In an 8-1 ruling, the Supreme Court affirmed the overturned 2005 conviction of Robert Stevens, a notorious dogfighting enthusiast who produced videos depicting fights and attacks, and struck down the Depiction of Animal Cruelty Act. The Court decided that the statute’s language was too broad (Chief Justice Roberts called it “a criminal prohibition of alarming breadth”) and could have created prosecution possibilities that went beyond legislative intent.
U.S.C. 48 (48) prohibits the creation, sale, or possession of a depiction of animal cruelty (“in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed”) for commercial gain. It “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Chief Justice Roberts, for the majority, notes that “wounded” and “killed” do not necessarily imply cruelty (e.g., the humane slaughter of a stolen cow, which would be illegal but not cruel). In addition, hunting and related depictions, many times more popular than crush or dogfighting videos, are not guaranteed protection by the serious value exceptions. Roberts writes that “most hunting videos, for example, are not obviously instructional in nature” (even the Safari Club and NRA admit that many videos are simply for entertainment). Furthermore, the Court argues that 48 could apply where hunting is prohibited (District of Columbia). In other words, legislative intent could be subverted. Justice Roberts writes: “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”
The High Court holds that the major problem with 48 is its overreaching. Restrictions on freedom of speech are rightfully rare (obscenity, defamation, fraud, incitement, and speech integral to criminal conduct), and the Court has no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” While conceding that prohibition against animal cruelty has a long tradition, Roberts argues that depictions of said cruelty do not have a similar tradition of exclusion from First Amendment protection. Furthermore, any limits placed on free speech have involved more than a simple cost-benefit analysis. With child pornography, for example, Roberts notes that “the market for child pornography was intrinsically related ['a proximate link'] to the underlying abuse.”
Justice Roberts argues that potential applications involving unintended targets (hunting) could far outnumber intended ones (crush, dogfighting) and concludes: “We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”
Justice Alito dissented. He writes, “The overbreadth doctrine strike[s] a balance between competing social costs.” In other words, we must weigh real-world applications that address serious problems against a person (or group) being hypothetically deterred from engaging in free speech for fear of prosecution. But, Alito asks, is the overbreadth substantial?
Justice Alito says that the D.C. example is a rare exception (hunting is legal in all 50 states), and prohibitions relating to hunting can exist for reasons other than cruelty (protection of endangered species, ecological balance). Furthermore, almost all anticruelty laws specifically exempt wildlife, hunting, and animal husbandry. Regardless, hunting would be protected through its long tradition of serious scientific, educational, or historical value (conservation, species preservation, links to our past). He concludes: “But even if 48 did impermissibly reach the sale or possession of depictions of hunting in a few unusual situations, those isolated applications would hardly show that 48 bans a substantial amount of protected speech.” Not too broad.
While the conduct depicted in crush videos is prohibited across the nation, prosecution of that conduct is virtually impossible. Faces and locations are usually hidden, and even if found, jurisdictional issues and statutes of limitations impede prosecution. Alito writes, “The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct… Crush videos…are so closely linked with violent criminal conduct. …and it appears that these crimes are committed for the sole purpose of creating the videos.” In other words, just like child pornography, the heinous underlying acts cannot be controlled without criminalizing the creation, sale, and possession of the depictions.
While Alito maintains that “preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos,” he still believes the Government has a “compelling interest” in preventing that torture because the animals are “living creatures that experience excruciating pain.” Dogfighting videos, too, are part of a lucrative market. That market creates a powerful incentive to create the videos (stage the fights). In short, crush and dogfighting videos are the real-world targets of 48 and far outweigh any theoretical overreaching that the Court is concerned about.
In his opinion, Justice Alito provides a description of the speech that some wish constitutionally protected:
[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone.