In a term that has seen major changes in the scope and interpretation of the First Amendment, the Supreme Court in United States v. Stevens, once again invalidated another federal law, this time one that banned certain types of graphic depiction of cruelty to animals.

The underlying case involved a filmmaker named Robert Stevens who was sentenced to three years in prison for creating and selling videos about dog fighting. He was charged with violating a 1999 law that was originally intended to criminalize so called “crush” videos, which depict small animals being crushed to death by women wearing high heels or barefoot in order to appeal to a sexual fetish. Although many forms of animal cruelty (such as dog fighting) were already illegal, proponents of the legislation said it was necessary to stop the production of the videos and resulting cruelty to animals. Although Robert Stevens was not charged with producing any crush videos, the government decided to prosecute him under the 1999 law for producing videos of dog fighting, arguing that it was animal cruelty and therefore criminal under the 1999 law.

Stevens was convicted of the crime in the U.S. District Court and then appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit reversed his conviction and the government appealed to the Supreme Court. Chief Justice John Roberts, writing for an 8-1 majority, affirmed the Third Circuit ruling and struck down the law as violating the First Amendment. The Court ruled that although a narrower statute limited to just crush videos might be constitutional, the current law was too broad and could be used against anyone who creates any video where an animal is wounded or killed. As such, the Court feared the law could be used against hunting magazines or documentary filmmakers, even though the law contained an exemption for works of “serious religious, political, scientific, educational, journalistic, historical or artistic value”. Justice Alito was the only dissenter and argued that the law was only meant to protect against animal cruelty and not to suppress speech. Alito warned that the ruling would increase the number of crush videos, which by some accounts have decreased since 1999.

The interesting question which arises from this, as well as other prior Supreme Court cases, is when does the depiction of an illegal act come under the protection of the First Amendment? For example, dog fighting is an illegal act but the depiction of dog fighting is not. On the other hand, crushing or torturing an animal for no legitimate reason is also an illegal act, but the depiction of that act is also illegal. Similarly, prostitution is an illegal act but pornography is permitted under the First Amendment. One could argue that since actors in pornographic videos are essentially prostitutes in that they are paid to have sex, that the underlying act depicted in pornography is illegal. If an act is illegal, then under what circumstances should filming it also be illegal? What about the depiction of actual cases of rape and murder? No reasonable person would believe that such depictions should be permitted under the law. On the other hand if the underlying act in pornography is legal, then why should prostitution be illegal? That would be concluding that an act can be illegal, but once it is filmed or graphically depicted, the act itself becomes protected under the First Amendment.

What seems to be the standard here is one of “offensiveness” (see last week’s post by Becky). Wanton depictions of cruelty or killing, whether of animals or humans, are considered especially offensive and would seem not to be protected by the First Amendment. If the 1999 law was limited to crush videos or even specifically tailored to dog fighting, it would probably pass constitutional muster. The problem the Court had with the law was that it was overly broad, historically a common reason why the Court has struck down federal and state laws. In cases of pornography or videos involving lesser crimes, the Supreme Court has been more reluctant to strike down laws banning the same, citing the protections afforded by the First Amendment. Also, it seems that when an illegal act is committed for the sole purpose of filming it, it is more likely not to be protected under the First Amendment, though pornography would be an exemption to this notion.

Obviously, the application of the First Amendment to our nations law is complex and has been debated heatedly throughout the history of our country. What are your thoughts on this case and when should certain acts, or depictions of them, not be protected under the First Amendment?

Posted by Anish on May 25, 2010 at 6:04pm.