Supreme Court Hears Oral Argument in United States v. StevensPosted by Matthew Liebman, ALDF Staff Attorney on October 8, 2009
The Supreme Court heard oral argument on Tuesday in United States v. Stevens, the case challenging the constitutionality of a federal law that criminalizes the creation, sale, and possession of depictions of animal cruelty that lack social value. The transcript of the oral argument is available online.
Neal Katyal, the Deputy Solicitor General, argued first in defense of the statute, stressing that it was narrowly tailored and exempted those forms of speech that deserve protection: works with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” But the justices seemed unpersuaded; they unleashed a string of hypothetical cases, suggesting that it may often be difficult to discern the message and value of a particular video. They expressed confusion as to what sort of depictions would fall under the exemption, asking whether the law would cover videos of bow-hunting out of season, bullfighting, cockfighting, and foie gras production. They also expressed concern that the law targets people with one set of beliefs, but not those with the opposite view. Justice Roberts, for example, asked, “How can you tell [the dogfighting videos] aren’t political videos? You do have, with organizations, PETA and others, depictions of the same sort of animal cruelty that is used to generate support for efforts to prohibit it. Why aren’t these videos the exact opposite, you know, efforts to legalize it, and, in each case, it would fall under the political exemption?” Katyal acknowledged that some videos advocating dogfighting could be considered political, and therefore fit within the exception. But he emphasized that the law was not aimed at the communicative impact of the videos, but rather at drying up the market for depictions of cruelty.
Patricia Millett argued the case for Stevens, assailing the law as vague and overbroad. Justice Alito pressed Millett on whether a law that banned only crush videos would be constitutional, and Millett ultimately admitted it could be. But, she insisted, the breadth of this law covered far too many other depictions to pass constitutional muster. Justice Alito also challenged Millett on the relevance of the slew of hypotheticals the Court had entertained, observing that in the ten years since Congress passed the law, there had been no prosecution of people for making, selling, or possessing hunting videos or foie gras videos, yet the market for crush videos had demonstrably collapsed. Millett responded that the hypothetical scenarios were relevant because the vagueness of the law left many people unsure about what they could or could not do. At one point during Millett’s argument, Justice Scalia offered her advice: “I really think you should focus . . . [o]n the right under the First Amendment of people who like bull fighting, who like dog fighting, who like cock fighting, to present their side of — of the debate. . . . [I]t seems to me that side of the debate is entitled to make its point as — as forcefully as possible.” Justice Alito, however, challenged that idea, asking Millett why Justice Scalia’s point wouldn’t apply to human sacrifices as well: “[W]hat 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. They have a point of view they want to express. That’s okay?” Millett evaded Justice Alito’s question until Justice Roberts pushed her on it; she finally concluded that Congress could not ban the hypothetical Human Sacrifice Channel because of its expressive content. The only scenario in which Congress could ban it would be if the channel itself facilitated the sacrifices.
Ultimately, only Justice Alito seemed sympathetic to upholding the law. Justices Kennedy and Roberts asked difficult questions of Stevens’ attorney, but neither seemed likely to uphold the constitutionality of the statute. Justice Scalia openly disdained the law for limiting the speech rights of those who enjoy promoting animal cruelty. The more liberal members of the Court, Justices Breyer, Ginsberg, Stevens, and Sotomayor, seemed to have serious problems with the overbreadth of the law, with Breyer proposing a narrower statute targeted at specific types of cruelty.
It is very difficult to predict the outcome of a Supreme Court case, but the consensus seems to be that the Supreme Court will probably hold that the law violates the First Amendment. The stories at the SCOTUS Blog (the nation’s top Supreme Court blog), the Washington Post, and National Public Radio are entitled, respectively, “Animal Cruelty Law In Trouble;” “Court Wary Of Ban On Cruelty Videos,” and “Supreme Court Seems Set To Kill Ban On Animal Cruelty Images.”
Interestingly, one of the most important issues, whether animal protection is a “compelling government interest,” did not come up. This suggests the Court may dodge that issue and simply reject the law as overbroad and not narrowly tailored, which is what happened the last time the Court confronted animal cruelty in 1993 in Church of the Lukumi Babalu Aye v. City of Hialeah.
The Court will issue its opinion in the coming months.