559 U.S. 460 (2010)
On April 20, 2010 the Supreme Court, in an 8-1 decision, struck down  18 U.S.C. § 48 finding the law was substantially overbroad on its face. The federal statute, enacted in 1999, criminalized making or selling “any visual or auditory depiction” of cruelty to an animal, if the conduct violates either federal law or the law of the state where the depiction is created, distributed or possessed with the intent to distribute.
Chief Justice John Roberts wrote the majority opinion, which held that there is no categorical exception to the First Amendment for visual or auditory depictions animal cruelty. The Court read that law as applying to images of hunting, fishing and humane slaughter. It then ruled that the law is unconstitutional because it is substantially overbroad. The Court held that enforcement of the law could extend to depictions that are not illegal nor involve cruelty.
Justice Samuel Alito dissented , arguing that the majority should have interpreted the law more narrowly and, therefore not be deemed substantially overbroad.
The decision is important in several respects beyond the holding that this law violates the First Amendment. Roberts’ opinion articulated several important principles protecting free speech:
- The Court reaffirmed that there are a few narrow historical exceptions to the First Amendment, such as incitement, obscenity and libel, but the Justices are very reluctant to create new categories of speech not entitled to Constitutional protection.
- The Court emphasized that First Amendment protection is not reserved for “serious” speech. The Justices rejected the government’s argument that speech with “low value” could be banned based on a balancing test that weighs the value of the speech against perceived harms. The Justices also rejected the argument that a ban on speech can be upheld if the censorship law exempts speech with “serious value.”
- Finally, the Court dismissed the government’s argument that the law should be upheld based on the promise of prosecutorial discretion to apply the law “responsibly.”
Media Coalition action
Media Coalition played two important roles in the case: we submitted an amicus brief in the Supreme Court on behalf of some members and media organizations, and we coordinated the amicus brief effort on behalf of the respondent.
Media Coalition’s amicus brief  was signed by: Association of American Publishers, Inc., the American Booksellers Foundation for Free Expression, the Comic Book Legal Defense Fund, Entertainment Merchants Association, Freedom to Read Foundation, the Association of American University Presses, Entertainment Consumers Association, Film Independent, Independent Book Publishers Association, Independent Filmmaker Project, Independent Film & Television Alliance, International Documentary Association, the National Association of Recording Merchandisers (now the Music Business Association), National Association of Theater Owners, Inc., and PEN American Center.
The brief challenged the Government’s argument that videos depicting animal cruelty are analogous to child pornography and therefore the Supreme Court should rule that they are not protected by the First Amendment. The Court has been very reluctant to find new classes of speech that fall outside First Amendment protection. The brief argued that animal cruelty and child pornography are crucially different, where the harm in child pornography is “inextricably intertwined” with the speech itself. In other words, one could not express oneself by creating child pornography without sexually and psychologically abusing a child.
The amicus brief also responded to the Government’s argument that the law is a constitutionally permissible means to stamp out specific instances of animal cruelty by citing Supreme Court precedent, which holds that the government cannot restrict visual portrayals of violence as a means to prevent violence.
Lastly, the brief argued that 18 U.S.C. § 48 is unconstitutionally overbroad because it proscribes too much constitutionally protected speech, like documentaries about dog-fighting. The law’s exceptions clause would not cure it of overbreadth because it called for a value-based assessment on a case-by-case basis. This amounts to viewpoint discrimination since a filmmaker advocating for animal rights could conceivably be convicted for a documentary about animal cruelty if a prosecutor convinces a jury that the film showed too many depictions of animal cruelty.
In addition to submitting a friend of the Court brief on behalf of our members and others, Media Coalition worked closely with counsel to Mr. Stevens to organize the efforts of others to submit amicus briefs. We consulted with Mr. Stevens’ lawyers to identify important legal arguments that would be helpful for the Court to hear when considering the case. We also served as a clearinghouse to avoid submission of amicus briefs that are repetitive or redundant.
Robert Stevens, an author and producer of documentaries about pit bulls, challenged the law on First Amendment grounds after he was convicted for selling films that contained scenes of dog fighting in the US from the 1960s and ‘70s and footage from Japan to federal agents. He was indicted by a federal grand jury under the law in the United States District Court for the Western District of Pennsylvania.
A U.S. District Court Judge Alan Bloch denied Stevens’ motion to dismiss the indictments because the law violated the First Amendment. Stevens was then convicted on three charges of selling videos in violation of the law. He was sentenced to 37 months in prison and three years on probation.
On appeal, the United States Court of Appeals for the Third Circuit, sua sponte hearing the case en banc, struck down the law as violating the First Amendment by a vote of 10-3. The court held that there was no historical exception the First Amendment for depictions of cruelty to animals. It then found that the law failed strict scrutiny analysis because it lacked a compelling government interest and was neither narrowly tailored to preventing animal cruelty nor the least restrictive means of doing so.
On April 20, 2009, the Supreme Court granted certiorari. The case was argued October 6, 2009.
Amicus briefs in the Supreme Court
In support of respondent, Robert Stevens:
- Media Coalition’s brief signed by Association of American Publishers, Inc.; American Booksellers Foundation for Free Expression; Association of American University Presses; Comic Book Legal Defense Fund; Entertainment Consumers Association; Entertainment Merchants Association; Film Independent; Freedom to Read Foundation; Independent Book Publishers Association, Independent Filmmaker Project; Independent Film & Television Alliance; International Documentary Association; National Association of Recording Merchandisers; National Association of Theatre Owners, Inc.; and PEN American Center
- Cato Institute
- DKT Liberty Project, the American Civil Liberties Union and the Center for Democracy and Technology
- Endangered Breed Association and American Dog Breeders Association
- First Amendment Lawyers Association
- National Coalition Against Censorship and the College Art Association
- National Rifle Association of America, Inc.
- National Shooting Sports Foundation, Inc.
- Professional Outdoor Media Association, American Society of Media Photographers, North American Nature Photography Association, Pennsylvania Outdoor Writers Association, Southeastern Outdoor Press Association, and Texas Outdoor Writers Association
- Reporters Committee for Freedom of the Press and 13 news media organizations
- Safari Club International and Congressional Sportsmen’s Foundation
- Thomas Jefferson Center for the Protection of Free Expression
In support of petitioner, United States:
- Animal Legal Defense Fund
- American Society for the Prevention of Cruelty to Animals
- Center on the Administration of Criminal Law
- Florida, Alabama, Arkansas, Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Montana, New Hampshire, New Mexico, North Carolina, Ohio, Rhode Island, South Carolina, Texas, Utah, Virginia and West Virginia
- Humane Society of the United States
- International Society for Animal Rights
- Northwest Animal Rights Network
- Washington Legal Foundation and Allied Educational Foundation
In support of neither party: