Monthly Archives: June 2017

United States v. Stevens: Animal Crush Videos; Free Speech (04/20/2010)

United States v. Stevens

Is 18 U.S.C. Section 48 unconstitutional under the Free Speech Clause of the First Amendment?  

Argued: 10/06/2009

Decision Date: 04/20/2010

Decision Record: 8-1; yes

Justices in Favor: John Roberts, John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor

Justices Dissenting: Samuel Alito

Effect of the Decision

This case ruled that the 18 U.S.C. Section 48, on its face, is unconstitutional under the First Amendment.

In Favor

In the favoring side of this case, on the side of the United States, attorney Neal Kumar Katyal argued, “

Ten years ago, in Section 48 of Title 18, Congress crafted a narrowly targeted restriction against certain depictions of actual animal cruelty.

Yet the Third Circuit struck the statute down on its face without even attempting to apply substantial overbreadth analysis.

The statute has four critical features and, just as the Court last year in United States v. Williams began with statutory construction, analysis should begin there.

First, like the statute at issue in the United States v. Ferber, this statute only reaches depictions of cruelty to actual living beings — animals, not simulated ones or the written word.

Second, the statute only applies to commercial messages, ones that Congress found drove the market for animal cruelty.”


In the opposition, on the side of Stevens, attorney Patricia A. Millett, “It is not the exact same message, if you are forced in a popular debate that is going around this country now about the treatment of animals.

To require one side to engage — to use simulated images, which is exactly what the government’s reply brief at page 3 insists upon, while those who want to ban conduct are allowed to use real images.

That puts the government’s censorial thumb on the scale of public debate.”


On the majority side, also the affirming side, Justice Roberts wrote the opinion. He wrote, “Our construction of §48 decides the constitutional question; the Government makes no effort to defend the constitutionality of §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene), and that the ban on such speech is narrowly tailored to reinforce restrictions on the underlying conduct, prevent additional crime arising from the depictions, or safeguard public mores. But the Government nowhere attempts to extend these arguments to depictions of any other activities—depictions that are presumptively protected by the First Amendment but that remain subject to the criminal sanctions of §48.

     Nor does the Government seriously contest that the presumptively impermissible applications of §48 (properly construed) far outnumber any permissible ones. However “growing” and “lucrative” the markets for crush videos and dogfighting depictions might be, see Brief for United States 43, 46 (internal quotation marks omitted), they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of §48. Seesupra , at 13–14. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

In the side of the opposition, Justice Alito wrote the opinion. He wrote, “Application of the Ferber framework also supports the constitutionality of §48 as applied to depictions of brutal animal fights. (For convenience, I will focus on videos of dogfights, which appear to be the most common type of animal fight videos.)

First, such depictions, like crush videos, record the actual commission of a crime involving deadly violence. Dogfights are illegal in every State and the District of Columbia, Brief for United States 26–27, and n. 8 (citing statutes), and under federal law constitute a felony punishable by imprisonment for up to five years, 7 U. S. C. §2156 et seq. (2006 ed. and Supp. II), 18 U. S. C. §49 (2006 ed., Supp. II).

     Second, Congress had an ample basis for concluding that the crimes depicted in these videos cannot be effectively controlled without targeting the videos. Like crush videos and child pornography, dogfight videos are very often produced as part of a ‘low-profile, clandestine industry,’ and ‘the need to market the resulting products requires a visible apparatus of distribution.’ Ferber, 458 U. S., at 760. In such circumstances, Congress had reasonable grounds for concluding that it would be “difficult, if not impossible, to halt’ the underlying exploitation of dogs by pursuing only those who stage the fights. Id. , at 759–760; see 533 F. 3d, at 246 (Cowen, J., dissenting) (citing evidence establishing ‘the existence of a lucrative market for depictions of animal cruelty,’ including videos of dogfights, ‘which in turn provides a powerful incentive to individuals to create [such] videos’).

     The commercial trade in videos of dogfights is ‘an integral part of the production of such materials,’ Ferber, supra, at 761. As the Humane Society explains, ‘[v]ideotapes memorializing dogfights are integral to the success of this criminal industry” for a variety of reasons. Humane Society Brief 5. For one thing, some dogfighting videos are made “solely for the purpose of selling the video (and not for a live audience).’ Id. , at 9. In addition, those who stage dogfights profit not just from the sale of the videos themselves, but from the gambling revenue they take in from the fights; the videos “encourage [such] gambling activity because they allow those reluctant to attend actual fights for fear of prosecution to still bet on the outcome.” Ibid.; accord, Brief for Center on the Administration of Criminal Law as Amicus Curiae 12 (‘Selling videos of dogfights effectively abets the underlying crimes by providing a market for dogfighting while allowing actual dogfights to remain underground’); ibid. (‘These videos are part of a ‘lucrative market’ where videos are produced by a ‘bare-boned, clandestine staff’ in order to permit the actual location of dogfights and the perpetrators of these underlying criminal activities to go undetected’ (citations omitted)). Moreover, ‘[v]ideo documentation is vital to the criminal enterprise because it provides proof of a dog’s fighting prowess—proof demanded by potential buyers and critical to the underground market.’ Humane Society Brief 9. Such recordings may also serve as ‘training’ videos for other fight organizers.’ Ibid. In short, because videos depicting live dogfights are essential to the success of the criminal dogfighting subculture, the commercial sale of such videos helps to fuel the market for, and thus to perpetuate the perpetration of, the criminal conduct depicted in them.

     Third, depictions of dogfights that fall within §48’s reach have by definition no appreciable social value. As noted, §48(b) exempts depictions having any appreciable social value, and thus the mere inclusion of a depiction of a live fight in a larger work that aims at communicating an idea or a message with a modicum of social value would not run afoul of the statute.

     Finally, the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess. As the Humane Society explains:

‘The abused dogs used in fights endure physical torture and emotional manipulation throughout their lives to predispose them to violence; common tactics include feeding the animals hot peppers and gunpowder, prodding them with sticks, and electrocution. Dogs are conditioned never to give up a fight, even if they will be gravely hurt or killed. As a result, dogfights inflict horrific injuries on the participating animals, including lacerations, ripped ears, puncture wounds and broken bones. Losing dogs are routinely refused treatment, beaten further as ‘punishment’ for the loss, and executed by drowning, hanging, or incineration.” Id., at 5–6 (footnotes omitted).

     For these dogs, unlike the animals killed in crush videos, the suffering lasts for years rather than minutes. As with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities. See Ferber , supra , at 757–758; Simon & Schuster , 502 U. S., at 119.

     In sum, §48 may validly be applied to at least two broad real-world categories of expression covered by the statute: crush videos and dogfighting videos. Thus, the statute has a substantial core of constitutionally permissible applications. Moreover, for the reasons set forth above, the record does not show that §48, properly interpreted, bans a substantial amount of protected speech in absolute terms. A fortiori , respondent has not met his burden of demonstrating that any impermissible applications of the statute are “substantial” in relation to its ‘plainly legitimate sweep.’ Williams , 553 U. S., at 292. Accordingly, I would reject respondent’s claim that §48 is facially unconstitutional under the overbreadth doctrine.”

My Opinion:

In this case, I disagree with the majority and agree with the minority. I don’t think animals should be able to be harmed for commercial purposes because the person creating the video has “freedom of speech.” Animals like dogs should be able to have rights as well; not to the same extent as humans, but also because of S18 U.S.C. Section 48. There’s no reason for that to be considered “unconstitutional.” Freedom of speech is great until someone or something is harmed because of it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right