A Criminal Enterprise

Court-Watching: United States v. Stevens

Posted in Cases, News by Bidish J. Sarma on October 7, 2009

A long line prevented me from watching Tuesday’s first oral argument in the case of United States v. Stevens.  For this post, I’ve carefully reviewed the transcript and some of the articles published in the argument’s wake.

Stevens presents the Court with a First Amendment challenge to a federal law that criminalizes the sale of videos that depict acts of animal cruelty.  The facts of this case reflect the unsettling nature of this particular prosecution (which was the very first one under the statute).  According to the Respondent Stevens’s brief: “Robert Stevens is a sixty-eight-year-old published author and documentary producer whose work focuses on the history, unique traits, and assets of the breed of dog commonly known as Pit Bulls. . . . Stevens has long opposed dogfighting, advocating in his book that ‘pit fighting should remain illegal.’”  In some of the documentaries that Stevens has compiled, there are short excerpts of Pit Bull fights that were filmed by others at locations where dog-fighting was legal.  In 2004 the government indicted Stevens on three counts of violating the law in question – 18 U.S.C. Section 48.  Stevens was convicted by a jury and sentenced to 37 months of jail time.  However, the Third Circuit Court of Appeals overturned his conviction and ruled that the law is unconstitutional under the First Amendment.

Two highly-skilled advocates argued the case.  Neal Katyal, the Deputy Solicitor General, argued on behalf of the Government.  Patricia Millett, a Supreme Court practice partner for the Akin Gump law firm, argued on Mr. Stevens’s behalf.

The Government’s position came under immediate fire from several Justices.  The Justices seemed concerned that the speech targeted by the law was not unprotected speech; instead, the law requires the Government to engage in content-based or viewpoint-based discrimination.  When Mr. Katyal attempted to distinguish this case from a prior line of cases, Justice Scalia resisted:

MR. KATYAL: And this case is fundamentally different from all of those because here Congress is not aiming at the underlying communicative impact. It’s not saying, as it was in the —

JUSTICE SCALIA: Well, of course it is. I mean, you can’t separate the means from the end and say, since its end is simply to prevent the — the activity, the means, which is to prevent the communication, is okay. It is targeting the communication of videos that depict this conduct.

Chief Justice Roberts backed Scalia:

CHIEF JUSTICE ROBERTS: Well, but to say that they are not concerned with the content, I — I think is contradicted by the exceptions. You have to look at the content and make a decision, is this bona fide scientific, journalistic, educational, historical? So you have to look at the content to determine whether or not the speech is prohibited.

In its brief, the Government made one argument central to its position: the regulation of videos depicting animal cruelty is similar to the regulation of videos depicting child pornography.  However, the Justices did not appear inclined to accept that claim:

JUSTICE SCALIA: Child — child pornography is obscenity as far as I am concerned, and it has been treated as part of that same traditional classification which there has always been permission for the government to prohibit. This is something quite different.

Later on, Justice Ginsburg echoed this sentiment:

JUSTICE GINSBURG: It even — what I would like you to confront is that the very taking of the picture is the offense. That’s the abuse of the child. The abuse of the dog and the promotion of the fight is separate from the filming of it.

The Court also seemed concerned that the statute is overbroad.  Justice Breyer indicated that the broad and ambiguous exceptions to the statute – works of “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” – mean that people who enjoy activities such as duck-hunting and bull-fighting won’t know if their filming and distribution activities will be considered illegal.

Another overriding judicial concern that emerged from the Government’s presentation was that the language Congress used is simply too vague to be interpreted in a manner that comports with the principles contained in the First Amendment.

Ms. Millett did not get too far into her argument before the Justices began questioning her.  Initially, Alito pressed to find out if the Respondent would concede that the statute could be constitutional as applied to so-called “crush” videos.  As he said, “Might. I would really like you to tell me whether it would; whether you are willing to concede.”  Ms. Millett did not concede outright, but stated:

A statute that says the patently offensive intentional torture and killing of an animal for — designed to appeal to the prurient interest for the purpose of producing the image, I think that would satisfy — I think it would satisfy strict scrutiny.

Ms. Millett also emphasized one of the Respondent’s crucial arguments – that the statute could actually reach the activities of anti-cruelty activists themselves.  In other words, the statute may criminalize expressive and political speech that informs the public of the harms associated with illegal activities like dog-fighting.  As she said at the argument:

This is an area where we know speech works powerfully. Speech about these ugly images produced this statute. It informed people. Unlike children and child pornography, people need to see images to understand what’s going on with animals, and to make these important decisions and engage in these important debates that our society is having.

Justice Alito posed the toughest question to the Respondent:

JUSTICE ALITO: Well, if that’s 100 percent, then what about people who –who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel.

After some digressions, Chief Justice Roberts against asked, “Can Congress ban the human sacrifice channel or not?”  Ms. Millett had trouble giving a clearly-articulated response:

MS. MILLETT: I — the — I think — I — I will start by saying — no. Let’s start and see. Maybe — maybe it won’t work, but I think — . . . If it’s not something — if it’s not conduct it has any authority to regulate, I don’t — then the only compelling interest is — I’m trying — I mean, I don’t want to watch this channel, and people should fight with their wallets and their votes and not support these things . . . .

The Justices were not altogether comforted by the scope of the Respondent’s arguments.  The concern with the notion that Congress could not ban the depiction of human sacrifices seemed to linger.  But, the Court’s First Amendment jurisprudence is extremely complicated.  Though both advocates seemed to struggle at times to find direct responses to the Justices’ tough hypothetical questions, the Chief Justice thanked them for their able presentation of the case.

The prevailing view after the argument seems to be that the Court will find the federal law unconstitutional.  The impressions of others can be found at SCOTUS blog, here, the LA Times, here, and the San Francisco Chronicle, here.  Because there are so many layers and questions about the First Amendment’s applicability (for example: is the statute vague?  Is it overbroad?  Does it constitute a content-based restriction?  Is there viewpoint-discrimination?), it is unclear what the Court will hang its hat on, or whether we should expect a fractured opinion.  Nevertheless, it seems that Robert Stevens will remain a free man when it is all said and done.

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