Street Law Case Summary
United States v. Stevens
Argued: October 6, 2009
Decided: April 20, 2010
Facts
The freedom of speech clause of the First Amendment protects all forms of communication –
speeches, books, art, movies, television, radio, and other media – from government censorship. The
right to free speech is not absolute, however. There are some situations where the government can
restrict speech based on its content, including when it contains obscenities, threats, child
pornography, or is likely to incite violence.
In this case, the Court has been asked to decide whether a government ban on videos showing
cruelty to animals violates the First Amendment. In 1999, Congress was concerned about the
existence of “crush videos,” which showed small animals being stomped to death. Since the people
in the videos were not identified, law enforcement officers were having trouble prosecuting them for
animal cruelty, which is illegal in all 50 states. Congress passed a federal law that made it a crime to:
make, sell, or possess any depiction of killing or abusing a live animal, if that abuse was
illegal in the state at the time the depiction was made, sold, or possessed.
The law contained an exception for depictions that had “serious religious, political, scientific,
educational, journalistic, historical, or artistic value.”
Robert Stevens owned a business called “Dogs of Velvet and Steel” which sold informational
materials about the care and safe handling of pit bulls as well as videos of dogs fighting each other
and other animals. Some of these videos were filmed in Japan, where dog fighting is legal, while
others were old footage of American dogfights. Stevens did not film the animal abuse, but pieced
video clips together to create the films. He was tried and convicted in federal court for selling and
distributing these dogfight videos in violation of the federal law.
Stevens appealed this ruling to the Third Circuit Court of Appeals, arguing that the law was an
unconstitutional violation of his First Amendment right to free speech. The Third Circuit ruled in
favor of Stevens. The United States government appealed and the Supreme Court agreed to hear
the case.
Issue
Does a law banning the sale of images of animal cruelty violate the speaker’s First Amendment right
to the freedom of speech?
Constitutional Amendments and Precedents
 First Amendment
“Congress shall make no law … abridging the freedom of speech.”
The Court has interpreted the First Amendment to say that, in almost all cases, the
government cannot ban speech because of its content. There are a few categories of speech
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United States v. Stevens
that the government can punish, however, including incitements to violence, defamation,
obscenity, and child pornography. The Supreme Court said in Texas v. Johnson (1989), a case
about flag burning, “If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply because society finds
the idea itself offensive or disagreeable.”
 Chaplinsky v. New Hampshire (1942)
Walter Chaplinsky, a Jehovah’s Witness, was passing out pamphlets on a public sidewalk,
gathering a large crowd as he condemned organized religion. When approached by the
police, Chaplinsky shouted insulting words at the cop, and was arrested for violating a state
law banning offensive speech directed at an individual in a public place. The Supreme Court
held that the speech was “fighting words” intended to harm the listener and to incite others
around the speaker to riot. This type of speech is of low value to society and therefore does
not deserve First Amendment protection. The Court applied a balancing test to determine
that the speaker’s words had no social benefit (they were insults), and the costs to society (a
potential riot) were too great.
 New York v. Ferber (1982)
The owners of an adult bookstore were arrested for selling child pornography films. The
Supreme Court held that child pornography is not protected speech. Even though
depictions of other crimes (like murder, robbery, or assault) are protected under the First
Amendment, the Court said the government had more leeway in regulating child
pornography for several reasons. They said that child pornography could be banned because
it met the following criteria:
a. The government has a compelling interest in safeguarding the physical and
psychological well being of minors.
b. The sale of child pornography is fundamentally related to the abuse of children
because it creates a permanent record of the abuse. The existence of the video or
picture can continue to harm the children after the abuse ends.
c. The sale and possession of child pornography provides an economic motive for the
abuse to take place. Therefore, banning the depiction can help end the actual abuse.
d. The social value of permitting child pornography is very limited.
Arguments for the United States
 The government has a compelling interest in preventing animal cruelty. Banning these
depictions of animal cruelty will help the government catch and prosecute people who
engage in cruel behavior. It will also deter future incidents of animal cruelty.
 Congress relied on studies showing that people who engage in cruelty towards humans often
begin their criminal behavior by torturing animals. The government wants to keep people
from being desensitized to animal cruelty.
 These videos depicting animal cruelty are patently offensive and have no social worth. Like
Chaplinsky, the government’s interest in preventing cruelty outweighs the value of permitting
this type of speech.
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United States v. Stevens
 The law is not too broad – it was designed to target extreme conduct and is carefully written
to allow exceptions for depictions that have political, historical, scientific, artistic, or
educational value.
 Like Ferber, the sale of these videos provides an economic motive for their creation. One
way to stop those acts is by preventing the sale of the depictions.
 The conduct depicted in the videos is illegal in all 50 states and DC, which shows that the
country as a whole agrees that the government has a compelling interest in preventing animal
cruelty.
Arguments for Stevens
 A ban on depictions of animal cruelty does not fit into one of the existing categories of
speech that the government can punish– fighting words, obscenity, inciting violence, child
pornography. Those categories are all the same in that the speech banned causes a grave
threat to the well being of humans, or appeals to the prurient interest. This law is different.
 This law is not like the law in Chaplinsky. There, the government was worried about the
serious and immediate harm that his words could cause the people around him by starting a
violent fight. Here, the creation, sale, or possession of the videos is not likely to incite
violence.
 This case is not like Ferber, which banned child pornography in part because the videos live
on after the abuse ends, which continues to harm the children involved. Depictions of
animal cruelty don’t cause the animal any more harm than the abuse alone did (and that
abuse is already illegal).
 Unlike Ferber, the government does not have a compelling interest in protecting animals.
Protecting animals doesn’t rise to the same level as protecting children.
 Statutes banning animal cruelty already exist in all 50 states. Banning the depictions of that
abuse isn’t them most effective way to stop it – the government should enforce the existing
animal cruelty laws.
 The government argues that being exposed to animal cruelty could desensitize people to it
and lead them to commit criminal acts. However, the mere tendency for a speech or
depiction to encourage crime isn’t enough to ban it.
 The law is too broad and vague – as written; it could ban a video about hunting, where the
hunter kills an animal out of season. How will people know what a jury or judge will
consider “serious artistic, educational, scientific, or historical value?” The people might
begin to censor themselves for fear that their speech would violate the law.
 Speech doesn’t have to have great social value to be protected by the First Amendment.
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United States v. Stevens
Decision
Chief Justice Roberts delivered the opinion of the Court, in which Justices Stevens, Scalia, Kennedy,
Thomas, Ginsburg, Breyer, and Sotomayor joined. Justice Alito filed a dissenting opinion.
Majority
The Court ruled 8-1 for Stevens, concluding that the federal government’s ban on depictions of
animal cruelty violated the First Amendment. The Court rejected the government’s argument that
depictions of animal cruelty should be recognized as a new category of speech that is not protected
by the First Amendment. According to the Court, the existing categories of unprotected speech
(such as obscenity and incitement) are long-standing and quite limited. It noted that even if
American law has long prohibited animal cruelty itself, depictions of animal cruelty have not
traditionally been regulated in this country. As a result, the Court assumed that the ban – a direct
regulation on the content of speech – was unconstitutional.
The Court also determined that the ban was “substantially overbroad,” which confirmed it was
unconstitutional. Although the law may have been designed to target “crush videos,” its wording
also criminalized depictions of actions that might not involve cruelty or be illegal such as hunting
and slaughtering livestock for food. In addition, the ban’s exception for depictions with “serious
religious, political, scientific, educational, journalistic, historical, or artistic value” did not provide
enough of a limit on the ban. After all, a depiction of hunting might not serve any educational
purpose, and the Court cannot assume that the government will only apply its law to cruel and illegal
depictions. Therefore, even if “crush videos” or depictions of dog fighting have some link to
criminal conduct or obscenity, the ban’s criminalization of a substantial amount of other protected
speech made it unconstitutional.
Dissent (Alito)
In dissent, Justice Alito argued that the core of the ban on depictions of animal cruelty was
constitutional because the law could be validly applied to “crush videos” and depictions of dog
fighting. Emphasizing that such videos and depictions are of little value and so closely linked to
violent criminal conduct that is very difficult to combat, Justice Alito described the ban as similar to
the law regulating child pornography that the Court upheld in Ferber.
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