U.S. v. Stevens, The Post-Mortem

David Cassuto

There’s little good here.  In Stevens, the Supreme Court struck down a law that aimed at and succeeded in curbing the market for crush videos and other animal mutilation.  To be fair, the law was seriously flawed.  But the Court’s analysis is worse.  However, the holding could have been worse still, so I am at least a little relieved as well as disappointed.

18 U.S.C. s. 48 banned depictions of cruelty “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.”  It exempted depictions possessing “serious religious, political, scientific, educational, journalistic, historical or artistic value.” 

Mr. Stevens operated a website called “Dogs of Velvet and Steel.”   He marketed videos of dog fighting, of dogs attacking pigs, and other similar works.  One would be hard pressed to find any redeeming social value to his wares and the Court makes no attempt to do so.  In fact it spends very little time analyzing the law as it relates to Mr. Stevens.   It instead focuses on the law’s potential applications to other cases not currently before it.  As a result, the opinion runs far into the weeds.  

For example, in explaining why depictions of cruelty are protected speech, the majority notes that there is no tradition in the United States of banning such depictions (as opposed to the behavior itself).  It is hard to see the relevance of this reasoning.  There is no tradition in the United States barring depictions of children being eviscerated.  There is, however, a strong tradition of banning the evisceration itself.  I suspect that the Court would have little problem with a statute barring depictions of illegal eviscerations.   

The Court also rejects an “ad-hoc” balancing test that weighs the relative social costs and benefits of the affected speech.  This too seems off topic.  No one — least of all the government in its brief — pretended that the issue of curtailing speech was a matter to be taken lightly.  The Court traditionally subjects proposed limits on expression to strict scrutiny, which is to say that the law must be narrowly tailored to meet a compelling state interest.  Oddly, despite the Third Circuit decision (mis)applying strict scrutiny below, the Supreme Court opinion does not even mention much less apply it.  In my view, that was an error.

 In New York v. Ferber, the Court held that banning child pornography was constitutional even though the ban curtailed speech.  Eliminating the exploitation of children amounted to a compelling state interest and the benefits to the narrowly tailored law illegalizing it outweighed the state’s interest in protecting speech of limited (or no) social value.  The Court did not require a tradition of filmed child exploitation to reach its decision.  The need to curtail the behavior through restricting the market for that behavior was enough.

The Court faced a similar situation in Stevens.  In addition to determining whether the statute was narrowly tailored, the question before it should have been: Does preventing animal cruelty rise to the level of compelling state interest?  Unfortunately, the answer is by no means clear. Cruelty to animals is illegal in all 50 states but the statutes are riven with exceptions and under-enforced.  Many states exempt animal agriculture from the scope of their cruelty laws despite routine and ongoing cruelty within the industry.  On the federal side, the Animal Welfare Act excludes mice and rats despite their comprising the overwhelming majority of vivisected animals.  Similarly, the Humane Methods of Slaughter Act excludes chickens and turkeys.  This means that 98% of the ten billion animals annually killed for food in the U.S. lack even this basic legal protection. So is the elimination of animal cruelty a compelling state interest?  It’s hard to say.

On the other hand, the federal government let it be known by passing S. 48 that it found at least some types of cruelty abhorrent.  Furthermore, recent years have seen the passage of a number of animal protection statutes and resolutions in states from California to Florida.  Norms change.  Priorities evolve.  Perhaps preventing cruelty has indeed become a compelling state interest.

Rather than consider this question, the Court struck down the law as over-broad by manufacturing fanciful hypotheticals in which the law might be applied unconstitutionally.  But any law can be applied unconstitutionally.   Law professors make a living dreaming up hypotheticals in which a given statute might be applied in a manner that violates the Constitution.  The fact that we can do this is not reason enough to void a law.   The issue is (or should be and traditionally has been) whether the law applies unconstitutionally to the party challenging that law (Ferber, 458 U.S. at 767).  The majority abandoned this practice in Stevens for no discernable purpose. 

Had the Court undertaken a strict scrutiny analysis, I am not at all sure that it would have found animal cruelty to be a compelling state interest.  The justices did not seem especially sympathetic during oral argument and the only other time the Court addressed the question (in Church of the Lukumi Babalu Aye v. City of Hialeah), it bollixed up the analysis but good.  You can read my ruminations on that case here. 

Given this history, part of me is glad that the Court left the compelling state interest question alone.  However, the question must be addressed eventually.  In the meanwhile and as a direct result of the Court’s holding yesterday, the market for animal torture booms once again.  As I said, there’s little good here.