Blog: Speech advocates await dogfight-video ruling

Friday, February 26, 2010

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Will animal-cruelty videos face the same First Amendment fate as obscenity and child pornography? That’s a question the Supreme Court likely will answer — perhaps as soon as next week — when it issues its highly anticipated decision in United States v. Stevens.

On Oct. 6, the justices heard oral arguments in the case, which examines the constitutionality of a federal law that criminalizes the production, sale or possession of depictions of animal cruelty produced for commercial gain. Congress passed the law after hearing about “crush videos,” which feature women in high stilettos crushing small animals to death.

Stevens doesn't involve crush videos, though. Federal prosecutors in Pennsylvania charged Robert Stevens, a pit-bull enthusiast, under the federal law for three videos showing animals subjected to violence. Prosecutors likened the videos to child pornography in that they had no social value justifying constitutional protection. A jury convicted Stevens, but the 3rd U.S. Circuit Court of Appeals reversed. The appeals court refused to accept the government’s analogy of child pornography as an exception to the First Amendment under the Supreme Court’s 1982 decision New York v. Ferber.

“Without guidance from the Supreme Court, a lower federal court should hesitate before extending the logic of Ferber to other types of speech,” the 3rd Circuit majority wrote in United States v. Stevens.

At oral argument, Chief Justice John Roberts asked Neal Katyal, who argued for the federal government in defense of the law: “If you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?”

Katyal's response apparently proving unsatisfactory, Roberts later seemed to answer his own question by quoting from Ferber, saying speech is unprotected when “the evil to be restricted so overwhelmingly outweighs the expressive interest at stake.”

Roberts' view, if widely shared on the bench, could mean that the Court would create another unprotected category of expression only if it believes the ill effects of the speech far outweighed First Amendment interests.

But Stevens’ videos are not about crushing or killing dogs; instead, in his view, they're about the virtues of pit bulls. If that's the case, then it's highly questionable that they could be classified as “evil.” A documentary on dogfighting might have some educational value. Though the law contains an exception for material with educational value, it's uncertain how prosecutors would determine whether such an exception applied. Furthermore, there are laws on the books that punish acts of animal cruelty as opposed to depictions of it. As the 3rd Circuit reasoned, the government’s interest in prohibiting depictions of animal cruelty doesn’t rise to the same level as eradicating child pornography.

What's more, if the Court did create another unprotected category, could the decision be limited? It might start courts down the path of criminalizing all sorts of violent expression, of endorsing some type of “violence as obscenity” concept. Currently, obscenity is confined to the realm of hard-core sexual material.

The Court has many options in Stevens, given the dubious legislative history, the overbreadth and the vagueness of the law in question. One can hope that the justices won't carve out another category of expression that's off-limits. That would do great violence to the First Amendment.

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