The significance of the recent landmark Supreme Court decision in United States v. Stevens is more about what the Court did not do than it is about what it did. Simply, it struck down a law prohibiting depictions of animal cruelty as being at odds with the First Amendment.
Robert J. Stevens was convicted in federal court of violating the statute—and sentenced to over three years in federal prison! (This is not just a little misdemeanor.) But the appellate court tossed out his conviction, finding that the statute, as noted above, violated the First Amendment. The federal court of appeals agreed, following which the Supreme Court agreed to accept the case, which regularly happens when federal statutes are struck down by lower courts.
In an 8-1 decision, authored by Chief Justice Roberts—President Bush 43’s champion of conservatism—the Court rejected all of the government’s very scary arguments (all coming from the Obama administration, mind you). The lone dissenting vote was W’s other nominee to the Court, Samuel Alito, who many predict is on his way to being its most conservative member, which is saying something considering the presence of Justices Scalia and Thomas.
The Court rightly found the law to be overbroad, and its broad terms vague as well. Animal cruelty is illegal pretty much everywhere, right? Well, what about hunting? Slaughterhouses? Rodeos? Many argue that thoroughbred racing and dog racing are forms of animal cruelty. What about locking up a 150-pound dog in an urban apartment all day long every day? There is considerable discussion about what is and is not animal cruelty, all of which discussion is protected by the First Amendment.
Ignoring traditional strict scrutiny analysis, the government had argued that the test should be a “categorical balancing of the value of the speech against its societal costs.” Think about that! What would adopting such a test allow the government to do in terms of regulating pornography? However, Chief Justice Roberts, obviously seeing the potential danger to that position with respect to free speech, characterized it as “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 restriction 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.”
Several animal-rights groups entered the case in support of this statute, a move that was greatly misguided. The law was so broad, it could easily have been applied to PETA videos opposing animal cruelty. This case was not about animal cruelty; it was about the First Amendment, and no one had more at stake than activists who expose cruelty to animals. Those who oppose the war in Iraq, for example, would not begin to say that the First Amendment does not protect the news coverage of it. There is a classic image of a young man in Vietnam being murdered—shot in the head with a pistol—which was an abhorrent act; but nobody would say that the image does not enjoy First Amendment protection. Indeed, many such images precisely point to the classic axiom that the remedy for bad speech is not censorship; the remedy is more speech.
Stevens raised the most fundamental questions of First Amendment protection. We start with the proposition that all expressive conduct is presumed to be protected by the First Amendment, and that any effort by government to regulate the existence or content of speech is subject to court review under a doctrine called “strict scrutiny.” What that means is that the government loses unless it can prove two things: (1) the regulation serves a compelling governmental interest, and (2) there is not a less restrictive means of furthering that interest. Now, go back and read that again, carefully.
What are examples of speech regulations that pass this difficult test? Some of the classic examples are fraud; deceptive advertising; disclosing troop movements in wartime; yelling “fire!” in a crowded theater when there isn’t one; and so-called “fighting words,” although that is a very tightly limited exception.
The two exceptions perhaps most familiar here are child pornography and obscenity. Stevens involved a federal statute where Congress attempted to create a new exception to the First Amendment, consisting of all depictions of illegal cruelty to animals. In a nutshell, the statute said that such images were contraband if the conduct depicted was animal cruelty; was illegal in the state where the image was made, sold, or possessed; and—this will ring familiar—it lacks serious literary, scientific, etc., value.
Proponents of the statute trumpeted the analogy to child pornography. But the problem with that analysis goes back to the “strict scrutiny” issue. The government has an interest in protecting animals from cruelty; but that hardly rises to the level of its compelling interest in protecting children from sexual predators. And that is precisely how the lower court analyzed the statute.
The whole thing was very frightening, because the government was asking the Supreme Court to carve an exception to the First Amendment where the speech involved clearly did not meet the strict scrutiny test. Since sexy speech is the category that the government most likes to regulate, the potential ramifications of a bad decision in this case were staggering to this industry.
The feature of the statute that impelled the First Amendment Lawyers Association to file an amicus curiae brief was the exception for depictions that had “serious religious, political, scientific, educational, journalistic, historical or artistic value”—materially identical to the exception in the obscenity test that was created by the Court in Miller. In essence, the government was trying to persuade the Court that the First Amendment only protected speech with serious value, and the Court would have none of that.
That is important because it could spill over into calling Miller into question. After all, in light of this decision, obscenity remains the only species of regulation of content of speech where strict scrutiny analysis is not followed.
What this leads to is the real possibility that the Court will reexamine Miller, and that may or may not be good. This opinion calls into question the serious value prong, and the internet has done the same with the issue of what “taken as a whole” and “community values” mean.
Clyde DeWitt is an attorney whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
This article originally ran in the June 2010 issue of AVN.
