The Third Circuit said "no" in United States v. Stevens, 533 F.3d 218 (3rd Cir. 2008) (en banc). In 2004, Mr. Stevens, a businessman and author, advertised videos of pit bulls attacking domestic farm pigs in the underground publication Sporting Dog Journal, which features articles on illegal dogfighting, and possessed other dogfighting merchandise. He was indicted, tried, and convicted on three counts of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commecial gain in violation of Title 18, United States Code, Section 48. Although this legislation had been on the books since 1999, Mr. Steven's prosecution was the first to proceed to trial.
In a disappointing decision, the Third Circuit reversed the conviction and struct down the statute as an unconstitutional restriction on free speech in violation of the First Amendment. The court observed that the original sponsors of the bill were primarily concerned with the narrow topic of "crush videos," (videous depicting the horrendous act of women crushing insects animals with their feet, sometimes while wearing high-heels), but that the Congress as a whole sought to regulate the treatment of animals more generally and also hoped to prevent individuals from becoming desensitized to animal cruelty. Aware that they were on content-speech-restricted thin ice, Congress specifically exempted any material that had "serious utility, whether it be relegious, political, scientific, educational, journalistic, historical, or artistic" in an attempt to save the statute from the type of strict scrutiny applied by the Third Circuit.
The court did not, as it could not, take the position that animal cruelty should not be regulated or punished. It should and is to some degree in all fifty states. The problem with the statute is that it did not criminalize the act of animal cruelty but the depiction of animal cruelty. That is speech, and because the Supreme Court has not created a new category of entirely unprotected speech since it's child pornagraphy rulings in the 1980's, the court was unwilling to take hold of that rein. While such judicial restraint is understandable, and sometimes laudable, what is disappointing is court's treatment of the issue of animal cruelty - stating that it likely would not rise to the level of a compelling government interest sufficient to withstand the strict scrutiny associated with content restrictions on speech.
Perhaps most confusing, however, is the court's conclusion that a statute restricting the sale of materials depicting animal cruelty will not aid in preventing cruelty to animals while apparently recognizing that restrictions on material depicting child pornography aid in preventing acts of child pornagraphy. Indeed, the Supreme Court announced in New York v. Ferber, 458 U.S. 747, 758-60 (1982), that "the distribution network for child porngraphy must be closed in order to control the production of child pornography" and that "the advertising and selling of child pornography provide an economic motive for and are thus an intergral part of the production." Does not the same rationale hold true for videos depicting animal cruelty? To be sure, some people are cruel because they are. But the very fact that one advertises for sale a video depicting animal cruelty reveals his motive -- profit. Decrease the chance for profit, increase the costs associated with getting caught, and the motive is gone.
Finally, (and this may need be the matter of a future post), the court's statement that the legislative history was being offered as a demonstrative aid only, and not an interpretive aid, is disingenious at best considering the number of citations, block quotes, and out-right reliance on the legislative history to find that the statute's intent and language did not meet-up.
I need to read this case again more closely, but for now we can find some hope in the Supreme Court's April 20, 2009, grant of certiorari. It may have granted cert. simply because a federal statute was struck down as unconstitutional. But let's hope that it takes the case to outline a new area of unprotected speech -- that relating to animal cruelty. More on this later.
No comments:
Post a Comment