Depiction of Animal CrueltyPosted by Scott Heiser, Director of ALDF's Criminal Justice Program on September 8, 2008
The Third Circuit all but dares the Supreme Court to update First Amendment jurisprudence, but will the Feds petition for Cert?
Back in 1999, Congress passed, and President Clinton signed, H.R. 1887 (now codified at 18 USC § 48) creating the federal crime of “Depiction of Animal Cruelty.” This law was originally intended to address the problems commonly associated with identifying and prosecuting the producers of “crush videos.” The “test case” as to the constitutionality of this law has finally worked its way up from the trenches and into an en banc opinion from the Third Circuit, United States v. Stevens. In light of the legislative history of H.R. 1887, the facts of this case are quite unfortunate, making the holding in Stevens anything but surprising. In short, Stevens was indicted for three counts of knowingly selling depictions of animal cruelty. In all three counts, the depictions were of pit bulls either fighting each other or in one case being trained for “hog-dog fighting” (the pit-on-pit fights were filmed back in the 1960s and 70s from within the United States, while the more recent footage was from dogfights held in Japan)–no crush videos involved. Stevens advertised these videos for sale in Sporting Dog Journal and was ultimately sentenced to 37 months of prison after a federal jury unanimously convicted him on each of the three counts. The defendant appealed the US District Court’s refusal to dismiss the indictment on defendant’s claim that 18 USC § 48 violated the First Amendment.
The majority opinion opens with this gem: “The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. § 48 and to affirm Robert Stevens’ conviction [footnotes omitted].” The majority opinion ultimately agreed with the defendant, striking 18 USC § 48 as a violation of the First Amendment.
If the facts in Stevens weren’t so weak, I would be the first to argue that the Government should file a petition for certiorari, but on these facts, and this record, despite the best efforts of the good people in the U.S. Attorney’s office (Western District, Pennsylvania) one must hold firm and wait for one or two more Circuits to rule, perhaps generating a split of opinion among the Circuits on a case with better facts than in Stevens. Otherwise, it’s time to go back to Congress for a redraft. The 90-day clock on the Government’s Petition for certiorari is running (Rule 41 of Federal Rules Appellate Procedure). Odds are, the Stevens opinion stands… For now.