Thursday, April 22, 2010

Chicago Criminal lawyer comments on the 1st Amendment's protection of crush and dog fighting videos

This Chicago Criminal lawyer loves dogs and other animals. Yes, she’s also a vegetarian. But she’s always thought the First Amendment should have some limits. Earlier this week, the United States Supreme Court re-opened the floodgates of animal cruelty by using the First Amendment to protect crush videos.

From United States v. Stevens, No 08-769

The Government argues that “depictions of animal cruelty” should be added to the list. It contends that depictions of “illegal acts of animal cruelty” that are“made, sold, or possessed for commercial gain” necessarily“lack expressive value,” and may accordingly “be regulated as unprotected speech.” Brief for United States 10 (emphasis added). The claim is not just that Congress may regulate depictions of animal cruelty subject to the First Amendment, but that these depictions are outside the reach of that Amendment altogether—that they fall into a “‘First Amendment Free Zone.’” Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987).

Our construction of §48 decides the constitutional question; the Government makes no effort to defend the constitutionality of §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conductor are analogous to obscenity (if not themselves obscene),and that the ban on such speech is narrowly tailored to reinforce restrictions on the underlying conduct, prevent additional crime arising from the depictions, or safeguard public mores.

But the Government nowhere attempts to extend these arguments to depictions of any other activities—depictions that are presumptively protected by the First Amendment but that remain subject to the criminal sanctions of §48.

Nor does the Government seriously contest that the presumptively impermissible applications of §48 (properly construed) far outnumber any permissible ones. However “growing” and “lucrative” the markets for crush videos and dog fighting depictions might be, see Brief for United States 43, 46 (internal quotation marks omitted), they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of §48. See supra, at 13–14.

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.

The judgment of the United States Court of Appeals for the Third Circuit is affirmed.
It is so ordered.

JUSTICE ALITO, dissenting.

The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of“crush videos,” a form of depraved entertainment that has no social value. The Court’s approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted. Respondent was convicted under §48 for selling videos depicting dogfights. On appeal, he argued,among other things, that §48 is unconstitutional as applied to the facts of this case, and he highlighted features of those videos that might distinguish them from other dogfight videos brought to our attention.1

The Court of —————— 1Respondent argued at length that the evidence was insufficient to prove that the particular videos he sold lacked any serious scientific, educational, or historical value and thus fell outside the exception in §48(b). See Brief for Appellant in No. 05–2497 (CA3), pp. 72–79. He added that, if the evidence in this case was held to be sufficient to take his videos outside the scope of the exception, then “this case presents . . . a situation” in which “a constitutional violation occurs.” Id., at 71. See also id., at 47 (“The applicability of 18 U. S. C. §48 to speech which’s not a crush video or an appeal to some prurient sexual interest constitutes a restriction of protected speech, and an unwarranted violation of the First Amendment’s free speech guarantee”); Brief for Appeals—incorrectly, in my view—declined to decide whether §48 is unconstitutional as applied to respondent’s videos and instead reached out to hold that the statute is facially invalid.

Today’s decision does not endorse the Court of Appeals’ reasoning, but it nevertheless strikes down §48 using what has been aptly termed the “strong medicine” of the over breadth doctrine, United States v. Williams, 553 U. S. 285, 293 (2008) (internal quotation marks omitted), a potion that generally should be administered only as “a last resort.” Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999) (internal quotation marks omitted).

Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected.

If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that §48bans a substantial quantity of protected speech.

As the Court of Appeals recognized, “the primary conduct that Congress sought to address through its passage[of §48] was the creation, sale, or possession of ‘crush videos.’” 533 F. 3d 218, 222 (CA3 2008) (en banc). A sample crush video, which has been lodged with the Clerk, records the following event:
“[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.” Brief for Humane Society of United States as Amicus Curiae 2 (hereinafter Humane Society Brief).

It is undisputed that the conduct depicted in crush videos may constitutionally be prohibited. All 50 States and the District of Columbia have enacted statutes prohibiting animal cruelty. See 533 F. 3d, at 223, and n. 4 (citing statutes); H. R. Rep., at 3. But before the enactment of §48, the underlying conduct depicted in crush videos was nearly impossible to prosecute. These videos, which “often appeal to persons with a very specific sexual fetish,” id., at 2, were made in secret, generally without a live audience, and “the faces of the women inflicting the torture in the material often were not shown, nor could the location of the place where the cruelty was being inflicted or the date of the activity be ascertained from the depiction.” Id., at 3. Thus, law enforcement authorities often were not able to identify the parties responsible for the torture. See Punishing Depictions of Animal Cruelty and the Federal Prisoner Health Care Co-Payment Act of 1999: Hearing before the Subcommittee on Crime of the House Committee on the Judiciary, 106th Cong., 1st Sess., p. 1 (1999) (hereinafter Hearing on Depictions of Animal Cruelty). In the rare instances in which it was possible to identify and find the perpetrators, they “often were able to successfully assert as a defense that the State could not prove its jurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the State statute of limitations.” H. R. Rep., at 3; see also 145 Cong. Rec. 25896 (Rep. Gallegly) (“[I]t is the prosecutors from around this country, Federal prosecutors as well as State prosecutors, that have made an appeal to us for this”); Hearing on Depictions of Animal Cruelty 21 (“If the production of the video is not discovered during the actual filming, then prosecution for the offense is virtually impossible without a cooperative eyewitness to the filming oran undercover police operation”); id., at 34–35 (discussing example of case in which state prosecutor “had the defendant telling us he produced these videos,” but where prosecution was not possible because the State could not prove where or when the tape was made).

In light of the practical problems thwarting the prosecution of the creators of crush videos under state animal cruelty laws, Congress concluded that the only effectiveway of stopping the underlying criminal conduct was to prohibit the commercial exploitation of the videos of that conduct. And Congress’ strategy appears to have been vindicated. We are told that “[b]y 2007, sponsors of §48declared the crush video industry dead. Even overseas Websites shut down in the wake of §48. Now, after the Third Circuit’s decision [facially invalidating the statute], crush videos are already back online.” Humane Society Brief 5 (citations omitted).

The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct. The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos. In addition, as noted above, Congress was presented with compelling evidence that the only way of preventing these crimes was to target the sale of the videos.

Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue.
I don’t believe that the First Amendment permits underlying crimes to continue either. I think Justice Alito’s dissent is powerful and he will go down in history as a dissenter who was proven correct. In the meantime, you are free to exercise your Constitutionally protected 1st Amendment Right to torture animals, thanks to the maj

1 comment:

  1. I don't like animals being crushed or tortured, killed and exploited for profit, but I think all the majority Court was trying to do was to restrain itself from legislating, because the statute was very overbroad and not narrowly tailored to fit the State's specific interest in prohibiting only crush/dogfight videos. If the Court were to only decide the case as-applied and not address the constitutionality of the statute facially, they'd run the risk of having to keep dealing with as-applied challenges. And people whose videos of hunting, etc. wouldn't know whether or not the statute applied to them. This way, they knock it out entirely, and hope that Congress steps in quickly to fix it to address specific problems so it can withstand strict scrutiny. Hopefully, we don't have too much of a time gap for any video industry to really take off.

    However, I think one thing the Court could have done was to interpret the statute narrowly even though the words say otherwise (and include other activities broadly). That's one canon of statutory construction -- to avoid ruling the entire statute unconstitutional. But that's more legislating than the Court probably wanted to do. Its decision might encourage Congress to get it right next time.