Why The Supreme Court Was Wrong And Its Decision Was Flawed In The Animal Cruelty "Crush" Videos Case Of United States v. Stevens (2010)

I was very surprised one year ago on April 20, 2010 with the Supreme Court ruling in United States v. Stevens and that the decision came down with such an overwhelming 8 to 1 majority. But the unpredictable Supreme Court left only Judge Samuel Alito arguing that Congress's ban on the distribution of animal cruelty videos should not be voided under the First Amendment's protection of the freedom of speech. Justice Alito wrote: "The Court’s approach, which has the practical effect of legalizing the sale of such [animal cruelty] videos and is thus likely to spur a resumption of their production, is unwarranted... The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in... for expressive purposes... [T]he Court of Appeals erred in second-guessing the legislative judgment about the importance of preventing cruelty to animals." I agree with Justice Alito. This decision is bad policy, but more importantly bad law.

Before I discuss the legal flaws with the majority's reasoning, the policy implications of this decision must be discussed. The Supreme Court ruled with the distributor of dog-fighting videos. That means until Congress acts in response to the ruling and until the Supreme Court possibly revisits any potential new Congressional legislation on the matter, economic incentives have been reintroduced into our society for the production and distribution of videos depicting animal cruelty. This includes so-called "crush videos." These videos show women, sometimes barefoot but usually in stiletto heels, stepping on and killing small animals. A description of one such video appears in Alito's dissent:

"A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten's eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal's head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-soaked hair and bone."

This sort of video is apparently a sexual fetish that appeals to the interest of some very deranged individuals in our society. The incentive to market these videos is now back in full force as the Court invalidated federal legislation that was specifically passed in an attempt to put an end to such videos.

But if policy reasons alone were the only problem with this ruling, I would have no grounds for disagreement with the Supreme Court. It is the job of the Supreme Court to follow the law, not to create policy. But the legal reasoning of the Court is seriously flawed. When the Supreme Court invalidates a law on faulty legal grounds it is the Court that has subverted a Constitutional legislative process by substituting the judgment of Congress with the judgment of the Court. There were two central legal arguments put forward by the Supreme Court.

The Court majority written by Chief Justice John Roberts begins with an argument that has little to do with the substance that lead the Court to invalidate the law. The Court developed a relatively novel argument, at least as far as First Amendment jurisprudence is concerned. Justice Roberts's opinion argued essentially that exceptions to the First Amendment's protection of "speech" do exist but that any exceptions should be based on "tradition" and "historical evidence" that the expression restricted was not meant to be protected by the First Amendment. Roberts wrote: "As the government notes, the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies... But we are unaware of any similar tradition excluding depictions of animal cruelty from 'the freedom of speech' codified in the First Amendment, and the Government points us to none."

This is the argument that clearly attracted the likes of Justices Scalia and Thomas, as it is couched in original meaning as seen through history and traditions. The problem is that the originalist argument is flawed for two reasons. One reason, and admittedly this is the weaker reason, is that the assumption of the Court is that if the historical evidence does not provide a clearly visible exception, that this means the Constitution meant to protect the speech. One could argue that if the speech at hand is in no way even analogous to what the Framers expressed they had in mind when adopting the provision, it should remain unprotected by the Constitution and subject to Congressional regulation. This is very debatable because it would admittedly allow for a presumption potentially allowing for Congress to take away expressive "rights" that the Supreme Court today considers to be protected by the First Amendment.

However, there is a much stronger argument. Roberts concedes that "the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies." Justice Antonin Scalia wrote an important 2001 opinion for a majority of the Supreme Court in Kyllo v. United States that ruled that law enforcement's use of heat sensors on private homes to find whether unusual heat patterns were present indicating drugs were being grown violated the Fourth Amendment's right to be protected from "unreasonable" government "search and seizure." The Supreme Court wrote that "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology... While it is certainly possible to conclude...no 'significant' compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward." I wonder why the Supreme Court is unwilling to take the same originalist "long view" in the case of videos depicting animal cruelty? Roberts writes that bans on animal cruelty have "a long history" dating back to before the Constitution was even adopted and continuing long thereafter. Those that adopted these earliest American animal cruelty prohibitions and the First Amendment itself did so in a world in which modern photography or videos obviously did not yet exist. They could not possibly consider this "advance of technology." While it is true that they did not ban "depictions" of animal cruelty, one must realize that the only ones that could be made would have been by hand. The fact that bans on actual animal cruelty were already so prevalent in fact provides originalist evidence that the Founding Fathers would have supported a ban on the distribution of videos depicting animal cruelty, especially when the video depicts actual cruelty committed. The historical evidence itself shows that Americans have always taken animal cruelty to be a serious issue worthy of prohibition by law, and this should then apply today to videos that could not have been imagined would exist, and which a refusal to ban results in the creation of a market incentive to engage in the conduct these early Americans found reprehensible and prohibited. This incentive is created to engage in the underlying activity that the earliest Americans found worthy of outlawing, as the films today of animal cruelty could be sold to those demented consumers with a "crush video" fetish.

The second argument that lead the Supreme Court to declare the legislation unconstitutional was that it was overbroad. This means that the statute as written could theoretically apply to situations in which the speech is clearly protected. For example, the majority argues that the statute could apply to videos of hunting. This was the actual reason the law was declared invalid. This is a matter of interpreting the statute's reach rather than the central issue of animal cruelty videos itself. It is on this ground that Justice Alito in his dissent did a sufficient job showing why the statute was not overbroad. In fact, he shows why the argument of the majority was "seriously flawed." He says he would interpret Congress's legislation banning the distribution of animal cruelty videos as applying "only to depictions involving acts of animal cruelty as defined by applicable state or federal law, not to depictions of acts that happen to be illegal for reasons having nothing to do with the prevention of animal cruelty." Further, the statute itself provides an exception for videos with serious “scientific,” “educational,” or “historical” value, language itself borrowed from Supreme Court First Amendment jurisprudence. Apparently when Congress uses the Supreme Court's own famous words to carve out an exception it has little meaning, but when the Supreme Court does so it is crystal clear. The bottom line, though, is that something like hunting would fall into this exception.

The strongest point that Alito makes, and which I believe the majority fails to address in an honest manner, is that the "most relevant of our prior decisions is Ferber [v. New York (1982)]...which concerned child pornography. The Court there held that child pornography is not protected speech, and I believe that Ferber 's reasoning dictates a similar conclusion here... Those who record the underlying criminal acts are likely to be criminally culpable, either as aiders and abettors or conspirators. And in the tight and secretive market for these videos, some who sell the videos or possess them with the intent to make a profit may be similarly culpable." Further, "the criminal acts shown in crush videos cannot be prevented without targeting the conduct prohibited by" the statute the Supreme Court declared unconstitutional. Finally, "the harm caused by the underlying crimes vastly outweighs any minimal value that the depictions might conceivably be thought to possess... It must be acknowledged that [the statute] differs from a child pornography law in an important respect: preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appeals concluded that Ferber did not support the constitutionality of [the statute]... But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos."

Furthermore, the Supreme Court fails to realize the legal consequence of its decision in terms of future cases and following Supreme Court precedent. They rationalize the outcome in terms of overbreadth, but at the same time declared that there is no reason for animal cruelty videos to be a lesser protected form of speech. If Congress were to now narrow the law in response to this ruling and make the terms of the statute more precise, the law could then again appear before the Supreme Court for review. At that point, having already put the option of viewing the speech as lesser protected off the table, the Supreme Court would then have to view the statute within its usual free speech framework. They would have to ask if the regulation was content-based or content-neutral. It is clearly a regulation that is content-based as it targets a particular type of video, and the Supreme Court as a matter of course and precedent strikes down content-based regulations. Therefore, assuming they would not make some unusual break from precedent and the jurisprudential framework that has developed around free speech, the Supreme Court seems to have boxed themselves into a situation where no matter what happens animal cruelty videos will be protected under the First Amendment.

The Supreme Court should feel embarrassed for its illogical decision, and even more embarrassed that only one Justice dissented.

To read the opinions for yourself visit http://www.supremecourt.gov/opinions/09pdf/08-769.pdf Tweet