Free Speech:  Federal Law Criminalizing Depictions of Animal Cruelty Declared Unconstitutional

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


There are times when the U.S. Constitution protects human activity that is repugnant and seemingly socially irredeemable. The U.S. Supreme Court recently handed down a ruling in the case of Robert J. Stevens who was convicted under a federal statute titled 18 U.S.C. Sec. 48 which prohibits the “depiction of animal cruelty.” This statute was enacted by Congress to, as the Supreme Court said, “criminalize the commercial creation, sale, or possession of certain depiction of animal cruelty.”


Robert Stevens operated a business called “Dogs of Velvet and Steel” in Pittsville, Virginia. Through an associated website, he sold videos depicting pit bulls fighting each other or attacking other animals. Two of the videos, “Japan Pit Fights” and “Pick-A-Winna: A Pit Bull Documentary,” depicted pit bull fighting in Japan (a legal activity in that country) and pit bull fights in this country from the 1960s and ‘70s. A third video sold by Stevens was titled “Catch Dogs and Country Living.” This particular video was particularly gruesome, depicting pit bulls hunting wild boar and a dog attacking a domestic farm pig.


On the basis of these three videos, Steven was indicted by a federal grand jury for violating Sec. 48. A jury convicted him on three counts and he was sentenced to three concurrent 37-month prison terms followed by three concurrent 3-year terms of supervised release. In a pretrial motion Stevens sought to have the Sec. 48 indictment against him dismissed on the basis of a “free speech” challenge under the First Amendment. The trial court denied the motion, pointing out that the depiction of animal cruelty, like child pornography and obscenity, did not enjoy First Amendment protection.


An en banc Third Circuit Court of Appeals decision, however, found Sec. 48 “facially unconstitutional” and reversed Stevens’ convictions. The appeals court essentially said that Sec. 48 was an attempt to regulate speech, adding that the court was not prepared create a “new category of unprotected speech” for cruelty to animals. The constitutional underpinnings of the Third Circuit’s rationale was that Sec. 48 did not serve any “compelling government interest” because the statute was not tailored to prevent animal cruelty, or, at the very least, was not the least restrictive means of accomplishing that objective.


The legal tragedy in the Stevens case is that Sec. 48 was enacted by Congress in 1999 to curb the interstate marketing of “crush videos.” These kinds of videos depict the horrible, intentional torture and killing of helpless animals (such as cats, dogs, mice, monkeys, hamsters, etc), Women wearing sharp high heels, or in bare feet, slowly crush the animals to death while talking to them in a “kind of dominatrix patter.”  While all 50 states, and the District of Columbia, have laws that criminalize animal cruelty, the behavior depicted in crush videos, the identity of the people torturing/killing the animals is seldom revealed. Thus, Congress felt compelled to enact Sec. 48 to outlaw the practice of anyone producing, possessing, and distributing the depictions themselves.

Every normal, rational-thinking person would agree that individuals who subject animals to torture and killing for pleasure, sexual or otherwise, should be punished. But what about someone who merely possesses or sells the “depiction” of such animal cruelty? Should they be punished? They have not actually tortured or killed the animals. They have simply profited from its prurient commercial appeal.


That was precisely the difficult legal question before the Supreme Court. The First Amendment has historically served as a safeguard against government restrictions on individual expression and speech based on its content and ideas. And the Court began its analysis in the Stevens case with the conclusion that Sec. 48 does precisely that and, therefore, was “presumptively invalid” because it “explicitly regulates expression based on content.”  The burden then shifted to the Government to rebut that presumption.


The Government tried to do so by depicting cruelty to animals as one of the very limited number of exceptions to protected speech carved out by the Supreme Court: obscenity, defamation, fraud, and speech integral to criminal justice. The Government also argued that depictions of animal cruelty “made, sold, or possessed for commercial gain” should be regulated as unprotected speech. Finally, the Government summoned a long history in this country of laws prohibiting animal cruelty in support of its argument for “unprotected speech” status for depictions of animal cruelty.


But a judicial analysis of a constitutional issue must always travel the next mile beyond emotional social appeal. The Government tried to limit the analysis strictly to the emotional societal appeal by telling the Court that: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” The Court rebuffed the Government’s narrow rule and embarked upon its duty to travel that next mile:


“As a free-floating test for First Amendment coverage, that sentence is starling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not as document ‘prescribing limits, and declaring that those limits may be passed at pleasure.’


“To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ [As] we noted that within these categories of unprotected speech, ‘the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,’ because ‘the balance of competing interests is clearly struck.’ The Government derives its proposed test from these descriptions in our precedents.


“But such descriptions are just that—descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.


“When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. [F]or example, we classified child pornography as such a category. We noted that [States have] a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this ‘balance of competing interests’ alone. We made clear that … the market for child pornography was ‘intrinsically related’ to the underlying abuse, and was therefore ‘an integral part of the production of such materials, an activity illegal throughout the Nation.’ As we noted, ‘[i]t rarely has been suggested that the constitutional freedom of speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’


“Our decisions in [child pornography] and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that ‘depictions of animal cruelty’ is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s high manipulable balancing as a means of identifying them.”


Thus, the High Court closed the door to any attempt by the Government to place depictions of animal cruelty in an “unprotected speech” category. Animal rights advocates were devastated by the Stevens decision, but it must be understood that all the judges on the Third Circuit Court of Appeals, except three, and all the judges on the Supreme Court, except one, concurred in the principle that Sec. 48 was an unconstitutional attempt to regulate speech.


We do not agree with any kind of cruelty to animals. And we can’t even begin to express our contempt for those who torture and kill animals for sexual pleasure as depicted in “crush videos.” Our personal gut instinct instructs that those who possess and peddle these kinds of videos that depict animal cruelty should be severely punished.


But that is why we have the Constitution, and that is why we select or elect judges with the legal wisdom and moral courage to interpret the Constitution: to protect and safeguard us from our own emotions, biases, prejudices, and fears. We cannot criminalize everything we do not like. Just seven years ago, in Lawrence v. Texas, the Supreme Court struck down a Texas law that punished two men for having a homosexual relationship in the privacy of their own dwelling. Many Texans have a bias against such behavior, but the Constitution does not exist to satisfy the biases of state citizenry. If that were the case, we probably would still have a racially segregated society.


So we are forced to set aside our personal feelings and come down on the side of the Court in this case. It was a difficult decision, no doubt. We’re just thankful that we have a system of government that allows judges to make these difficult decisions—not generals, or police, or politicians.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair