Legal Commentary

United States v. Stevens: A Brief Analysis, Plus the Future of Animal Cruelty Depiction Bans

By Eugene Volokh

In today?s United States v. Stevens decision, the Court struck down on overbreadth grounds 18 U.S.C. § 48, which reads:

(a) 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 under this title or imprisoned not more than 5 years, or both.

(b) Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) ... (1) ?[D]epiction of animal cruelty? means any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State [or other U.S. jurisdiction] in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State [or that jurisdiction]....

Here?s an outline of the Court?s reasoning:

1. The statute is not limited to speech that fits in a historically recognized First Amendment exception (more on that in another post). Though animal cruelty has been banned for a long time pretty much throughout the country, depictions of animal cruelty have not been.

2. The statute is very broad, covering not just depictions of activity that is illegal pretty much everywhere in the U.S. (note the distinction from child pornography law in this respect), but also depictions of hunting, agricultural practices, and other things that are legal in some places but illegal in others.

3. The statute should be read as broadly as its written, rather than assuming that prosecutorial discretion will limit it to depictions of ??extreme? cruelty.? Prosecutorial discretion is not a sufficient protection for free speech. (See here for a more extended quote.)

4. Nor does the exception for speech with ?serious value? sufficiently narrow the law. Even speech that has merely modest value is constitutionally protected (setting aside the traditionally recognized exception for obscenity). I?ll blog a bit more about this point later.

5. Because ?the Government makes no effort to defend the constitutionality of § 48 as applied beyond crush videos and depictions of animal fighting,? and because the law does indeed reach a lot of speech beyond those narrow categories, there?s no discussion of whether even such a broad law would be constitutionally defensible (perhaps on the theory that, despite its breadth, it?s necessary to serve a compelling government interest). But the implication, I think, is that the Justices do indeed see this law as being unjustifiably broad.

Now what if the law were narrower, and was focused only on depictions of conduct that is illegal pretty much everywhere (or perhaps literally everywhere) in the country? The Court deliberately declines to address this question. But if I had to defend such a law, I would use the Court?s characterization of the rationale for the child pornography exception: Because ?[t]he 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,?? it fit within a longstanding exception for ?speech or writing used as an integral part of conduct in violation of a valid criminal statute.?

I think there is real trouble with this supposed ?integral part of criminal conduct? exception, that it needs to be defined much more precisely than the Court has done so far, and that the case on which the Court relies here ? Giboney v. Empire Storage & Ice Co. (1949), is highly problematic. (For more, see Part II of this article, though I hope to blog more on the subject.) But I certainly agree that this exception should exist in some version, whether or not it?s broad enough to cover a narrower ban on distributing depictions of those forms of animal cruelty that are illegal pretty much everywhere in the U.S. And it is the existence (and vagueness) of this exception that leaves uncertain the question whether such a narrower ban would be constitutional.

Full post as published by The Volokh Conspiracy on April 20, 2010 (boomark / email).