U.S. v. Stevens: The Supreme Court’s First Amendment Problem

WASHINGTON, D.C.—The U.S. Supreme Court today invalidated a law prohibiting the creation, sale and possession of videos depicting animal cruelty, ruling that petitioner Robert J. Stevens' dog-fighting video sales did not create a new "exception" to the First Amendment, whose text reads, in pertinent part, "Congress shall make no law… abridging freedom of speech, or of the press."

"The Government’s primary submission is that [18 U.S.C.] §48 necessarily complies with the Constitution because the banned depictions of animal cruelty, as a class, are categorically unprotected by the First Amendment," wrote Chief Justice John Roberts for a nearly unanimous Court. "We disagree."

"'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'," Roberts continued, referring to various speech cases from Chaplinsky v. New Hampshire to U.S. v. Playboy Entertainment Group, Inc. "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.'" [Citations omitted here and below]

(That's wrong, of course. The First Amendment has "permitted" no such thing; it's the Supreme Court itself that has created such "exceptions"—and obscenity is hardly a "well-defined and narrowly limited" class of speech, as, for instance, the current prosecutions of John Stagliano and Barry Goldman illustrate. But we digress...)

Roberts goes on to note that, as the Solicitor General argued last October, American law has a long history of prohibiting cruelty to animals, "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."

(Just to recap: Laws against animal cruelty are proper [and constitutional], but restrictions on the depiction of such cruelty on videotape, DVD or VOD have no historical "tradition." In other words, it's fine to make and sell videos of, for instance, dogs tearing each other to pieces in a dog-fighting "ring," but videos depicting humans performing the [legal] acts of giving each other enemas or squirting during sex or play-acting at torturing one another—as in the Stagliano and Goldman cases—are okay for prosecution, especially since, for the first 30 years of this country's existence, no obscenity laws were enforced. But we digress...)

The high court's schizophrenia continues as the majority shoots down one of the government's primary arguments for exclusion of dog-fighting videos from First Amendment protection: That in New York v. Ferber, the seminal child pornography case, when the majority in that case declared that, "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," it didn't mean "balance" in any legal sense; it was just "descriptive."

"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," Roberts wrote. "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'."

(On the other hand, the Supreme Court itself held, in Stanley v. Georgia, that unlike child porn, adults have the right to own even obscene sexually-explicit materials made with adults in their own homes—which would mean that making an obscene video would not be "intrinsically related" to an illegal activity, since having sex is an activity legal "throughout the Nation." But we digress...)

The Court notes that after Stevens was indicted for selling his videos, he mounted a facial challenge to 18 U.S.C. §48, arguing that it was unconstitutional for Congress to prohibit the sale of such videos—an action that would "typically" require Stevens to prove that "no set of circumstances exists under which [§48] would be valid." Here, the government's argument was that "Stevens cannot prevail because §48 is plainly legitimate as applied to crush videos and animal fighting depictions"—an argument that should require the Supreme Court to decide whether all applications of the anti-abuse video law are unprotected.

But no: "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'," Roberts wrote.  "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... We read §48 to create a criminal prohibition of alarming breadth."

The opinion goes on to dissect the wording of §48, noting that its prohibition of videos in which an animal is "wounded, or killed" could not be part of a ban on "animal cruelty" because wounding or killing an animal is not cruelty.

 It also notes that while the statute requires that the depicted conduct be "illegal," killing or wounding animals is not illegal in many states, which actually license citizens to hunt and fish.

"In the District of Columbia, for example, all hunting is unlawful," the high court noted. "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... The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude... Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions."

(That would be unlike adult retailers, for example, who face "a bewildering maze of regulations" in just about every municipality in the country. But we digress...)

After detailing several types of animal slaughter that are either legal or illegal in various jurisdictions, the Court concludes, "An otherwise-lawful image of any of these practices, if sold or possessed for commercial gain within a State that happens to forbid the practice, falls within the prohibition of §48(a)... 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.'" (Nowhere, however, is this exception described as the statute's "third prong.")

"The Government's attempt to narrow the statutory ban, however, requires an unrealistically broad reading of the exceptions clause," the opinion continues. "As the Government reads the clause, any material with 'redeeming societal value,' 'at least some minimal value,' or anything more than 'scant social value' is excluded under §48(b).  But the text says 'serious' value, and 'serious' should be taken seriously. We decline the Government's invitation— advanced for the first time in this Court—to regard as 'serious' anything that is not 'scant.'... As the Government recognized below, 'serious' ordinarily means a good bit more. The District Court's jury instructions required value that is 'significant and of great import,' and the Government defended these instructions as properly relying on 'a commonly accepted meaning of the word "serious."'"

The Court goes on to point out that most hunting videos, for instance, do not have the various forms of "serious value" the statute contemplates, and the opinion notes, "The Government offers no principled explanation why these depictions of hunting or depictions of Spanish bull-fights would be inherently valuable while those of Japanese dogfights are not... There is simply no adequate reading of the exceptions clause that results in the statute’s banning only the depictions the Government would like to ban."

Finally, on page 17 of the 20-page holding, the Court gets around to comparing §48 to the obscenity test in Miller v. California, but nothing in the opinion comes close to justifying the Miller test.

"The Government explains that the language of §48(b) [the "exceptions" clause] was largely drawn from our opinion in Miller v. California, which excepted from its definition of obscenity any material with 'serious literary, artistic, political, or scientific value'," the opinion notes. "According to the Government, this incorporation of the Miller standard into §48 is therefore surely enough to answer any First Amendment objection. In Miller we held that 'serious' value shields depictions of sex from regulation as obscenity. Limiting Miller’s exception to 'serious' value ensured that '[a] quotation from Voltaire in the flyleaf of a book [would] not constitutionally redeem an otherwise obscene publication.' We did not, however, determine that serious value could be used as a general precondition to protecting other types of speech in the first place. Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation." [Some internal quotes omitted]

Even more amazing is the high court's repudiation of the government's claim that it would use discretion in applying the anti-dog-fighting-video statute.

"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,' Roberts writes. "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," the opinion continues. "When this legislation was enacted [1999], 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."

So let's take an analogous situation: Obscenity laws. Of the tens of thousands of adult videos that have been produced, the obscenity laws supposedly target a very small number, though the acts depicted in those videos are not illegal in themselves; only their depiction in the videos is supposedly prosecutable, even though Stanley v. Georgia protects the right of citizens to own such videos—and despite the three prongs of Miller, it remains impossible to ascertain, before a fact-finder delivers a verdict, whether any particular video is obscene. And let's not forget, "The demand for [sexually explicit] depictions exceeds the estimated demand for [obscene] videos ... by several orders of magnitude," which by the logic of the Stevens decision means that federal obscenity laws should fall under a facial challenge if "a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep." (In that regard, someone might want to think about updating attorney Jeffrey Douglas' seminal work, "Know Censorship," which tracked the outcomes of obscenity prosecutions around the country for a number of years, in order to note how many "obscenity" prosecutions resulted in "not guilty" verdicts.)

Nonetheless, the vagueness of the obscenity law gives government prosecutors nearly unfettered discretion to claim that any hardcore sexual depiction is chargeable, thus leaving adult producers (and retailers) "at the mercy of noblesse oblige"—especially since, as the Stevens opinion notes, "Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' (let alone serious value), but it is still sheltered from government regulation." In fact, the Miller test is "The only thing standing between defendants who sell such depictions and five years in federal prison."

And sure enough, that's pretty much what eight members of the highest court in the land decided regarding dog-fighting videos.

"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," the Court held. "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," the opinion continues. "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."

And of course, that last point is something the adult industry has been saying for years: "Just tell us exactly what activities in hardcore adult videos are considered to be 'obscene' and we won't put those in them."

What's abundantly clear, though, is that in light of the Stevens decision, the Justice Department attorneys in charge of the Stagliano and Goldman prosecutions should have their work cut out for them... and they should lose.