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SCOTUS Strikes Down Law Prohibiting Videos Of Animal Cruelty

US. v. Stevens (PDF), 8-1, with Alito in dissent. From the syllabus:

Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” §48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The legislative background of §48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under §48 for selling videos depicting dogfighting. He moved to dismiss, arguing that §48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared §48 facially unconstitutional as a content-based regulation of protected speech.

Held: Section §48 is substantially overbroad, and therefore invalid under the First Amendment.

Haven't read the opinion but I am curious if the question of whether Congress can regulate the underlying conduct came up.

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    Resounding Victory for Free Speech (5.00 / 1) (#3)
    by Michael Masinter on Tue Apr 20, 2010 at 11:08:43 AM EST
    The power of the governments, state and federal, to punish animal cruelty, was not at issue; the Court properly treated the statute as a restriction of speech, and held that:

    1)  The first amendment does not exclude from its reach depictions of animal cruelty.  Though a few forms of speech -- obscenity, incitement to imminent violence, defamation -- are entirely unprotected by the first amendment, the Court refused to expand that category to encompass animal cruelty.  The Court rejected as unprecedented and contrary to the constitution the government's invitation to adopt a balancing test for defining categories of unprotected speech in language that deserves repeating:

    "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 dependsupon a categorical balancing of the value of the speech against its societal costs." Brief for United States 8; see also id., at 12.

    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." Marbury v. Madison, 1 Cranch 137, 178 (1803)."

    2.  Because the statute regulated within the reach of the first amendment, the Court turned to whether the statute was overbroad, and, because it punished any depiction of injury or killing, whether or not cruel, of animals illegal in any state in the country, found that it was substantially overbroad and therefore unconstitutional on its face.  For that reason, the Court did not have to decide whether a more narrowly drawn statute punishing only crush videos or extreme animal cruelty would pass constitutional muster.

    The decision is a resounding victory for free speech that in no way limits the power of governments to punish animal cruelty.

    telling distinction (5.00 / 2) (#12)
    by ahazydelirium on Tue Apr 20, 2010 at 12:26:30 PM EST
    "Though a few forms of speech -- obscenity, incitement to imminent violence, defamation -- are entirely unprotected by the first amendment, the Court refused to expand that category to encompass animal cruelty."

    it's interesting that animal cruelty is considered, in this rationale, to be another separate category from obscenity. depictions of violence against animals strike me as quite obscene since animal cruelty is generally considered unlawful (to some degree in various states and at the federal level). consider: if the organized distribution of animal cruelty is protected speech, is the operator of the camera an accessory to a crime or a documentary maker? freedom to assemble, the right to be witness to the act; freedom of speech, the right to produce protected speech. i don't feel comfortable making that claim.

    i suppose my opinion is colored by my dedication to animal rights; however, i can't look at something like this [disturbing (but apparently protected) images] and believe it's protected speech.

    Parent

    Under the law, the term "obscene" (5.00 / 1) (#31)
    by Peter G on Tue Apr 20, 2010 at 02:39:51 PM EST
    means something quick specific, having to do with explicit depictions of sexual conduct that have no redeeming social value.  It does not mean "anything we think is totally awful."

    Parent
    thanks for the clarification (nt) (none / 0) (#37)
    by ahazydelirium on Tue Apr 20, 2010 at 02:52:04 PM EST
    "quite specific," I meant, (none / 0) (#43)
    by Peter G on Tue Apr 20, 2010 at 06:20:07 PM EST
    of course, not "quick specific."  "Quite" a bit too "quick" with the "post" button.

    Parent
    Reading this quickly (5.00 / 1) (#5)
    by andgarden on Tue Apr 20, 2010 at 11:15:42 AM EST
    I am not convinced that Altio doesn't have the better of the argument. In particular:

    [W]e have a duty to interpret §48 so as to avoid serious constitutional concerns, and §48 may reasonably be construed not to reach almost all, if not all, of the depictions that the Court finds constitutionally protected. Thus, §48 does not appear to have a large number of unconstitutional applications. Invalidation for overbreadth is appropriate only if the challenged statute suffers from substantial overbreadth--judged not just in absolute terms, but in relation to the statute's "plainly legitimate sweep." Williams, 553 U. S., at 292.



    is it just me or (5.00 / 2) (#6)
    by Capt Howdy on Tue Apr 20, 2010 at 11:22:36 AM EST
    does it seem unlikely that the founding guys imagined free speech to include unlimited spending by corporations to influence elections and crushing animals for jollies?


    Since they didn't imagine (none / 0) (#17)
    by me only on Tue Apr 20, 2010 at 01:04:09 PM EST
    that we would let just anyone vote, their views on corporate donations would probably not be the same today as they were 221 years ago...

    Parent
    question. (5.00 / 1) (#7)
    by ahazydelirium on Tue Apr 20, 2010 at 11:30:40 AM EST
    does such a ruling ultimately protect the distribution of snuff films as free speech?

    That was my husband's next (none / 0) (#8)
    by Militarytracy on Tue Apr 20, 2010 at 11:32:39 AM EST
    question along with child pornography filmed in legal locations.

    Parent
    No (none / 0) (#9)
    by andgarden on Tue Apr 20, 2010 at 11:33:29 AM EST
    Though I do think this opinion calls Miller into question.

    Parent
    why does this ruling exclude snuff? (none / 0) (#10)
    by ahazydelirium on Tue Apr 20, 2010 at 11:50:10 AM EST
    and, are you referring to the criteria established in the miller cause for determining obscenity?

    Parent
    It doesn't discuss snuff (none / 0) (#11)
    by andgarden on Tue Apr 20, 2010 at 11:55:34 AM EST
    As to Miller, I am referring to two things: first, the implicit criticism of the criteria, and second, the general fundamentalism of first amendment interpretation reflected in the opinion (it's taken to be much more of a broad instrument than the Court had previously been willing to recognize) .

    Parent
    Miller Not Threatened (none / 0) (#14)
    by Michael Masinter on Tue Apr 20, 2010 at 12:51:49 PM EST
    I don't think the decision undermines long settled law that obscenity is unprotected speech (Miller) or that child pornography is unprotected speech (Ferber).  

    The Court reiterates that obscenity has always been unprotected speech; it simply refuses to extend Miller's test for obscenity to speech that does not appeal to the prurient interest and that includes no explicit sexual content.  For that reason, obscenity law remains intact.

    Similarly, nonobscene child pornography remains unprotected speech because children are unlawfully abused every time it is produced and in every place it is produced and are victimized again each time it is distributed.  Because it the speech (the visual depiction of child sexual abuse) cannot be disconnected from the abuse itself (no child sexual abuse, no child porn), the speech is unprotected as an essential part of a criminal act.  That's why virtual child porn can only be prosecuted under obscenity laws rather than child porn laws -- no child is harmed in its production or distribution.

    The statute in question in this case punished speech (depictions of the injury or killing of an animal) even if the injury or killing was lawful where filmed and without regard to whether it had any sexual content or even undertone.  That's why the statute was overbroad; it did not only punish crush videos or extreme cruelty unlawful where it took place.

    Snuff films, as I understand them, combine explicit sex and homicide, and can be prosecuted under Miller as obscene just as easily today as yesterday; just as obviously, so can the homicide.  Nothing in this decision calls into question the power to punish those who produce or market snuff films.

    Parent

    Actually Miller has never just applied to (5.00 / 1) (#16)
    by Dan the Man on Tue Apr 20, 2010 at 01:04:04 PM EST
    "sexual content."  An example given in the Miller opinion itself is that the "test" applies also to excretory functions.

    Parent
    Excretory Function (none / 0) (#39)
    by Michael Masinter on Tue Apr 20, 2010 at 03:36:27 PM EST
    An example given in the Miller opinion itself is that the "test" applies also to excretory functions.

    Yes, an obscenity statute can criminalize the verbal or visual depiction of excretory functions, but only if the average person, applying contemporary community standards, would find that the work as a whole appeals predominantly to a prurient (sexual) interest.  

    Parent

    No. There is no need for it to appeal to sexual (none / 0) (#42)
    by Dan the Man on Tue Apr 20, 2010 at 05:53:21 PM EST
    interest at all if we're talking about excretory functions.  This is very clear in the Miller opinion.

    1st, it is stated very clearly that the excretory functions just needs to be patently offensive.  No need for sexual interest.

    From Miller:


    It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
    (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

    2nd, in the case under discussion in Miller, prurient interest was defined in such a way that morbid interest in excretory functions could be considered obscene even if there was no sexual interest.

    From Miller:


    "Obscene" means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.


    Parent
    Miller defines obscenity in language that equates prurient with sex.  I won't post the entire opinion, but here are some excerpts:

    "As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.  A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

    The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

    And later:

    "Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed."

    and in Footnote 2, explaining the distinction between the judicial definition and the common usage of obscene material:

    "We note, therefore, that the words "obscene material," as used in this case, have a specific judicial meaning which derives from the Roth  case, i.e., obscene material "which deals with sex.""

    To be sure some people find sexual pleasure in excretory functions (e.g. golden showers, coprophilia), and the display of those functions in a manner that would appeal to sexual interest makes them potentially obscene.  But displays of the act of urinating or defecating are not obscene merely because they involve excretory functions; to be obscene they must appeal to a morbid sexual interest.

    You accurately quote the language of the California statute under which Miller was convicted, but neglect to note that he was convicted of sending "brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse""  The Court writes clearly; it repeats many times throughout the opinion the need in an obscenity prosecution to prove the material set out in a properly drawn statute appeals to a prurient sexual interest.

    Parent

    The court said very clearly that patently (none / 0) (#45)
    by Dan the Man on Tue Apr 20, 2010 at 07:05:32 PM EST
    offensive material with excretory functions fall under the Miller test.  Let me repeat it again:


    It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
    (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

    You chose to ignore this clear and unequivical passage. Indeed, the court couldn't have been clearer on this point.

    As for your quotes, they don't even begin to defend your position that sex is a requirement.  Since the particular case of Miller dealt with sex, of course the court would be talking about sex.  You seem to have this idea that just because the Miller Test applies to sex, it can't apply to anything else.  Of course, there's no necessity of that.

    Parent

    We'll just disagree (none / 0) (#46)
    by Michael Masinter on Tue Apr 20, 2010 at 09:43:14 PM EST
    I don't ignore the stray passages in Miller; I read them in context.  The phrase "masturbation, excretory functions, and lewd exhibition of the genitals" groups two explicitly sexual terms around a third, giving it context.  The Court's repeated statements that obscenity is about sex have meaning; they give context to why excretory functions can come within the first prong of the Miller test.  Read Miller like a case, not like a statute.

    But don't trust me; trust the courts; find a case that affirms an obscenity conviction for an offensive display of excretory functions with no sexual undertones.  Take your time.  You'll need it.
     

    Parent

    In particular, I think that the (none / 0) (#15)
    by andgarden on Tue Apr 20, 2010 at 12:57:21 PM EST
    "community standards" component was criticized.

    Parent
    Sounds Right to Me (5.00 / 1) (#13)
    by squeaky on Tue Apr 20, 2010 at 12:26:52 PM EST
    Although I am find it disturbing that Alito would side with the animals, when he so often does not side with Humans.

    i think this is what i find most disturbing... (5.00 / 1) (#18)
    by ahazydelirium on Tue Apr 20, 2010 at 01:20:02 PM EST
    the idea that humans (who are, by the way, animals) have some fundamental right to partake in the exploitation of other animals for their amusement, entertainment or sexual gratification: the human position in this ruling, according to your dichotomy. that depictions of engineered animal violence are protected reveals the underlining bias that humans have the right to do with the world whatever they see fit. why? why do our rights trump the rights of animals to not be subjected to debasement, devaluation? should our rights be uninterrupted even when they create a climate that furthers the destruction of the rights of animals? here's hoping that speciesism is one day called out like all the other -isms.

    Parent
    Well then rodents appealed to the (5.00 / 1) (#24)
    by me only on Tue Apr 20, 2010 at 02:09:25 PM EST
    Feline Supreme Court the last time that my cats decided to partake in their fundamental right of exploiting mice for their amusement and entertainment.

    Problem was the cats thought oral arguments were arguing about the taste of the mice.

    Parent

    instincts vs will (none / 0) (#25)
    by ahazydelirium on Tue Apr 20, 2010 at 02:15:50 PM EST
    instincts are not controllable, and imposing human models of will on other animals is false logic (ie, trying to equate murder and cat-mouse consumption).

    in the tradition of peter singer, just because other animals cannot be moral agents does not mean they are not moral patients.

    Parent

    Vegan? (5.00 / 1) (#26)
    by squeaky on Tue Apr 20, 2010 at 02:16:54 PM EST
    Plants are people too...

    Parent
    Naw, to be that dense (none / 0) (#28)
    by me only on Tue Apr 20, 2010 at 02:29:16 PM EST
    one would have to eat rocks.

    Parent
    Yes (none / 0) (#32)
    by squeaky on Tue Apr 20, 2010 at 02:40:36 PM EST
    Eat rocks, but only after gently brushing off the microscopic life that inhabits those rocks.

    Parent
    You may be right (none / 0) (#19)
    by jbindc on Tue Apr 20, 2010 at 01:27:33 PM EST
    But I guess it will be that way until animals can bud and use tools, pass laws, and generally be on top of the food chain.

    Parent
    ha, snark. (none / 0) (#20)
    by ahazydelirium on Tue Apr 20, 2010 at 01:39:37 PM EST
    many humans are incapable of building tools or passing laws or providing for their own nutrition. i fail to see how those characteristics you mention make humans exceptional or that animals are somehow undeserving of equal consideration.

    (also, you may be interested in reading up on birds and how they build nests or great apes and questions of personhood.)

    Parent

    just to clarify (none / 0) (#23)
    by ahazydelirium on Tue Apr 20, 2010 at 01:58:54 PM EST
    those characteristics are certainly interesting developments in evolution; but they are, at the end of the day, the result of a series of biological changes. how does that make the human species as a whole somehow more worthy than chimpanzees or canines or felines to a free life? all species undergo biological change and, on an evolutionary level, no species has the ability to modify itself. the natural world has no concept of hierarchical worth, and we're a part of the natural world. it's time for us to start living like it.

    Parent
    No snark (none / 0) (#36)
    by jbindc on Tue Apr 20, 2010 at 02:47:47 PM EST
    We ARE at the top of the food chain.

    Parent
    Who knows (none / 0) (#29)
    by Militarytracy on Tue Apr 20, 2010 at 02:32:38 PM EST
    Perhaps soon we can find a fun way to deal with prison overcrowding too.  After all, felons really aren't citizens but they might make cool gladiators.

    Parent
    viewing galleries for lethal injection (none / 0) (#35)
    by ahazydelirium on Tue Apr 20, 2010 at 02:45:24 PM EST
    we aren't all that different from the romans who cheered on as gladiators tore each other apart.

    Parent
    There was a proposal back in the mid-90s (none / 0) (#38)
    by scribe on Tue Apr 20, 2010 at 03:07:55 PM EST
    by a state legislator in New Jersey to defray the costs of housing death row inmates by staging gladiatorial bouts between them and then selling the surveillance video for profit.  The proposal made it to the stage of a bill introduced to that purpose.

    It came about after one death row inmate stomped another to death in the death row exercise cage (they weren't supposed to be there together, but careless guards will be careless) and it (and the guards not intervening) was caught on video.

    Parent

    Sounds like a good ruling to me... (5.00 / 1) (#22)
    by kdog on Tue Apr 20, 2010 at 01:40:35 PM EST
    We can't trust prosecutors and law enforcement to give proper respect to the exemptions...

    Another clause exempts depictions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value."

    Better to accept disturbing images as a cost of doing business in a land of unfettered free speech.

    Whew (3.67 / 3) (#2)
    by Militarytracy on Tue Apr 20, 2010 at 10:59:04 AM EST
    Please excuse me while I go throw up.

    LAT politics blog suggests Pres. (none / 0) (#21)
    by oculus on Tue Apr 20, 2010 at 01:40:30 PM EST
    Obama may consider nominating a vegan to SCOTUS.

    Parent
    I'm thinking we need one right now (none / 0) (#27)
    by Militarytracy on Tue Apr 20, 2010 at 02:27:52 PM EST
    I try to keep my wits about my furkids and going through episodes of sending dog fighters to their punishments, and wanting people to learn...not demonize, because the dog fighting thing is a social problem and educating works best in my opinion after sentences are served.  But if people start freely watching videos of dogs being squeezed to death though (which would mean newer cooler videos of dogs being smashed to death would soon be in demand) just so they can get a better whack off, I'm not sure how long I can keep my wits.

    Parent
    Otoh... (none / 0) (#30)
    by kdog on Tue Apr 20, 2010 at 02:38:27 PM EST
    seeing videos of how fighting dogs are treated could also serve to turn people off to dog fighting and rally support to end the practice....the education you mentioned.  

    If some sick freaks happen to get off on same said videos, whaddya gonna do?  It is still worth it.

    Parent

    Very interesting (none / 0) (#1)
    by andgarden on Tue Apr 20, 2010 at 10:58:58 AM EST
    Just reading now.

    An interesting aside from Roberts's opinion:

    Even cockfighting, long considered immoral in much of America, see Barnes v. Glen Theatre, Inc., 501 U. S. 560, 575 (1991) (SCALIA, J., concurring in judgment), is legal in Puerto Rico, see 15 Laws P. R. Ann. §301 (Supp. 2008); Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 342 (1986), and was legal in Louisiana until 2008, see La. Stat. Ann. §14:102.23 (West) (effec- tive Aug. 15, 2008). 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).


    Alito sez: (none / 0) (#4)
    by andgarden on Tue Apr 20, 2010 at 11:10:24 AM EST
    In holding that §48 violates the overbreadth rule, the Court declines to decide whether, as the Government maintains, §48 is constitutional as applied to two broad categories of depictions that exist in the real world: crush videos and depictions of deadly animal fights. See ante, at 10, 19. Instead, the Court tacitly assumes for the sake of argument that §48 is valid as applied to these depictions, but the Court concludes that §48 reaches too much protected speech to survive.

    Is that right? I'm not so sure.

    Plant Hater (none / 0) (#34)
    by squeaky on Tue Apr 20, 2010 at 02:44:27 PM EST
    Hitler was a vegan.

    Well, all right (none / 0) (#40)
    by Kimberley on Tue Apr 20, 2010 at 04:10:09 PM EST
    If this qualifies as speech, then so should my reaction. Now hear this:

    If I ever catch anybody doing this to an animal (for profit or otherwise) I'm going to beat every cell that makes them want to do it out of them. Then we can all express ourselves freely in this highly advanced society.

    U.S.A.! U.S.A.!

    And (none / 0) (#41)
    by squeaky on Tue Apr 20, 2010 at 04:48:11 PM EST
    What if you saw an animal attacking a human, would you beat that animal as well....  How do you stand with mosquitos, fleas, and ticks?

    Parent
    OT, IMO (none / 0) (#48)
    by squeaky on Wed Apr 21, 2010 at 09:48:26 AM EST
    The thread is about first amendment rights, not vegetarianism. Because you choose to not eat meat, does not mean that the first amendment should be eroded, thank you.

    IOW, the "jokes" were not about your choice but the selfish choice to argue away first amendment rights because of ones personal dietary habits, or philosophy.

    actually, (none / 0) (#49)
    by ahazydelirium on Wed Apr 21, 2010 at 12:36:58 PM EST
    it's less about arguing away first amendment rights and more about acknowledging that creatures other than humans also have rights. i was making a good faith argument about the relationship between human rights/animal rights and how that played out in this ruling. then you deigned to compare me to hitler. (rather teapartyesque of you, by the way.)

    Parent
    Look In The Mirror (none / 0) (#50)
    by squeaky on Wed Apr 21, 2010 at 12:46:24 PM EST
    (rather teapartyesque of you, by the way.)

    This thread is about first amendment rights, not animal rights. It is amazing that you argue for watering down the constitution because of your pet peeves. Rather selfish of you, imo.

    Parent