Hard cases make bad law. Consider one at the start of the Supreme Court’s new term that asks the justices to choose between protecting the First Amendment and preventing cruelty to animals.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.