DOG FIGHTING AND THE FIRST AMENDMENT:
AN ANALYSIS USING THE CATEGORICAL APPROACH
by
Mary Elizabeth Lauer
An honors thesis submitted to the
Department of Communication
of Boston College
Thesis Adviser: Professor Herbeck
May 2010
Copyright by
Mary Elizabeth Lauer
2010
All Rights Reserved
To my parents, for their loving support and encouragement,
and to my thesis adviser, Professor Herbeck,
for his persistent patience and guidance throughout this process.
TABLE OF CONTENTS
Page
CHAPTER
I. UNITED STATES V. STEVENS AND THE CATEGORICAL APPROACH
TO THE FIRST AMENDMENT .
.
.
.
.
.
.
1
The Categorical Approach .
.
.
.
Chaplinsky v. New Hampshire
.
.
.
Fighting Words
.
.
.
.
Incitement
.
.
.
.
.
Obscenity
.
.
.
.
.
Child Pornography .
.
.
.
Libel
.
.
.
.
.
Unprotected Categories Not Defined in Chaplinsky
Dog Fighting and the First Amendment
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
4
7
10
13
14
18
22
25
31
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
34
41
43
45
53
61
.
.
.
65
.
.
.
.
.
.
.
.
.
.
.
.
66
78
86
93
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
II. CRUSH VIDEOS, ANIMAL CRUELTY AND ROBERT J. STEVENS
A Law Against Animal Cruelty
United States v. Stevens
.
The District Court Decision
The Third Circuit Decision
On to the Supreme Court
A Categorical Approach to Stevens
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
III. ANIMAL CRUELTY AND THE FIRST AMENDMENT
An Ill-Conceived Law
.
.
.
Animal Cruelty Laws .
.
.
.
A Better Approach .
.
.
.
The Dangers Implicit in a Categorical Approach
.
.
.
.
CHAPTER ONE:
UNITED STATES V. STEVENS AND THE
CATEGORICAL APPROACH TO THE FIRST AMENDMENT
“You couldn’t treat a dog any better, than my father treats pit bull dogs,” is how
Michael Stevens described his father’s conduct with dogs.1 Despite this supposed
affection and proper treatment for dogs, Michael’s father, Robert J. Stevens, was
convicted for selling videos that depicted dog fighting. Although it was clear that he was
guilty, Stevens appealed and the Third Circuit Court of Appeals overturned his
conviction on First Amendment grounds. While this decision initially benefited Stevens,
the case is far from over as the Supreme Court is now scrutinizing the constitutionality of
the statue that originally convicted him. The Supreme Court is currently trying to reach a
decision about whether this law that criminalizes the depictions of animal cruelty is a
breach of the Free Speech Clause of the First Amendment.
A resident of Virginia, Stevens initially ran into trouble when he was caught
advertising pit bull related videos and merchandise through Sporting Dog Journal. The
Sporting Dog Journal, ran by James Fricchione, featured illegal articles on dog fighting
and had thousands of subscribers nationally and internationally. Stevens was responsible
for producing three films that featured depictions of dog fighting: “Pick-A-Winna,”
“Japan Pit Fights,” and “Catch Dogs.” All three videos were clearly put together by
Stevens as he voices the introduction, narration, and commentary for each one.
1
Adam Liptak, “Free Speech Battle Arises From Dog Fighting Videos,” New York Times, September 18,
2009.
1
Additionally, he wrote the accompanying literature for the videos.2 Stevens was indicted
on three accounts of violating 18 USCS § 48, a law that “prohibits the knowing creation,
sale, or possession of a depiction of a live animal being intentionally maimed, mutilated,
tortured, wounded, or killed with the intention of placing that depiction in interstate or
foreign commerce for commercial gain.”3 However, a depiction can be exempt if it “has
serious religious, political, scientific, educational, journalistic, historical, or artistic
value.”4
The majority decision of the Third Circuit Court of Appeals agreed that the statute
was intended to punish the creation, sale, or possession, of “crush videos.” A “crush
video” is defined as a depiction of “women inflicting…torture [on animals] with their
bare feet or while wearing high heeled shoes.”5 While the animals are squealing in the
pain, the women in these videos are often addressing the animals in a dominatrix manner.
Strangely enough, these videos provide an outlet of sexual pleasure for people with a
very specific sexual fetish. While Stevens’ videos could not be labeled as “crush videos,”
he had been convicted under this statute that was aimed at punishing such videos. Despite
the dissent of Circuit Judge Cowen, who stated that the statue was neither “substantially
overbroad nor unconstitutionally vague,”6 the Third Circuit of Appeals overturned
Stevens’ conviction.
While this case appeared to be somewhat trivial involving a man’s depiction of
dog fighting and confusion with an overbroad statute, it has become a much larger First
Amendment issue. Clearly, “this case is not about dog fighting or animal cruelty. The
2
United States v. Stevens, 533 F.3d 218, 221 (3rd Cir. 2006).
Brief for the United States, United States v. Stevens, p. 2.
4
Brief for the United States, p. 2.
5
533 F.3d 218, 222 (3rd Cir. 2006).
6
533 F.3d 218, 250 (3rd Cir. 2006).
3
2
government and Stevens stand together opposing that.”7 The fact that the Supreme Court
has chosen to judge this case reveals Congress’ undeniable interest of First Amendment
jurisdiction. The problem is not just that the statute, 18 USCS § 48, is poorly written and
arguably overbroad, but whether it violates the First Amendment. It is clear that there are
many problems with the language of this statue because while it was aimed at punishing
“crush videos,” it convicted depictions of dog fighting instead. Animal cruelty is illegal
in every state, but few statutes attempt to regulate depictions of abuse. Congress has
always protected the First Amendment and has only put speech outside this protection
after very intense scrutiny. Yet, new categories of unprotected speech can potentially be
created by Congress when speech is found to be valueless. Whether or not depictions of
animal cruelty are worthy of First Amendment protection is the crucial decision that the
Supreme Court must decide.
The issue has become even more problematic with the fact that some
organizations and individuals are seen as using depictions of animal cruelty for noble
causes, while others are accused of exploiting the animals. Organizations that promote
animal rights have used the disturbing depictions of animal cruelty to provoke the public
and recruit new members, but other individuals have been punished for producing this
offensive speech. There must be a balanced law that either protects all of these depictions
or none of them. It must be an all-or-nothing mentality because Congress cannot decide
the value of the speech based on the speaker or the speaker’s viewpoint. The Brief for the
Respondent states, “animal cruelty laws cannot be used to proscribe the exercise of First
Amendment rights selectively.”8 The Supreme Court must ask the important question of
7
8
Brief for the Respondent, United States v. Stevens, p. 11.
Brief for the Respondent, p. 29.
3
whether they have a more compelling interest to protect depictions of animal cruelty or to
standby the First Amendment. There has not been a new category of unprotected speech
since New York v. Ferber was decided in 1982, and every unprotected category has been
significantly narrowed over the years. If the Supreme Court finds depictions of animal
cruelty to be truly unworthy of the First Amendment, they could possibly decide to
introduce a new, narrow unprotected category of speech encompassing depictions of
animal cruelty. This case may have started with the controversy of depictions of dog
fighting but it has become a much larger issue that is at the forefront of First Amendment
jurisdiction.
The Categorical Approach
While the First Amendment appears to be a very straightforward law, the actual
wording cannot be read literally. If the First Amendment were read literally, then there
would be absolutely no limits on speech. This Amendment specifically states that “no
law” can be made in regards to restrictions on speech, yet throughout United States
history, there have been limits put on speech.9 American citizens have the right to
freedom of speech, but there are certain circumstances when this right does not apply.
Instead of changing the First Amendment, the Supreme Court has adapted a unique
approach to handling issues with the freedom of speech; speech can be limited without
changing the exact wording of the First Amendment.10
9
Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the United States, 5th ed. (State College,
PA: Strata, 2005) p. 24.
10
Tedford and Herbeck, pp. 170-171.
4
The Supreme Court has solved the problem of restricting speech by placing
certain categories of speech beyond the scope of the First Amendment. In the landmark
case of Chaplinsky v. New Hampshire, the Supreme Court set out to determine what
should be done about fighting words. The Court decided that fighting words were not
entitled to First Amendment protection, but Justice Frank Murphy went even further in
his opinion. In Justice Frank Murphy’s dicta, he stated, “the right of free speech is not
absolute at all times and under all circumstances.”11 However, he did not just make a
broad statement on the right to free speech but he provided a definition that would
actually specify which types of speech should not be protected. Justice Murphy stated:
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or fighting words -- those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace.12
Justice Murphy’s opinion laid a new foundation for what types of speech should not be
protected by the First Amendment. By placing certain expressions of speech outside the
protection of the First Amendment, the Supreme Court averted the problem of actually
limiting speech in literal terms. This would become known as the two-tier theory of the
First Amendment, which is based on the notion of protecting worthwhile speech while
placing worthless speech into unprotected territory.13 Instead of strictly forbidding certain
types of speech within the law, the Supreme Court just placed those unworthy categories
outside the realm of First Amendment protection.
11
Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).
315 U.S. 568, 572 (1942).
13
Tedford and Herbeck, pp. 170-171.
12
5
When evaluating the speech in United States v. Stevens, the Third Circuit Court of
Appeals looked at precedent cases involving controversial speech. In analyzing the
depictions of dog fighting produced by Stevens, the Third Circuit decided that these
depictions did not fall under any of the current unprotected categories of speech. The
only category that was even remotely close to depictions of dog fighting was the
unprotected category of child pornography as established in New York v. Ferber. Yet, the
Government’s response to the Third Circuit decision was that certain speech is not
entitled to First Amendment protection, including the speech prohibited by Section 48. In
the Brief for the United States, the government argues that depictions of animal cruelty
are depictions that “share critical characteristics with other kinds of unprotected speech,
such as child pornography and obscenity.”14 Because of these similarities, the
Government argues that depictions of animal cruelty can be categorized as unprotected
speech.
However, Stevens is strongly opposed to this categorical approach to his case.
The Brief for the Respondent states that the government forgot a crucial principle about
the First Amendment, “the First Amendment limits Congress; Congress does not limit the
First Amendment.”15 Stevens argues that Congress is unlawfully inhibiting speech and
taking away this basic right that is entitled to every American citizen in the Constitution.
Not only does Stevens argue that depictions of dog fighting do not fit into any existing
category, but he also argues against the possible creation of new categories of
unprotected speech. The Brief for the Respondent affirms that the Government’s
approach of using a balancing analysis to create new unprotected categories of speech
14
15
Brief for the United States, p. 10.
Brief for the Respondent, p. 14.
6
“ignores both the Constitution’s text and decades of precedent.”16 As Stevens
vehemently opposes Congress’ use of the categorical approach, it becomes evident that
there might be a better solution to the problematic statute. The categorical approach
might not be the best method of solving this First Amendment issue.
Chaplinsky v. New Hampshire
The Supreme Court has implemented a two-level theory for testing the freedom of
speech. When analyzing a particular type of speech, the Supreme Court must decide
whether the speech is worthy enough to be protected by the First Amendment. First, the
Supreme Court concludes if the law is classified as being vague or overbroad. From
there, the expression is categorized as speech or “nonspeech.”17 The expression can fall
into one of two categories: the first level includes speech that is “worthwhile” whereas
the second level of nonspeech is considered “worthless.”18 In basic terms, if speech is
found to be worthwhile, it can still be protected by the First Amendment while the
opposite occurs when speech is found to be worthless. To be found outside of First
Amendment protection, speech would have to be found worthless and have little or no
social value. However, even if speech is “worthwhile” that only means that it has
potential social value; it still has to be tested to qualify for protection.19
The speech that might be socially valuable has to pass the degree of danger and
balancing tests in order to be classified as worthwhile. These tests and the standards for
16
Brief for the Respondent, p. 14.
Tedford and Herbeck, p. 458.
18
Tedford and Herbeck, pp. 170-171.
19
Tedford and Herbeck, pp. 169-171.
17
7
worthwhile speech developed from landmark cases in the United States Supreme Court.
For instance, in order to ascertain if speech is entitled to First Amendment protection,
there is a “categorical balancing analysis” that compares the expressive value of the
speech to its potential detrimental effects on society. Speech can be banned if its costs to
society offset its overall value; it must pass this balancing test in order to receive
protection under the First Amendment. There are no laws on high value speech, but
speech with too low of a value can technically be deemed unworthy of First Amendment
protection. As questionable types of speech became issues in major cases of the Court,
new definitions and tests arose to determine the overall worth of the speech and its
potential value to the public.20 The Supreme Court is currently using this method to
analyze speech that depicts animal cruelty in order to determine the level of value of this
speech and whether or not it is worthy of First Amendment protection. However, before
the Supreme Court could ever decide to initiate a new unprotected category of speech,
they must first conclude that the speech in question does not fall into any of the current
unprotected categories of speech.
The landmark case that initiated the two-tier approach towards the First
Amendment was instigated by a man named Walter Chaplinsky on the streets of
Rochester, New Hampshire. As a Jehovah’s Witness, Chaplinsky was preaching about his
religion and distributing literature regarding the topic. While trying to get his message
across right near city hall, Chaplinsky began to cause a scene. He was shouting offensive
comments about other religions, which began irritating other Rochester citizens. As a
crowd formed around him, the police warned Chaplinsky to stop before a riot occurred.
As Chaplinsky was escorted away by the police officers, he shouted insulting words at
20
Tedford and Herbeck, pp. 458-463.
8
Rochester City Marshal, James Bowering. Chaplinsky yelled, “You are a God damned
racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or
agents of Fascists.”21 These words did not go over well with Marshal Bowering who then
arrested Chaplinsky on the spot. Chaplinsky had broken a New Hampshire statute that
prohibited citizens from using offensive language toward others in public with the “intent
to deride, offend, or annoy another, or to prevent him from pursuing his lawful business
or occupation.”22 Chaplinsky was convicted and appealed this decision to the United
States Supreme Court.
Chaplinsky argued that this New Hampshire law placed an unfair restraint on the
First Amendment. But after reviewing the case, the United States Supreme Court
unanimously upheld the conviction. The Supreme Court Justices believed that
Chaplinsky’s words should not be protected by the First Amendment because these were
words that were likely to “provoke the average person to retaliation, and thereby cause a
breach of the peace.”23 Epithets, or fighting words, were now a new category of speech
no longer protected by the First Amendment; these words were found to have little or no
social value. However, there would still be very specific guidelines if speech was
considered to be unworthy of First Amendment protection. Rather than conclude that
only fighting words were unprotected by the First Amendment, Justice Frank Murphy’s
dicta affirmed that other types of speech were also unworthy of protection. Justice
Murphy explicitly defined which types of speech should not be protected: “the obscene,
the libelous, and the insulting or fighting words.”24 Each of these unprotected categories
21
315 U.S. 568, 569 (1942).
315 U.S. 568, 569 (1942).
23
315 U.S. 568, 574 (1942).
24
315 U.S. 568, 572 (1942).
22
9
of speech would receive more specific definitions and standards in later decisions made
by the Court. Chaplinsky set a new standard for unprotected categories of speech, but
these categories would all be narrowed even further in subsequent decisions.
Fighting Words
The Chaplinsky case clearly stated that epithets or “fighting words” were
categories that were not worthy of being protected by the First Amendment. Justice
Murphy referred to a previous case, Cantwell v. Connecticut, to stress the point, “Resort
to epithets or personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act would raise
no question under that instrument.”25 Clearly, epithets were not to be tolerated as a
protected form of speech. However, definitions of categories of unprotected speech could
always be narrowed and fighting words were no exception. Cohen v. California would
narrow the definition of fighting words, while Brandenburg v. Ohio would set a new
standard for incitement. While the core standard set by Chaplinsky remained, this
standard still had room for improvement as demonstrated in both of these significant
cases.
Nearly thirty years after Walter Chaplinsky’s conviction was upheld for his use of
unprotected fighting words, Cohen v. California would narrow the definition of fighting
words. On April 26, 1968, Robert Paul Cohen entered the Los Angeles County
Courthouse wearing a jacket that visibly displayed the words, “Fuck the Draft.” Although
he was not causing any trouble in the corridor of the courthouse, there were women and
25
315 U.S. 568, 572 (1942).
10
children present in the nearby area. Cohen did not threaten anyone in the courthouse or
demonstrate any act of violence, yet he was arrested for violating a California penal code
that prohibited the act of, “maliciously and willfully disturbing the peace or quiet of any
neighborhood or person by offensive conduct.”26 Cohen was sentenced to thirty days in
jail, but he appealed this conviction. While Cohen found no sympathy from the Second
Appellate Division of the Court of Appeals in California, he would eventually find
support from the United States Supreme Court. The Court of Appeals maintained that his
“offensive conduct” could provoke others to carry out an act of violence against Cohen or
attempt to vigorously take off his distasteful jacket.27
Once this case reached the Supreme Court, it was overturned on a split decision of
five to four. The Justices who overturned the conviction believed that Cohen did not
cause a breach of peace because the jacket was not directed at anyone in particular. His
speech may have been indecent, but it was protected by the First Amendment because the
speech could not be classified under obscenity or “fighting words.” For his offensive
conduct to fall into the category of unprotected “fighting words,” his message would have
to be directly aimed at another person in such a manner to cause danger or a breach of
peace. In the majority opinion by Justice John Marshall Harlan, he stated that no
individual would view the words on the jacket and rationally believe that it is a direct
insult. While there may be concern that this jacket could provoke hostility, Justice Harlan
emphasized that, “Undifferentiated fear or apprehension of disturbance is not enough to
26
27
Cohen v. California, 403 U.S. 15, 16 (1971).
403 U.S. 15, 19 (1971).
11
overcome the right to freedom of expression.”28 There would need to be a direct insult or
offense that would provoke disturbance for the expression to be unprotected.
Additionally, the Justices believed there was an emotive value with certain
speech. They recognized that certain messages and ideas could only be conveyed
accurately with specific words or expressions. The Supreme Court Justices wanted the
right to freedom of speech to be encouraged, not restricted, as Justice Harlan expressed,
“We cannot indulge the facile assumption that one can forbid particular words without
also running a substantial risk of suppressing ideas in the process.”29 This case
demonstrated that the United States Supreme Court wanted to protect speech and they
were not easily willing to put speech into unprotected categories. In fact, the Supreme
Court narrowed the definition of fighting words after thirty years in order to allow more
forms of speech to be legally expressed.
In a similar manner to Cohen v. California, another significant case, Brandenburg
v. Ohio would revise the “fighting words” standard set forth by Chaplinsky v. New
Hampshire. However, Brandenburg v. Ohio would concentrate specifically on the issue
of incitement, a core component of the “fighting words” definition. By the Chaplinsky
definition, “fighting words” are “those which by their very utterance inflict injury or tend
to incite an immediate breach of peace.”30 These words must incite in order to be
considered unprotected by the First Amendment; Brandenburg v. Ohio would set a new
standard for incitement.
28
403 U.S. 15, 23 (1971).
403 U.S. 15, 26 (1971).
30
315 U.S. 568, 572 (1942).
29
12
Incitement
A notorious event that took place in the cornfields of a rural part of Ohio would
eventually lead to a landmark Supreme Court decision in Brandenburg v. Ohio. Clarence
Brandenburg, the leader of the Ku Klux Klan, delivered a hateful and antigovernment
speech. A large, wooden cross was burned as Brandenburg shouted phrases such as
“Bury the niggers,” “The niggers should be returned to Africa,” and “Send the Jews back
to Israel.” 31 Some of the people at the rally were carrying firearms. A local television
news crew filmed the rally and Brandenburg’s speech. In his speech, Brandenburg
shouted that possible vengeance may be taken against the President of the United States
and that four hundred thousand will march to express their viewpoints. Ohio state
officials indicted him under the Ohio criminal syndicalism law, which made it unlawful
to advocate crime or methods of terrorism or to teach doctrines of syndicalism to a group.
Even though Brandenburg appealed, his conviction was upheld by the Supreme
Court of Ohio. However when Brandenburg’s case reached the United States Supreme
Court in 1969, the Court ruled in his favor. Unanimously, the United States Supreme
Court overturned Brandenburg’s conviction on the grounds that the First Amendment
protects speech unless it incites imminent lawless action. The Ohio statute was declared
unconstitutional because it violated the First and Fourteenth Amendment. This case held
that “The constitutional guarantees of free speech and free press do not permit a state to
forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to
31
Brandenburg v. Ohio, 395 U.S. 444, 446 (1969).
13
incite or produce such action.”32 Brandenburg was talking about abstract ideas; he did not
plan to actually provoke illegal action. This landmark case decided that expression must
have a legitimate intent to instigate illegal action in order to be unworthy of First
Amendment protection.
The Brandenburg case set the incitement standard by stating that someone must
exhibit real potential danger in order to be punished. To be convicted of incitement, one
must advocate with the intention to “incite or produce imminent lawless action.”33
Incitement had been addressed in the original Chaplinsky decision, but Brandenburg v.
Ohio extended more protection to the advocacy of ideas. Once again, in regard to
“fighting words,” the Supreme Court permitted more kinds of speech to deserve the
protection of the First Amendment. By narrowing the definitions of “fighting words” and
incitement, Brandenburg v. Ohio and Cohen v. California actually promoted the right to
free speech.
Obscenity
While obscenity was clearly categorized as an unprotected type of speech in the
Chaplinsky decision, the definition of obscenity still remained vague. However, in 1957,
a definition of this abstract concept of obscenity was created in the decision of Roth v.
United States. Chaplinsky actually foreshadowed Roth in a curious manner. While Justice
Murphy’s dicta in Chaplinsky v. New Hampshire asserted that obscene speech was not
protected by the First Amendment; the Supreme Court first held obscenity was
32
33
395 U.S. 444, 447 (1969).
395 U.S. 444, 447 (1969).
14
unprotected in Roth v. United States. This case began when Samuel Roth, a New York
businessman, was convicted for circulating obscenity. Roth was found guilty because of
the sexually explicit books that he had written and published. Both the Court of Appeals
and the Supreme Court upheld Roth’s conviction. In the majority opinion by Justice
William Brennan, Jr., he stated, “Sex and obscenity are not synonymous. Obscene
material is material which deals with sex in a manner appealing to prurient interest.”34
This decision made a distinct difference between pornography and obscenity.
Pornography was protected under the First Amendment, while obscenity was put into the
unprotected realm; pornography and obscenity were two separate and utterly distinct
categories. Pornography was allowed to be made and sold unless it became obscene. This
was the first time the Supreme Court ruled on obscenity and it was a very significant
decision.
Furthermore, Roth v. United States established a new test to determine whether a
work was obscene or not, to decide if the work is protected by the First Amendment.
Recognized as the Roth line, Justice Brennan described what makes a work obscene:
“The test to determine whether material is obscene is whether to the average person,
applying contemporary community standards, the dominant theme of the material taken
as a whole appeals to prurient interest.”35 For a work to be considered obscene, it must
fulfill each part of this definition and encompass each specific component. For instance, a
work may be extremely distasteful, but it would not be considered obscene unless it
appealed to the audience’s prurient interest. The work must be both worthless, with no
redeeming social value as well as being sexually vulgar. Chaplinsky v. New Hampshire
34
35
Roth v. United States, 354 U.S. 476, 487 (1957).
354 U.S. 476, 489 (1957).
15
may have put obscenity into unprotected territory, but Roth v. United States was the
initial landmark obscenity case that established the foundation for testing the possible
obscenity of a work.
The next major case establishing a new test for obscenity was Miller v. California
in 1973. In this case, Marvin Miller was convicted for sending sexually explicit brochures
to recipients who had not requested the brochures. These brochures advertised for a film
entitled Marital Intercourse and four different books entitled Intercourse, Man-Woman,
Sex Orgies Illustrated, and An Illustrated History of Pornography.36 Although the
brochures included some printed text, they mainly displayed pictures and illustrations of
men and women engaging in sexually explicit positions and activities. One recipient of
these brochure advertisements found this sexually explicit material in his mail in front of
his mother. While it was unclear whether it was due to outrage or embarrassment, the
recipient reported Miller to authorities. As a result, Miller was convicted under
California’s state obscenity law.
Miller appealed the conviction, but when the State Court of Appeals sustained the
conviction, he appealed to the Supreme Court. Once this case reached the Supreme Court,
Chief Justice Warren Burger utilized the situation to update the obscenity test that was
established in Roth v. United States. Chief Justice Burger created a new, more specific
definition for determining whether a work was obscene or not; this would make
prosecuting obscenity cases much simpler and more efficient. In this five to four
decision, Chief Justice Burger clarified the requirements for a work to be obscene:
(a) whether the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest, (b)
36
Miller v. California, 413 U.S. 15, 18 (1973).
16
whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value.37
This new definition of obscenity had three very specific elements that each had to be
fulfilled in order for the work to be classified as obscene.
The first element of the new obscenity definition required that the “average
person” find the work to be erotic or obscene. “Contemporary community standards”
meant that the exact location of where the obscenity was found was significant because
different communities may be more or less tolerant in terms of their views on sexually
explicit material. For instance, a work could be found obscene in the conservative city of
Cincinnati, Ohio, while New York City may be much more tolerant and liberal about
controversial works. “Taken as a whole,” the work needed to be found obscene; it could
not just be a small chapter or portion of a work. An appeal to the “prurient interest” was
another necessary requirement; it must have made the audience aroused in order to be
considered obscene. Just the first element alone of this three part definition included four
very specific requirements for a work to be found obscene. Additionally, the second
element of the definition asserted that if the state made a law, it was required to be very
specific and to explicitly define obscenity. The third important element, also known as
the SLAPS test, stated that the work must lack serious literary, artistic, political, or
scientific value. In other words, serious literature, the serious arts, serious politics and
serious science could never be obscene.38
37
38
413 U.S. 15, 24 (1973).
413 U.S. 15, 24 (1973).
17
The main difference between the novel three part Miller definition and the Roth
test was that it removed the condition that the work had to be worthless and
“contemporary community standards” no longer definitely implied the application of
national standards, rather it would represent the values of the state or local community.39
The test for obscenity in Miller had evolved significantly from the Roth test, which had
progressed from the original Chaplinsky definition. However, a new, controversial issue
of child pornography would have to be decided in 1982 in New York v. Ferber. While
child pornography could not technically be considered obscene, it would have to be
viewed and treated as a completely new category.
Child Pornography
As previously stated, Roth v. United States concluded that pornography was
protected by the First Amendment, while obscenity fell into unprotected territory.
However, pornography featuring minors was completely different than pornography
legally including adults. During New York v. Ferber, child pornography was a special
issue that had to be resolved. The state of New York had a statute that made it a crime for
anyone under the age of sixteen to be in an actual or simulated sexual performance. The
New York Penal Law § 263.15 stated that:
A person is guilty of the use of a child in a sexual performance if knowing the
character and content thereof he employs, authorizes or induces a child less than
seventeen years of age to engage in a sexual performance or being a parent, legal
39
413 U.S. 15, 33 (1973).
18
guardian or custodian of such child, he consents to the participation by such child
in a sexual performance.40
Paul Ferber was the proprietor of a Manhattan bookstore, who was selling films that
depicted young boys masturbating. When he sold two of these films to undercover cops,
Ferber found himself in serious legal troubles when he was indicted under New York
Penal Law § 263.15. Ferber attempted to defend himself and dismiss the indictment by
stating that the statute was a violation of the First Amendment, yet this argument was
rejected by a state judge. After a jury trial, Ferber was found guilty on two counts of
violating New York Penal Law § 263.15. Even though this statute “did not require proof
that the films were obscene,” Ferber’s films were found to have underage children
participating in sexual acts, which was enough evidence to convict him under the New
York statute.41
Even though the Appellate Division of the New York Supreme Court upheld
Ferber’s convictions, the New York Court of Appeals reversed the ruling on the grounds
that § 263.15 violated the First Amendment. While the New York Court of Appeals
acknowledged that there was a serious interest to protect minors, the judges believed that
the New York Penal Law § 263.15 was dangerously defective. The New York Court of
Appeals Judges concluded that the statue was both underinclusive and overbroad.
Subsequently, in the State’s petition of certiorari, a crucial question was raised, “To
prevent the abuse of children who are made to engage in sexual conduct for commercial
purposes, could the New York State Legislature, consistent with the First Amendment,
prohibit the dissemination of material which shows children engaged in sexual conduct,
40
41
New York v. Ferber, 458 U.S. 747, 751 (1982).
458 U.S. 747, 752 (1982).
19
regardless of whether such material is obscene?”42 This inquiry recognized whether it
was constitutionally possible to ban child pornography even if it was not technically
obscene. Now, there was the notion of a possible distinction between obscenity and child
pornography.
When this case reached the United States Supreme Court, Ferber’s conviction was
upheld. While the Supreme Court hesitated to regulate speech, they recognized that
“prevention of sexual exploitation and abuse of children constitutes a government
objective of surpassing importance.”43 Studies had found that “sexually exploited
children are unable to develop healthy affectionate relationships in later life, have sexual
dysfunctions, and have a tendency to become sexual abusers as adults.”44 Children could
be seriously damaged for life if they were subjected to engage in child pornography. The
recording of such an unspeakable act would forever be archived; their exploitation would
be continuously circulated. Additionally, the Supreme Court believed that the most
effective way to “dry up the market” for this industry was to enforce more severe
criminal penalties for the parties involved with the creation and promotion of these films.
While Ferber agreed that it was not reprehensible for the State to pursue those who
distributed child pornography, he argued that “it is enough for the State to prohibit the
distribution of materials that are legally obscene under the Miller test.”45 However, the
Supreme Court strongly believed that the Miller test was not a suitable resolution to the
acute tribulation of child pornography; simply prohibiting obscene works was not
sufficient in protecting the wellbeing of children.
42
458 U.S. 747, 753 (1982).
458 U.S. 747, 757 (1982).
44
458 U.S. 747, 758 (1982).
45
458 U.S. 747, 760 (1982).
43
20
Child pornography was deemed unworthy of First Amendment protection. In this
unanimous decision by Justice Byron White, he affirmed “When a definable class of
material, such as that covered by § 263.15, bears so heavily and pervasively on the
welfare of children engaged in its production, we think the balance of competing interests
is clearly struck and that it is permissible to consider these materials as without the
protection of the First Amendment.”46 This unanimous decision put nonobscene child
pornography into a new, more narrowly defined category of unprotected speech.
Futhermore, Justice White stated, “Child pornography is outside the protection of the
First Amendment if it involves scienter and a visual depiction of sexual conduct by
children without serious literary, artistic, political, or scientific value.”47 Even if works
were not obscene, they could still not fall under the protection of the First Amendment if
they were deemed child pornography. This category of unprotected speech was
introduced in 1982, and there has not been a new category of unprotected expression
since this decision. The Supreme Court only makes a new, unprotected category of
speech if it is utterly and completely necessary. First and foremost, the First Amendment
was established to protect the freedom of speech of American citizens; it was not
established to constantly restrict and take away speech rights.
46
47
458 U.S. 747, 764 (1982).
458 U.S. 747, 758 (1982).
21
Libel
As decided by the Chaplinsky definition, libelous words are not worthy of
protection by the First Amendment. Defamatory speech, along with the other unprotected
categories of speech were “no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.”48 While defamatory
speech was clearly unprotected, the standard for fault was not as straightforward. New
York Times v. Sullivan would modify the criteria for fault in defamation cases.
In 1964, the landmark case of New York Times v. Sullivan set a new criterion for
defamation with its “actual malice” standard. The controversy began on March 29, 1960,
when a full-page advertisement was published in the New York Times. Entitled, “Heed
Their Rising Voices,” this advertisement advocated the civil rights movement and
described some of the struggles that civil rights activists had faced.49 Additionally, the
advertisement appealed for funds in support of certain civil rights events. But the text
also depicted how the activists faced a “wave of terror” and cast a very negative light on
wrongdoings of police in Montgomery, Alabama. Even though he was not explicitly
named, L. B. Sullivan, one of the three elected commissioners of the City of
Montgomery, Alabama, alleged that he was defamed in the advertisement. The
“Committee to Defend Martin Luther King and the Struggle for Freedom in the South”
signed the advertisement; a few petitioner clergymen’s names were included with the
48
49
315 U.S. 568, 572 (1942).
New York Times v. Sullivan, 376 U.S. 254, 256 (1964).
22
signature. 50 Sullivan filed a civil libel suit against these petitioners, even though the
clergymen declared that they did not authorize this advertisement.
Initially, L.B. Sullivan was granted $500,000 in damages by an Alabama jury.
While the Alabama Supreme Court affirmed this decision, the United States Supreme
Court had an entirely different opinion. In a unanimous decision by the Supreme Court,
the libel award was reversed. The Supreme Court affirmed that public officials can only
recover from defamatory speech if he or she proves that there was actual malice involved.
In the majority opinion, Justice William Brennan, Jr. states, “Constitutional guarantees
require a federal rule that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the statement
was made with actual malice -- that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.”51 This provided a new “actual malice” standard
in deciding defamation cases with public officials. Defamatory fabrications about the
official administration of public officials were now protected by the First Amendment.
These falsehoods were only unprotected when actual malice was proved by the plaintiff.
Another landmark case that modified the fault standard for defamation suits was
Gertz v. Welch in 1974. This case set a new measure for what types of public figures had
to prove the “actual malice” standard that was established in New York Times v. Sullivan.
Surprisingly, this First Amendment case began when a Chicago policeman murdered a
young man. The policeman was convicted for committing murder in the second degree,
but the victim’s family still wanted to bring civil action against the policeman. Elmer
Gertz was the attorney hired to represent the victim’s family in this tragic incident.
50
51
376 U.S. 254, 257 (1964).
376 U.S. 254, 280 (1964).
23
During this time, the American Opinion published a magazine article in their 1969 issue
that included a number of fabrications about Gertz. Alan Stag, the author, alleged that the
civil action against the police officer was part of a communist campaign. Stag even
denounced Gertz as a “Leninist” and “Communist Frontier” while claiming that Gertz
was also guilty of a criminal record.52 In response to these falsehoods about his character,
Gertz sued Robert Welch, Inc., the publishers of American Opinion in federal district
court for defamation. Gertz argued that this article severely damaged his reputation as
both a lawyer and as a citizen.
At this time, the majority of the public had never heard of Elmer Gertz, the
attorney. Therefore, the federal district judge informed the jury that actual malice did not
need to be proved. According to the Sullivan standard, Gertz only needed to prove actual
malice if he was a public figure or public official and he was classified as neither. Since
defamation was a state crime, not a federal crime, the court abided by the Illinois
defamation laws. The district court ultimately found in favor of the publishing company.
This decision was based on the fact that even though Gertz was neither a public official
nor public figure, New York Times v. Sullivan served as a precedent to direct this case.
The U.S. Court of Appeals affirmed this decision, but once this case reached the Supreme
Court, a new decision was made. Five of the Supreme Court Justices found in favor of
Gertz, which was enough to reverse the decision favoring Welch. In the majority opinion,
Justice Powell stated, “Absent clear evidence of general fame or notoriety in the
community, and pervasive involvement in the affairs of society, an individual should not
be deemed a public personality for all aspects of his life.”53 The Supreme Court decided
52
53
Gertz v. Welch, 418 U.S. 323, 326 (1974).
418 U.S. 323, 352 (1974).
24
that while Gertz’s occupation as a lawyer sometimes caused him to be in the public eye,
it did not qualify him as an all purpose public figure who would have to prove “actual
malice” to verify defamation.
While New York Times v. Sullivan established the “actual malice” standard, Gertz
v. Welch produced a standard of who specifically had to prove “actual malice.” As a
result of the Gertz case, private persons were able to receive more protection from being
defamed. While each state cannot have a standard lower than negligence to prove
defamation, private persons for the most part, do not have to prove “actual malice” even
if the suit is of general public appeal. But, all purpose and limited purpose public figures
were required to prove “actual malice” to recover from defamation. This standard was
introduced to discourage people from saying harmful expressions about private people
and encourage the public to discuss the policies and lives of public figures. Chaplinsky v.
New Hampshire specifically placed libel outside the protection of the First Amendment,
but New York Times v. Sullivan established an “actual malice” fault standard, and Gertz v.
Welch set new standards of who specifically had to prove “actual malice.” The standards
for proving that speech falls under the original Chaplinsky unprotected category of libel
was narrowed by both of these landmark cases.
Unprotected Categories Not Identified in Chaplinsky
While Chaplinsky established a few categories of speech that do not deserve the
protection of the First Amendment, other categories have accordingly been added to this
unprotected realm. Chaplinsky introduced the proposal of a categorical approach to the
25
First Amendment, and over the decades, additional unprotected categories, such as aiding
and abetting a crime, true threats, and deceptive commercial speech, have all been
included.
While Chaplinsky’s definition of unprotected speech consisted of words that
“inflict injury or tend to incite an immediate breach of peace,”54 this definition does not
specifically include speech that aids and abets a crime. Aiding and abetting involves
assisting in or facilitating a crime; this action is not protected by the First Amendment.
However, this issue became very complicated when a man used an instruction manual to
commit a murder. There was not a physical person aiding and abetting the man in crime,
rather it was text from a manual. Rice v. Paladin Enterprises was one particularly unique
case where a publisher was guilty of aiding and abetting in a crime. This case began
when Lawrence Horn hired a hit man, James Perry, to kill his quadriplegic son and his
former wife. James Perry used the book Hitman as a blueprint to commit the murders.
Hitman was an instructional manual that listed step by step how to commit a murder.55
This manual explained everything one would need to know to commit a murder including
how to obtain and use weapons, how to minimize blood splattering, and how to not get
caught. In addition to killing Mildred and Trevor Horn, Perry also killed Trevor’s nurse,
Janice Saunders. Mildred’s family, the Rice sisters, filed a lawsuit against Paladin Press,
the publisher that made Hitman available. The United States District Court for the
District of Maryland granted summary judgment in favor of Paladin Press.
However, the Fourth Circuit Court of Appeals reversed the judgment in favor of
the Rice sisters. The Fourth Circuit reversed the judgment because in marketing their
54
55
315 U.S. 568, 572 (1942).
Rice v. Paladin Enterprises, 128 F.3d 233, 239 (4th Cir. 1997).
26
book to criminals, Paladin Press intended to help criminals commit crimes. There was
sufficient evidence that the book aided and abetted in murder. Aiding and abetting in
crime is not protected under the First Amendment. However, only rare cases in which the
publisher intends to aid in some crime or offense, would they lose their First Amendment
protection. In the opinion by Circuit Judge J. Michael Luttig, he affirmed “In only the
rarest case, as here where the publisher has stipulated in almost taunting defiance that it
intended to assist murderers and other criminals, will there be evidence extraneous to the
speech itself which support a finding of the requisite intent”56 Additionally, according to
Judge Luttig’s opinion, even if someone imitates a crime that he or she has seen in the
media, the broadcaster or publisher is not at fault because the information “will actually
have been misused vis-à-vis the use intended, not, as here (in Hitman), used precisely as
intended.” 57 Hitman’s instructions were specific steps on how to commit a murder. This
was the only case in which a publisher was found guilty of aiding and abetting in a crime.
Another category of speech that was not originally included in the Chaplinsky
definition but that was already made illegal in 1917, was a true threat against the
President of the United States; it was illegal to threaten the President’s life. A significant
issue involving this forbidden speech was Watts v. United States in 1969. A “true threat”
is a statement that is intended to frighten or intimidate one or more particular victims into
thinking that they will be seriously harmed by the speaker or at the speaker’s command.
“True threats” have been an issue in a handful of cases, but it is one of the unprotected
categories of speech that does not have a specific test or definition. One case involving
true threats began during an anti-war rally protesting the Vietnam War; the rally was
56
57
128 F.3d 233, 265 (4th Cir. 1997).
128 F.3d 233, 265 (4th Cir. 1997).
27
being held on the grounds of the Washington memorial. During this time in United States
history, there was a great deal of animosity towards the President, Lyndon B. Johnson,
for the American involvement in the war. At this particular rally, one of the eighteen year
old demonstrators, Robert Watts announced, “If they ever make me carry a rifle, the first
man I want to get in my sights is L.B.J.”58 After making this threat, Watts was arrested
on the spot at the rally and was later convicted under a federal statute that prohibited any
threat to kill or harm the President.
The federal statute that criminalized true threats against the President remained
constitutional. However, when this case reached the Supreme Court, the Justices decided
that Watts’ remarks could not be classified as a “true threat.” Rather, Watts’ comments
were more of a “political hyperbole,” which was the type of speech that received
protected under the First Amendment.59 The Supreme Court decided in a per curiam
opinion that “A statute such as this one, which makes criminal a form of pure speech,
must be interpreted with the commands of the First Amendment clearly in mind. What is
a threat must be distinguished from what is constitutionally protected speech.”60 The
Court made it clear that they had a tremendous interest to protect the safety of the
President, but this did not justify inhibiting free speech rights. Yet, cases involving
threats could become quite complicated because while the criminal statue may be
constitutional, the statute could not be so overbroad to take away a citizen’s First
Amendment rights. Nevertheless, exaggerated speech was protected as long as it did not
cross the line of becoming a “true threat.” While it would be more difficult to prove, a
“true threat” against the President of the United States is not protected by the First
58
Watts v. United States, 394 U.S. 705, 706 (1969).
394 U.S. 705, 708 (1969).
60
394 U.S. 705, 707 (1969).
59
28
Amendment.61 Just as Chaplinsky placed certain categories of speech outside the
protection of the First Amendment, “true threats” were another category located in the
unprotected realm.
In addition to aiding and abetting a crime and true threats, deceptive commercial
speech is another unprotected category not specifically mentioned in Chaplinsky. In
1942, one month after the Supreme Court made its decision in Chaplinsky v. United
States, they quickly added another category, commercial speech, to the territory of
unprotected speech. Commercial speech was added as an unprotected category in
Valentine v. Chrestensen. In this case, a retired police officer distributed a two-faced
leaflet that promoted the exhibit of a submarine on one side and displayed political
speech on the other. A New York statute made it illegal to distribute commercial
handbills, but the leaflet was somewhat deceiving in that it included both commercial
speech and political speech; it appeared to be commercial speech pretending to be
political. The Supreme Court eventually decided that commercial speech could be
regulated; it was unworthy of First Amendment protection.62
However, in 1975, Justice Blackmun accomplished great strides for commercial
speech in Bigelow v. Virginia. This case involved a Virginia law on abortion that made it
illegal to advertise the availability of abortion or miscarriage services. Abortion was
illegal and it was against the law to advertise illegal activities or products. An abortion
provider at the Women’s Pavilion of New York City placed an advertisement in Virginia
Weekly, a newspaper based in Charlottesville, Virginia. The editor of the Virginia
Weekly, Jeffrey C. Bigelow, was arrested for allowing these forbidden advertisements to
61
62
394 U.S. 705, 708 (1969).
Valentine v. Chrestensen, 316 U.S. 52, 55 (1942).
29
be in the newspaper. Bigelow was convicted, a decision that was upheld by the state
circuit court and the Virginia Supreme Court. But when this case reached the Supreme
Court, a surprising decision was made. In the majority opinion, Justice Blackmun stated,
“Advertising is not thereby stripped of all the First Amendment protection. The
relationship of speech to the marketplace of products or of services does not make it
valueless in the marketplace of ideas.”63 This Supreme Court decision started to move
commercial speech into the realm of protection.
While deceptive and illegal advertisements were still not protected, truthful
commercial speech that could be valuable to the public was worthy of First Amendment
protection; this began the reversal of the decision made in Valentine v. Christensen. This
landmark case helped commercial speech switch from the unprotected category of speech
to the protected realm. Specific guidelines of what constitutes protected commercial
speech would be decided by Central Hudson Gas and Electric v. Public Service
Commission in 1980, but the significant advance for commercial speech occurred in
Bigelow v. Virginia. In the majority opinion in Central Hudson Gas and Electric v.
Public Service Commission, Justice Lewis Powell stated the rationale for establishing
specific guidelines for commercial speech in regards to the First Amendment, “The First
Amendment’s concern for commercial speech is based on the informational function of
advertising. There can be no constitutional objection to the suppression of commercial
messages that do not accurately inform the public about lawful activity.64 This
demonstrated that in regards to the categorical approach to the First Amendment, any
category has the potential to switch from unprotected to protected territory, and vice
63
64
Bigelow v. Virginia, 421 U.S. 809, 826 (1975).
Central Hudson Gas and Electric v. Public Service Commission, 447 U.S. 557, 564 (1980).
30
versa; any unprotected or protected category of speech is not necessarily permanent.
Similarly, the categories of unprotected speech that were established in Chaplinsky v.
United States have been significantly narrowed and modified through subsequent
landmark cases; the definitions of these unprotected categories also still have the
capability to be altered.
Dog Fighting and the First Amendment
Chaplinsky v. United States initiated a unique method to approach matters of the
First Amendment. Congress stated that “no law” should be made to restrict the freedom
of speech, so rather than make laws forbidding certain types of speech, Chaplinsky
allowed the Supreme Court to identify certain “low value” categories of speech. These
“low value” categories would not be worthy of First Amendment protection, which
helped avert the problem of placing restrictions on speech. Speech was allowed unless it
was classified as one of the very specific unprotected categories of speech as determined
by the Supreme Court. Chaplinsky clearly stated that speech that was categorized as
obscene, libel, or as fighting words, was placed in unprotected territory. While these
were obviously unprotected, their definitions and specifications were not as evident until
subsequent landmark cases.
For instance, Roth v. United States provided an initial definition for obscenity, but
Miller v. California narrowed this category even further with its famous three part
definition. New York Times v. Sullivan created a new “actual malice” fault standard for
public figures in defamation cases, while Gertz v. Welch narrowed what types of public
31
officials had to use this standard. In terms of fighting words, Cohen v. California
confined “fighting words” to mean only those words that were specifically invitations for
violence, while Brandenburg v. Ohio further narrowed the incitement standard and
promoted the advocacy of ideas. While Chaplinsky v. United States categorized these
three types of speech as unprotected by the First Amendment, a handful of later cases
would determine more specific definitions and tests for speech to truly be considered
unworthy. There are even unprotected categories not identified by Chaplinsky such as
aiding and abetting crime, true threats, and deceptive commercial speech; each of these
categories has also become narrowed by the Supreme Court. Overall, a category of
speech always has the potential to become unworthy of protection by the First
Amendment. These categories are never set in stone as their definitions and worthiness
have been amended throughout United States history. Nevertheless, the Supreme Court
rarely adds new categories of unprotected speech as they have not created a new type
since 1982, in New York v. Ferber with the exception of child pornography.
Currently, in United States v. Stevens, the Supreme Court will have to analyze
depictions of dog fighting with extreme care to decide if these too should become one of
the rare types of speech that is unworthy of First Amendment protection. Each
unprotected category of speech has a very specific definition, and depictions of dog
fighting do not fall under any of these existing categories. Even with the capability of
altering these definitions, none of these categories could be altered enough to encompass
the existing questionable speech issue of depictions of dog fighting. Depictions of dog
fighting do not include libelous or fighting words, nor do they appeal to the prurient
interest or exploit child sexually. Additionally, these depictions of dog fighting are not
32
instruction manuals, nor do they contain true threats or deceptive commercial speech. The
lack of all these elements puts depictions of dog fighting into an entirely different
classification. Yet, whether this category belongs in protected or unprotected category is
a decision that will have to be determined by the Supreme Court. Obviously, depictions
of dog fighting are very distasteful and offensive, but the justices must decide if they are
of such low value that they are unworthy of First Amendment protection.
In order to make this significant judgment, the Supreme Court will have to revisit
the decisions of the Western District Court of Pennsylvania and the Third Circuit Court
of Appeals. While the District Court convicted Stevens, the Third Circuit overturned this
conviction, and yet the greater First Amendment issue still lingers. The nine Justices can
look to the contrasting judgments of the earlier courts but in the end, they must decide
what type of speech the First Amendment constitutionally protects. Additionally, the
Justices will have to evaluate the constitutionality of Section 48, the statute that originally
convicted Stevens. The Supreme Court will have to determine not only if this law is
constitutional, but if there is a better solution to deal with depictions of dog fighting.
Animal cruelty laws are very clear, yet the Government’s laws on depictions of animal
cruelty, particularly dog fighting, are ambiguous and unclear. The Supreme Court must
clarify their opinion on depictions of dog fighting and determine the legal boundaries for
this type of speech.
33
CHAPTER TWO:
CRUSH VIDEOS, ANIMAL CRUELTY AND ROBERT J. STEVENS
A Law Against Animal Cruelty
Robert J. Stevens was originally convicted under a statute that was aimed at
prohibiting a very specific type of animal cruelty, “crush videos,” even though his
depictions did not encompass this explicit content. This poorly written statute, 18 USCS
§ 48, or Section 48, would not only wrongfully convict Stevens but it would actually
have the power to raise a larger First Amendment issue for the Supreme Court to resolve.
While the Government had a compelling interest to prohibit the extremely disturbing
production of “crush videos,” their poor wording in creating the statute would punish a
much broader group of speech than originally intended. “Crush videos” are a very
specific classification of speech, yet Section 48 was far from being unambiguous. Despite
the statute’s definite goal of prohibiting “crush videos,” it managed to violate one of the
Constitution’s most important principles, the freedom of speech. The constitutionality of
this statute would have to be evaluated by the Western District Court of Pennsylvania, the
Third Circuit Court of Appeals, and ultimately by the Supreme Court. United States v.
Stevens would not only evaluate the constitutionality of Section 48, but also of the larger
First Amendment issue of whether or not depictions of dog fighting deserve protection.
The statute, Section 48, defines a depiction of animal cruelty as “any visual or
auditory depiction, including any photograph, motion-picture film, video recording,
electronic image, or sound recording of conduct in which a living animal is intentionally
34
maimed, mutilated, tortured, wounded, or killed.”1 This definition applies where the
depiction of such behavior is illegal under Federal or State jurisdiction, regardless of
where the actual abuse towards the animal took place in the specific State. The term
“State” means “each of the several States, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, and any other commonwealth, territory, or possession of the
United States.” 2 Even if the action of harming the animal did not take place in one of
these specified States, it is still illegal to create, sell, or possess such a depiction.
From its first introduction as the bill, H.R. 1887, on May 20, 1999, Section 48,
had a relatively straightforward journey to becoming an official law on December 9,
1999. H.R. 1887 was first introduced in the House of Representatives by California
Republican Representative, Elton Gallegly. On its journey to being passed as a law, this
bill was first referred to House Judiciary Committee and then to the Subcommittee on
Crime. Tom Connors, Deputy District Attorney of Ventura County, California, argued
that current laws made it very challenging to verify the true identities of those who make
“crush videos;” this lack of proof impeded the ability to prosecute successfully.3 One of
the unique characteristics of “crush videos” is that the faces of the women and the
locations of the tapings are unknown and mysterious. The House Committee Report
stated that the defendants were “often were able to successfully assert as a defense that
the State could not prove its jurisdiction over the place where the act occurred or that the
1
18 USCS § 48.
18 USCS § 48.
3
Adam Ezra Schulman, “History of Animal-Cruelty Law at Issue in Stevens Poses Incongruity,” First
Amendment Center, available at www.firstamendmentcenter.org/analysis.aspx?id=21912 (Accessed on
January 14, 2010).
2
35
actions depicted took place within the time specified in the States statute of limitations.”4
Prosecution for such behavior was extremely difficult to prosecute if the actors,
producers, and locations in the “crush videos” were unidentifiable.
While H.R. 1887 received little opposition overall, there were a few
representatives who strongly disapproved of the bill. The dissenting Representatives
contested that H.R. 1887 was unworthy of being passed for several reasons. A
Democratic Representative of Virginia, Bobby Scott, insisted that this bill was an
infringement on the First Amendment, citing that it was both overbroad and incapable
meeting the criterion of strict scrutiny. Similar to Scott’s opposition, Ron Paul, a
Republican Representative from Texas, also questioned the possible encroachment on the
First Amendment. Paul animatedly expressed his opposition towards this bill when he
asserted, “If ever there were a bill unnecessary, this is one. It is an example of us here in
Congress looking for dragons to slay.”5 Bob Barr, a Republican Representative of
Georgia, was also against the proposed bill but took a much different approach, stating
that the bill was a violation of the principles of federalism and would intrude on the rights
of states to regulate certain laws. Interestingly enough, none of the opposed testimonies
specifically attacked the constitutionality of H.R. 1887, even though this would become
the ultimate issue with this law in subsequent years.6
Despite the few vocal dissenters, H.R. 1887 was overwhelming supported by
both parties and accumulated fifty-two cosponsors. The bill had promptly passed
clearance in both the House of Representatives and the Senate. In fact, even the wording
of the original bill was hardly altered. William McCollum, a Republican Representative
4
H.R.Rep. No. 397, 106th Cong., 1st Sess. 4 (Oct. 19, 1999).
Schulman, “History of Animal-Cruelty Law.”
6
Schulman, “History of Animal-Cruelty Law.”
5
36
of Florida, presented the only additional language to H.R. 1887. His revision was
incorporated into the bill with the objective to act in accordance with the First
Amendment. McCollum’s revision included exceptions for works that could demonstrate
“serious religious, political, scientific, educational, journalistic, historical or artistic
value.” This would give an alleged depiction of animal cruelty a chance to prove that is
has enough value to be protected by the First Amendment. On December 9, 1999, only
seven short months after H.R. 1887 was introduced, President Bill Clinton signed the bill
and passed it as a law.7
In his signing statement, President Clinton stated that this new law should be
adequate in achieving its purpose of diminishing or eliminating the appalling practices of
“crush videos” that were described in the House Judiciary Committee report on H.R.
1887. However, Clinton also noted that there were concerns with this law in accordance
with the First Amendment. To allay these concerns, he declared “It is important to avoid
constitutional challenge to this legislation and to ensure that the Act does not chill
protected speech. Accordingly, I will broadly construe the Act’s exception and will
interpret it to require a determination of the value of the depiction as part of a work or
communication, taken as a whole.”8 Clinton continued by stating that this law must only
apply to those depictions of animal cruelty that appeal to the “prurient interest in sex.”9
While Clinton supported the new law, he still wanted to ensure that it did not chill free
speech and that it only punished a very specific type of animal cruelty depictions.
7
Schulman, “History of Animal-Cruelty Law.”
John T. Woolley and Gerhard Peters, “Statement on Signing Legislation To Establish Federal Criminal
Penalties for Commerce in Depiction of Animal Cruelty,” The American Presidency Project, Available at
www.presidency.ucsb.edu/ws/?pid=57047 (Accessed on January 14, 2010).
9
Woolley and Peters.
8
37
One notable case that involved “crush videos” was People v. Thomason, which
was actually pending while the bill, H.R. 1887, was on its journey to becoming a law. In
fact, Susan Creede, a police investigator with Ventura County’s district attorney’s office,
worked closely in People v. Thomason as well as serving as one of the witnesses
testifying about “crush videos” to the House Subcommittee.10 Transpiring in California,
People v. Thomason began when Gary L. Thomason’s apartment was searched and
“crush videos” were discovered. These “crush videos” displayed recordings of mice and
rats being crushed and killed by the heel of a female’s shoe. A Ventura County District
Attorney investigator initially learned of Thomason’s videos through an online chat
room. In this chat room, Thomason described to the investigator about the “crush videos”
that he had produced. Thomason explained how he not only exhibited the killing of rats
and mice in these videos but he even used “pinkies,” or baby mice, in these depictions.
Upon these revelations, officers searched Thomason’s apartment and found between
thirty and forty videotapes in his closet. The officers then had to inquire Thomason which
tapes were the alleged “crush videos” that had been filmed with Diane Aileen Chaffin.
Thomason told the officers that the videotapes labeled “Diane” were the ones they were
seeking; two “Diane” tapes along with other possible evidence were seized from the
apartment.11
One of the “Diane” videotapes was sixty minutes in length and exhibited Diane
Chaffin crushing many rats, mice, and “pinkies,” with not only the sharp heel of her shoe,
but also with her bare feet. There were a total of twelve small animals killed by Chaffin’s
feet; each creature was mutilated and tortured before being killed. Disturbing images of
10
11
Schulman, “History of Animal-Cruelty Law.”
People v. Thomason, 84 Cal. App. 4th 1064, 1066 (Cal. App. 2d Dist. 2000).
38
Chaffin taping down a mouse’s tail to prevent escape and stepping on the animals hard
enough for their intestines to shoot out of their bodies were shown. These helpless
animals had been purchased by Thomason at The Feed Barn, a store that provided and
sold feeder mice, mice that are normally intended to be fed to animals that eat mice as
part of their diets. Clearly, Thomason did not plan on feeding these rats and mice to other
animals; he had a very different arrangement on how these creatures were going to die.12
In violation of Cal. Penal Code §597(a), Thomason was found guilty on three
felony counts by the trial court. This section of the California Penal Code prohibits
anyone who “maliciously and intentionally maims, mutilates, tortures, or wounds a living
animal, or maliciously and intentionally kills an animal.”13 Violating this law would
result in either imprisonment or a fine of up to, but not exceeding twenty thousand
dollars, or even a possible combination of the two punishments. Thomason appealed his
conviction on the grounds that other citizens, who used traps or poison to exterminate
rodents from areas such as their homes, were not convicted under this penal code. His
argument claimed that if these people were not convicted, then he should be exempt for
the same reason. Thomason contested that the statute under which he was penalized was
both vague and irrelevant for rodents.
However, the Court of Appeals of California did not see eye to eye with
Thomason’s argument. The Court of Appeals affirmed trial court’s decision, maintaining
that the statue was both very clear and that all animals, even if they are rodents, are not
subject to this type of malicious treatment. Thomason did not kill mice or rats for health
reasons, but he had videotaped the process with the intention of obtaining commercial
12
13
84 Cal. App. 4th 1064, 1066 (Cal. App. 2d Dist. 2000).
84 Cal. App. 4th 1064, 1066 (Cal. App. 2d Dist. 2000).
39
profit. While another statute, Cal. Penal Code §599c, includes an exception that allows
the destruction of certain animals, it only applies to those animals that pose a danger to
“life, limb, or property.”14 The Court of Appeals stated that this statute is not applicable
to all animals and it definitely does not permit the killing of animals by “using any
means” as argued by Thomason’s defense. 15 The rats and mice purchased by Thomason
were certainly not wild animals that invaded his property as danger or pests; rather he
specifically bought the animals with the intention of killing them. Since this act of buying
and bringing the domesticated creatures into his home was completely deliberate, these
animals do not fall into the category of animals that are allowed to be exterminated.
Furthermore, even if these animals somehow proved to be dangerous, trapping or
poisoning them is entirely divergent from mutilating the animals on videotape with the
intention of selling the depictions for profit or sexual gratification. The Court of Appeals
strongly agreed with the earlier decision of the trial court. In the opinion by Judge
Mildred Lillie, she even cited the trial judge who had stated, “It is my view beyond a
reasonable doubt that what I saw on that tape was malicious torture . . . no animal,
whether the animal is a deer or rat or a rodent, a mouse--no animal under the Fish and
Game Code, or any other code, is subject to that kind of malicious torture that I saw.”16
Even though this malicious and atrocious behavior was clearly not accepted by either of
these courts, Thomason refused to give up and even attempted to appeal to the Supreme
Court. The Supreme Court denied Thomason’s petition to be reviewed on January, 30,
2001. Nevertheless, several years later, the Supreme Court would review a case involving
a statute prohibiting “crush videos.”
14
84 Cal. App. 4th 1064, 1068 (Cal. App. 2d Dist. 2000).
84 Cal. App. 4th 1064, 1068 (Cal. App. 2d Dist. 2000).
16
84 Cal. App. 4th 1064, 1069 (Cal. App. 2d Dist. 2000).
15
40
The decision of People v. Thomason was pending while H.R. 1887 was on its way
to becoming a law. Although President Clinton had passed the law prohibiting the
production and sale of “crush videos” ten months prior to the decision of People v.
Thomason, Thomason only faced the state charges of California. Yet this case prompted
the issue to be further explored by higher legislation. In response to this case,
Representative Gallegly introduced the bill to prohibit “crush videos” and one of the
officers involved in the case helped provide testimony on “crush videos” that eventually
led to the new law being passed. While Section 48 was clearly aimed at punishing “crush
videos,” similar to the types of questionable videos in People v. Thomason, this statute
ended up penalizing a man who had no involvement with “crush videos.” Even though
President Clinton had made it quite clear that this new law would be aimed at minimizing
and eliminating the very specific content of “crush videos,” this law may have been
overbroad just as some of the dissenters of the original bill had expressed. In March
2004, the first indictment under Section 48 would be brought against Robert Stevens, a
man who had not produced, sold, or even possessed, a “crush video.”17
United States v. Stevens
Robert J. Stevens produced videos that featured depictions of pit bull fighting. He
advertised these videos and other dog fighting products in the underground publication,
The Sporting Dog Journal, which acquired thousands of subscribers, many of whom
17
Schulman, “History of Animal-Cruelty Law.”
41
actually received the publication in prison.18 These advertisements helped Stevens to
attract a great number of customers but ultimately he attracted the interest of law
enforcement officials, who responded to Steven’s advertisement and bought three
videotapes. Two of the videos were quite similar in content as both displayed footage of
organized dog fights that took place in the United States during the 1960s and 1970s. Pit
bulls were included in these videos in addition to more recent dog fights that took place
in Japan. These two videos were entitled, “Pick-A-Winna” and “Japan Pit Fights.” “Catch
Dogs,” the third video, showed video recording of pit bulls being trained to hunt wild
boar and hogs as well as the pit bulls actually aggressively hunting these animals.
The videos found by authorities gave law enforcement officials enough proof to
legally obtain a search warrant for Steven’s house and on April 23, 2003, his house was
legally searched. This search warrant produced several copies of the three different
videos and dog fighting merchandise; each video was clearly produced and narrated by
Stevens. Stevens’ voice is apparent in the films as well as the literature he wrote that
accompanied each film. On March 2, 2004, Stevens was indicted by a grand jury in the
Western District of Pennsylvania. Stevens was charged with “three counts of knowingly
selling depictions of animal cruelty with the intention of placing those depictions in
interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.”19 Despite
Stevens’ attempts to dismiss the indictment on the grounds that his First Amendment
rights were violated, the motion was denied in November, 2004, and the case proceeded
to trial.
18
“Judge Strikes Major Financial Blow Against Dog Fighting in New York,” The Humane Society of the
United States, Available at www.hsus.org/press_and_publications/press_releases/judge_strikes_major_
financial.html (Accessed on January 14, 2010).
19
533 F.3d 218, 221 (3rd Cir. 2006).
42
The District Court Decision
Stevens was the first person to be tried under 18 U.S.C. § 48 and he was found
guilty on three different counts on January 13, 2005.20 18 U.S.C. § 48 established that
“Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the
intention of placing that depiction in interstate or foreign commerce for commercial gain,
shall be fined under this title or imprisoned not more than 5 years, or both.”21
Furthermore, if a depiction has “serious religious, political, scientific, educational,
journalistic, historical, or artistic value,” then it is exempt from being penalized by
Section 48.22 The United States District Court did not find Stevens’ videos of dog fights
and animal hunting excursions to encompass any of these values as his three videos were
not exempt from indictment. Instead, Stevens’ videos were considered depictions of
animal cruelty that were sold across state borders, which the District Court found to be a
direction violation of Section 48.
The District Court failed to take into account that this statute was initially
established to target only “crush videos,” a very specific type of animal cruelty
depictions. Stevens’ films exhibited content that was extremely different from the subject
matter of “crush videos,” yet the District Court failed to take this into consideration. The
District Court believed that the major issue of this case was whether or not the depictions
have serious value and analogized dog fighting to the unprotected categories of obscenity
and child pornography. Arguments were made in court that linked the depictions of dog
20
533 F.3d 218, 221 (3rd Cir. 2006).
18 USCS § 48.
22
United States v. Stevens, 533 F.3d 218, 221 (3rd Cir. 2006).
21
43
fighting to unprotected categories of speech. Analogizing obscenity to depictions of dog
fighting, the District Court argues, “if the government has a sufficiently compelling
interest in prohibiting the sale of depictions of sexual activity between consenting adults,
it has an equal, if not greater, interest in preventing the torture, maiming, mutilation and
wanton killing of animals who have no ability to consent to such treatment.”23 An
additional comparison was made between the similarity of the laws prohibiting animal
cruelty and the laws barring child pornography. Because of the alleged resemblance
between depictions of dog fighting and current unprotected categories of speech, the
District Court believed these depictions to be unworthy of First Amendment protection as
well.
The District Court instructed the jury that in order to convict Stevens, jurors must
determine that the “depiction as a whole has no serious scientific, educational or historic
value.”24 Furthermore, the jury was instructed that “serious” meant “significant and of
great import.”25 Despite the testimony of several expert witnesses who affirmed that the
films did have serious value, the jury found each of the three videos possessed no serious
value. Even, Glen Bui, the acting Vice-President of the American Canine Foundation, an
organization dedicated to ending animal cruelty, testified that Stevens’ films were
“extremely educational and had serious historical value because they document how dog
fighting occurred in the United States before it became illegal.”26 Yet, the jury was not
23
Brief for the United States, United States v. Stevens, p. 5.
Brief for the Respondent, United States v. Stevens, p. 8.
25
Brief for the Respondent, p. 8.
26
Brief for the Respondent, p. 7.
24
44
convinced that these depictions had value. Stevens was sentenced to thirty-seven months
in prison as well as an additional three years of supervised release.27
The Third Circuit Decision
Stevens appealed his conviction to the Third Circuit Court of Appeals on several
different grounds such as the lack of evidence, issues with jury instruction and selection,
the District Court using guidelines meant for child pornography cases, and the
unconstitutionally of the statue that convicted him. The Third Circuit Court of Appeals
would concentrate on the issue of whether or not the statute was constitutional, to
ascertain if the statue was an infringement on the free speech rights that the First
Amendment ensured to American citizens.
The majority opinion overturned Stevens’ conviction, but three judges strongly
disagreed with the decision. In the majority opinion by Judge D. Brooks Smith, he stated
that the main reason that Stevens’ conviction was overturned was because the statute,
Section 48, is “an unconstitutional infringement on free speech rights guaranteed by the
First Amendment.”28 Furthermore, Judge Smith lists a plethora of rationale as to why the
Third Circuit believes that this statute is unconstitutional and why the conviction of
Stevens needs to be overturned. The three dissenting judges then explicitly state why they
challenge and oppose each main point of the majority opinion.
The majority opinion begins with Judge Smith acknowledging the original
intention of Section 48, which aimed specifically at targeting and penalizing the creation,
27
28
533 F.3d 218, 221 (3rd Cir. 2006).
533 F.3d 218, 220 (3rd Cir. 2006).
45
sale, or possession of “crush videos.” The goal had been to penalize “crush videos,”
content that only appealed to the prurient interest of a very specific audience. Even
though he was initially convicted under Section 48, the Government openly declares that
Stevens did not sell “crush videos,” that his videos did not appeal to prurient interest, and
that the statute amounts to a content-based limitation on speech. In contrast with the
District Court’s failure to properly justify their decision, Judge Smith asserts that the
majority opinion will provide ample reason as to how Section 48 “regulates protected
speech” and how it “cannot withstand that heightened level of [strict] scrutiny.”29
In the majority opinion, Judge Smith, states that Section 48 actually regulates
protected speech and that the speech regulated by this statute should not be added as a
new specific, narrow category of unprotected speech. The type of speech regulated by
this statute undoubtedly does not fall into any of the current unprotected categories and
the only category that it has a slight resemblance to is child pornography, as defined in
Ferber. The unprotected category of child pornography was introduced when it could not
properly qualify as falling into the obscenity category. In deciding that child pornography
was a new unprotected category, the Supreme Court listed five factors supporting this
decision. Since the Government believes that the depiction of animal cruelty is somewhat
analogous to the depiction of child pornography, Judge Smith rationalizes how the
depiction of animal cruelty is not applicable to each of the five Ferber factors.
The most significant Ferber factor is that the government must have a
“compelling interest” to put this speech into unprotected territory. In Ferber, the
“compelling interest” was to “safeguard the physical and psychological well-being of a
29
533 F.3d 218, 223 (3rd Cir. 2006).
46
minor.”30 Judge Smith argues that while the protection of animals may be important,
there is always great caution in determining that the interest of the Government is
compelling enough to make the speech unprotected. Judge Smith noted that this category
was most important in the argument and gave a few specific reasons as to why the
protection of animals is not a “compelling interest.” He cites the “Dissenting Views” in
the House Committee Report, which avow that “animal rights do not supersede
fundamental human rights.”31 This majority opinion affirms that the well-being of
humans is more of a compelling interest than that of animals.
Additionally, Judge Smith states, “Preventing cruelty to animals, although an
exceedingly worthy goal, simply does not implicate interests of the same magnitude as
protecting children from physical and psychological harm.”32 The physical and mental
health of children is believed to have more importance than the overall protection of
animals. While Judge Smith acknowledges that there is research that concludes that
abusive and violent people often begin by their aggressive methods with animals, he
proclaims that this is inadequate evidence to prevail over First Amendment protection.
The prospect that someone who hurts animals will become violent against other humans
is not compelling enough for the Government to make speech unworthy of First
Amendment protection. To prove this point, Judge Smith cites Ashcroft v. Free Speech
Coalition, “The mere tendency of speech to encourage unlawful acts is not a sufficient
reason for banning it. The prospect of crime… by itself does not justify laws suppressing
protected speech.”33 Just because there is a threat that a person violent towards animals
30
533 F.3d 218, 227 (3rd Cir. 2006).
533 F.3d 218, 226 (3rd Cir. 2006).
32
533 F.3d 218, 228 (3rd Cir. 2006).
33
533 F.3d 218, 229 (3rd Cir. 2006).
31
47
could possibly become violent towards humans, this does not properly rationalize
restricting the right to freedom of speech; the Government’s interest is not compelling
enough.
In the majority opinion, Judge Smith thoroughly explains why the depictions of
animal cruelty are not a “compelling interest” of the Government, which is the leading
Ferber factor. Speaking on behalf of the majority, he briefly negates the following four
Ferber factors. Judge Smith argues that the second factor is inapplicable because Ferber
states the child pornography is “intrinsically related to the sexual abuse of children.”34
While a child can be further harmed by having a permanent record of his or her abuse on
film, an animal does not suffer from the same long-term harm. The fact that the abuse of
the animal is recorded on film does not cause the animal to undergo more pain, “One
cannot seriously contend that the animals themselves suffer continuing harm by having
their images out in the marketplace.”35
The third Ferber factor states that the advertising and selling of child pornography
is driven by an objective to make profit. The idea behind this factor is that if the market is
dried up, then there will no longer be the motivation to produce such depictions because
there will no longer be a substantial profit to be gained. Judge Smith indicates that this
factor may have the potential to actually connect depictions of animal cruelty with child
pornography, yet he quickly repudiates this claim as there is not enough “empirical
evidence to confirm that this theory is valid.”36 He further states that this theory could
pertain to almost any kind of endeavor that strives for economic profit, and that this
reason, on its own, is too general to rationalize making a new category of unprotected
34
533 F.3d 218, 230 (3rd Cir. 2006).
533 F.3d 218, 230 (3rd Cir. 2006).
36
533 F.3d 218, 230 (3rd Cir. 2006).
35
48
speech. To additionally negate the possibility of applying the third Ferber factor, Judge
Smith refers to facts prepared by the Humane Society that confirm that the majority of
moneymaking in dog fights are from the actual live events at the venues and not from the
production of videotape depicting the fights. If the videotapes are not the primary source
of profit, then this Ferber factor fails to apply because a great deal of profit is still gained
even if the videotapes are not in circulation.37
The fourth Ferber factor requires the material to have little to no value. Section
48 includes an exception clause that allows the speech to be protected if it can
demonstrate some type of social value. This exception clause was adapted directly from
the third prong of the Miller test for obscenity. However, Judge Smith argues that this
“type of exceptions clause has not been applied in non-prurient unprotected speech cases,
and taking it out this context ignores the essential framework of the Miller test.”38 Judge
Smith avows that other distasteful speech that does not specifically appeal to the prurient
interest is not obliged to prove that it has serious social value in order to be protected.
This clause was supposed to be used exclusively for determining whether a work was
obscene or not. Furthermore, there could be a chilling effect if all forms of speech had to
provide this certain value, “it is difficult to imagine what category of speech the
Government could not regulate through similar statutory engineering.”39
The fifth Ferber factor basically states that new unprotected categories are
allowed to be introduced. But with the extensive analysis by Judge Smith’s majority
opinion as to why depictions of animal cruelty are not analogous to child pornography,
the majority opinion strongly believes that a new category of unprotected speech is
37
533 F.3d 218, 231 (3rd Cir. 2006).
533 F.3d 218, 232 (3rd Cir. 2006).
39
533 F.3d 218, 232 (3rd Cir. 2006).
38
49
completely unnecessary as the current statute actually regulates protected speech. Since
there are immense and fundamental discrepancies between children and animals, Judge
Smith affirms that the comparison to Ferber falls completely short.
Just as it can be difficult to identify the producers of child pornography, it can be
just as challenging to ascertain the actors and producers of “crush videos.” “Crush
videos” normally only show the women’s legs and feet, concealing her face and identity.
However, often in videos of dog fighting, such as in Stevens’ videos, identities of the
individuals are not concealed. For instance, in “Catch Dogs,” Stevens provides not only
the name but also the address of a catch dog supplier. While banning “crush videos” may
be effective in preventing this type of depiction, the same cannot be said for videos of
dog fighting. Prohibiting these depictions of dog fighting may not necessarily be an
efficient way of thwarting these acts entirely, especially if those parties involved openly
reveal their identities. Judge Smith states that this point demonstrates that the statute is
“not narrowly tailored using the least restrictive means” because prohibiting videos of
dog fighting does not automatically have the same effects as banning crush videos; the
statute would have to be narrowed to more specifically identify the illegal depictions.40
Overall, the majority opinion, fronted by Judge Smith, vacates Stevens’
conviction. In the final footnote, Judge Smith considers that the statute may also be
unconstitutionally overbroad. He states that, “The statute potentially covers a great deal
of constitutionally protected speech, and prosecutions that stray far from crush videos
may chill this type of speech.”41 Judge Smith gives examples how a person could be
prosecuted if he or she films themselves fishing out of season and selling it to someone in
40
41
533 F.3d 218, 235 (3rd Cir. 2006).
533 F.3d 218, 235 (3rd Cir. 2006).
50
a different state, or how someone could be convicted under this statute if he or she sells a
video of bullfighting in Spain. On behalf of the majority opinion, Judge Smith states that
while this statute has been targeted at eliminating “crush videos,” Stevens was a man
originally convicted under this statute while having nothing to do with “crush videos,”
implying that others could be prosecuted under this statute for similar reasons.
While the majority opinion prevailed in the Third Circuit Court of Appeals in
United States v. Stevens, there were still three circuit judges who dissented. Judge Cowen
dissented with Judge Fuentes and Judge Fisher joining his opinion. Since this decision
would ultimately reach the level of the Supreme Court, it is crucial to understand the
basis for the dissent. Judge Cowen expresses the main rationale behind the dissenting
opinion, “Because we cannot agree… that the Government’s interest in ensuring the
humane treatment of animals is anything less than of paramount importance, and because
we conclude the speech prohibited by Section 48 to be of such minimal socially
redeeming value that its restriction may be affected consistent with the First
Amendment.”42 Judge Cowen commences the dissenting opinion by describing
Chaplinsky’s categorical approach to the First Amendment. Utilizing this approach,
Judge Cowen states that the depictions of animal cruelty do not fall into any of the
existing unprotected categories, but new categories have been added in the past when a
new unprotected type of speech surfaced and could not be categorized. Therefore, Judge
Cowen proposes that since depictions of animal cruelty “possess integral characteristics
of unprotected speech,” this type of speech is unworthy of First Amendment protection.43
42
43
533 F.3d 218, 236 (3rd Cir. 2006).
533 F.3d 218, 237 (3rd Cir. 2006).
51
Judge Cowen and the two other circuit judges mainly dissent because they believe
that the Government has a compelling interest to protect animals that overrides the little
value in depictions of animal cruelty. He states, “For speech to be unprotected, at a bare
minimum, its value must be plainly outweighed by the Government’s asserted interest.”44
To prove this point, Judge Cowen explains how Americans have had an inherent distaste
for animal cruelty, ever since 1641, when the first animal cruelty law was enforced. Over
the next few hundred years, these laws would evolve and increase until every state
eventually established anti-cruelty statute. Cruelty towards animals does not just harm the
creature but it is also “a form of antisocial behavior that erodes public mores and can
have a deleterious effect on the individual inflicting the harm.”45 Judge Cowen argues
that animal cruelty has more than one severe, destructive effect. This compelling interest
to protect animals is the primary reason that Judge Cowen believes that the depictions of
animal cruelty are analogous to the unprotected category of child pornography. He argues
that depictions of animal cruelty can fall under each of the Ferber factors. While Judge
Cowen recognizes that the underlying behavior of depictions of animal cruelty and child
pornography are inherently different, he states that depictions of animal cruelty contain
the same necessary characteristics that put child pornography in an unprotected category.
To conclude the dissenting opinion, Judge Cowen affirms that Section 48 is
neither unconstitutionally overbroad nor is it considerably vague. Stevens had argued that
the statute was overbroad on the grounds that it criminalizes works that occurred at a time
or place when creations of such depiction were legal. In spite of this argument, this
speech can still be penalized because as long as the industry exists, more illegal
44
45
533 F.3d 218, 237 (3rd Cir. 2006).
533 F.3d 218, 239 (3rd Cir. 2006).
52
depictions will continue to be made, which is exactly what the Government is attempting
to prevent. As Judge Cowen articulates, “The Government may legitimately endeavor to
quash the entire industry in all its manifestations.”46 Judge Cowen finishes the dissenting
opinion by declaring that he and the other two circuit judges are very aware of the
apprehension of introducing a new unprotected category of speech. However, these
dissenting judges believe that by carefully following in the footsteps of the Supreme
Court’s precedent cases, this narrow category of speech is also unworthy of First
Amendment protection. Judge Cowen concludes the dissenting opinion by asserting that
Section 48 is a legitimate statute and that Steven’s conviction should be upheld.47
On to the Supreme Court
On writ of certiorari, the Supreme Court heard oral arguments for United States v.
Stevens on October 6, 2009. In the brief prepared by the Petitioner, the two main
arguments are that Section 48 does “not regulate protected speech” and that the statute is
“not substantially overbroad.”48 The brief prepared by the Respondent has taken a much
different approach arguing that Section 48 “unconstitutionally criminalizes speech
protected by the First Amendment.”49 Each brief touches upon the majority and
dissenting opinions from the Third Circuit Court of Appeals. The Petitioner and
Respondent have presented their briefs and oral arguments about the constitutionality of
46
533 F.3d 218, 248 (3rd Cir. 2006).
533 F.3d 218, 250 (3rd Cir. 2006).
48
Brief for the United States, p. 5.
49
Brief for the Respondent, p. 14.
47
53
Section 48 to the nine Supreme Court Justices, who must determine the outcome of this
First Amendment issue.
In the Brief for the United States prepared by the Petitioner, the argument begins
with the statement that Section 48 does not regulate protected speech because “certain
narrow categories of speech do not enjoy First Amendment protection because their
harms greatly outweigh their expressive value.”50 The Petitioner clarifies how there are a
few, specific types of speech that the Supreme Court has found unworthy of First
Amendment Protection. Each unprotected category that has been narrowly defined is
mentioned: fighting words, speech inciting imminent lawless activity, true threats,
obscenity, child pornography, and offers or solicitations to engage in illegal activity. The
Petitioner explains how the Third Circuit Court of Appeals failed to properly apply the
Chaplinsky categorical approach in regards to depictions of animal cruelty. In the
majority opinion by the Third Circuit, it was decided that the speech did not fall into an
unprotected category because it could not be directly analogized to an existing category.
On the contrary, the Petitioner argues that while the unprotected categories of speech
share a few essential elements, each is distinctly separate. In determining if a certain type
of speech is unworthy of First Amendment protection, the assessment “does not depend
on whether the speech to be regulated is equivalent or strictly analogous to an existing
‘low-value’ category.”51 Rather, the Chaplinsky approach allows for the possibility of
new unprotected categories to be introduced, but only when completely necessary and
pertinent.
50
51
Brief for the United States, p. 10.
Brief for the United States, p. 14.
54
To the further support this point, the Petitioner states “Section 48 regulates a
narrow category of speech that does not advance the exposition of ideas.”52 Section 48
has several very specific requirements for speech to qualify as this narrow category. For
instance, a living animal must be seriously harmed or killed, it must be illegal conduct,
and the depiction must have been sold through an interstate or foreign transaction. The
Petitioner argues that Section 48 prohibits only very specific content such as that of
“crush videos,” and the gruesome depictions of dog fighting, cockfighting, hog-dog
fighting. All of these extremely distasteful depictions of animal cruelty do not further the
marketplace of ideas. The Petitioner affirms that “The First Amendment ensures that a
person may express any idea he wishes about animal cruelty, but does not protect his
decision to do so by creating, selling, or possessing videos of live animals being tortured
or killed in violation of law.” The Petitioner further argues that even if one of these
depictions happens to express an essential idea, it could still be banned for the manner in
which it is expressed.53
Another main reason given by the Petitioner is that “the harm from the speech
reached by Section 48 greatly outweighs its expressive value.” The Petitioner goes on to
list a plethora of reasons as to why depictions of animal cruelty are harmful and
dangerous. Animal abuse is dangerous not only for animals but also for greater society.
Infamous serial killers are listed who were found to have a history of animal abuse. Dog
fighting is linked to other serious crimes such as gang activity, drug dealing, and
gambling. The Petitioner argues that the harms inflicted by the actual actions of animal
abuse and the tribulations associated with the behavior give the Government a compelling
52
53
Brief for the United States, p. 14.
Brief for the United States, pp. 14-23.
55
interest to prevent such acts.54 Lastly, the Petitioner argues that speech prohibited by
Section 48 is so similar to other types of unprotected speech that it too belongs in the
unprotected realm. For instance, just as child pornography can harm a child for a lifetime,
depictions of animal cruelty, such as dog fighting includes pit bulls who have suffered
abuse for their whole lives. Even if a pit bull survives a fight, the animal can still be
“drowned, bludgeoned to death, hung, or set on fire.” The Petitioner argues that because
depictions of animal cruelty have comparable characteristics to child pornography, that
this speech should also be unworthy of First Amendment protection.55
The second main argument by the Petitioner is that Section 48 is not substantially
overbroad. Arguing that the burden of proving substantial overbreadth is the
responsibility of the respondent and should have been done by Stevens, the Petitioner
contends that the Third Circuit Court of Appeals should in the very least reverse this part
of the decision. Furthermore, the Petitioner argues that “Because Section 48 as a
minimum may be applied constitutionally to such animal fighting videos, as well to
‘crush videos,’ the statute is not substantially overbroad.” According to the Petitioner,
Section 48 aims to target the lucrative market of depictions of animal cruelty and is
justified in doing so because it specifically penalizes exactly what it sets out to do and the
Government has a compelling interest to prevent such intolerable acts. In addition, the
Petitioner states that “isolated hypotheticals do not justify invalidating Section 48 on its
face.” The Petitioner argues that the sheer chance for unconstitutional applications to this
statute is insufficient evidence in declaring that the statute is overbroad. This reasoning
54
55
Brief for the United States, pp. 23-35.
Brief for the United States, pp. 35-38.
56
states that few statutes could survive if a strict scrutiny with numerous hypothetical
situations were applied. 56
Contrastingly, the Brief for the Respondent argues that “Section 48
unconstitutionally criminalizes speech protected by the First Amendment.”57 The Brief
begins by portraying Robert Stevens as an educational film producer, rather than as an
animal abuser. In fact, as evidence of this claim, a quotation from Stevens’ book is cited
in which he writes that pit fighting should continue to be illegal. As further evidence, the
literature that accompanied Stevens’ video is cited which states that the video “does not
promote, encourage, or in any way condone dog fighting… such images demonstrate
what made our breed the courageous and intelligent breed that it is.”58 Stevens claims that
he intended these videos to be viewed with a “historical perspective” to educate
audiences on the breed of pit bulls. A major argument for Stevens is that his videos do
have serious value, and therefore he cannot be properly convicted under Section 48. The
Brief points out that even though Stevens was originally convicted, the Third Circuit of
Appeals vacated his conviction. The Brief also highlights the fact that besides this
original conviction that was overturned, Stevens has no criminal record in his past.
Primarily, the Brief for the Respondent explicitly states that Stevens was unfairly
convicted and that Section 48 is unlawful in the way that it penalizes protected speech.
Only certain, very specific categories of speech are unprotected by the First Amendment
and Stevens’ dog fighting videos do not fall into any of these categories; it is therefore
protected by the First Amendment.
56
Brief for the United States, pp. 38-48.
Brief for the Respondent, United States v. Stevens, p. 14.
58
Brief for the Respondent, p. 4.
57
57
Even though animal cruelty has long been prohibited, dog fighting itself was not
prohibited until 1976, and there has never even been a First Amendment law banning the
depictions of the killing or wounding of animals. Stevens’ films showed footage of dog
fighting that was filmed before dog fighting became illegal, yet he was convicted for
showing this footage. Additionally, the Brief continuously sets forth examples of films,
documentaries, and media outlets that display footage similar to Stevens, yet who are not
penalized for showing the depictions of animal cruelty because of their supposed
educational value. In fact, the Brief states “Similar images are used by law enforcement,
documentarians, investigative journalists, and countless interest groups to inform,
educate, lobby, debate, and persuade about the proper treatment of animals in scientific
experimentation, recreation, slaughterhouses, industrial farms, the harvesting of fur from
baby seals and other animals, and entertainment.”59
While these images of animals may be disturbing or even offensive, the First
Amendment has always stood on the principle that speech cannot be prohibited just
because it is distasteful. However, Stevens has faced legal tribulations while other films
have not been penalized, even ones with more gruesome and serious depictions of animal
cruelty. The argument is even made that without such footage of animal cruelty, the
public would not be able to be properly informed about the seriousness of this issue.
Organizations such as the Humane Society and People for the Ethical Treatment of
Animals (PETA) even display footage of dog fighting on their own website to show the
public exactly what such an event entails. While some of these organizations claim to be
displaying the gruesome footage in order to put an end to it, Stevens argues that he too
should be exempt from such scrutiny. Stevens states that the purpose of his videos is to
59
Brief for the Respondent, p. 19.
58
“illustrate the genetic traits of Pit Bulls– endurance, courage, stamina, strength, and
disposition – that make the breed so well-suited for non-dog fighting activities like
hunting, field trails, and weight pulling.”60 Stevens continuously proclaims that he does
not support dog fighting, but rather he is attempting to educate about the benefits pit
bulls.
Additionally, numerous protected images of animal cruelty are cited to show that
these images are protected by the First Amendment. Ernest Hemingway’s book Death in
the Afternoon, clips of bull fights on the Internet, and numerous movies, such Conan, the
Barbarian, and Fast the Furious 4, are mentioned to demonstrate that these types of
speech are all protected even though they depict intense images and footage of animal
cruelty. If these images are all protected, then Stevens’ films should also be protected
under the same notion. The Brief directly compares Hemingway, who thoroughly
describes and illustrates bullfighting, to Stevens. Hemingway’s work is permitted while
Stevens is made a “felon for his combination of literature and images.”61 Moreover, the
fact that Section 48 has exceptions for seven kinds of serious value “confess that this
speech is not categorically unworthy of constitutional protection.”62 As a whole, this
speech is not an unprotected category and the exception of speech with serious value
makes this statute unconstitutional.
Furthermore, the Brief continuously argues that the government “cannot suspend
the First Amendment just because the conduct depicted is illegal somewhere.”63 The
majority of the footage of Stevens’ films that are in question was filmed in Mexico and
60
Brief for the Respondent, pp. 21-22.
Brief for the Respondent, p. 27.
62
Brief for the Respondent, p. 26.
63
Brief for the Respondent, p. 34.
61
59
Japan, where such dog fighting was legal. When these depictions were originally filmed,
they were completely legal, yet Stevens is being prosecuted for exhibiting such footage.
The Brief draws attention to the fact that professional football player, Michael Vick, was
convicted for the actual act of dog fighting, but his sentence was fourteen months less
than Stevens’ sentence. The Brief contends that Congress has it backwards and that the
First Amendment should mean “that content-based criminal prohibitions on speech
should be the last, not the first, tool to which government resorts in an effort to regulate
conduct.”64 The crime itself should be prosecuted more severely than the depiction. In
addition, there is no empirical evidence that it is more difficult to expose and prosecute
the act of dog fighting itself. Dog fighting events involve huge and noisy audiences that
take place outdoors and with the right investigation, they should be properly discovered.
The Brief even argues that having video images of dog fighting can even assist with the
actual detection and prosecution of the crime.
Lastly, the Brief animatedly argues that Ferber is inapplicable. While child
pornography is a twenty billion dollar industry, there is “no evidence of a vast and
profitable market for images of animal cruelty generally or dog fighting in particular.”65
In fact, Stevens only earned $5,700 annually for his films, which is hardly comparable to
the child pornography revenue of billions of dollars. Banning these depictions of animal
cruelty will not dry up the market, “the only thing that the ban on depictions is likely to
dry up is free speech, not crime.”66 Moreover, animals cannot be properly analogized to
children because “animals, unlike children, are still routinely killed by the millions for
their fur and skin, and silk worms are boiled alive to produce silk, not because, in an age
64
Brief for the Respondent, p. 42.
Brief for the Respondent, p. 45.
66
Brief for the Respondent, p. 46.
65
60
of synthetics, such forms of clothing are needed, but because they are preferred.”67 The
vast differences between animals and children are just of one the main reasons that this
case cannot be compared to Ferber. Finally, Stevens proclaims that his films are for the
benefit of pit bulls and that he wishes to help others find better uses for such dogs, while
child pornography is definitely not trying to better the lives of the children being forced
to be involved.
A Categorical Approach to Stevens
After the Supreme Court analyzes and evaluates the lower court decisions of
United States v. Stevens, they must also assess the two major briefs prepared for this case.
From the beginning, Congress repeatedly stated that Section 48 was established to
specifically penalize “crush videos,” but in the actual enforcement of this law, the only
type of film that has been punished is footage of dog fighting. The Justices will decide
whether they agree with the Western District Court of Pennsylvania which held Stevens’
depictions were of such low value that they were deemed unworthy of protection or with
the Third Circuit Court of Appeals which vacated the conviction because the speech
restricted at issue is protected by the First Amendment. The Third Circuit was reluctant to
create a new unprotected category of speech, but the Supreme Court could generate a
new category if they feel compelled to do so. Using the categorical approach, the
Supreme Court Justices will first have to decide if there is any possibility that depictions
of dog fighting can fit under an existing unprotected category. If not, the Justices will
need to decide if depictions of dog fighting are unworthy enough to create an entirely
67
Brief for the Respondent, p. 49.
61
new unprotected category. In basic terms, the Supreme Court must determine if dog
fighting should be classified as protected or unprotected.
The Brief for the Respondent most accurately describes how the case is not
actually about dog fighting or animal cruelty, but that the basic question is “whether the
government can send an individual to jail for up to five years just for making films –
films that are not obscene, pornographic, inflammatory, defamatory, or even
untruthful.”68 Using the specific definitions of the unprotected categories, depictions of
dog fighting cannot accurately be classified under any of them. Nevertheless, this
decision will depend on how literally the Supreme Court applies these definitions; their
broad or narrow interpretation of the current categories will serve as a major factor in the
final verdict. This Brief for the Respondent also recognizes that a major problem of
Congress is that they have the power to take a type of “never-before-regulated” speech
and punish the creator of the speech if the speech does not prove to have enough value.69
This in itself is a violation of the First Amendment, which cannot simply ban a type of
speech because of lack of value; speech is protected unless it falls into a carefully
defined, unprotected category of speech. Speech does not have to prove its value in order
to be protected; the First Amendment is primed to protect all speech except for very
specific circumstances.
Categories of unprotected speech are very specific and have even been narrowed
over the years; Congress only limits speech when absolutely necessary under very
specific circumstances. As the Brief for the CATO Institute in Support of the Respondent
articulates, “Chaplinsky’s dicta have typically been treated as a ceiling for the permissible
68
69
Brief for the Respondent, p. 11.
Brief for the Respondent, p. 11.
62
suppression of speech--and not as a floor, or a springboard, for categorically suppressing
new speech.”70 In matters involving controversial speech that may be unworthy of
protection, the Supreme Court has a significant interest to make sure the First
Amendment is upheld and that only extremely low value speech is regulated. This is most
likely why the Supreme Court has chosen to hear United States v. Stevens, which has
evolved into a substantial First Amendment issue. According to the Brief prepared by the
Association of American Publishers, Inc., and numerous other organizations, they assert,
“This case is the tip of a very large iceberg that threatens serious damage to the First
Amendment.”71 Since the First Amendment is at the core of the United States
Constitution, the Justices must preserve and protect this important principle.
The Supreme Court must ensure that the freedom of speech perseveres with the
majority of speech being protected by the First Amendment. While the brief prepared by
the CATO Institute states that animal cruelty is a “vile and reprehensible practice,
deserving of the legal and moral opprobrium it receive,” the CATO Institute
acknowledges it is “understandable” that the Government wants to criminalize such
disturbing depictions of these cruel acts.72 However, this Brief argues that the attempt to
regulate these depictions, “however pure its motives, is deeply misguided under our
Constitution--and any additional protection it may achieve for America’s animals is
vastly outweighed by its costs to the basic freedoms of its people.” When deciding the
70
Brief of the CATO Institute in Support of the Respondent, United States v. Stevens, p. 9.
Brief of the Association of American Publishers, Inc., the American Booksellers Foundation for Free
Expression, the Association of American University Presses, the Comic Book Legal Defense Fund,
Entertainment Consumers Association, Entertainment Merchants Association, Film Independent, Freedom
to Read Foundation, Independent Book Publishers Association, Independent Filmmakers Project,
Independent Film & Television Alliance, The International Documentary Association, the National
Association of Recording Merchandisers, the National Association of Theater Owners, Inc., and Pen
American Center in Support of the Respondent, United States v. Stevens, p. 6.
72
Brief of the CATO Institute, p. 27.
71
63
outcome of United States v. Stevens, the Supreme Court must decide if freedom of speech
or depictions of animal cruelty should prevail.
64
CHAPTER THREE:
ANIMAL CRUELTY AND THE FIRST AMENDMENT
When the Supreme Court makes their final decision in United States v. Stevens,
the nine Justices will have to decide if depictions of dog fighting are worthy enough to be
protected by the First Amendment. While the initial intention of enacting 18 USCS § 48,
or Section 48, was quite clear, the actual execution of this statute has only been hazy. The
Supreme Court will have to clarify their opinion not only on the poorly worded statute,
but also on this greater First Amendment issue. Since animal cruelty is such a pervasive
problem, Congress has made sure that animal cruelty laws are enforced in all fifty states.
Animal cruelty is a crime, but handling the depictions of these acts is a much more
complicated manner.
Rather than focus on penalizing the depictions, which has the potential to have a
chilling effect on free speech, the Supreme Court should take a different approach to this
issue. Congress should focus their resources and energy on punishing the actual crimes of
animal cruelty, an interest that has always been of the utmost importance. According to
the Brief prepared by the First Amendment Lawyers Association in support of the
Respondent, “This case does present a valuable opportunity for the Court to reflect upon
its approach to the categorical criminalization of expression as a general matter.”1 While
1
Brief of the Association of American Publishers, Inc., the American Booksellers Foundation for Free
Expression, the Association of American University Presses, the Comic Book Legal Defense Fund,
Entertainment Consumers Association, Entertainment Merchants Association, Film Independent, Freedom
to Read Foundation, Independent Book Publishers Association, Independent Filmmakers Project,
Independent Film & Television Alliance, The International Documentary Association, the National
Association of Recording Merchandisers, the National Association of Theater Owners, Inc., and Pen
American Center in Support of the Respondent, United States v. Stevens, p. 6.
65
using the categorical approach has been successful for very specific instances in the past,
this approach is not always practical. In fact, the categorical approach can even become
dangerous if it attempts to regulate too much speech. In United States v. Stevens, the
Supreme Court will have to decide whether or not to use the categorical method or if
there is a more suitable solution that should be implemented.
In United States v. Stevens, two serious problems are presented. There is an
extremely poorly worded law as well as the pervasive issue of animal cruelty. Both of
these problems are in desperate need of being resolved. The law needs to be discarded or
revised and animal cruelty needs to be prevented. Rather than concentrate on disciplining
the depictions of animal cruelty, a more efficient solution would be to target the actual act
itself; the act is the true crime in this situation. Similarly, rather than revising this law, a
better solution may be to more strictly enforce the numerous existing animal cruelty laws.
While both of these are critical issues, the Supreme Court has suitable options to properly
resolve these matters in United States v. Stevens.
An Ill-Conceived Law
The simple fact that Robert Stevens was originally convicted under a statute that
was intended to punish only “crush videos” indicates that this statute is unconstitutional.
Stevens never had any involvement with “crush videos” yet he has been fighting an
extensive battle to defend his name. The Third Circuit Court of Appeals was correct in
their decision to vacate his conviction and the Supreme Court should uphold this
decision. While the three dissenting opinions of the Third Circuit are quite valid in their
66
interest to protect animals from cruel treatment, their overall viewpoint has the potential
to infringe upon the First Amendment. The dissenting judges affirm that new categories
of unprotected speech have been added in the past to suggest the possibility of adding a
new unprotected category involving depictions of animal cruelty. However, a new
category of this nature is not only difficult to define, but it is would be extremely
challenging to determine exactly which images of animal cruelty are of such low value
that they are unworthy of protection. While the dissenting judges believe that the statute
can be used to restrict speech without violating the First Amendment, a better first step
would be a revision to the current statute. The phrasing of the current statute is
unconstitutional and is in need of serious modification.
In order for Section 48 to be constitutional, it needs to be redrafted. The original
goal of the statute was to criminalize and punish “crush videos,” and while this statute
may have prevented videos of this nature, it has also punished other depictions of animal
cruelty. The majority opinion of the Third Circuit Court of Appeals even states, “the
actual text of § 48 and the facts of the case show just how far afield the statute’s language
drifted from the original emphasis in the Congressional Record on the elimination of
crush videos.”2 To fulfill its original aim, the statute must be specified directly at “crush
videos.” This could be accomplished by adding the phrase such as that which “only is of
appeal to the prurient interest.” “Crush videos” are created for an audience who are
seeking to satisfy this prurient interest. Adding a specific phrase such as this could make
an immense difference in the outcome of the application of the statute. While the appeal
of a depiction of dog fighting may not be completely clear, it is not meant to appeal to the
2
United States v. Stevens, 533 F.3d 218, 224 (3rd Cir. 2006).
67
prurient interest as in the case of “crush videos.” This extreme difference in the two
depictions is evidence of the fact that there needs to be a separate, more specific law
aimed at punishing “crush videos.”
When President Bill Clinton signed the bill, he specifically stated that “the Act
would prohibit the types of depictions, described in the statute’s legislative history, of
wanton cruelty to animals designed to appeal to a prurient interest in sex.”3 Nevertheless,
President Clinton’s original reasons for signing the bill were not achieved because dog
fighting, which has never been intended to appeal to the prurient interest, is the depiction
that has been penalized under this statute. When the bill was initially drafted, there should
have been more thought about the fact that this statute does not specifically mention an
“appeal to the prurient interest.” Those few words may have made a huge difference in
the outcome of the application of this statute. Ironically, President Clinton mentioned in
his official statement that he wanted to “ensure that the Act does not chill protected
speech,” yet this statute penalized depictions of animal cruelty that were arguably
protected speech.4 As the Brief prepared by the First Amendment Lawyers Association
articulated, “Without a reliable filter to assure that this statute cannot be employed
against depictions other than those the government assures us are its real targets,
however, the statute is unquestionably overbroad.”5 This statute was clearly very poorly
written if it had the capability of not only convicting Stevens for a video that had no
3
John T. Woolley and Gerhard Peters, Statement on Signing Legislation To Establish Federal Criminal
Penalties for Commerce in Depiction of Animal Cruelty, The American Presidency Project, available at
www.presidency.ucsb.edu/ws/?pid=57047 (Accessed on January 14, 2010).
4
Woolley and Peters.
5
Brief of First Amendment Lawyers Association in Support of the Respondent, United States v. Stevens, p.
21.
68
appeal to the prurient interest, but it also threatened speech that was otherwise protected
by the First Amendment.
The Third Circuit Court of Appeals was correct in vacating Stevens’ conviction
when they described the statute as an “impermissible infringement on free speech.”6 In a
previous case involving the Playboy Entertainment Group, it was decided that “When the
Government restricts speech, the Government bears the burden of proving the
constitutionality of its actions.”7 In regards to Section 48, the Government has restricted
speech by prohibiting depictions of animal cruelty, yet they have not met the burden of
proving the constitutionality of their decision. The Government has a responsibility and
obligation to prove that a statute restricting the First Amendment is legitimate. When
restricting speech, the Government has to be extremely careful and narrow in what
exactly they limit. Speech cannot be restricted just because it may be distasteful or
offensive, it must be proven to have such low value that it is unworthy of First
Amendment protection.
Section 48 is not only poorly phrased, but it is also ill conceived because
depictions of dog fighting do not fit into under any of the current unprotected categories
of speech. The Supreme Court has found a few, very specific types of speech to be
unworthy of First Amendment protection. The Brief of the CATO Institute affirms, “The
list of categories has been winnowed, the bounds of each have been drawn tight, and the
Government’s latitude to regulate content within each category has been curtailed.”8 All
of the existing categories have been narrowed and Congress only creates a new category
6
533 F.3d 218, 235 (3rd Cir. 2006).
533 F.3d 218, 235 (3rd Cir. 2006).
8
Brief for the CATO Institute in Support of the Respondent, United States v. Stevens, p. 13.
7
69
when absolutely necessary. However, depictions of animal cruelty have never been
established as one of these unprotected categories of speech. In the majority opinion by
the Third Circuit Court of Appeals, it is even stated “the Government acknowledges that
the speech at issue in this case does not fall under one of the traditionally unprotected
classes.”9 Depictions of animal cruelty would not be classified in any of the unprotected
categories of speech. An article in the Harvard Law Review, which analyzes United
States v. Stevens, goes even further to state that the courts were mistaken in their attempts
to apply current unprotected categories of speech to the very specific content of
depictions of animal cruelty.10
Depictions of animal cruelty would not be classified as obscenity, fighting words,
aiding and abetting in a crime, or incitement to imminent lawless action. None of these
unprotected categories are applicable in the analysis of depictions of animal cruelty, and
the Chaplinsky approach proves to be ineffective. Furthermore, the Brief prepared by the
Thomas Jefferson Center for the Protection of Free Expression emphasizes, “That the
Court was not opening the door to the wholesale creation of entirely new categories of
unprotected speech is evidenced by the fact that all the exceptions to free speech
recognized today were either explicitly listed or strongly implied in the language of
Chaplinsky.”11 While the majority of unprotected speech categories were disclosed in
Chaplinsky, there is still the possibility for a new category to be created, and yet new
categories are rarely introduced. Existing categories have been narrowed over the last
9
533 F.3d 218, 224 (3rd Cir. 2006).
“Recent Case: Constitutional Law - First Amendment - En Banc Third Circuit Strikes Down Federal
Statute Prohibiting the Interstate Sale of Depictions of Animal Cruelty” Harvard Law Review 122
(February 2009), 1245.
11
Brief of the Thomas Jefferson Center for the Protection of Free Expression in Support of the Respondent,
United States v. Stevens, p. 22.
10
70
three decades, while no additional categories have been introduced since Ferber. In fact,
the CATO Institute declares that “The Government’s attempt to define a wholly new
category of unprotected speech represents a dramatic break with both precedent and
tradition, and threatens to undermine the very principles that the First Amendment exists
to protect.”12 Just because depictions of dog fighting are considered distasteful, that does
not justify the Government’s response to propose a new unprotected category of speech.
The categorical approach to the First Amendment cannot be the ultimate solution in
solving issues surrounding the right to free speech, an important factor that the Supreme
Court must take into consideration when determining the outcome of United States v.
Stevens.
All of the unprotected categories of speech are very narrowly defined and
depictions of animal cruelty cannot properly fall under one of these existing definitions.
The only category of unprotected speech that is slightly similar to depictions of animal
cruelty would be the category of child pornography defined in Ferber. But as the
Harvard Law Review affirms, “Ferber reasons are specific to child pornography and
were not intended as a general test for identifying new categorical exceptions to the First
Amendment.”13 The differences between child pornography and depictions of animal
cruelty are too immense to draw a parallel that would put these depictions in the same
unprotected category. It is even difficult to even apply the same line of reasoning as to
why these two very different depictions should be unprotected forms of speech. The
Harvard Law Review concludes that “While courts can analogize to the Ferber Court’s
12
13
Brief of the CATO Institute, p.6.
“Recent Case,” p. 1245.
71
reasoning, that reasoning is too category-specific to be strictly applied.”14 Each specific
reason as to why child pornography is unprotected by the First Amendment is narrowly
tailored to pertain to only child pornography. This reasoning cannot simply be transferred
to another form of “low value” speech.
For instance, one very specific rationale for the prohibition of child pornography
is because the depiction not only harms a child the one time that it is filmed, but it is
harmful every time that it is distributed or played; the exploitation is continuous and
ongoing. This logic cannot be used in the reasoning for the prohibition of depictions of
animal cruelty because animals do not suffer every time the depiction is played or
distributed. As stated in the majority opinion of the Third Circuit Court of Appeals,
“Where children can be harmed simply by knowing that their images are available or by
seeing the images themselves, animals are not capable of such awareness.”15 This is the
second main factor in the Ferber case and it cannot be considered relevant when handling
depictions of animal cruelty.
While the depictions of animal cruelty and child pornography are both filming
offensive events and behavior, the actual crime taking place in each depiction cannot be
equated. In the oral arguments before the Supreme Court in United States v. Stevens on
October 6, 2009, Justice Ruth Bader Ginsburg even addresses this issue. Justice Ginsburg
explains how the very depiction of animal cruelty and child pornography is inherently
different. She asserts that “the simultaneous abuse of the child, it occurs only because the
picture is being taken. The dog fight goes on whether Mr. Stevens is there with his
14
15
“Recent Case,” p. 1245.
533 F.3d 218, 230 (3rd Cir. 2006).
72
camera or not.”16 Justice Ginsburg argues that the abuse of the child is the actual filming
of the child in a sexual or in appropriate way. The crime against the child occurs when
the depiction is taking place, this is a critical element of the abuse. Contrarily to the crime
of child pornography, Justice Ginsburg states that “The abuse of the dog and the
promotion of the fight is separate from the filming of it.”17 The filming or depiction of
the event of a dog fight is not a crucial or even necessarily element of the crime; the dog
fight continues with or without the film rolling.
Even though, Joseph J. Anclien, the author of “Crush Videos and the Case for
Criminalizing Criminal Depictions,” believes that child pornography can be considered
analogous to depictions of animal cruelty, he inadvertently supports Justice Ginsburg’s
comments. Anclien concludes that the “sexual abuse of children is a crime virtually
without parallel, and society’s interest in preventing it outstrips its interest in preventing
animal cruelty.”18 While Anclien believes that animals and children are similar enough to
have comparable First Amendment restrictions involving their depictions, he still cannot
deny the fact that the sexual abuse of children is an unprotected category unlike any
other, a crime “virtually without parallel.” Without intentionally meaning to, Anclien
helps verify that child pornography cannot be compared to depictions of animal cruelty,
as the crimes against children and animals are tremendously dissimilar. This supports
Justice Ginsburg’s argument about the intrinsic differences of the crime of child
pornography versus depictions of animal cruelty.
16
Oral Argument, United States v. Stevens, p. 25.
Oral Argument, p. 25.
18
Joseph J. Anclien, “Crush Videos and the Case for Criminalizing Criminal Depictions,” University of
Memphis Law Review 40 (2009), 18.
17
73
Another main reason that depictions of animal cruelty cannot be compared to
child pornography is because of the innate differences between children and animals.
Children and animals are too dissimilar to draw parallels between the distasteful
depictions of them. While both are living things, an animal is simply never a human that
can verbally express itself and speak. As argued by Carl Cohen and Tom Regan in The
Animal Rights Debate, “Humans possess rights and recognize the rights of others.
Animals do not have such capacities. They cannot exhibit moral autonomy in this sense,
cannot possible be members of a truly moral community. They may be the objects of our
moral concern, of course, but they cannot possibly possess rights.”19 Animals do not have
a moral conscious that is even remotely comparable to humans. Additionally, a human
with “full-personhood” has a variety of cognitive abilities that make them distinct from
animals. These abilities allow humans to have aptitude, creativity, rationality and help
them to form their own beliefs and values.
In Animal Ethics, Robert Garner argues that the most important characteristics of
personhood or being a person are “rationality, behaving intentionally, being perceived as
behaving rationally and intentionally, the ability to perceive others as rational and
intentional, self-consciousness, and the ability to communicate verbally.”20 While some
animals might have the potential to encompass some of these traits, they simply do not
have the capabilities to cover all that it takes to be an actual person. Although the acts
committed against children and animals in depictions of child pornography and animal
19
Carl Cohen and Tom Regan, The Animal Rights Debate (Lanham, MD: Rowman & Littlefield, 2001), p.
36.
20
Robert Garner, Animal Ethics (Cambridge, MA: Polity, 2005), pp. 46-47.
74
cruelty are both extremely offensive, the innate differences of humans and animals make
it difficult to draw a parallel between these two portrayals.
According to the majority opinion of the Third Circuit, Ferber’s “reasoning does
not translate well to the animal cruelty realm.”21 The Third Circuit Court of Appeals went
through great lengths to indicate how each factor of child pornography as established in
Ferber is incomparable to depictions of animal cruelty. In Ferber, child pornography
becomes unprotected speech because “the use of children as subjects of pornographic
materials is harmful to the physiological, emotional, and mental health of the child.”22
Each of these factors significantly, negatively impacts a child, while animals cannot be
measured on a physiological, emotional, and mental health level. If the main reason for
placing child pornography in an unprotected category of speech is because of these
detrimental effects of sexual abuse on children, then depictions of animal cruelty cannot
be an unprotected category on these grounds; children and animals are too innately
different. Animals cannot simply act, think, or express their feelings, in a way that is even
remotely similar to the behaviors of children. In the Third Circuit majority opinion,
Eugene Volokh, a First Amendment law professor, is cited as stating “the sexual abuse of
a child is a most serious crime and an act repugnant to the moral instincts of a decent
people.”23 Volokh argues that such a horrendous act is of compelling interest to the
government; children have the right to be protected.
While it is very obvious that the interest to protect children is compelling, the
argument that there is a compelling interest to completely protect the rights of animals is
21
533 F.3d 218, 226 (3rd Cir. 2006).
533 F.3d 218, 226 (3rd Cir. 2006).
23
533 F.3d 218, 227 (3rd Cir. 2006).
22
75
not as clear. When reviewing precedent cases, particularly Ferber, Judge Smith states in
the majority opinion of the Third Circuit Court of Appeals that “Nothing in these cases
suggests that a statute that restricts an individual’s right to free speech rights in favor of
protecting an animal is compelling.”24 Judge Smith argues that the right to free speech is
a more compelling interest than the complete and utter protection of animals. Not only
are the rights to protect children arguably more important than the rights of animals, but
the right to free speech by people of all ages are also debatably more significant than the
wellbeing of animals.
While the actual depictions of the sexual exploitation of children are a central
aspect of the child pornography business, depictions of the abuse of animals are not an
essential factor in the business realm of animal cruelty. In “Punishing Depictions of
Animal Cruelty: Unconstitutional or a Valid Restriction on Speech,” Kerry Adams
declares that “The distribution of videos depicting animal cruelty is not an integral part of
most forms of animal cruelty. It is true that the distribution of ‘crush’ videos is an integral
part of that particular form of animal cruelty, but that is not the case for most forms of
animal cruelty which may fall under this statute.”25 Actual “crush videos” may need the
actual depiction for their industry, but the majority of industries involved with animal
cruelty do not need such depictions for their markets to thrive. For instance, the live event
of dog fighting is more crucial to profits than is the selling of depictions of dog fighting
and the Brief for the Respondent provides evidence for this fact. The Brief states
“Realistically, the substantial gambling revenue that fuels dogfights depends on the influx
24
533 F.3d 218, 228 (3rd Cir. 2006).
Kerry Adams, “Punishing Depictions of Animal Cruelty: Unconstitutional or a Valid Restriction on
Speech?” Barry Law Review 12 (2009), 218.
25
76
of large numbers of people and dogs to urban alleys or outdoor locations, with loud noise
levels.”26 These events of dog fighting seem to persist whether a camera is present or not;
the depiction of these events is not necessary for this business to thrive.
A major rationale behind the ban of child pornography is the idea of drying up the
market. If the depictions of child pornography are banned and the producers are
prosecuted, then there will be less content available for sale, the market will eventually be
dried up. This same argument was attempted to be made for the market of depictions of
animal cruelty. However, these two markets are vastly different. The Brief for the
Respondent states “the claim that drying up the supposed market for all depictions of
harm to animals will end the conduct is unsubstantiated by any empirical evidence and
countermanded by experience that shows the importance of such images in educating the
public and facilitating prosecutions.”27 Child pornography is a multi-billion dollar
industry, while there is no current evidence for any type of revenue even remotely close
to these figures in the industry of depictions of animal cruelty. In fact, Robert Stevens,
over a period of a few years, only made $14,000 for the sale of his films of dog fighting.
This profit is hardly even comparable to the $20 billion industry of child pornography
that accounts just for the Internet earnings alone. The extreme difference in these figures
demonstrates the vast disparities of the markets of the two types of depictions. When
there is such an inequality of the profits of these two industries, it is difficult to justify a
parallel between depictions of animal cruelty and child pornography regarding the
argument of drying up the market; such a comparison would be too farfetched.
26
27
Brief for the Respondent, United States v. Stevens, p. 44.
Brief for the Respondent, p. 13.
77
While the main incentive for creating and distributing child pornography is profit,
dog fighting also aims for profit, but not through the selling of actual depictions of the
act. The Brief for the Respondent states, “All the empirical evidence -- including from the
government’s amici -- is that gambling and spectator revenue, not film profits, are what
fuels the modern dog fighting industry.”28 The actual sport of dog fighting would
practically be nonexistent without the condition of spectators watching and gambling on
the fight. Dog fighting depends on a live audience for revenue rather than the eventual
selling of a depiction of dog fighting to a passive market. Spectators will bet thousands of
dollars at the live dog fighting events, while videos of dog fighting would cost only a few
hundred dollars at the most. Depictions of dog fighting are more of an afterthought while
the primary economic gain transpires during the live event. While the actual act of dog
fighting appears to be more of an acute problem than the depictions of these events, the
Court needs to determine who they want to target: those involved with the depictions or
those actually committing the act. The flawed statute regarding the depiction of animal
cruelty is a considerable issue, but the pervasive problem of animal cruelty is of an even
more vital concern.
Animal Cruelty Laws
With the current issue of the constitutionality of Section 48, which attempts to
prohibit the depiction of animal cruelty, it becomes crucial to analyze the broader
problem of animal cruelty. In his autobiography, the famous peacemaker, Mohandas
28
Brief for the Respondent, p. 46.
78
Gandhi stated, “To my mind, the life of a lamb is no less precious than that of a human
being…The more helpless the creature, the more that it is entitled to protection by man
from the cruelty of man.”29 Numerous animal rights activists would agree with Gandhi’s
statements, that man should be protecting the wellbeing of innocent creatures. One
organization that would definitely concur with Gandhi is: The American Society for the
Prevention of Cruelty to Animals, or ASPCA, the first Humane Society established in
North America. Their mission is “to provide effective means for the prevention of cruelty
to animals throughout the United States.”30 ASPCA attempts to ensure that all animals
are treated humanely and they offer numerous support services to guarantee this safety.
They were actually the first humane organization to be permitted legal sanction to
investigate crimes against animals and even arrest the lawbreakers. This organization has
departments such as Government Relations and Humane Law Enforcement, which work
closely with the government to help formulate and enforce laws to protect the welfare of
animals.31
Animal exploitation is a serious and pervasive worldwide problem. The ASPCA
Supervisory Special Investigator, Annemarie Lucas insists, “Animal cruelty is a national
problem. Violence towards animals crosses all racial and socioeconomic lines and
reaches from coast to coast.”32 Just in the United States, billions of animals are killed
every single year and a great majority of them suffer before and during the process of
29
M.K. Gandhi, Gandhi's Autobiography: The Story of My Experiments with Truth (Washington D.C.:
Public Affairs Press, 1948), 124.
30
“About the ASPCA,” ASPCA, available at www.aspca.org/about-us/about-the-aspca.html (Accessed
November 1, 2009).
31
“The ASPCA’s Programs & Services,” ASPCA, available at www.aspca.org/about-us/programsservices.html#HLE (Accessed November 1, 2009).
32
“Talking to Kids about Animal Cruelty,” ASPCA, available at www.aspca.org/fight-animalcruelty/talking-to-kids-about-animal.html (Accessed November 1, 2009).
79
being put to death. An animal can be abused or mistreated in a variety of harmful
manners. Animal cruelty is defined as an “act of violence or neglect perpetrated against
an animal.”33 Household pets can be neglected or physically abused. Farm animals can be
forced to overwork. Wildlife animals can be captured and killed to be turned into
clothing. Animals can be experimented on in inhumane ways. Dogs are still trained to
fight in dog fighting matches, where their only option is to kill or be killed. Dog fighting
is a “grisly business in which two dogs either trained specifically for the purpose or
maddened by drugs and abuse are set upon one another and required to fight, usually to
the death of at least one and frequently both animals.”34 These dogs are often taught how
to tolerate pain and many of them are even starved right before a fight with the intention
of provoking the dogs to be even more hostile and violent. The list of types of animal
cruelty seems to be growing every day. Despite the numerous activist groups and laws
prohibiting such practices, animal cruelty is still a continuous and horrendous problem in
society. However, the majority of Americans proclaim that they stand for animal rights as
the Associated Press polled that two thirds of Americans agreed with the statement, “An
animal’s right to live free of suffering should be just as important as a person’s right to
live free of suffering.”35 While all Americans may not be directly acting on the behalf of
animals, the majority of citizens believe that animals should have rights and not be
mistreated.
33
“Cruelty Glossary,” ASPCA, available at www.aspca.org/fight-animal-cruelty/cruelty-glossary.html
(Accessed November 1, 2009).
34
Brief for the United States, United States v. Stevens, p. 18.
35
Ellen P. Goodman, “Book Review: Animal Ethics and the Law: A Review of Animal Rights: Current
Debates and New Directions,” Temple Law Review 79 (Winter 2006), 1308.
80
One main issue of animal cruelty has always been the cruel raising and killing of
animals to be marketed as food. When an animal is brought up with the sole purpose of
being someone’s entrée on a dinner plate, it often lives through extremely horrendous
conditions. For instance, the popular dish of veal comes from surplus calves who are
suffer through dreadful conditions before being killed. Real milk and other sources of
iron are withheld from their diet in order for the calves to be the desired, light color that
will help them sell better. These calves are forced to live in an iron-deficient state in an
extremely small stall where they can hardly move. The small animals sit in their own
waste and cannot even turn their bodies around without slipping. These veal calves suffer
both physical and psychological problems as they are denied any kind of freedom,
movement, or nurturing. However, farmers are often much more concerned about their
profits than of the animals’ wellbeing. Farmers will do whatever they can to ensure that
the animal is ready to market as soon as possible, they will take measures such as
“limiting the animals’ mobility, manipulating their appetite so that they eat more than
they would in natural conditions, and stimulating their weight gain by including growthenhancing hormones in their feed.”36 Exploiting an animal’s life in order to be sold on the
market as food is just one of the many ways that animals can mistreated.
Laws forbidding the cruelty of animals have existed in the United States since
1641. The Puritans of the Massachusetts Bay Colony passed a law that stated, “No man
shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie
kept for man’s use.”37 A few hundred years later in 1828, New York was the first state to
enact a modern animal cruelty law, and every other state soon followed in their footsteps.
36
37
Cohen and Regan, p. 138.
533 F.3d 218, 238 (3rd Cir. 2006).
81
By 1913, every state had a law prohibiting the cruelty of animals. However, there has
been difficulty in attaining a universal definition of animal cruelty. The most common
definition is “socially unacceptable behavior that intentionally causes unnecessary pain,
suffering, or distress to and/or death of an animal.”38 Most states consider crimes against
animals to be misdemeanors, while over thirty states punish these crimes as felonies.39
There has always been a siginificant interest in protecting animals in the United
States, which is reflected by the various laws strictly prohibiting the practice animal
cruelty. The first federal animal cruelty law made it a crime to transport animals for more
than twenty-eight consecutive hours without giving them the proper food and rest. Since
then, the federal laws preventing the mistreatment of animals cover a wide range of areas.
Some of these laws include ensuring humane methods for the slaughtering of livestock,
while others are concerned with protecting pets in pounds and shelters.40 It is not just the
cruel practices that become a problem, but also the documentation and recording of some
of these practices that are sold for profit. Congress has never addressed the legality of
depictions of animal cruelty, except for the attempt to prohibit the very specific category
of “crush videos.” Evidently, “crush videos” are of such a low value that the statute,
Section 48, was established in order to ban them. Congress saw a serious problem with
this specific depiction of animal cruelty, which was why these depictions became illegal.
Yet, Stevens was originally convicted under this same statute for his depictions of dog
fighting. While Congress had never explicitly prohibited depictions of dog fighting,
Section 48 still penalized this type of speech. But as expressed by the CATO Institute in
38
Frank R. Ascione, “Animal Abuse and Youth Violence,” Juvenile Justice Bulletin (2001), 1.
Ascione, p. 1.
40
Brief for the United States, pp.24-26.
39
82
their Brief, “The depiction of the killing or wounding of an animal is not the killing or
wounding of an animal.”41 There is a distinct substantial and legal difference between the
actual act of animal cruelty and the depiction of such an act. Congress has not yet been
able to successfully make explicit laws about the actual depictions of animal cruelty.
In 1873, the first federal animal cruelty law was enacted and there have been
numerous other federal laws to protect the wellbeing of animals. Since the beginning of
animal cruelty laws, the crime of harming an animal is not just an offense to the creature
but it is also an “offense against the public moral.”42 In fact, even now these crimes are
seen as moral tribulations, “Modern criminal codes often classify animal cruelty offense
as offense against public order and morality.”43 While it may seem peculiar that animal
cruelty is not just an ordinary crime but also a moral crime, precedent cases involving
animal cruelty have set the guidelines. Animal cruelty is considered a moral crime
because “they debase the persons who engage in them and coarsen the broader society.”44
Society condemns acts of animal cruelty because it a moral and ethical issue. As
members of society, we have a responsibility to follow a certain moral code in regards to
the treatment of animals. As stated in The Animal Rights Debate, “We are obliged to
apply to animals the moral principles that govern us regarding the gratuitous imposition
of pain and suffering. We are the moral agents in the arena, not the rats.”45 Animals do
not have moral rights, which makes it the responsibility of humans to apply their morals
41
Brief of the CATO Institute, p.19.
Brief for the United States, p. 34.
43
Brief for the United States, p. 34.
44
Brief for the United States, p. 34.
45
Cohen and Regan, p. 29.
42
83
in an appropriate manner when handling animals unless they want to face criminal
charges.
There is a fear that if people do not treat animals ethically, then they will have
corrupt morals, which could lead to further immoral acts. From a philosophical
perspective, John Locke states in his Some Thoughts Concerning Education, “The custom
of tormenting and killing of beasts will, by degrees, harden their minds even towards
men; and they who delight in the suffering an destruction of inferior creatures, will not be
apt to be very compassionate or benign to those of their own kind.”46 Acts of animal
cruelty have the potential to produce a snowball effect as animal abusers have the
capability to transfer their abusive methods towards other people; their violent ways
towards animals can become more dangerous.
There is even a growing amount of empirical evidence that links animal cruelty in
childhood with violent behavior as adults. Over the last thirty five years, there have been
numerous psychology studies to investigate this topic. Several studies even specifically
looked at serial killers, who commit the most violent types of crime. When questioned,
more than half of these serial killers admitted to abusing or torturing animals as a child or
adolescent.47 Notorious serial killers such as Jeffrey Dahmer, Ted Bundy, David “Son of
Sam” Berkowitz, and Albert “Boston Strangler” DeSalvo all had a history of animal
violence before they began harming people. The graduation hypothesis helps explain that
children who abuse animals eventually end up “graduating” to be violent towards other
humans. Desensitization theory also helps provide explanation for this behavior as
46
Brief for the United States, p. 35.
Elizabeth L. Kinsella, “A Crushing Blow: United States v. Stevens and the Freedom to Profit from
Animal Cruelty,” University of California Davis Law Review 43 (November 2009), 379.
47
84
children no longer have the ability to empathize or feel any remorse for the acts they are
committing.48 All of this research demonstrates the possible dangerous and severe
consequences of children who abuse animals.
Elizabeth Kinsella, author of “A Crushing Blow: United States v. Stevens and the
Freedom to Profit from Animal Cruelty,” expresses her concerns with the research
surrounding the issue of children who abuse animals, “Considering the potentially
extreme consequences of societal indifference to such research, society has a significant
interest in preventing animal cruelty.”49 The strong correlation that has been found
between children who abuse animals and adults who commit sexual or violent offenses is
dangerous not only for animals, but possibly for all of society. ASPCA asserts “there is
legitimate evidence that the individuals involved in violent acts against animals present a
danger to the public that must be addressed.”50 Animal cruelty is a serious problem, even
if it is only a child committing the abusive act. Even more disturbing, one study showed
that 88% of homes in which adults abused children, animals were abused as well,
creating a very violent and dangerous atmosphere. Whether it is an adult or child abusing
an animal, strong correlations have been found that when there is violence towards
animals, there is a high probability that there is violence towards humans as well.
Beside the threat of animal abusers becoming violent towards humans, there are
other negative effects for humans in regards to acts of animal cruelty. Acts of animal
cruelty are often linked with other very serious negative consequences and even other
48
Kinsella, p. 379.
Kinsella, p. 380.
50
“The Connection Between Domestic Violence and Animal Cruelty,” ASPCA, available at
www.aspca.org/fight-animal-cruelty/domestic-violence-and-animal-cruelty.html (Accessed November 1,
2009).
49
85
crimes. For instance, organized acts of animal cruelty, such as dog fighting events, are
often linked with other negative and dangerous risks. As stated in the Brief for the United
States, “Dogs bred and trained to kill pose an acute public safety risk.”51 These dogs that
have been trained to fight can be very dangerous when they interact with humans; their
instinct is to kill in any threatening situation. In the wrong circumstances, the trained dog
could easily harm an innocent bystander. Moreover, the cruel animal act of cockfighting
has been connected with the spread of illnesses such as the avian flu. Additionally,
ASPCA declares, “Intentional animal abuse is often seen in association with other serious
crimes including drug offenses, gang activity, weapons violations, sexual assault and
domestic violence--and can be one of the most visible parts of an entire history of
aggressive or antisocial behavior.”52 Animal cruelty is not only a threat to animals, it can
be very dangerous for society at large.
A Better Approach
The issue of animal cruelty has become significant enough that it has generated a
new sector in the legal profession, an area dedicated specifically to animal law. Over
forty-one law schools now teach the subject of Animal Law and numerous publications,
including law journals, are dedicated specifically to the topic.53 While animal rights
activists used to primarily protest labs that tested on animals and throw paint on the fur of
celebrities wearing fur, these activists now have corporate headquarters and lobby on
51
Brief for the United States, p. 33.
“The Connection Between Domestic Violence and Animal Cruelty.”
53
Ellen P. Goodman, “Book Review: Animal Ethics and the Law: A Review of Animal Rights: Current
Debates and New Directions,” Temple Law Review 79 (Winter 2006), 1293.
52
86
behalf of the rights of animals; they use their rights to lobby to protect the rights of
animals. Animal Law encompasses a wide range of animal rights issues including the
protection of animals in the fields of science, agriculture, entertainment, and sport.
Clearly, animal cruelty is a very serious problem and millions of animals suffer
from mistreatment, but such practices are illegal and numerous laws prohibit this
behavior. However, depictions of animal cruelty are an entirely different matter. While
other types of unprotected speech are always of low value, depictions of animal cruelty
do not necessarily fall under the same low value category. Distinguishing between high
and low value speech in regards to depictions of animal cruelty proves to be a very
difficult task. The lower courts believed that his films were of such low value that he
should be convicted. But it is unconstitutional to prohibit speech just because it is
offensive or distasteful, speech does not have to prove its value in order to be protected.
Stevens’ films are “not obscene, pornographic, inflammatory, defamatory, or even
untruthful. They are controversial. But that is supposed to invigorate, not contract, the
First Amendment’s protection.”54 Stevens’ films do not fall into any current unprotected
category of speech, which means that he does not have to prove his films have enough of
a “high value” to be protected. The only time that the value of speech needs to be proved
is in regards to obscenity cases as established by Miller. These films are not obscene and
do not have the burden of proving their worthiness.
Ironically, many activist groups fighting for the rights of animals actually use
depictions of animal cruelty to spread their message. Without such explicit images, “the
animal-rights movement, journalists, and documentarians would find it profoundly more
54
Brief for the Respondent, p. 1.
87
difficult to provoke public thought and debate about such issues.”55 Rather than
describing acts of animal cruelty, these animal rights organizations visually show the
images with the hopes of triggering outrage or even disgust from their audiences; the
visual imagery helps to leave a lasting impression. If these offensive images can initiate a
spark in the viewer, then he or she may feel compelled to help the cause of protecting
animals. The fact that animal rights groups are using the depictions with the intention of
helping animals demonstrates that these depictions do have value; the images are helping
the organization to further their cause and recruit members. The Brief for the Respondent
affirms “documentaries and photographs depicting far more gruesome dogfights, the
clubbing of baby seals, and animal mistreatment at slaughterhouses, race tracks, circuses,
bullfighting rings, and research laboratories have fueled the animal rights movement,
supported legislation and prompted vigorous public debate.”56 The speech itself is either
worthy of First Amendment protection or it is unprotected, it is not dependent on the
speaker or the way in which the speech is presented.
The Government cannot constitutionally allow one speaker to exhibit a type of
controversial speech while punishing another speaker for the same content. This is a
serious issue with regards to depictions of animal cruelty as some people, such as Robert
Stevens, are convicted for producing films of dog fighting while animal rights
organizations are allowed to display the same content with without any repercussion.
Depictions of animal cruelty can arguably be used for good and bad but it raises the
question of which depictions should be protected and which ones are unworthy?
According to Kinsella, “Admittedly, it remains unclear where exactly courts draw the line
55
56
Brief for the Respondent, pp. 20-21.
Brief for the Respondent, p. 12.
88
between protected depictions and those the government may constitutionally proscribe.”57
While depictions of animal cruelty may be considered to have “low value,” the images
themselves are not necessarily the problem. Depictions of animal cruelty can go both
ways, they can be used to argue for the need to protect animals or they can be used as
entertainment for those who enjoy viewing illegal activities. Since the images can be used
for both good and bad, the courts have been struggling to distinguish which depictions
should be worthy of First Amendment protection.
Similarly, the Government cannot force the producers of depictions of dog
fighting to modify their content in order for it to be more acceptable to the public; it is
unconstitutional. The Brief for the Respondent states, “as the seven ‘value’ exceptions
reflect, Congress implicitly concluded that this speech was not categorically valueless
based on its content, but only based on its viewpoint or speaker identity.”58 Organizations,
such as ASPCA, are allowed to show videos of dog fighting because their viewpoint is to
aid animals, but Stevens is punished for his films because his viewpoint appears to be
promoting animal cruelty. However, these two depictions are practically the same
content, yet one is punished while another is praised. Currently on their website, ASPCA
has footage of 45 dogs living in appalling conditions while being heavily chained to trees.
While the footage shows the dogs being rescued, it also exhibits the shocking conditions
that the dogs were forced to live in. ASPCA is allowed to have this content on their
website, and the Senior Director of Veterinary Forensics for the ASPCA, Dr. Merck,
comments that “These dogs definitely suffered abuse and inhumane treatment at the
hands of dog fighters. So far, we’ve seen that one is unable to walk, another that is
57
58
Kinsella, p. 384.
Brief for the Respondent, p. 12.
89
limping, and many that are injured, some severely.”59 ASPCA is not criticized or
punished because of their viewpoint, even if the content does exhibit animals being
mistreated. Similarly, the Humane Society’s website includes actual footage of animal
cruelty, including a video entitled Hog Dog Fighting, which depicts dogs chasing
squealing hogs in an attempt to attack and bite them. However, the HSUS has an official
statement on their website declaring that they vehemently opposed to any kind of animal
fighting, “All of these are unjustifiable animal contests that cause acute suffering for the
animals forced to participate”60 This disclaimer allegedly justifies their display of such
distasteful content on their website, but framing a message in a certain light does not
make that content more or less validated. The content is either of low or high value
speech, this evaluation does not change based on the speaker or framing of the speech.
The First Amendment cannot pick and choose which speakers have a more
valuable message; it is the content that must be evaluated, not the speaker. Stevens was
not warned that his depictions would be prohibited when similar images are displayed on
news programs, such as Dateline or in documentaries about animal cruelty. There is not a
reasonable rationale to explain why Dateline’s images are protected while Stevens’
depictions are not, “The only objectively discernible line is that those images devoted to
opposing dog fighting on governmentally approved terms are protected, while images
used for other purposes are not. But that cannot be the dividing line.”61 These images
should either be completely protected by the First Amendment or be completely illegal,
59
“Dogfighting Video—45 Dogs Seized in Alabama Bust,” ASPCA, available at www.aspca.org/blog/dogfighting-video.html (Accessed November 1, 2009).
60
“Statement on Animals in Entertainment and Competition,” The Humane Society, available at
www.humanesociety.org/about/policy_statements/statement_animals_research_entertainment_competition.
html (Accessed January 14, 2010).
61
Brief for the Respondent, p. 30.
90
there should not be middle ground that depends on the viewpoint or motive of the
speaker.
There should be an all-or-nothing mentality because it is unconstitutional to
approve or ban speech based on the speaker or speaker’s viewpoint. Strangely enough,
“Good Samaritans” who film depictions of animal cruelty and report them to authorities
are “immune from the law’s reach.”62 However, once again it hardly makes sense that
those film depictions of animal cruelty used for “good” or moral reasons are free from
prosecution while others, with less favorable outlooks, are penalized. This appears to be
somewhat of a loophole in which anyone could frame their depictions as being a “Good
Samaritan.” Once again, the worthiness of the depictions cannot be based on the
intentions of the person who filmed the depiction; the content is what must be evaluated.
While it would be very difficult and tedious to determine which depictions of
animal cruelty are of low value and which of are high value based on content, a better
solution would be to make tougher laws against animal cruelty itself, particularly against
animal fighting. Rather than focus on punishing the depictions of animal cruelty, the
animal abusers themselves should be prosecuted. The Government has insisted that it is
difficult to identify animal fighting events and to prosecute the offenders, but “it offers no
empirical evidence that such crimes are any harder to detect and prosecute than most
other crimes.”63 Since dog fighting events are illegal in almost every state, organizers of
the main events are quite secretive because they do not wish to face felony charges.
Spectators find out about main events through word of mouth or the Internet, the world of
62
Adam Ezra Schulman, “Animal-Cruelty Videos & Free Speech: Some Observations from Data,” First
Amendment Center, available at www.firstamendmentcenter.org/analysis.aspx?id=21814 (Accessed on
January 14, 2010).
63
Brief for the Respondent, p. 43.
91
dog fighting has been called a “secret society.” While the organizers and spectators go
through great lengths to keep the location and time of the events clandestine, the fact that
these events take place in public urban alleys or outdoor locations and are marked by
raucous noises provides a greater potential for prosecution.
While it may be a thorough process to investigate and ascertain locations of dog
fighting events, “a dog fight investigation requires many of the same skills and resources
as a major undercover narcotics investigation.”64 Since a dog fight investigation is similar
to an undercover narcotics investigation, it is entirely possibly for the Government to
provide the resources necessary to prosecute such illegal events. While it may be difficult
to infiltrate, there is the capability for the Government to find and prosecute the
organizers and spectators of dog fighting events. In reality, if an arrest for dog fighting
can be made, then the process of prosecution actually becomes much easier. Empirical
evidence has found that “once an arrest has been made, it is not difficult to prosecute
animal-cruelty cases generally; that it is even easier to prosecute dog fighting and
cockfighting than average animal-abuse cases; that once a conviction is secured, the
reversal in animal-fighting cases is very low; and that the absence of videotape evidence
decreases the chances for a successful prosecution.”65 Having film of the dogfights
actually can help the process of prosecuting the offenders.
Since depictions of animal cruelty are too difficult to evaluate under the First
Amendment, the focus should truly be on punishing the actual acts of animal cruelty;
animal cruelty laws should be more strictly enforced. While it may take more resources
64
“Dog Fighting FAQ,” ASPCA, available at www.aspca.org/fight-animal-cruelty/dog-fighting/dogfighting-faq.html (Accessed November 1, 2009).
65
Schulman, “Animal-Cruelty Videos & Free Speech.”
92
and effort, actions by the Government to infiltrate live dog fighting events would be more
effective in terminating the terrible acts of animal cruelty. Depictions of animal cruelty
are just too complicated and too difficult to properly define to make an effective law to
prohibit them. A much more efficient way to attempt to put an end to animal cruelty is to
physically stop the action while it is taking place, which could be possible if enough
effort and resources are put forth. Arrests for the actual event of dog fighting have been
made as recently as July, 2009. As affirmed by the Brief prepared by the Endangered
Breed Association and American Dog Breeders in support of the Respondent, “Animal
cruelty statutes and anti-dog fighting statutes contributed to those recent arrests, not §48.
These arrests go to the heart of the matter which is to prosecute individuals involved in
dog fighting and animal cruelty.”66 The crime of animal cruelty, rather than the depiction,
should be the more severe punishment.
The Dangers Implicit in a Categorical Approach
In United States v. Stevens, it is extremely difficult to distinguish depictions of
animal cruelty on the basis of high and low value speech. For instance, PETA’s website
shows very gruesome and bloody depictions of animal cruelty in order to outrage the
audience. As a matter of fact, “images of the illegal and intentional wounding and killing
of animals, however, have fueled the animal rights movement in this Country and
66
Brief of Endangered Breed Association and American Dog Breeders in Support of the Respondent,
United States v. Stevens, p. 14.
93
influenced that political dialogue.”67 These groups use the most shocking and
controversial depictions to express their message that animal cruelty is so dreadful that it
must be stopped and prevented. However, according to the Brief for the Respondent,
“Stevens’ dog fighting images, by contrast, lack any such images of blood or serious
injury to the dogs both because he opposes dog fighting ad because his purpose is to
illustrate the genetic traits of Pit Bulls--endurance, courage, stamina, strength, and
disposition.”68 Stevens even argues that his depictions are much tamer than those of
animal rights websites, yet his works are reprimanded. Since it is difficult to separate the
animal cruelty depictions with a “good” message from the depictions with a “bad”
message, the categorical approach becomes inapplicable. As stated by the CATO Institute
Brief, the Government “offers no principled means for distinguishing speech that is
genuinely ‘without redeeming social value’ from speech that is simply undesirable,
disfavored, or misunderstood.”69
The same depictions of animal cruelty cannot be divided into different categories
based on the viewpoint of the creator of the speech; this is unconstitutional. In the Brief
prepared by the Association of American Publishers and numerous other organizations,
they emphasize, “Existing Laws in all fifty states can be and are used successfully to
punish animal cruelty; overbroad restrictions on speech will only interfere with the flow
of protected discourse.”70 Animal cruelty is already being punished and these laws should
continue to be strictly enforced. Attempting to regulate this type of speech using the
categorical approach will inhibit the First Amendment and limit the freedom of speech.
67
Brief for the Respondent, p. 19.
Brief for the Respondent, pp. 21-22.
69
Brief of the CATO Institute, pp. 21-22.
70
Brief of Association of American Publishers, p. 18.
68
94
As demonstrated in United States v. Stevens, the categorical approach cannot always
pertain to cases involving the First Amendment.
Just because speech is extremely distasteful or offensive, that does not give
Congress the right to prohibit it. The Brief for the Respondent verifies “The right to speak
does not depend on which adults choose to listen.”71 The solution to handling
objectionable speech is not to make it unworthy of First Amendment protection. As
affirmed by the Brief prepared by the CATO Institute, “Time and again, this Court has
reiterated a basic principle: that in the absence of some imminent threat, the Government
cannot restrict speech merely because that speech relates to unlawful, immoral, or
undesirable action.”72 Not every case involving the First Amendment can be solved using
the categorical approach; this is actually a dangerous method that has the potential to
create a serious chilling effect for free speech. The Brief by the CATO Institute further
attests to the severity of this problem, “Danger is particularly acute here, because once a
compelling interest is found, the only purported limitation on the Government’s power to
proscribe whole classes of expression is the requirement that the expression have “low
social value”-- and that … is no limitation at all.”73 If the Government begins banning
entire groups of offensive or distasteful speech, then the First Amendment is doomed.
Speech needs to be allowed to further the marketplace of ideas. As eloquently
expressed by Justice Oliver Wendell Holmes in his dissenting opinion in Abrams v.
United States, “The ultimate good desired is better reached by free trade in ideas -- that
the best test of truth is the power of the thought to get itself accepted in the competition
71
Brief for the Respondent, p. 34.
Brief of the CATO Institute, p. 19.
73
Brief of the CATO Institute, p. 20.
72
95
of the market, and that truth is the only ground upon which their wishes safely can be
carried out.”74 The greater lesson from United States v. Stevens, is that the categorical
approach is not always a sufficient method when dealing with matters of free speech. Too
many far-fetched analogies and comparisons can be made, which can distract the Court
from the actual issue at hand. The Court must focus on the facts presented to them, rather
than on a questionable hypothetical or comparison. While the categorical approach has
worked effectively in a few, very specific instances, it should not be the definitive
method for resolving First Amendment cases.
74
Abrams v. United States, 250 U.S. 616, 630 (1919).
96