United States v. Stevens, No. 08–769.

• Court: United States Supreme Court
• Writing for the Court: Chief Justice ROBERTS delivered the opinion of the Court.
• Citation: 130 S.Ct. 1577,559 U.S. 460,176 L.Ed.2d 435
• Parties: UNITED STATES, Petitioner, v. Robert J. STEVENS.
• Decision Date: 20 April 2010
• Docket Number: No. 08–769.

559 U.S. 460
130 S.Ct. 1577
176 L.Ed.2d 435

UNITED STATES, Petitioner,
v.
Robert J. STEVENS.

No. 08–769.

Supreme Court of the United States

Argued Oct. 6, 2009.
Decided April 20, 2010.

Neal K. Katyal, for Petitioner.

Patricia A. Millett, for Respondent.

Elena Kagan, Solicitor General, Washington, D.C., for Petitioner.

Lisa B. Freeland, Michael J. Novara, Karen Sirianni Gerlach, Pittsburgh, PA, Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, DC, Patricia A. Millett, Thomas C. Goldstein, Kevin R. Amer, Monica P. Sekhon, Faith E. Barter, Akin Gump Strauss Hauer & Feld, LLP, Washington, DC, Jeffrey L. Fisher, Stanford, CA, for Respondent.

Elena Kagan, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Nicole A. Saharsky, Assistant to the Solicitor General, Vicki S. Marani, Washington, D.C., for Petitioner.

Opinion

Chief Justice ROBERTS delivered the opinion of the Court.

559 U.S. 464

Congress enacted 18 U.S.C. § 48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute does not address underlying acts harmful to animals, but only portrayals of such conduct. The question presented is whether the prohibition in the statute is consistent with the freedom of speech guaranteed by the First Amendment.

I

Section 48 establishes a criminal penalty of up to five years in prison for anyone who knowingly “creates, sells, or possesses a depiction of animal cruelty,” if done “for commercial

559 U.S. 465

gain” in interstate or foreign commerce. § 48(a).¹ A depiction of “animal cruelty” is defined as one “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place.” § 48(c)(1). In what is referred to

130 S.Ct. 1583

as the “exceptions clause,” the law exempts from prohibition any depiction “that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” § 48(b).

The legislative background of § 48 focused primarily on the interstate market for “crush videos.” According to the House Committee Report on the bill, such videos feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. H.R.Rep. No. 106–397, p. 2 (1999) (hereinafter H.R. Rep.). Crush videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,”

559 U.S. 466

sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.” Ibid. Apparently these depictions “appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.” Id., at 2–3. The acts depicted in crush videos are typically prohibited by the animal cruelty laws enacted by all 50 States and the District of Columbia. See Brief for United States 25, n. 7 (listing statutes). But crush videos rarely disclose the participants' identities, inhibiting prosecution of the underlying conduct. See H.R. Rep., at 3; accord, Brief for State of Florida et al. as Amici Curiae 11.

This case, however, involves an application of § 48 to depictions of animal fighting. Dogfighting, for example, is unlawful in all 50 States and the District of Columbia, see Brief for United States 26, n. 8 (listing statutes), and has been restricted by federal law since 1976. Animal Welfare Act Amendments of 1976, § 17, 90 Stat. 421, 7 U.S.C. § 2156. Respondent Robert J. Stevens ran a business, “Dogs of Velvet and Steel,” and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals. Among these videos were Japan Pit Fights and Pick–A–Winna: A Pit Bull Documentary, which include contemporary footage of dogfights in Japan (where such conduct is allegedly legal) as well as footage of American dogfights from the 1960's and 1970's.² A third video, Catch Dogs and Country Living, depicts the use of pit bulls to hunt wild boar, as well as a “gruesome” scene of a pit bull attacking a domestic farm pig. 533 F.3d 218, 221 (C.A.3 2008) (en banc). On the basis of these videos, Stevens was indicted on three counts of violating § 48.

559 U.S. 467

Stevens moved to dismiss the indictment, arguing that § 48 is facially invalid under the First Amendment. The District Court denied the motion. It held that the depictions subject to § 48, like obscenity or child pornography, are categorically unprotected by the First Amendment. 2:04–cr–00051–ANB (WD Pa., Nov. 10, 2004), App. to Pet. for Cert. 65a–71a. It went on to hold that § 48 is not substantially overbroad, because the exceptions clause sufficiently narrows the statute to constitutional applications. Id., at 71a–75a. The jury convicted Stevens on all counts, and the District Court sentenced him to three concurrent sentences of 37 months' imprisonment, followed by three years of supervised release. App. 37.

The en banc Third Circuit, over a three-judge dissent, declared § 48 facially unconstitutional and vacated Stevens's conviction. 533 F.3d 218. The Court of Appeals first held that § 48 regulates speech that is protected by the First Amendment. The Court declined to recognize a new category of unprotected speech for depictions

130 S.Ct. 1584

of animal cruelty, id., at 224, and n. 6, and rejected the Government's analogy between animal cruelty depictions and child pornography, id., at 224–232.

The Court of Appeals then held that § 48 could not survive strict scrutiny as a content-based regulation of protected speech. Id., at 232. It found that the statute lacked a compelling government interest and was neither narrowly tailored to preventing animal cruelty nor the least restrictive means of doing so. Id., at 232–235. It therefore held § 48 facially invalid.

In an extended footnote, the Third Circuit noted that § 48 “might also be unconstitutionally overbroad,” because it “potentially covers a great deal of constitutionally protected speech” and “sweeps [too] widely” to be limited only by prosecutorial discretion. Id., at 235, n. 16. But the Court of Appeals declined to rest its analysis on this ground.

We granted certiorari. 556 U.S. ––––, 129 S.Ct. 1984, 173 L.Ed.2d 1083 (2009).

559 U.S. 468

II

The Government's primary submission is that § 48 necessarily complies with the Constitution because the banned depictions of animal cruelty, as a class, are categorically unprotected by the First Amendment. We disagree.

The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal is intentionally harmed. As such, § 48 is “ ‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (quoting R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); citation omitted).

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383, 112 S.Ct. 2538. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (KENNEDY, J., concurring in judgment)—including obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), defamation, Beauharnais v. Illinois, 343 U.S. 250, 254–255, 72 S.Ct. 725, 96 L.Ed. 919 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447–449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949)—are “well-defined

559 U.S. 469

and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

130 S.Ct. 1585

The...