Professor Rory Little’s Perspective: United States v. Stevens, A Case Brief

The following is presented as a service of the ABA Criminal Justice Section

The ABA Section of Criminal Justice is pleased to provide Professor Rory Little’s Perspective, a Case Brief in U.S. v. Stevens which includes the Holding, Facts, and Analysis in the case.


Statute Criminalizing the Creation, Sale, or Possession of Depictions of Intentional Killing or Wounding of Animals is Unconstitutionally Overbroad.

United States v. Stevens, No. 08-769, 130 S.Ct. ____ (April 20. 2010), affirming 533 F.3d 218 (3d Cir. 2008 en banc).

Holding (8-1), Roberts; Alito dissenting: A statute that criminalizes the creation, sale, or possession of a “depiction of animal cruelty” (as opposed to criminalizing the underlying harmful conduct) is invalid as facially overbroad under the First Amendment, because (first) the statute’s definitions do not actually restrict its application to “cruelty” and (second) thus construed, “a substantial number of its applications are unconstitutional” because it would apply, for example, to many hunting magazines, shows, and videos that are marketed today.

Facts: Title 18 U.S.C. § 48 criminalizes the “creation, selling or possession” of “a depiction of animal cruelty” if done for “commercial gain” in interstate commerce. Stevens was convicted of selling “videos of pit bulls engaging in dogfights and attacking other animals,” and he received a three-year imprisonment sentence. The district court rejected his First Amendment challenge to the statute, holding that depictions of animal cruelty are “categorically unprotected” just like obscenity or child pornography. A divided en banc Third Circuit reversed, however, rejecting the categorical exception and finding the statute invalid under a strict scrutiny analysis (applied to content-based speech regulations).

Chief Justice Roberts (for 8 members of the Court): First, we reject the idea that a new “categorical exception” for animal cruelty visuals can be created. There is no history to support it, and a “free-floating” balancing test is the wrong analysis. “Maybe there are some categories of speech” exempted from the First Amendment but not yet identified, but this is not one of them.

The majority does not affirm the Third Circuit’s strict scrutiny analysis, but instead applies “existing doctrine” to the broad reach of the statute as the Court construes it. The “first step” is to determine the statute’s meaning, and the Court’s somewhat surprisingly broad view of the statute turns out to decide the issue.

Although the statute explicitly condemns “depictions of animal cruelty,” its definitional section makes clear that it applies to “any … intentional[] wound[ing] or kill[ing]” of an animal. Thus the statute does not “require[e] cruelty.” Moreover, the Court reads the statute to apply to any depiction of animal wounding that is unlawful in the state where the selling or possession occurs, even if the conduct was lawful in the State where the depiction was created. Thus the Court finds that the statute applies to depictions of hunting, for example, that are entirely lawful in many states, if the depiction is found in a state where such hunting is unlawful. (For example, “[t]he sharp-tailed grouse may be hunted in Idaho, but not in Washington.”) Because “there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed,” the statute reaches a vast amount of First-Amendment protected activity, even if “crush videos” (see the opinion at page 2 for a description of “crush videos,” which undoubtedly were the object of Congress’s attention.) are also prohibited.

Finally, the statute’s exceptions clause, protecting depictions for which there is “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” does not save it. Lots of hunting magazines and videos have only “recreational” or “entertainment” value. Even though the Department of Justice promises to apply the statute only to depictions of “extreme animal cruelty,” the First Amendment does not depend on such prosecutorial discretion. And we won’t re-write the statute to only apply to such depictions where its plain language is plainly broader.

Alito dissenting: (Interestingly, only Justice Alito does not agree with the majority of his former Third Circuit colleagues.) There is no need to strike down in its entirety this “valuable statute,” and thus leave “depraved entertainment” such as crush videos legalized. Instead, the case should be remanded to see whether Stevens’ dog-fight videos can survive an “as applied” First Amendment challenge.

On a pure overbreadth analysis, the statute should be sustained. The majority does not fairly apply the doctrine that statutes should be construed narrowly, if possible, to avoid constitutional problems. Its application to a small number of differentiated hunting regulations across the country is “seriously flawed” and fanciful. We should simply interpret the statute to not apply at all to hunting in general, but rather only to “acts of animal cruelty” that violate state laws. (In an act marginally cruel to trees, Justice Alito appends an eight-page, 50-state survey of animal cruelty laws to his opinion.) Moreover, we should construe the exceptions clause to protect hunting magazines and videos. There is no “substantial overbreadth” here (emphasis in the original), even if a few hypothetical or rare examples can be imagined.

Moreover, the conduct depicted in crush videos is violent and depraved, and has no constitutional protection. Congress reasonably concluded that a statute banning the commercial market for such videos was necessary, because the actual makers of the videos often could not be located. This 1999 strategy worked; by 2007 it was reported that the “crush video industry [was] dead,” even “overseas websites shut down.” A similar strategy has been constitutionally employed against child pornography, and we held in Ferber (1982) that depictions of child pornography are unprotected by the First Amendment. We should hold the same for depictions of crush videos and “brutal animal fights.”

[Editors Note: This summary has been created by Professor Rory K. Little, U.C. Hastings College of the Law, San Francisco. . It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.]

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