Court embraces First Amendment in Stevens

Wednesday, April 21, 2010

WASHINGTON — Robert Stevens, a producer of dogfight videos, may have joined the ranks of Jay Near, the anti-Semitic journalist; Larry Flynt, the flamboyant pornographer; and Clarence Brandenburg, the Ku Klux Klan rabble rouser — all of whose highly unpopular expressions led to major pro-First Amendment decisions by the Supreme Court.

In its decision yesterday in United States v. Stevens, the Court by an 8-1 vote reversed the conviction of Stevens and struck down the law used to prosecute him — a federal law that criminalized creating, selling or owning certain depictions of animal cruelty. Writing for the majority, Chief Justice John Roberts called the law a “criminal prohibition of alarming breadth.”

Whether the decision has the lasting resonance of Near v. Minnesota (1931), Hustler v. Falwell (1988) or Brandenburg v. Ohio (1969), won’t be clear for years.

But for now, it stands as a remarkably strong 21st-century embrace of traditional First Amendment legal principles, replete with statements that may be invoked in a range of future cases. One of those cases may come as soon as this fall, when the Court will hear Snyder v. Phelps, involving speech that may, if possible, be even less popular than videos depicting animal cruelty: namely, offensive protests at funerals of U.S. soldiers.

“Our decisions … cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” wrote Chief Justice John Roberts for the majority.

Another key quote from Roberts: “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 10-year-old federal law at issue in the case was aimed at the growing market, especially on the Internet, of so-called “crush videos,” showing the killing of helpless animals in ways that appeal to the prurient interests of purchasers. But the law defined its target broadly, outlawing depictions of intentional killing or maiming of animals if the conduct violated laws of jurisdictions where they were sold, created or possessed. It exempted depictions with serious religious, scientific, educational, journalistic, historical or artistic value.

Stevens was indicted in Pennsylvania under the statute for his videos of pit bulls and dog fights that he claimed had educational value. A federal judge upheld the law and Stevens was found guilty, but the 3rd U.S. Circuit Court of Appeals said the statute was unconstitutional.

The high court agreed with the appeals court, and sharply criticized the government's defense of the law. In its brief, the Obama administration had said that a balancing test assessing “the value of the speech against its societal costs” could be used to determine if a category of speech belongs inside or outside the protection of the First Amendment.

“That sentence is startling and dangerous,” Roberts wrote. The First Amendment, he said, does not protect only speech “that can survive an ad hoc balancing of relative social costs and benefits.”

Roberts embraced traditional overbreadth doctrine and offered examples of just how broadly the statute sweeps. He asserted that owning hunting videos or magazines made for entertainment would be a crime nationwide because hunting is illegal in Washington, D.C. The law, he said, would also ban the depiction of the humane — not cruel — killing of certain animals because that, too, can be illegal, such as in the case of killing endangered species.

The Court also dismissed as irrelevant the government’s pledge to apply the law narrowly to depictions of extreme cruelty. “This Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly,” Roberts wrote.

The decision won quick praise from First Amendment advocates. “It’s great to hear from the chief justice that speech is protected whether it has great value, or not so great value,” said David Horowitz, executive director of the Media Coalition, which filed a brief on behalf of filmmakers, photographers, booksellers and others worried about the scope of the law.

Roberts, Horowitz said, “hasn’t written many opinions implicating the First Amendment,” so the fact that the chief justice assigned the decision to himself and endorsed long-standing First Amendment doctrine was gratifying.

Patricia Millett, Stevens’ lawyer before the Supreme Court, said, “It was quite telling that eight members of the Court found the law alarming.”

“We should all push harder” to combat animal cruelty, she said, “but we should target the act itself, not the act of talking about it.”

Gene Schaerr, who wrote a brief for the Cato Institute also siding with Stevens, said, “Although one may debate the importance of public expression with regard to cruelty to animals … the government's effort to remove any area of public expression from the First Amendment's protection would have been highly troubling.”

“Whatever one might think of Mr. Stevens and his films, the threat to filmmakers had to be removed,” said Michael Donaldson, lawyer for independent filmmakers who joined a brief in the case. “Many an important documentary would be foreclosed. Others would not even be made because of filmmakers’ fear of prosecution.”

Justice Samuel Alito was the sole dissenter, arguing that the law had a “substantial core of constitutionally permissible applications,” namely crush videos and dogfighting videos.

The majority did leave open the possibility that a much narrower law targeting crush videos might pass constitutional muster.

Humane Society vice president and chief counsel Jonathan Lovvorn seized on that possibility in reacting to the high court decision.

Congress would be on safe ground if it redrafted the law to cover specifically “staged animal cruelty that is actually connected to a crime,” Lovvorn said. “I expect something to be introduced in Congress in short order.”

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