The Federal Corner - May 2010

"THE FEDERAL CORNER"

"Pitt Bulls and Dominatrixes Win -- Cats, Dogs, Monkeys, Mice and Hamsters Lose."

F. R. (Buck) Files, Jr.

It is disappointing for me to realize that the legal universe in which I live in is very small. I was reminded of that this week when I read United States v. Stevens, ___ S.Ct. ___, 2010 WL 1540082 (April 20, 2010). Stevens, who had been convicted of a violation of 18 U.S.C. § 48, prevailed on his First Amendment challenge to the constitutionality of that statute.

In all the pleadings that I have filed in state and federal cases, I have never based my argument on the First Amendment to the Constitution of the United States. Neither have I cited the First Amendment in any objection that I have made during any pretrial or trial proceeding.

Looking back, it's those protection afforded by the Fourth, Fifth, Sixth and Fourteenth Amendments that defense lawyers commonly rely upon. Occasionally, in a capital murder case or on a bail issue or in resisting forfeitures or restitution, we cite the Eighth Amendment. But where has the First Amendment been for us?

Our brothers and sisters who represent the media commonly rely on the First Amendment and sometimes obtain relief on an issue before we do; e.g., on April 10, 2010, the Supreme Court held that the defendant's Sixth Amendment right to a public trial was violated when the trial court excluded the public from the voir dire of prospective jurors. Presley v. Georgia, 130 S.Ct. 721 (2010). Interestingly, the Supreme Court had already answered this question on a First Amendment challenge in Press-Enterprise Co, v. Superior Court of California, 104 S.Ct. 819 (1984), holding that the voir dire of prospective jurors must be open to the public under the First Amendment.

But back to Stevens. The case is interesting - to me - for two reasons: First, Chief Justice Roberts' opinion is absolutely clear and just makes good sense as to why a statute - passed with the best of intentions - is overbroad and unconstitutional; and, second, the case includes a discussion about "crush videos." I would venture a guess that a majority of our TCDLA members have never possessed a "crush video" - and, if they have, they might not admit it.

Chief Justice Roberts' opinion includes, in part, the following:

[THE STATUTE]

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.

***

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 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 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 HISTORY OF "CRUSH VIDEOS"]

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,' 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 QUESTION PRESENTED]

The question presented is whether the prohibition in the statute is consistent with the freedom of speech guaranteed by the First Amendment.

[THE FACTS]

This case ... involves an application of § 48 to depictions of animal fighting. Dogfighting, for example, is unlawful in all 50 States and the District of Columbia ... and has been restricted by federal law since 1976. ... 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. 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.

[IN THE COURTS BELOW]

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. ...It went on to hold that § 48 is not substantially overbroad, because the exceptions clause sufficiently narrows the statute to constitutional applications. ... 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. ... The en banc Third Circuit, over a three-judge dissent, declared § 48 facially unconstitutional and vacated Stevens's conviction. Stevens challenged § 48 on its face, arguing that any conviction secured under the statute would be unconstitutional. The court below decided the case on that basis, 533 F.3d, at 231, n. 13.

[THE GRANTING OF CERTIORARI]

We granted the Solicitor General's petition for certiorari to determine 'whether 18 U.S.C. 48 is facially invalid under the Free Speech Clause of the First Amendment.'

[THE COURT'S REASONING]

As we explained two Terms ago, '[t]he first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.' United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Because § 48 is a federal statute, there is no need to defer to a state court's authority to interpret its own law.

We read § 48 to create a criminal prohibition of alarming breadth. To begin with, the text of the statute's ban on a 'depiction of animal cruelty' nowhere requires that the depicted conduct be cruel. That text applies to 'any ... depiction' in which 'a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.' § 48(c)(1). '[M]aimed, mutilated, [and] tortured' convey cruelty, but 'wounded' or 'killed' do not suggest any such limitation. (Emphasis added).

***

We agree that 'wounded' and 'killed' should be read according to their ordinary meaning....Nothing about that meaning requires cruelty.

While not requiring cruelty, § 48 does require that the depicted conduct be 'illegal.' But this requirement does not limit § 48 along the lines the Government suggests. There are myriad federal and state laws concerning the proper treatment of animals, but many of them are not designed to guard against animal cruelty. Protections of endangered species, for example, restrict even the humane 'wound[ing] or kill[ing]' of 'living animal[s].' § 48(c)(1). Livestock regulations are often designed to protect the health of human beings, and hunting and fishing rules (seasons, licensure, bag limits, weight requirements) can be designed to raise revenue, preserve animal populations, or prevent accidents. The text of § 48(c) draws no distinction based on the reason the intentional killing of an animal is made illegal, and includes, for example, the humane slaughter of a stolen cow.

What is more, the application of § 48 to depictions of illegal conduct extends to conduct that is illegal in only a single jurisdiction. Under subsection (c)(1), the depicted conduct need only be illegal in 'the State in which the creation, sale, or possession takes place, regardless of whether the ... wounding ... or killing took place in [that] State.' A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another State where the same conduct is unlawful. This provision greatly expands the scope of § 48, because although there may be "a broad societal consensus" against cruelty to animals, Brief for United States, there is substantial disagreement on what types of conduct are properly regarded as cruel. Both views about cruelty to animals and regulations having no connection to cruelty vary widely from place to place. (Emphasis added).

In the District of Columbia, for example, all hunting is unlawful. ... Other jurisdictions permit or encourage hunting, and there is an enormous national market for hunting-related depictions in which a living animal is intentionally killed. Hunting periodicals have circulations in the hundreds of thousands or millions ... and hunting television programs, videos, and Web sites are equally popular. ... The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude. Compare ibid. and Brief for National Rifle Association of America, Inc., as Amicus Curiae 12 (hereinafter NRA Brief) (estimating that hunting magazines alone account for $135 million in annual retail sales) with Brief for United States 43-44, 46 (suggesting $1 million in crush video sales per year, and noting that Stevens earned $57,000 from his videos). Nonetheless, because the statute allows each jurisdiction to export its laws to the rest of the country, § 48(a) extends to any magazine or video depicting lawful hunting, so long as that depiction is sold within the Nation's Capital.

Those seeking to comply with the law thus face a bewildering maze of regulations from at least 56 separate jurisdictions. Some States permit hunting with crossbows, ... while others forbid it, ... or restrict it only to the disabled, ... Missouri allows the 'canned' hunting of ungulates held in captivity, ... but Montana restricts such hunting to certain bird species. ...

The sharp-tailed grouse may be hunted in Idaho, but not in Washington. (Emphasis added).

***

The disagreements among the States-and the 'commonwealth[s], territor[ies], or possession[s] of the United States,' 18 U.S.C. § 48(c)(2)-extend well beyond hunting. State agricultural regulations permit different methods of livestock slaughter in different places or as applied to different animals. ...California has recently banned cutting or 'docking' the tails of dairy cattle, which other States permit....Even cockfighting, long considered immoral in much of America...is legal in Puerto Rico ... and was legal in Louisiana until 2008. ... An otherwise-lawful image of any of these practices, if sold or possessed for commercial gain within a State that happens to forbid the practice, falls within the prohibition of § 48(a). (Emphasis added).

[THE COURT'S HOLDING]

We ... need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that § 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

MY THOUGHTS

• Judge Alito, who wrote a dissenting opinion, will be P.E.T.A.'s new favorite judge.
• As one federal judge - who shall remain nameless - said, "This is an opinion that the public will never understand."
• This is, though, an opinion that any defense lawyer who has raised an issue of constitutional dimension will enjoy reading.