SCOTUS invalidates law on depictions of animal cruelty

posted at 2:55 pm on April 20, 2010 by Ed Morrissey

The Supreme Court overturned a federal law prohibiting videos that depict graphic violence against animals, ruling it a violation of the First Amendment right to free speech.  This decision is remarkable in an era of 5-4 votes for its near unanimity.  In fact, conservatives will likely find themselves surprised at the dissent:

The Supreme Court struck down a federal law Tuesday aimed at banning videos depicting graphic violence against animals, saying that it violates the constitutional right to free speech.

Chief Justice John J. Roberts Jr., writing for an eight-member majority, said the law was overly broad and not allowed by the First Amendment. He rejected the government’s argument that whether certain categories of speech deserve constitutional protection depends on balancing the value of the speech against its societal costs.

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” Roberts wrote. “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 law was enacted in 1999 to forbid sales of so-called “crush videos,” which appeal to a certain sexual fetish by depicting the torture of animals or showing them being crushed to death by women with stiletto heels or their bare feet. But the government has not prosecuted such a case. Instead, the case before the court, United States v. Stevens, came from Robert Stevens of Pittsville, Va., who was convicted and sentenced to three years in prison for videos he made about pit bull fighting.

The lone dissent came from conservative jurist Samuel Alito, who wrote that the First Amendment doesn’t protect violent criminal conduct:

“The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes,” Alito wrote.

The problem, as QandO’s Bruce McQuain also notes, is that the act of filming is neither violent nor criminal.  The actual violent act should result in prosecution for those who committed it, including the videographer if he was part of a conspiracy to commit illegal and inhumane acts against animals.  The videotape would make a crucial and strong piece of evidence for trial.  However, criminalizing the acts of videotaping and publishing puts other kinds of publication at risk — for instance, videos of legal hunting, among other things, or even publication of cruel acts as a means of exposing and stopping them.

However, that’s an argument that also cuts both ways.  Laws against child pornography specifically target the act of photography and publication.  The laws do not specify that a separate act of molestation or rape occur for prosecution — and most people would agree that it shouldn’t require such a basis.  Just the act of possession can result in long jail times and a lifelong identification as a sex offender.  Using the logic of this decision, wouldn’t it tend to undermine the basis for those laws as well?

Of course, the government didn’t help its case by failing to prosecute anyone under the intended purpose of the law, the purveying of “crush videos.”  The law has been in existence for eleven years, apparently resulting in no trials at all.  One has to wonder why Congress bothered to pass the law at all instead of just leaving the jurisdiction to the local and state authorities for cruelty to animals, except that it was obviously an attempt by Congress to create an artificial crisis just to look responsive to it.

The best part of this decision really doesn’t have anything to do with the case at hand, but in Chief Justice John Roberts’ rebuke to the executive branch:

“We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.”

Perhaps Roberts wrote that with something else in mind?


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This decision is remarkable in an era of 5-4 votes for its near unanimity.

Er, most Supreme Court decisions are near-unanimous. Just not the ones that make the news, for obvious reasons.

Of course, the government didn’t help its case by failing to prosecute anyone under the intended purpose of the law, the purveying of “crush videos.” The law has been in existence for eleven years, apparently resulting in no trials at all. One has to wonder why Congress bothered to pass the law at all instead of just leaving the jurisdiction to the local and state authorities for cruelty to animals, except that it was obviously an attempt by Congress to create an artificial crisis just to look responsive to it.

Ha. There were no prosecutions for “crush videos,” therefore the law did not serve its intended purpose. Is there maybe a flaw in that reasoning? Crush videos basically disappeared after the law was enacted, and reemerged after a lower court ruled in favor of Stevens in 2008.

tneloms on April 20, 2010 at 4:00 PM

How many states even have an alligator hunting season? Apparently pictures of that have been a federal crime in the states that don’t. It’s never legal to hunt moose in my state. I hope I didn’t have any videos that showed that.

exception on April 20, 2010 at 3:59 PM

Well, you don’t have anything to worry about now, thanks to Justices Stevens, Sotomayor, Ginsburg, Scalia, Thomas, Roberts, Breyer, and Kennedy.

Proud Rino on April 20, 2010 at 4:01 PM

Jeez! What a loser! Peeps like that are rotten latrine slime! The fact that he would post something like that on HA tells me he’s even more of an effing loser than I though. Idiot!!

Gob on April 20, 2010 at 3:56 PM

I think he actually thought that we would think he was some kind of brave warrior.

MB4 on April 20, 2010 at 4:02 PM

Again I ask why the Miller Test should not apply to this case. One might have a tricky time meeting the second prong of the test but the other two ought to be satisfied easy-peasy.

Having said that, if the Court deems the law is too broad — and I believe they are correct in saying it is — let Congress go back to the drawing board and narrow it so it passes Constitutional muster. This is how the system is intended to work so let it do its job.

And to those who say let it fall under the purview of animal cruelty laws . . . that would be great if animal cruelty laws were sufficiently strict enough everywhere that it would. But if you made this video in Arkansas, the crime would be a misdemeanor and the penalty not very stiff.

NoLeftTurn on April 20, 2010 at 4:02 PM

Oh yeah, nothing turns me on more than watching a sexy woman stab a hamster with her stilettos.

Bleah. Next up – vomit porn. Oh, right, that already exists.

Daggett on April 20, 2010 at 4:02 PM

Again, these epigrams people are posting about the duty to treat animals ethically are entirely true, but they are not on point here. Unless you think selling deer hunting videos in a sporting goods store should be a federal felony.

You have to read the Court’s opinion before pontificating, people. At least read the statute. I know Congress SAID it was motivated solely by the desire to prohibit sick “crush videos,” but that is NOT what the statute it passed did. It went way beyond that. That is not permissible in the First Amendment context. Statutes regulating speech have to be carefully and precisely drafted. If they aren’t; if they sweep in a lot of ordinary speech and make it criminal; then they will be struck down in their entirety. That’s all that happened today. A classic, and clearly correct, application of the First Amendment doctrine of overbreadth.

If Congress wants to try and draft a careful, narrowly tailored statute criminalizing the distribution of crush videos, today’s decision leaves it free to try again under today’s decision. But that is not what Congress did in 1999. That’s why it’s actually misleading to say this was a statute prohibiting “depictions of animal cruelty.” No. It went way, way beyond that; and that’s why it was unconstitutionally overbroad.

Terrible statute. Glad it’s history.

P.M. on April 20, 2010 at 4:04 PM

Gob on April 20, 2010 at 3:56 PM
I think he actually thought that we would think he was some kind of brave warrior.

MB4 on April 20, 2010 at 4:02 PM

I like to remind RW that he is scum, just in case he forgot.

HornetSting on April 20, 2010 at 4:05 PM

“We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.”

I know. Gibbs read that, peed himself, and yelled “Incoming!!!”

Akzed on April 20, 2010 at 4:05 PM

Does Speed Cooking videos full in to this ruling

http://youtu.be/Y3YQMcjrc5Y

Crush videos belong in the same place as decapitation videos, both need not be seen. Those that tape it are as guilty as those that do the act and should be prosecuted one in the same.

tjexcite on April 20, 2010 at 4:06 PM

exception on April 20, 2010 at 3:59 PM

I like to cheer for the alligator, with FL’s new gator wrestling…THAT would be good tv. ;)

HornetSting on April 20, 2010 at 4:06 PM

Well, you don’t have anything to worry about now, thanks to Justices Stevens, Sotomayor, Ginsburg, Scalia, Thomas, Roberts, Breyer, and Kennedy.

Proud Rino on April 20, 2010 at 4:01 PM

Yes, I’m finally not an unwitting federal criminal. Not that congress cared. Of couse, I’m still a felon due to any number of other laws I’ve never heard of.

exception on April 20, 2010 at 4:06 PM

I’m still a felon due to any number of other laws I’ve never heard of.

exception on April 20, 2010 at 4:06 PM

LOL, and how would you know?

Proud Rino on April 20, 2010 at 4:08 PM

By the way, Ed’s post and most of the comments completely miss the point.

This decision was specifically *not* about the constitutionality of banning crush videos. The Court even indicated it would probably be okay with a ban like that. They just said that this law, as written, was way too broad and banned things that should definitely be protected as free speech, such as videos of hunting, or documentaries about abuses.

Alito’s dissent was not that he thought banning crush videos is okay while the other Justices think it’s not. He simply stated that the law could be construed in a narrow way that was limited to just crush videos, and that he thinks such a law is constitutional (and the other Justices would probably agree).

tneloms on April 20, 2010 at 4:08 PM

This is an excellent ruling. It will help set precedent to bring about Islamic law in America. As long as disobedient wives are not crushed to death on video it will be alright to beat them many times every day. Allah be Praised.

Aleph on April 20, 2010 at 4:10 PM

LOL, and how would you know?

Proud Rino on April 20, 2010 at 4:08 PM

How could I? What business is it of citizens to know if they are commiting crimes or not?

exception on April 20, 2010 at 4:10 PM

I’m still a felon due to any number of other laws I’ve never heard of.

exception on April 20, 2010 at 4:06 PM

LOL, and how would you know?

Proud Rino on April 20, 2010 at 4:08 PM

statistical sampling

pedestrian on April 20, 2010 at 4:14 PM

This is an excellent ruling. It will help set precedent to bring about Islamic law in America. As long as disobedient wives are not crushed to death on video it will be alright to beat them many times every day. Allah be Praised.

Aleph on April 20, 2010 at 4:10 PM

I thought Islamic law allowed crushing your wife on video, though.

Daggett on April 20, 2010 at 4:15 PM

This decision was specifically *not* about the constitutionality of banning crush videos. The Court even indicated it would probably be okay with a ban like that. They just said that this law, as written, was way too broad and banned things that should definitely be protected as free speech, such as videos of hunting, or documentaries about abuses.

Alito’s dissent was not that he thought banning crush videos is okay while the other Justices think it’s not. He simply stated that the law could be construed in a narrow way that was limited to just crush videos, and that he thinks such a law is constitutional (and the other Justices would probably agree).

tneloms on April 20, 2010 at 4:08 PM

Exactly right, tneloms. A lot of people riffing here (not all, but a lot) clearly haven’t read the opinions.

This is not a “Crush videos are protected speech” holding.

The holding is: “The way this statute is written is horribly overbroad and criminalizes a huge amount of stuff besides crush videos, and much of that other stuff is protected speech. That’s not allowed under the First Amendment. Citizens may not be put in the position of just crossing their fingers and hoping the prosecutor won’t indict them for buying a hunting video. If Congress wants to try to ban crush videos, it has to draft a more focused, less overbroad statute.”

P.M. on April 20, 2010 at 4:17 PM

I thought Islamic law allowed crushing your wife on video, though.

Daggett on April 20, 2010 at 4:15 PM

We will bring Islamic Law to our coming colony of America one step at a time, infidel. Progress doesn’t happen overnight.

Aleph on April 20, 2010 at 4:20 PM

And just to be clear, I also agree with tneloms that Ed’s post is defective in the same way — “completely misses the point.” It should be re-written to make clear that this is an overbreadth case.

Currently, Ed’s post does not accurately represent what the Court said and did.

P.M. on April 20, 2010 at 4:21 PM

I’m not at all surprised by Scalia’s dissent; of all the ‘conservative’ justices on the Court he’s the one who most often breaks with principle to vote his own personal likes and dislikes.

JEM on April 20, 2010 at 4:24 PM

I’m not at all surprised by Scalia’s dissent; of all the ‘conservative’ justices on the Court he’s the one who most often breaks with principle to vote his own personal likes and dislikes.

JEM, Scalia did not dissent. He joined the majority opinion.

Only Alito dissented.

P.M. on April 20, 2010 at 4:27 PM

I’m not at all surprised by Scalia’s dissent; of all the ‘conservative’ justices on the Court he’s the one who most often breaks with principle to vote his own personal likes and dislikes.

JEM on April 20, 2010 at 4:24 PM

Alito, not Scalia.

Abby Adams on April 20, 2010 at 4:29 PM

This decision was specifically *not* about the constitutionality of banning crush videos. The Court even indicated it would probably be okay with a ban like that. They just said that this law, as written, was way too broad and banned things that should definitely be protected as free speech, such as videos of hunting, or documentaries about abuses.

Alito’s dissent was not that he thought banning crush videos is okay while the other Justices think it’s not. He simply stated that the law could be construed in a narrow way that was limited to just crush videos, and that he thinks such a law is constitutional (and the other Justices would probably agree).

tneloms on April 20, 2010 at 4:08 PM

Yes, well said. The fault was with the idiots who wrote the bill/law. I mean, Congress is not known for their stealthy acumen. Look at how dumb they are with the ObamaCare fiasco…leaving themselves out an all.

I just like Alito and I like what he had to say in his descent. I love animals and I don’t ever like to see them hurt or mistreated. Plus bad things come from peeps who hurt animals. I just don’t want animals mistreated.

Gob on April 20, 2010 at 4:33 PM

Alito is unpredictable. When I heard Megan Kelley on Fox call juxtapose him with Liu to illustrate her point, I cringed. Thomas is perhaps as conservative as Liu is liberal, but Alito is not very reliable on originalist principles (Not really, Liu wants reparations, a position that even Nancy Pelosi might find untenable). The fact that Alito’s argument hinged on ethical and pathetic appeals while steering clear of the substantive issue demonstrates this. Roberts, Thomas and Scalia are my heroes. Alito is more like Kennedy.

andy85719 on April 20, 2010 at 4:34 PM

FINALLY!!!

Now I can finally get to work on an instructional video about the creation of Bonsai Kittens!

PoliTech on April 20, 2010 at 4:38 PM

PoliTech on April 20, 2010 at 4:38 PM

Friggen people ruin everything. I’d love this concept if it was Bonsai Liberals!

Gob on April 20, 2010 at 4:48 PM

Now I can finally get to work on an instructional video about the creation of Bonsai Kittens!

PoliTech on April 20, 2010 at 4:38 PM

Be careful, Alito might decide that some little used, obscure technical provision of the tax code could could be tightly construed to be a prohibition of Bonsai Kittens.

pedestrian on April 20, 2010 at 4:52 PM

Gob, I have thought about that, but according to the USDA approved Bonsai Kitticulture techniques instruction manual, Liberal backbones are too rubbery to keep their artistic shape for more than a few minutes. Liberal Bonsai simply cannot be converted into something of such important cultural relativity and exotic standards of beauty. I too would love to lift Liberals from their drab existences and elevate them into cherished objets d’art.

PoliTech on April 20, 2010 at 4:58 PM

So by Robert’s logic, you can scream fire in a theater?

I’m all for the first Amendment, but Freedom of Speech is just that, Speech. If it was freedom of expression, then why did the Framers need to specify a difference between Speech and Press?

Tim Burton on April 20, 2010 at 5:08 PM

Perhaps Roberts wrote that with something else in mind?

God willing.

Vyce on April 20, 2010 at 5:15 PM

So by Robert’s logic, you can scream fire in a theater?

Certainly, if there’s a fire! But that’s not what you meant. And no, Roberts’s logic doesn’t remotely resemble that.

Put it this way: if Congress passed a sweeping statute that made it a crime to speak loudly, anywhere, and then the feds tried to defend it in court on the ground that SOME of the conduct it prohibited was unprotected (“well, what if someone yells fire falsely in a crowded theater?”), the Court would snicker at the feds and then strike that nonsense down with a quickness, on the ground of overbreadth.

Same deal here.

I’m all for the first Amendment, but Freedom of Speech is just that, Speech. If it was freedom of expression, then why did the Framers need to specify a difference between Speech and Press?

You surely don’t mean this. So movies, television programs, and email are not constitutionally protected? How about paintings? Enough said.

P.M. on April 20, 2010 at 5:19 PM

Perhaps Roberts wrote that with something else in mind?

God willing.

Vyce on April 20, 2010 at 5:15 PM

It’s a warning that the ObamaCare law will not be graded on a curve.

pedestrian on April 20, 2010 at 5:27 PM

The best part of this decision really doesn’t have anything to do with the case at hand, but in Chief Justice John Roberts’ rebuke to the executive branch:

“We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.”

Perhaps Roberts wrote that with something else in mind?

Things that make you go “Hmmm.”

davidk on April 20, 2010 at 6:04 PM

Now I can finally get to work on an instructional video about the creation of Bonsai Kittens!

PoliTech on April 20, 2010 at 4:38 PM

Watch out for PETA!

http://www.themoneytimes.com/featured/20100420/kim-kardashian-gets-slammed-controversial-kitten-photo-id-10109044.html

davidk on April 20, 2010 at 6:07 PM

You surely don’t mean this. So movies, television programs, and email are not constitutionally protected? How about paintings? Enough said.

P.M. on April 20, 2010 at 5:19 PM

Movies are speech, because they have speech. I just don’t buy the “Freedom of Expression” as virtually unlimited, because the concept isn’t found in the writings of the Framers.

Tim Burton on April 20, 2010 at 6:26 PM

I agree with Alito.

-Aslan’s Girl

Aslans Girl on April 20, 2010 at 6:36 PM

Wild Bill Clinton was president during this time span; Does that tell you anything?

Cybergeezer on April 20, 2010 at 7:12 PM

Animals != Humans. You’d think this would not have to be pointed out.

So it does not invalidate any child porn laws.

Andy in Agoura Hills on April 20, 2010 at 7:27 PM

HornetSting on April 20, 2010 at 3:32 PM

Amen to that Hornet. I have been sickened by this ruling all day. I don’t understand since H.R. 137, The Animal Fighting Prohibition Act was passed and signed into law May 2007, how are these disgusting videos available. They sell advertisements for fighting dogs & cocks, as well as equipment for dog fighting such as rape stands.

As someone who volunteers at my local shelter, I saw the bait animals that came in to the shelter. My nickname there is The Crier because I cry from the second I get there until when I go back the next week. I never thought Roberts, Thomas and Scalia would break my heart this badly. I cannot stop crying over this.

margategop517 on April 21, 2010 at 2:47 AM

Did you actually read the opinions and understand what the Supreme Court held?

Do you think massively overbroad laws that go way beyond what their supporters said they were intended to do — here, the plain words of the law made it a federal felony to sell ORDINARY HUNTING MAGAZINES (not crush videos) — but that’s A-OK by you?

When legislatures try to accomplish a good end, but completely screw up and enact a broad law that criminalizes lots of ordinary speech, it’s the duty of the courts to say, “No. Not like this. You can go back and try again with a properly written statute if you wish.”

That’s all the Supreme Court did. No reason for anyone’s heart to be broken over this unless they just hate all depictions of hunting, including lawful, ethical hunting of the kind engaged in millions.

I know the media, and the statute’s Congressional supporters keep telling you this was just a statute banning sick crush videos, but they’re lying to you, because it went SO FAR beyond that.

Read the opinions for yourself and see.

P.M. on April 21, 2010 at 11:22 AM

Perhaps Roberts wrote that with something else in mind?

That something which inspires lone wolves to try to blow up Times Square?

Buy Danish on May 13, 2010 at 9:17 PM

Comment pages: 1 2