Clarifying the Supreme Court’s United States v. Stevens Opinion

Posted by Matthew Liebman, ALDF Staff Attorney on April 21, 2010

In light of recent comments, questions, and Facebook posts, I thought I’d take a moment to clarify some misconceptions about the Supreme Court’s opinion in United States v. Stevens. I appreciate and sympathize with the anger many people feel about the decision, and I wish the Court’s decision had gone the other way. But I think we owe it to ourselves to avoid feeling anger and despair unnecessarily. And misreading the Stevens case causes unnecessary despair. The real plight of animals is horrific enough without subjecting ourselves to the added stress that results from an alarmist description of the Stevens case. It’s important to honestly assess the case and what it did and did not actually say.

First, the Supreme Court did not hold that committing animal cruelty is protected by the First Amendment. Criminal animal cruelty was illegal before Stevens and it remains illegal after Stevens. The case had almost nothing to do with the legitimacy and enforceability of the local, state, and federal laws that protect animals. Rather, the case focused solely on the government’s ability to prohibit the depictions of cruelty themselves. Someone who abuses animals cannot avoid criminal liability simply by videotaping that cruelty. For example, dogfighters who videotape fights can still be prosecuted under the criminal cruelty laws for dogfighting, even though they can no longer be prosecuted for selling the videos, at least for now. Undoubtedly, Section 48 was an important tool for stopping animal cruelty that was produced for the sole purpose of being sold, and the Court took away that tool. But it did not equate animal cruelty itself with free speech.

Second, the Supreme Court did not hold that crush videos or animal fighting videos are protected by the First Amendment. Instead, the Court specifically reserved that question, holding only that Section 48 as written was too broad and extended to other kinds of speech that are protected. A law that criminalized the commercial creation, sale, or possession of just crush videos or animal fighting videos might still pass constitutional muster, and it is clear that that is the way forward for the animal protection movement. The Animal Legal Defense Fund and other animal protection groups are urging Congress to pass a narrower law that focuses on these extreme forms of animal cruelty.

Third, the Court did not say that preventing animal cruelty is an unimportant goal.
The Court could have held that the prevention of animal cruelty is not a compelling government interest, throwing the legitimacy of hundreds of animal protection laws into doubt. In fact, that’s what some of us feared would happen, especially after the lower court based its decision in part on those grounds. A holding from the highest court in the land that animal protection is less than compelling could have been devastating. But the Court did not go that route, despite the clear opportunity to do so.  

My point is not that we aren’t entitled to feel upset or disappointed by the Stevens decision. We are. But we shouldn’t burden ourselves with an unduly pessimistic view of the state of animal law. I see Stevens as a setback, but it’s also an important marker of how far we have come: not only did we win a vote from Justice Alito, but we also convinced the other eight Justices to leave open the possibility that a more fine-tuned law could be constitutional.

14 thoughts on “Clarifying the Supreme Court’s United States v. Stevens Opinion

  1. Well put Matthew. Perhaps it’s just the fact that I come from Canada, where “dialogue” between courts and legislatures is more common than it is in the United States, but what you’ve set out is exactly how I read the decision. There is plenty of room to craft a more narrowly applicable law, and the courts have shown in the past that they will stomp hard on any laws that curtail expression in a way that leaves room for broad application beyond the core scope of conduct targeted. In Canada, it is extremely common for the Supreme Court to quash an unconstitutional law, but indicate in its reasons how a better drafted version might survive. I think this is likely to occur here as well, and that overreacting to the decision is harmful to the cause of continued progressive reform.

  2. Jackie Mead says:

    Yes, well put indeed. Thank you Matthew. I agree, there is a long way to go but what accompliments have been made already! Strive for more and learn, learn, learn along the way while we are educating, educating, educating! Blessings to you for continued gains~

  3. Luisa Lisciandrello says:

    Brilliant move to post this explanation which was obviously misunderstood by so many. I and a handful of others have been trying to explain this all along on the ADLF threads. Thank you!!

  4. Kitty Novich says:

    Thank you for clearing that up. I was VERY upset by decision. I saw the article on and I guess it was somewhat misrepresented or I misunderstood. I appreciate you putting into words I can understand. This is a cause that is at the heart of my being. I need to have the facts straight.

  5. I do appreciate your clarifying post, however it is my position that the sale of these videos promote and fetishize animal cruelty. Those who produce and even those who sell them, IMHO, are guilty of conspiracy to commit and profit from animal cruelty. I thought the point of the original law was to prevent that.

    If I do not rape and murder small children, but I obtain videotapes of the rape and murder of small chidren, and sell these videos to men who get off watching small children be raped and murdered, am I not encouraging, promoting, and creating a lucrative market for the rape and murder of small children?

  6. Denise LoRusso says:

    Thank you kindly, Attorney Liebman for the clarification.

    I still have hope that stiffer laws will be passed.

    Thank you Denise LoRusso, PA

  7. Averie says:

    The decision was already made so we cannot change it anymore. Supreme court is the highest court of the land. Our laws are always being put into effect, changed, and put into effect again. It should come as no surprise when new things are always happening, so some of our laws require modification. The latest has to do with animal cruelty videos, also known as “crush” videos. There was a law enacted in 1999 that made animal cruelty videos illegal. Although this was intended to protect animals, it also made bull fighting videos and some documentaries illegal. So again one more law was changed and now animal cruelty videos are protected under the 1st amendment, freedom of speech.

  8. becky salan says:

    It is up to us, the voter, to bring this issue to our reresentatives to make sure laws are passed to project the weakest and most vulnerable beings in our society, our precious animals. I have 3 dogs, and if anyone even attempts to hurt them, they will be answering to their maker. Thank you for the clarification. I work in law, so I did understand the ruling, but it’s important for others to understand it as well. We must fight on…the animals are depending on us. And thank you Justice Alito…you are a credit to the highest court in the land. God Bless Our Animals…all of them. Becky

  9. Michelle Crimmins says:

    There have been a lot of misrepresentations of what is actually going on here and a lot of the “headlines” leave out parts as it gets attention. I have to say I for one (having read the law that was lifted) am still against a more narrowly written law….because now it will take more and more time to introduce new laws that cover, crushing, then another one for dog fighting..and so on…..I am not a lawmaker, but the verbiage to me seemed pretty spot on…and there was an exclusion for educational purposes, that would protect animal rights organizations in order for them to expose animal cruelty….there is a broad spectrum when it comes to animal cruelty, but it is punishable by law….I think distribution of the footage for entertainment purposes should be treated the same….I cannot steer away from that thought… I just can’t

  10. Matthew Liebman says:

    The different branches of our federal system have separate powers: the Supreme Court, as the head of the judiciary, has the authority to invalidate unconstitutional laws passed by Congress. The Court held in Stevens that Section 48 violated the First Amendment and so struck it down. That is what the Supreme Court is for, as a check and balance on the powers of Congress through judicial review.

    So we are stuck with operating within the parameters laid down by the Court in Stevens. We disagree with the decision, but the Supreme Court has the final say. We may prefer the old law and how it was phrased, but the Supreme Court has said that that law is unconstitutional, so we have no choice but to go back to Congress and try again.

  11. Harry says:

    Thanks for the clarification. Matter of fact however is, that producing animal torture videos promotes animal cruelty. Striking down a law that is aimed on prohibiting the production of those videos, suggest to the average American than producing, viewing and owing those videos is ok. And that fact indirectly suggests to the average American that animal cruelty has to be ok. I think it’s time that we took it a step further. Tell the people what really happened in terms they can comprehend. A great way of doing that would be the following:
    The court just ruled that Abuse and Torture of children is illegal. However we (the Supreme Court) find that producing, viewing and owning such videos is protected by the First Amendment.
    That would be putting it a way people understand the issue.

  12. Susan Trout says:

    Yes, I am upset and disappointed but I appreciate you taking time to explain the ruling for a layman to understand.

    Thank you, Matthew.

  13. Matthew,
    Thank you for explaining this perplexing decision clearly, succinctly and calmly. For those of us who have not studied law, yet care deeply about animals, your analysis was excellent. Accuracy is absolutely essential if we are to be effective advocates for animals.

  14. Mom and Dad says:

    Nice work, son.

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