The recent Supreme Court case, U.S. v. Stevens, found an animal cruelty law invalid under the First Amendment. The law was aimed at animal cruelty however, the court relied heavily on the activity of hunting (which was not part of the law), in explaining why the statute must be invalidated. The court’s reasoning is largely based on hypothetical concerns and presents a somewhat skewed view of factual information heavily laden with value judgments.
The statute in question criminalized the visual or auditory depiction of the intentional maiming, mutilating, torturing, wounding or killing of an animal. While the defendant in the case was being prosecuted for dog fighting videos, the court explained that the legislative history of the law indicates that it was aimed at what are called “crush videos”. Crush videos are made to appeal to people with certain sexual fetishes who delight in watching animals tortured and killed often by scantily clad women wearing stiletto heels. Once the law was passed the market for crush videos virtually disappeared.
Traditional hunting did not come under the law (even though the law included the intentional killing of an animal); because the statute required that the underlying activity being portrayed must also be illegal for the visual or auditory depiction of the activity to be illegal. Hunting is legal in all 50 states therefore depictions such as hunting videos or magazines would not fall within the reach of the law. The underlying animal cruelty being portrayed in crush videos however is illegal in all 50 states and the District of Columbia so crush videos became illegal with passage of the law.
The main problem for the court was Washington D.C. where hunting is in fact, illegal (presumably because of its urban landscape). Since hunting is illegal in that jurisdiction, the court said the animal cruelty statute could be misused to criminalize the sale of otherwise legal hunting magazines and videos in the D.C. area. Technically this is correct however; the analysis doesn’t stop there. The court used the legal doctrine of “overbreadth” to reach its conclusion that the statute should be invalidated, but the facts the court relies on are not compelling in light of the balancing test required by this legal doctrine.
The legal doctrine of overbreadth means the court may invalidate a law when it is written too broadly and “‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’" In striking a balance between competing social interests consideration is given to "a statute’s application to real world conduct, not fanciful hypotheticals” (quoting the dissent). Therefore, a balancing test is used whereby the value of the statute is weighed against the potential for its misapplication.
The court never questioned the legitimate intent of the statute as clearly reflecting the broad consensus of society against animal cruelty. The court concluded this is evidenced by the fact animal cruelty is illegal in every state and territory in the country and the animal cruelty statute at issue was passed by an overwhelming majority of Congress. But the court was troubled by the potential misuse of the statute as it applied to hunting magazines and videos bought and sold in Washington D.C. Why this sliver of potential misapplication (of which no actual prosecutions were noted), became such a focal point for the court is not entirely clear, nevertheless it was central to the invalidation decision.
In reasoning this point out, the court cited the amicus brief submitted by the NRA (organizations often submit “friends of the court” briefs in cases where they are not a direct party but their interests are directly affected). The court reasoned that since the “demand for hunting depictions exceeds the estimated demand for crush videos … by several orders of magnitude” and “there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed” then, in essence, this market should not be jeopardized.
The court goes on to point out that the market for hunting magazines is about $135 million per year while crush videos only pull down about $1 million. How does a comparison of these sales numbers inform the court about the relative value of these activities? One activity is legal while the other is illegal (actually it’s good to hear that our society is on track at least to the extent that illegal activity is dwarfed by legal). It can just as easily be argued that since the hunting magazine business is so robust, the negative impact of the statute on hunting would be negligible in comparison to the impact on the market for crush videos which could be eliminated.
If the overbreadth analysis requires the finding of a “substantial number of unconstitutional applications” as compared to a statute’s legitimate use, perhaps it would have been relevant to know the hunting magazine and video business of Washington D.C. since this appears to be the only place where the illegality could occur. This information is not part of the opinion. (It is not entirely clear whether the court was saying that since the activity would be illegal in D.C. then all hunting magazines and videos in interstate commerce would be tainted or whether it would be limited to the D.C. market; I am presuming the latter since that is the clearest reading of the court’s language).
The other hunting example that the court expresses concern over is the possibility that videos and magazines showing legal hunting in one state would be criminalized in another because that particular form of hunting is not legal in that jurisdiction. These circumstances mainly involve the weapon used or the animal killed. Some states allow hunting using a crossbow for example, while others do not. Some states allow certain types of animals to be hunted while other states do not. The court says the hunting video and magazine industry could thus face a “bewildering maze of regulations from at least 56 separate jurisdictions.” Again, this hypothetical difficulty with the statute is offered up as reason to invalidate it with no discussion about the remoteness of the possibility and no examples of it ever happening.
The next scenario the court points to is almost comical. Under the potentially over broad statute the court notes that “the humane slaughter of a stolen cow” would also be criminalized. Again, what is the value being protected here? If the cow is already stolen there is criminality; are we to be concerned that an otherwise innocent person might then humanely kill this cow, have the act videotaped and sold, and thus become an unwitting criminal?
The court moves onto the issue of slaughtering animals for food saying there could be instances where the slaughter of an animal using a particular method is legal in one state but not in another causing a video depicting the slaughter to be criminal. However, it’s hard to imagine any video of animal slaughter not fitting into one of the exceptions to the statute. The statute has specific exceptions and does not apply to depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The court doesn’t offer examples of a video that wouldn’t fit into one of these exceptions.
The court also rejected the analogy to child pornography. It is well established law that child pornography is not protected speech and is thus outside the protection of the First Amendment. As noted in the dissent, “the First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.” But the majority rejects the analogy to child pornography saying animal cruelty is not protected speech. The dissent disagrees but says “…preventing the abuse of children is certainly much more important than preventing the torture of animals…[and] protecting children is unquestionably more important than protecting animals, [but] the Government also has a compelling interest in preventing the torture depicted in crush videos.”
How about the people involved in crush videos? Isn’t this statute equally, if not more so, about the depraved and emotionally sick people who participate in the videos and those who witness and record the acts, to say nothing of the consumers who buy these horrific segments? A description of one of the videos included in the court’s opinion discusses tying down kittens and gauging out their eyes. It’s hard to imagine this activity not ranking of equal depravity with what would be considered the most violently heinous of acts, including child pornography. The people involved in the crush video business concern me just as much as anyone involved in child pornography. It’s not about the value one places on animals; it’s about the violent and depraved human participants.
Interestingly, the majority cites the amicus brief of the NRA while the dissent cites the amicus brief of the Humane Society to support their respective positions. If the court is at all attempting to reflect the values of our society, it is worth noting that according to each organizations website the NRA has 4 million members while the Humane Society has 11 million.
Even though this statute was not directed at hunting, the issue of hunting and the role it plays in our society became central to the case. Even the dissent, while reaching the right conclusion, used some questionable reasoning focused on hunting. Justice Alito explained that he would dismiss all the hunting concerns expressed by the majority because hunting falls into one of the exceptions to the statute. He went on to say that hunting is scientific, historical and educational and “[w]hile there are certainly those who find hunting objectionable, the predominant view in this country has long been that hunting serves many important values...” As support for this sentiment the Justice cites the regular proclamations of Presidents “extolling the values served by hunting” such as providing healthy recreation, cultivating an appreciation and respect for nature, and providing peaceful solitude and closeness to nature.
According to the U.S. Fish and Wildlife Services, 4% of the population in this country hunts; I wonder how Justice Alito was able to nail the opinions of the other 96%.
Prior posts:
"Man as Super-Predator" March 2010
"Connecting the Dots of Violence" Feb 2010
"Lead Ammunition" Jan 2010
"The Federal Gun Tax" Dec 2009
"The Supreme Court and the Culpability of a Child" Nov 2009
"Teaching Children to Kill" Oct 2009
"The Structure of Our State Wildlife Agency System" Sept 2009
