United States v. Stevens, the animal cruelty video case, was argued before the Supreme Court on October 6. The transcript makes for a fascinating read, both from a forensic as well as a substantive perspective.
Here is a link to the official transcript of oral argument in the case of United States v. Stevens.
It was a "hot bench" – the justices posed a blizzard of questions, mostly hypotheticals about what kinds of images the government may and may not ban under the First Amendment. They asked about hunting shows, bullfighting events, movies showing dogfighting, crush videos, and programs showing animals being processed for food. They asked about photographs depicting women being raped and tortured and a cable channel devoted to showing human sacrifice.
The antagonists were Neal K. Katyal, Deputy Soliciter General for the United States, and Patricia A. Millett, a Washington attorney. Both attorneys did an outstanding job, despite their mutual inability to always respond swiftly to the judges' rapid-fire questions. First up was Mr. Katyal, and here is an exchange he had with Chief Justice Roberts:
CHIEF JUSTICE ROBERTS: What would you — if you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?
MR. KATYAL: In one sentence, if — if — if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can — they can regulate a depiction, so long as it leaves alternative mechanisms for that expression in — in place, and that is I think what Ferber -
With the benefit of hindsight, all the time in the world, and the safe position of the armchair quarterback, I suggest that Mr. Katyal might better have responded:
"Unprotected categories of speech represent those situations in which the speech causes harm directly to another person (defamation or threats), or where serious harm is both likely and imminent if the speech is allowed (incitement to riot and fighting words), or where the speech consists of the depiction of a crime, and by creating a market for these depictions the commercial sale of the speech will have the effect of making the crime more likely to occur (child pornography). This law, Mr. Chief Justice, outlaws recordings that fall within the third kind of unprotected speech."
Nothing like second guessing, is there?
Attorney Millett attempted to avoid answering when Justice Alito asked her whether Congress may make it illegal to create or sell "crush videos" showing women in high heels stomping small animals to death. Ms. Millett said:
I think — I think there's a — that a properly drawn law could very well, at least in my humble opinion, this Court would have to decide, survive strict scrutiny.
There is also, I suppose, some argument whether it would fit into — you wouldn't need strict scrutiny, you would fit it into an unprotected category of speech like obscenity or it would be the production issue that would — like you have in Ferber.
JUSTICE ALITO: You are not — you are not even willing to say that that could be prohibited?
MS. MILLETT: No, no. I think — I'm saying that there are three alternative ways in which to get to it. My first if one is that not this statute, but under a properly drawn statute -
JUSTICE ALITO: Under a properly drawn statute -
MS. MILLETT: — that might survive scrutiny. I'm not sure you would -
JUSTICE ALITO: Might. I would really like you to tell me whether it would; whether you are willing to concede. Because we are trying to determine whether this is overly broad. And this is the category of activity that Congress particularly targeted. So to me at least it's important to know whether at least as applied to what Congress principally had in mind, the statute could — could pass constitutional muster. If it were, you know, as applied.
MS. MILLETT: I don't — I don't want to, say this statute, because I don't think this statute -but if the statute said, this — I think this Court disagree — it disagrees with me sometimes — but I think this could pass constitutional muster. A statute that says the patently offensive intentional torture and killing of an animal for — designed to appeal to the prurient interest for the purpose of producing the image, I think that would satisfy — I think it would satisfy strict scrutiny. The Court might also decide that it's close enough to obscenity or it's like the Ferber production rationale. That's my position; there are sort of three ways it could be analyzed, a statute like that.
That's not this statute and I don't think we can say that this statute, because Congress has the authority to reach something, that when it throws a blanket net as wide as this one has that this means this statute is the mechanism, a lawful mechanism for getting … [Here Justice Kennedy interrupted her to ask another question.]
Again, having time to think about it, a more concise and powerful answer to Justice Alito's question would have been to say:
Yes.
Or,
Yes, your honor, a statute narrowly drawn to prohibit the recording of actual torture or killing of animals for perverse sexual gratification would be constitutional. Unfortunately, the statute in question, 18 U.S.C. 48, is not narrowly tailored, but instead encompasses depictions of all forms of cruelty to animals.
Because the defendant Stevens is attacking this law "on its face" (see Part 1 of this series on United States v. Stevens), the bulk of the judges' questions and the majority of the participants' discussion related to what other acts of cruelty to animals this law might be applied to. Justice Sotomayor asked whether the law could be applied to shows about hunting. (Page 4) Justice Scalia asked about programs on bullfighting (pages 10-11). Justice Breyer added:
"sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pate de fois gras." (Page 13)
Justice Breyer then added quail hunting to the list (page 13), and Justice Ginsburg contributed cockfighting. (Page 15). Justice Stevens asked about hunting with a bow and arrow out of season. (Page 16) The answer to each of these questions is to say that the depiction could be banned only if what was being shown met three criteria: (1) the act being depicted constituted cruelty to animals; (2) the act is illegal in the jurisdiction where the recording was created, sold, or possessed; and (3) the recording has no serious political, educational, or scientific value. Normal hunting shows do not meet any of these criteria, let alone all three.
Justice Ginsburg then mercifully tried to put this line of questioning out of its misery, stating:
Have we finished with the category of fights? (Page 16)
The discussion then turned to an even more serious subject – depictions of torture and slaughter of human beings. Justice Sotomayor asked about the case of American Booksellers v. Hudnut (1985) (summarily affirmed by the Supreme Court in 1986), in which the Seventh Circuit Court of Appeals declared unconstitutional a municipal ordinance that attempted to outlaw images of women being degraded or tortured. (Page 6-7) Justice Scalia asked about the constitutional status of the slasher movies that appear every Halloween. (Page 22) Justice Alito inquired about the legality of videos of gladitorial constests. (Page 23) Justice Alito asked about depictions of human sacrifices:
what about people who –who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel. (Page 46).
Justice Scalia asked about a new Adolph Hitler, and the extermination of whole populations. (Page 47) Other justices raised questions about "snuff videos" and "the ethnic cleansing channel." (Page 48). Quite clearly the Court is wondering whether some depictions of violence against human beings may be prohibited … in effect, whether violence should be considered to be a form of obscenity. Chief Justice Roberts wanted Ms. Millett to answer this question:
JUSTICE ROBERTS: I'm still looking for your answer to Justice Alito's hypotheticals. Can Congress ban the human sacrifice channel or not?
MS. MILLETT: I — the — I think — I — I will start by saying — no. Let's start and see. Maybe — maybe it won't work, but I think -
Attorney Millett's initial response accurately reflects the ambivalence of the American people and the law towards depictions of violence. The fact of the matter is that as a society we haven't been willing to answer that question. We have made the explicit sex act taboo, but graphic scenes of torture, mutilation, and murder are simply routine "entertainment." Towards the end of her argument, Millett ably contends that laws prohibiting depictions of violence which are enacted, not because Congress is attempting to stamp out the activity in question, but merely because society finds the images repulsive, violate the First Amendment. (Pages 54-55). On rebuttal, Attorney Katyal agreed. (Page 57)
This case broaches the question of depictions of gratuitious violence in an indirect manner. With a focus on cruelty to animals rather than cruelty to other people, United States v. Stevens challenges us to come up with good reasons to allow people to make money from the actual suffering of other creatures. It is a discussion that is long overdue.
Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.
