3rd Circuit won’t create new category of unprotected speech

Friday, August 1, 2008

A federal statute criminalizing depictions of animal cruelty violates the First Amendment, a federal appeals court ruled recently — refusing to create a new category of unprotected speech.

Over the years the U.S. Supreme Court has created a few categories of unprotected speech, such as obscenity, fighting words, incitement to imminent lawless action and child pornography. Lacking direction from the Supreme Court, the majority of the full 3rd U.S. Circuit Court of Appeals declined on July 18 to add depictions of animal cruelty to that list.

Instead, the 3rd Circuit, ruling 10-3 in United States v. Stevens, vacated the conviction of Robert J. Stevens, who was the first person prosecuted under this 1999 law whose case went to a trial.

In March 2004, a federal grand jury in Pennsylvania indicted Stevens, a Virginia resident, for allegedly violating the law that provided in part: “Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined … or imprisoned not more than five years.”

Stevens had advertised pit bull videos and merchandise including dog-fighting tapes titled “Pick-A-Winna” and “Japan Pit Fights.” He also marketed another video “Catch Dogs” that showed dogs mauling a farm pig. In January 2005, a jury convicted Stevens and sentenced him to 37 months in jail and three years of supervised release. Stevens appealed to the 3rd Circuit.

In its analysis, the 3rd Circuit majority noted that the legislation was designed to address crush videos, in which women torture animals. The government argued that the statute was justified by the compelling interest in preventing animal cruelty. Stevens contended that the statute violated the First Amendment in part because it swept too broadly and prohibited protected speech. He also argued that the law was too vague to withstand constitutional review.

The government also argued that the appeals court should apply the same logic as the Supreme Court did in its 1982 decision New York v. Ferber, when the Court recognized child pornography as an exception to the First Amendment.

Noting that it was more than 25 years since the Court created a new exception to free speech in Ferber, Judge D. Brooks Smith wrote in his majority opinion: “Without guidance from the Supreme Court, a lower federal court should hesitate before extending the logic of Ferber to other types of speech.”

The majority indicated that the government’s interest in protecting animals was simply not as great an interest as protecting children, as in Ferber.

“Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm,” Smith wrote.

The majority also noted that the law was too broad and would criminalize speech that is protected by the First Amendment. “If a person hunts or fishes out of season, films the activity, and sells it to an out-of-state party, it appears that the statute has been violated,” Smith said.

Three judges dissented in an opinion authored by Judge Robert E. Cowen who reasoned that the government could criminalize depictions of animal cruelty because such expression had no social value. Noting that animal cruelty laws have existed in America since 1641, he classified the government’s interest as compelling. Cowan emphasized that the statute contained a provision that protected depictions of animal cruelty having a “serious religious, political, scientific, educational, journalistic, historical or artistic value.” According to the dissent, this provision saved the law from being too broad.

Cowan said an animal-cruelty exception compared favorably with such accepted First Amendment exceptions as fighting words and child pornography. He disagreed with the notion that a lower federal court should not create a new exception: “[W]e know of no principle that lower courts should refrain from developing our nation’s free speech jurisprudence and decline to analogize and apply the Supreme Court’s precedents in this area without first receiving the express permission to do so.”

Free-speech expert Eugene Volokh, a UCLA law professor, wrote in an e-mail that the 3rd Circuit decision “shows courts' willingness to limit the rationale of Ferber to speech that involves child sexual abuse, as opposed to speech that involves any sort of crime.”

Marc Randazza, who teaches at Barry University School of Law in Orlando, Fla., said via e-mail: “The significance of the Court refusing to create a new unprotected category is of immense Constitutional importance. If Courts are persuaded to slice off pieces of the First Amendment, it will not take long before we are looking at an Amendment that has been rendered meaningless.”

Randazza questioned the dissent’s rationale for creating a new unprotected category: “The dissent in this case took the position that the First Amendment is a mere balancing test, and that if the value of the censorship is more than the value of the speech, then the censorship is permissible. I'm shocked that three justices signed on to such an absurd theory. The dissent completely missed the constitutional principle that free speech itself is the value you balance — not the content at issue.”