The Goldberg line: Kevin foresees a 7-2 (or better) decision declaring the “crush video” law unconstitutional

Two days into its 2009-2010 term, the Supreme Court sank its teeth into a case which could have a profound impact on all First Amendment free speech rights, and particularly those of the news media. In United States v. Stevens the Court will have to consider whether a whole class of speech – in this case, depictions of “animal cruelty” intended to be distributed for commercial gain – can be declared “unprotected”, i.e., not subject to First Amendment protection.

The focus of the case is 18 U.S.C. Section 48, a 1999 Federal criminal law. It provides for up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” 

The law defines a depiction of animal cruelty as “any visual or auditory depiction of a living animal being intentionally wounded, maimed, mutilated, tortured, or killed if such conduct is illegal either under federal law or in the state or locality where the possession, creation or sale of the material takes place.”  Depictions that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value” are excepted from the statute’s reach. (Of course, traditional First Amendment jurisprudence requires that the value of a work as whole be considered, not just particular images which a prosecutor might find offending within the overall work.)

The law was intended to snuff out a discrete subculture of animal cruelty videos – dubbed “crush videos” – said to appeal to a certain sexual fetish. Crush videos are visual depictions of women stepping on insects and small animals. (It pains us to describe these, but describe we must.)

Robert Stevens was the first person tried under this law. He was prosecuted for selling three videos containing scenes of pit bulls fighting each other or hunting other animals. Ironically, Stevens is a big fan of pit bulls, and dog fighting was not the main topic of these films. Rather, the dog fighting scenes were included to highlight the fact that the breed’s positive qualities are the same ones which make them strong fighting dogs. Stevens was convicted, drawing a multi-year jail term.

The U.S. Court of Appeals for the Third Circuit tossed the conviction. The government took the case to the Supremes, urging the creation of a new class of unprotected speech. (The last time the Court indulged in such a carve-out was in 1982, when it declared child pornography to be completely outside First Amendment protection.)

The American Society of News Editors, an FHH client, joined several other journalism organizations and media companies in a brief arguing that the statute is unconstitutional. And so it was that I ambled over to One First Street to observe the oral argument before the Court on October 6. I needed to see whether I had any reason to fear for the future news coverage of a vast range of animal-related stories – including stories about local hunting ordinances, Spanish bullfights, or attempts to stop animal cruelty, to cite just a few examples. All such coverage might be threatened by an overzealous prosecutor reacting – or over-reacting – to what he or she believes to be one or another inappropriate depiction in an otherwise evenhanded and well-produced story.

Here’s the good news from the argument: true journalism is not likely to be threatened in this way. 

The Justices set upon the government’s lawyer like a pack of wolves. They appeared considerably more concerned about the breadth of the statute – which could be invoked against a tremendous range of seemingly protected speech – than about the specifics of Stevens’s case. 

The government was not more than three minutes into its presentation when newly-installed Justice Sotomayor went for the throat, asking why Congress felt it needed to pass such a broad law to address such a discrete problem. Government counsel never broke free.

This was followed by a line of questioning from Justices Scalia and Kennedy and Chief Justice Roberts about the government’s assertion that this entire area of speech falls outside of the First Amendment.   Pressed to sum up his justification in one sentence, the government’s lawyer stumbled forward with:

In one sentence, if – if – if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can – they can regulate a depiction, so long as it leaves alternative mechanisms for that expression . . .

But the Justices did not appear convinced that this law targets the underlying conduct so much as this speech, noting that animal cruelty would continue to exist even if these videos were eradicated.

Chief Justice Roberts, who is believed to have a strong aversion to “facial” challenges (i.e., challenges to the overall law as a whole, irrespective of the particular facts of the particular case before the Court), hinted that he might support such a challenge in this case. He seemed concerned that this law is particularly overbroad, dependent on a cobbled-in exception to save it.  Justice Scalia and others were similarly unimpressed, questioning whether the law would apply only to “educational” depictions of bullfighting (if they can somehow be identified and defined) or to other instances in which animals might be “legally” harmed. 

The hypotheticals kept coming. Justice Alito questioned how the law might deal with a re-creation of Roman gladiator fights: would it be saved if the participants dressed in traditional gladiator garb to make it “historical” in nature?   It seemed clear at this point that a majority of the Court was not buying the claim that the law is narrowly drawn to focus in on the laudable, if not compelling, interest of animal cruelty. 

What we didn’t see coming was that the gladiator hypothetical wouldn’t be the most, um, unusual hypothetical of the day . . .

No, Patricia Millet, Stevens’s lawyer, was on the receiving end of that one. She first had to parry Justice Alito, who asked whether it was even permissible for Congress to try to address the problem of “crush videos” with such a law. Barely conceding the point, she argued that such a law would have to: (1) satisfy the rigorous “strict scrutiny” standard applicable to content-based regulation of speech; or (2) be equivalent to the Court’s standard for obscene speech; or (3) truly be addressed and tailored to the underlying acts, not the speech about or depicting those acts. Asked whether the Court could interpret the statute consistently with those standards, she replied that that would require statutory “alchemy” more than statutory “interpretation” (which brought a noticeable chuckle from Justice Scalia). 

But back to that strangest of hypotheticals. In exploring the arguable “overbreadth” of the statute – that is, by looking at possible scenarios in which the statute might be used to prosecute plainly protected speech well beyond the facts of Stevens’s videos – the Court asked whether the law could properly reach a series of hypothetical situations. It was one of these hypotheticals that took us into truly weird territory, as Justice Alito asked how the statute might be applied to a “human sacrifice channel” that offered live pay-per-view coverage of legal human sacrifice that: (a) might be occurring somewhere in the world; (b) is illegal in the United States; but (c) nevertheless enjoys a commercial television market.  (Ms. Millett conceded that an evenhanded application of a narrowly drawn statute was paramount.)

After an hour of questions, answers, and hypotheticals, one thing seemed very clear: the Court was more concerned about where to draw the line in terms of substantial overbreadth than it was with the particulars of this case. It barely discussed the facts of Stevens’s case – or even the law’s application to traditional forms of speech. The word “journalistic” appears only five times in 73 pages of transcript. While we understand the First Amendment is primarily tested on the fringes, the Court spent so much time outside the fringe and into the fanciful that I think we’ll be hard-pressed to find five members of the Court who believe this law can ever be constitutionally applied to real-world speech.

In fact, I’m saying that the Court declares the law unconstitutional by a vote of at least 7-2.