US v. Stevens: The Dog That Didn’t Bark
Danielle asked me to post a few thoughts about yesterday’s Supreme Court decision in U.S. v. Stevens, in which the Court struck down the 1999 federal Depiction of Animal Cruelty Act. Apologies for the terrible pun in the title, but I think that Stevens is a significant case precisely because it is the proverbial “dog that didn’t bark.” The case involved the conviction of Robert J. Stevens for 37 months for selling videos of pit bulls fighting each other and hunting wild boar, which was squarely prohibited by the Act. In its opinion yesterday, the Court held that the Act violated the First Amendment. In so doing, it reaffirmed that unpleasant, even offensive speech is protected by the First Amendment, and it rejected three seductive, but seductively wrong doctrinal ways that it could have upheld the Act.
First, the Court could have declared that offensive depictions of violent cruelty were unprotected by the First Amendment. In so doing, it would have created a new category of unprotected speech like libel, obscenity, or child pornography. Justice Roberts’ opinion makes clear that First Amendment law disfavors the creation of new categories of unprotected speech, and that the Supreme Court essentially lacks the power to freely create new ones. The Court explained that while it balances the social costs and benefits of speech to determine what is and is not protected (a technique called “categorical balancing”), this process is not a “free-wheeling” power to declare lots of new categories outside the protection of the First Amendment. This is an important holding – although the Court declared child pornography to be outside the First Amendment in 1982, Stevens makes clear that the child pornography cases are probably an isolated (and limited) special and exceptional case. The court then struck down the statute on overbreadth grounds because a substantial number of its applications (e.g., videos of hunting) would restrict protected speech.
The second seductively wrong path the court could have taken would have been to expand obscenity law to include a kind of violent obscenity. This idea would go something like “because we ban obscene depictions of sex that are offensive and valueless, why shouldn’t we also ban offensive and valueless depictions of graphic true violence?” If you accept the rationale for obscenty being unprotected, this is a serious argument – after all, most people would find depictions of dismemberment more shocking and offensive than depictions of sex. The Act in Stevens actually suggested such a reading (in a nod to the governing obscenity case of Miller v. California) by excluding from punishment depictions of animal cruelty that had a “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The 1999 Act even had a sexual element, as much of the impetus for banning depictions of animal cruelty seems to have been to prohibit the circulation of “crush films”: sexual fetish videos depicting women in high heels squashing small animals. But the court rejected the obscenity analogy, again on the grounds that it did not want to expand existing categories of unprotected speech without good reason. Implicitly, the Court seems to be saying that existing categories of unprotected speech might remain as matters of stare decisis, but the weight of the First Amendment tradition of the past 75 years (Roberts says since 1791, which is a bit of poetic license) means that speech is protected robustly and broadly from government criminal punishment, even if it is offensive.
A third seductively wrong way that the Court might have upheld the Act was by analogy not to obscenity, but child pornography. Child pornography is not protected by the First Amendment on the ground that the harm to children in the creation of child porn is severe and inextricably linked to its distribution. Accordingly, criminal punishment of the possession of depictions of child abuse is necessary to “dry up the market” for their creation. If we take animal cruelty seriously, an almost identical argument would justify the Act in Stevens: animal cruelty is so bad and so often prompted by the demand for crush films or pit bull fighting videos that we should ban possession to dry up the market and stop the creation harm. But the Court rejected this argument also, suggesting not only that child pornography is a special (and strictly defined) category of First Amendment law, but also that even gratuitous harm to animals is a less important legal interest than harm to human children.
So after Stevens, First Amendment law is pretty much the same as it was before, and the real significance of Stevens seems to be that outside the area of campaign finance law, the Roberts Court sees itself as continuing the tradition of broad protection for speech, even speech that contains offensive or disturbing ideas, images, or information. I think this is normatively a good development, and one that is well within the mainstream of conventional First Amendment theory. It also suggests that the Depictions of Animal Cruelty Act was targeted not at animal cruelty per se, but at the niche market of crush films as an offensive idea. I personally don’t understand why someone would want to watch a crush film (much less find it sexually gratifying), but Congress seems to have been targeting just this weird idea, rather than animal cruelty more generally. After all, Congress outlawed crush films, but left intensive chicken farming and cattle feedlots legal, which are a much greater source of animal cruelty than crush films or Mr. Stevens’s videos. And if the Stevens case was about the protection of offensive ideas rather than animal cruelty itself, the Court should be commended for continuing the broad protection of all ideas, even the weird and shocking ones.