UNITED STATES V. STEVENS

US Supreme Court, 2010

Vote: 81

 

In this case the Supreme Court strikes down a federal statute, 18 U.S.C. §48, which made it a felony for anyone to knowingly create, sell or possess a depiction of animal cruelty if done for commercial gain. The law exempted depictions with serious religious, political, scientific, educational, journalistic, historical, or artistic value. The law was enacted in 1999 primarily to prohibit so called “crush videos” which depict small animals being crushed, usually by human feet and often in a sexual context.  However, more recent concerns about dogfighting led to the law being applied to purveyors of dogfighting videos. Robert J. Stevens, who ran a website selling such videos, was convicted of violating the statute and was sentenced to three years in prison followed by three years of supervised release.  The U.S. Court of Appeals for the Third Circuit reversed and declared the statute facially invalid under the First Amendment.  The Supreme Court granted certiorari.

Chief Justice Roberts delivered the opinion of the Court.

       … The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal is intentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” … “From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” … These “historic and traditional categories long familiar to the bar,” including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, … are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”

       The Government argues that “depictions of animal cruelty” should be added to the list. It contends that depictions of “illegal acts of animal cruelty” that are “made, sold, or possessed for commercial gain” necessarily “lack expressive value,” and may accordingly “be regulated as unprotected speech.” … The claim is not just that Congress may regulate depictions of animal cruelty subject to the First Amendment, but that these depictions are outside the reach of that Amendment altogether--that they fall into a “ ’First Amendment Free Zone.’ ”

       As the Government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies. … But we are unaware of any similar tradition excluding depictions of animal cruelty from “the freedom of speech” codified in the First Amendment, and the Government points us to none.

       The Government contends that “historical evidence” about the reach of the First Amendment is not “a necessary prerequisite for regulation today,” … and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. Instead, the Government points to Congress’s “legislative judgment that ... depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,” … and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “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.”…

       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. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”…

       To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being “ ’of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” In New York v. Ferber … (1982), we noted that within these categories of unprotected speech, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,” because “the balance of competing interests is clearly struck.” … The Government derives its proposed test from these descriptions in our precedents.…

       But such descriptions are just that--descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.

       When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. In Ferber, for example, we classified child pornography as such a category. … We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. … But our decision did not rest on this “balance of competing interests” alone. … We made clear that Ferber presented a special case: The market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation.” … As we noted, “ ’[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’ ” … Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.…

       Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.

III

       Because we decline to carve out from the First Amendment any novel exception for §48, we review Stevens’s First Amendment challenge under our existing doctrine.

A

       Stevens challenged §48 on its face, arguing that any conviction secured under the statute would be unconstitutional. The court below decided the case on that basis, … and we granted the Solicitor General’s petition for certiorari to determine “whether 18 U. S. C. 48 is facially invalid under the Free Speech Clause of the First Amendment.”…

       To succeed in a typical facial attack, Stevens would have to establish “that no set of circumstances exists under which [§48] would be valid,” or that the statute lacks any “plainly legitimate sweep.” … Which standard applies in a typical case is a matter of dispute that we need not and do not address. … Here the Government asserts that Stevens cannot prevail because §48 is plainly legitimate as applied to crush videos and animal fighting depictions. Deciding this case through a traditional facial analysis would require us to resolve whether these applications of §48 are in fact consistent with the Constitution.

       In the First Amendment context, however, this Court recognizes “a second type of facial challenge,” whereby a law may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” … Stevens argues that §48 applies to common depictions of ordinary and lawful activities, and that these depictions constitute the vast majority of materials subject to the statute. … The Government makes no effort to defend such a broad ban as constitutional. Instead, the Government’s entire defense of §48 rests on interpreting the statute as narrowly limited to specific types of “extreme” material. … As the parties have presented the issue, therefore, the constitutionality of §48 hinges on how broadly it is construed. It is to that question that we now turn.3

B

       As we explained two Terms ago, “[t]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” …

       We read §48 to create a criminal prohibition of alarming breadth. To begin with, the text of the statute’s ban on a “depiction of animal cruelty” nowhere requires that the depicted conduct be cruel. That text applies to “any ... depiction” in which “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” … “[M]aimed, mutilated, [and] tortured” convey cruelty, but “wounded” or “killed” do not suggest any such limitation.…

       What is more, the application of §48 to depictions of illegal conduct extends to conduct that is illegal in only a single jurisdiction. … A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful. This provision greatly expands the scope of §48, because although there may be “a broad societal consensus” against cruelty to animals, … there is substantial disagreement on what types of conduct are properly regarded as cruel. Both views about cruelty to animals and regulations having no connection to cruelty vary widely from place to place.

       In the District of Columbia, for example, all hunting is unlawful. … Other jurisdictions permit or encourage hunting, and there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed. Hunting periodicals have circulations in the hundreds of thousands or millions, … and hunting television programs, videos, and Web sites are equally popular. … The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude. … Nonetheless, because the statute allows each jurisdiction to export its laws to the rest of the country, §48(a) extends to any magazine or video depicting lawful hunting, so long as that depiction is sold within the Nation’s Capital.

       Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions.…

C

       The only thing standing between defendants who sell such depictions and five years in federal prison--other than the mercy of a prosecutor--is the statute’s exceptions clause. Subsection (b) exempts from prohibition “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Government argues that this clause substantially narrows the statute’s reach: News reports about animal cruelty have “journalistic” value; pictures of bullfights in Spain have “historical” value; and instructional hunting videos have “educational” value. … Thus, the Government argues, §48 reaches only crush videos, depictions of animal fighting … and perhaps other depictions of “extreme acts of animal cruelty.” …      The Government’s attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause.…

D

       Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, … and it “neither has brought nor will bring a prosecution for anything less.” … The Government hits this theme hard, invoking its prosecutorial discretion several times. … But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.…

       This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” … No one suggests that the videos in this case fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.…

       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, … 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. … 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.…

Justice Alito, dissenting.

       The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty--in particular, the creation and commercial exploitation of “crush videos,” a form of depraved entertainment that has no social value. The Court’s approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted. Respondent was convicted under §48 for selling videos depicting dogfights. On appeal, he argued, among other things, that §48 is unconstitutional as applied to the facts of this case, and he highlighted features of those videos that might distinguish them from other dogfight videos brought to our attention. The Court of Appeals--incorrectly, in my view--declined to decide whether §48 is unconstitutional as applied to respondent’s videos and instead reached out to hold that the statute is facially invalid. Today’s decision does not endorse the Court of Appeals’ reasoning, but it nevertheless strikes down §48 using what has been aptly termed the “strong medicine” of the overbreadth doctrine, a potion that generally should be administered only as “a last resort.”

       Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected. If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that §48 bans a substantial quantity of protected speech.…

       …§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, … 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.” Accordingly, I would reject respondent’s claim that §48 is facially unconstitutional under the overbreadth doctrine. …