Door Left Open for Congress to Pass Law Banning Animal Fighting Videos

Robert Stevens was convicted under 18 U.S.C. Section 48 in a Pennsylvania federal district court for “knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain.” His conviction stems from an investigation into the selling of videos related to illegal dog fighting. Mr. Stevens appealed his conviction arguing that 18 U.S.C. Section 48, on its face, was unconstitutional because it violated the Free Speech Clause of the First Amendment.
The Supreme Court’s decision in United States v. Stevens did not say that depictions of extreme animal cruelty are protected by the First Amendment. The Court’s majority held only that the present federal depictions law was facially overbroad because it could be interpreted to ban hunting videos that had some redeeming social value. The majority did not decide whether the statute was unconstitutional as applied to the dogfighting videos distributed by Mr. Stevens himself. The Court did not say whether it would be legal for Congress to draft a narrower law that would not reach hunting videos but only depictions of extreme and illegal cruelty, such as “crush” and animal fighting videos.

Justice Alito pointed out in a footnote, “the Court has taken pains not to decide whether section 48 would be unconstitutional as applied to graphic dogfight videos, including those depicting fights occurring in countries where dogfighting is legal.” Mr. Stevens and many of his amici believe the statute could constitutionally be applied only to “crush” videos – which, because they have prurient (sexual) appeal to certain individuals, may be classified as “obscene” under established First Amendment doctrine.

The Humane Society had argued in its amicus brief that animal fighting videos should be considered just as “obscene” for constitutional purposes, regardless of any sexual content, because they appeal only to base instincts and have no redeeming social value. The Supreme Court apparently believes that Congress may have the power to ban sales of videos of animal fighting – even videos of fights that were legal where filmed, and even where sexual content and obscenity would not apply
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Martin Crawford