.shtml