On April 20, the Supreme Court issued an 8-1 decision in US v. Stevens invalidating a federal law that was intended to reach "crush videos" and similar materials.
In "crush videos," small animals, such as kittens or mice, are crushed or trampled to death by women. The videos cater to a bizarre sexual fetish. However, the particular film in the case before the Court was not a "crush video," but a video of dogfighting.
The Court majority held that the law at issue violated the First Amendment. Justice Alito alone dissented.
In particular, Alito disagreed with the Court’s invocation of the overbreadth doctrine, which allows a court to strike down a law on the ground that a large portion of its potential applications would violate the First Amendment.
Alito opined that, rather than invoke the overbreadth doctrine, the Court should have sent the case back down to the appeals court for an "as applied" ruling – that is, a ruling as to whether the federal law at issue, as applied to the actual dogfighting video at issue, violated the First Amendment.
In this column, I’ll contend that Justice Alito’s argument was stronger than the Court’s, and should have carried the day.
The Specifics of the Statute at Issue
First, it’s important to recap the details of the anti-animal-cruelty-depiction statute: It allows a penalty of up to five years in prison to be imposed upon a person who knowingly "creates, sells, or possesses a depiction of animal cruelty," if the creation, sale, or possession is done for commercial gain, and if the interstate/foreign commerce element that is always necessary for federal jurisdiction to exist is satisfied.
According to the statute, a depiction of "animal cruelty" is one "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed." There is no explicit statutory requirement, the Court pointed out, that wounding or killing be perpetrated in an especially cruel manner – whereas acts such as maiming, mutilation and torture, by their very definition, are cruel.
Moreover, the conduct being filmed must violate the operative law (federal and/or state) of the jurisdiction where the creation, sale, or possession of the film takes place – but that conduct need not also violate the operative law (federal, state, or foreign) of the jurisdiction where the underlying conduct that was filmed took place. Thus, for instance, a film of a bullfight that occurred legally in Spain could not be legally sold in America.
This twist, notably, would not have arisen in the as-applied challenge to the law that Justice Alito would have preferred: Dogfighting is illegal all over America, and the dogfight that was filmed in the video at issue occurred in America. Thus, the video was a video of illegal conduct – conduct that never should have occurred in the first place.
The combination of these two aspects of the law – its inclusion of "wounding" and "killing," and its possible application to films of conduct that was legal when and where it occurred– troubled the Court majority.
In particular, the Court imagined a case where a hunter would be prosecuted under the federal statute’s "wounding" and "killing" language for the sale of a film of his legal hunt, if the sale occurred in the nation’s sole non-hunting jurisdiction, the District of Columbia.
The Court was not confident that the hunter in the hypothetical could invoke the statute’s exception for any depiction "that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." (I previously discussed that exception, as it applies in this case, in a two-part series of columns; Part One appears here, and Part Two appears here.)
A garden-variety hunting film, the Court suggested, might not be seen by prosecutors or courts to have the kind of serious value that the exception requires. Granted, such a film could be deemed educational – but only in the sense that every day of life may teach us a lesson. And that kind of educational value, the Court thought, might not be enough to bar prosecution.
Justice Alito, in dissent, offered some strong responses to the majority’s hunting point. For example, he noted that virtually all state animal-cruelty statutes exempt hunting and/or wildlife. He thus suggested that the Court, in interpreting the federal law at issue, could draw on the state statutes to illuminate the law’s meaning, and could therefore conclude that the statute was not meant to reach those who hunt legally and film their hunts. Surely, Alito was correct that the statute was not meant to target hunting; it could easily have said so, and the drafters could hardly have inadvertently omitted such an important application.
More generally, Justice Alito took the Court to task for failing to live up to its duty to, if possible, interpret statutes in a way that renders them constitutional. Indeed, he implied that the Court had done just the opposite – reaching for far-fetched hypotheticals of District of Columbia prosecutions that would never really occur, so that it could strike down the law on overbreadth grounds.
An Animal-Cruelty-Depiction Exception to the First Amendment Would Make More Sense than Most of the Traditional Exceptions Do
In addition to the overbreadth/as-applied clash, this case also raised another important doctrinal question: Can the category of speech that is at issue here – videos and films of animal cruelty that lack any serious value – simply be held to fall outside the First Amendment entirely?
In its opinion, the Court noted that it had, in the past, exempted whole categories of speech from the First Amendment’s reach. Such categories, it noted, include "obscenity, defamation, fraud, incitement, and speech integral to criminal conduct."
Yet several categories of speech on this list cause harms that, I will argue, are markedly less grave than the harms caused when animals are killed. Thus, prior First Amendment exceptions have been granted for much weaker reasons than those that exist here.
For instance, obscenity’s only conceivable harm to the viewer is psychological and temporary; the viewer can quickly turn away. Defamation harms reputation, but the target always has the power to reply – either in civil court, while seeking money damages, or in the press or, increasingly, via the Internet. And the victim of fraud can generally be made whole with money, in civil court.
In contrast, the cruel murder of an animal effects damage that is permanent, ineradicable, and uncompensable. Nothing can truly remedy what has occurred, for the pain has been suffered; the death has occurred. There is no justice for the animal, except perhaps in the criminal prosecution of the perpetrator – but unlike a person who is being murdered, an animal does not even have the comfort of knowing that he may die, but at least justice will eventually be done.
Moreover, the evidence in this case indicates that the kind of animal cruelty that is at issue will never stop unless the prosecution is for the sale of the film, not just for the acts of cruelty and death. (In part, this is because the filmmakers craftily ensure that the faces of the women doing the torture and killing are obscured, so that they cannot be located.) Even the Court majority did not dispute the evidence that these acts will be stopped via video-based prosecutions, or not at all.
Of all the Justices, only Justice Alito emphasized that "The animals used in crush videos are living creatures that experience excruciating pain." Only Justice Alito quoted from the Humane Society’s brief, to make clear what this case is really about: "[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."
And the power of Justice Alito’s dissent lies in his simple astonishment that an industry that relies on such cruelty – all to feed a form of violent, non-consensual pornography – cannot constitutionally be shut down.
Speech/Conduct Exemptions, Too, Provide a Parallel
What about the other categories on the Court’s list of First Amendment exceptions? They, too, share a feature of "crush videos" and other depictions of market-driven animal cruelty: They mix speech and conduct.
Incitement is speech that triggers, or is meant to trigger, an act of violence. And, "speech that is integral to criminal conduct" – here, I am assuming that the Court is thinking, for example, of threats or communications in furtherance of a conspiracy – by definition is both speech and part of a scheme composed of both speech and conduct.
Thus, the inclusion of these two categories also seems to strengthen the case for including animal-cruelty depictions as a First Amendment exception. Without a prior criminal act, films of animal cruelty could never exist in the first place: They too mix conduct and speech.
And, of course, the First Amendment protects speech, not conduct, so when the two are mixed, it is possible the Amendment will not apply. It thus makes perfect sense why the Court carved out the speech/conduct category and granted a First Amendment exception; what makes no sense is why it refused to extend that existing exception to crush videos and the like.
The Strongest Parallel of All: The Parallel to Anti-Child-Pornography Laws
Finally, the best parallel of all to an existing First Amendment exception – yet one that still did not convince the Court – is the parallel to the exception for child pornography.
As the Court explained, the reason for the child-pornography exception is that child pornography is "intrinsically related" to the underlying abuse – in another speech/conduct linkage. But the uncontroverted evidence before the Court showed that the very same thing is true with respect to crush videos: The actions and the films are two parts of the very same industry. (Dogfighting videos, too, could not exist but for the abuse they depict, and many dogfights are doubtless motivated by the opportunity to not only sell tickets to attendees, but also to sell films to a potentially much larger, even national audience.)
Finally, one point that was raised at oral argument is worth mentioning here: It seems very likely that the Court – if confronted with the right case – would carve out a new First Amendment exception to allow the criminalization of the creation, sale and possession of "snuff" videos, in which people are murdered on camera. And if the Court did so, surely its main concern would be to avoid creating or sustaining a market for murder, by creating a market for films of murder. Yet that same rationale, as discussed above, justifies a First Amendment exception for animal cruelty videos, too.
This point shows that it’s not really true that the Court –as it insisted in its opinion – doesn’t want to carve out another First Amendment exception based on a "market for crime" theory. It will surely do exactly that when faced with a "snuff film" case.
Make no mistake, then: The truth is that the Court simply doesn’t care enough about animals – their suffering, their lives – to protect them in the same scenario in which it would quickly protect humans.
Justice Alito deserves great credit for standing alone to say that animals’ pain counts, and matters.
JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.
This column originally appeared on Findlaw’s Writ.