United States v. Stevens

PETITIONER: United States
RESPONDENT: Robert J. Stevens
LOCATION: U.S. Capitol Building

DOCKET NO.: 08-769
DECIDED BY: Roberts Court (2009-2010)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 559 US 460 (2010)
GRANTED: Apr 20, 2009
ARGUED: Oct 06, 2009
DECIDED: Apr 20, 2010

Neal Kumar Katyal - Deputy Solicitor General, Department of Justice, argued the cause for the petitioner
Patricia A. Millett - argued the cause for the respondent

Facts of the case

Robert Stevens was convicted under 18 U.S.C. Section 48 in a Pennsylvania federal district court for "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." His conviction stems from an investigation into the selling of videos related to illegal dog fighting. Mr. Stevens appealed his conviction arguing that 18 U.S.C. Section 48, on its face, was unconstitutional because it violated the Free Speech Clause of the First Amendment

The U.S. Court of Appeals for the Third Circuit agreed with Mr. Stevens and reversed his conviction, holding unconstitutional 18 U.S.C. Section 48. The court reasoned that the dog fighting videos he sold were protected speech and that 18 U.S.C. Section 48 did not serve a compelling governmental interest.


Is 18 U.S.C. Section 48, on its face, unconstitutional under the Free Speech Clause of the First Amendment?

Media for United States v. Stevens

Audio Transcription for Oral Argument - October 06, 2009 in United States v. Stevens

Audio Transcription for Opinion Announcement - April 20, 2010 in United States v. Stevens

John G. Roberts, Jr.:

I have the opinion of the Court this morning in case 08-769, United States versus Stevens.

This case concerns a statute, making it a crime to create, sale or possess certain depictions of animal cruelty.

The statute addresses portrayals of certain acts harmful to animals, not the acts themselves.

The question in this case is whether that prohibition on depictions is consistent with the First Amendment.

The statute applies to any visual or auditory depiction such as a picture, video, or a sound recording “in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed" if that conduct is illegal where the creation, sale, or possession takes place.

There is an exceptions clause which exempts from criminal coverage, depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Now the legislative background of the law focused primarily on what are called Crush videos which feature the torture and killing of helpless animals.

Respondent Robert Stevens, however, was indicted for selling videos depicting dog fighting.

He was convicted and sentenced to more than three years in prison.

He argues, however, that the law violates the First Amendment.

The government's primary response is that depictions of animal cruelty are categorically unprotected by the First Amendment; not just that it is okay to ban such depictions after analyzing the issue under the First Amendment, but that the First Amendment doesn't apply at all to this type of speech.

Now that is true for some historically unprotected types of speech such as obscenity, definition, fraud, incitement and speech integral to criminal conduct, but there is no similar history of excluding depictions of animal cruelty from First Amendment coverage.

The government says that shouldn't matter and that depictions of animal cruelty should be categorically excluded from the reach of the First Amendment under a balancing test.

As the government put it in its brief “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.”

We firmly reject that proposition.

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, but that's not the end of the case.

We have to go on and review Stevens is challenged under our existing free speech doctrine.

Now under that doctrine a law may be invalidated across-the-board if a substantial number of its applications are unconstitutional.

In such a case we say that the law is overbroad.

So the first thing we have to do is figure out how broadly the statute reaches.

This law creates a criminal prohibition of alarming breath.

The statute's definition of a depiction of animal cruelty does not even require that the depicted conduct be cruel.

It covers for example the killing of an animal no matter how humanely done, and while the depicted conduct must be illegal, many laws making it illegal to kill an animal such as endangered species laws or seasonal restrictions on hunting have nothing to do with cruelty, but would still trigger coverage under the statute.

Moreover, the law applies to any depiction of conduct that is illegal in the state in which the depiction is created, sold, or possessed regardless of whether the conduct took place there.

Depictions of entirely lawful conduct may run afoul of the ban if those depictions later find their way into states were the same conduct is unlawful.

For example, hunting is unlawful here in the District of Columbia, but there is an enormous national market for hunting related depictions.

These depictions often show animals being killed so they would be covered by the statute even if they were possessed in the district even though the conduct depicted was perfectly legal where it took place.

The government's last argument relies on the statute's exceptions clause, but that clause only exempts material with “serious religious, political, scientific, educational, journalistic, historical or artistic value.”