John A. Humbach, Pace University School of law
As most readers here know, in United States v. Stevens, 533 F.3d 218 (3d Cir. 2008), the Third Circuit struck down the Federal statute (18 U.S.C. § 48) that prohibited the creation, sale or possession of media depicting cruelty to animals. However, both the majority and dissenting opinions may have crucially misunderstood the applicability of New York v. Ferber, 458 U.S. 747 (1982), the principal case that the government relied on in supporting the statute. Since Stevens is on its way to the Supreme Court, this may be worthy of comment.
Ferber was, of course, the case in which the Supreme Court established that child pornography is not protected under the First Amendment. As a result of Ferber, the production and distribution of child pornography can be banned by the states and Congress. In reaching its decision, the Court in Ferber recognized a new “categorical” exclusion from first-amendment protection. Any content that falls in the Ferber category (i.e., visual depictions of minors engaged in sexual conduct) is “unprotected” speech.
The Stevens majority said that depictions of animal cruelty, though thoroughly reprehensible, do not justify creating a new categorical exclusion from the First Amendment. The court concluded, therefore, that the statute was an impermissible impingement on protected speech. The dissent argued that depictions of animal cruelty have only slight value, at most, and their value can be outweighed by a compelling government interest, citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). By analogy to Ferber the dissent would have created a new categorical exclusion.
In what may have been the decisive threshold misstep, both the majority and the dissent in Stevens assumed (and the government conceded) that the statute’s restriction on speech was “content-based.” It seems to me, however, that the restriction does not need to be so regarded. Instead the statute in Stevens can be reasonably viewed as imposing a “content-neutral” restriction on speech. The reason is that the statute is aimed, not at the message of the targeted media, but at the secondary effects that result from acts done in the process of production. The statute aims, in other words, to prevent cruel conduct toward animals that is an intrinsic part of the production process, not the message conveyed by the depictions. The difference is crucial.
Ordinarily, “content-based” restrictions on speech or press are presumptively unconstitutional, R. A. V. v. City of St. Paul, 505 U.S. 377, 382 (1992), and the courts use strict scrutiny in reviewing the legislature’s determinations, Playboy, 529 U.S. at 813, citing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). By contrast, the courts apply greater deference and a less rigorous “intermediate” level of scrutiny when restrictions on expression are “content-neutral,” see, e.g., City of Renton v. Playtime Theatres, Inc, 475 U.S. 41 (1986), or aimed at conduct, United States v. O’Brien, 391 US 367 (1968). The “production” part of the statute in Stevens could probably easily satisfy intermediate scrutiny.
Once the “production” part of the statute survives intermediate scrutiny, the “sale” prohibition should follow. Media produced in violation of the valid ban on production would be “unprotected speech,” and the First Amendment does not protect commerce in unprotected speech. See United States v. Williams, 128 S. Ct 1830, 1836 (2008) (upholding a ban on offers to provide child pornography); United States v. Reidel, 402 U.S. 351 (1971). The prohibition on possession might, however, be a tougher nut to crack, due to Stanley v. Georgia, 394 U.S. 557 (1969)(right possess obscenity).