MARGARET WARNER: The U.S. Supreme Court today struck down a federal law outlawing commercial videotapes that depict graphic violence against animals. Congress passed it in 1999, in hopes of curbing animal cruelty.
Today’s 8-1 ruling was a major victory for free speech advocates and a blow to animal rights groups. The case stemmed from the 2005 conviction of a Virginia resident for making and selling dogfighting videos.
“NewsHour” regular Marcia Coyle of “The National Law Journal” was at the court this morning, and she joins us now.
Again, Marcia, welcome back.
MARCIA COYLE, “The National Law Journal”: Thank you, Margaret.
MARGARET WARNER: So, this law has been on the books for 11 years. How did this case end up at the court now?
MARCIA COYLE: The goal of this law was to get at animal cruelty by drying up the commercial market for depictions of animal cruelty.
So, this law imposes a penalty of up to five years in prison for the commercial creation, sale and possession of video — of auditory and visual depictions of animal cruelty.
Congress was really trying to get at dogfighting videos and so-called crush videos, which appeal to a sexual fetish for women in high heels stomping animals, small animals.
Robert Stevens, as you said, was convicted and sentenced to three years in prison. One of the three videos he had involved dogfighting in Japan, where it’s legal. He appealed, challenged the constitutionality of the law. Lower court struck down the law.
The Obama administration brought the case to the Supreme Court, defending the constitutionality of the law.
MARGARET WARNER: Now, Chief Justice Roberts chose himself to write this majority opinion, 8-1 majority opinion. On what grounds did he find it unconstitutional?
MARCIA COYLE: He did two things that were important here.
First, he rejected the government’s argument that the court should create a new category of unprotected speech for depictions of animal cruelty. The court, in the history of the First Amendment, has only done that a handful of times, most recently, nearly 30 years ago, when it upheld laws prohibiting child pornography — other categories of unprotected speech, obscenity, defamation.
He said there was a long tradition in the law, in American law, of prohibiting animal cruelty, but not a long tradition prohibiting depictions of animal cruelty. And he rejected the government’s test for whether this was protected by the First Amendment.
He said its test, which would require the court to balance the value of the speech vs. this cost to society, was free-floating and dangerous. Then, he looked at the law itself to determine whether it was overbroad.
If a law is substantially overbroad, it violates the First Amendment. He found that this law was that. And he gave as an example, hunting is illegal in the District of Columbia. There’s a huge market for videos on hunting, publications on hunting. And hunting is legal in many states.
If those publications or videos got to the District of Columbia, the law’s prohibition would apply.
MARGARET WARNER: So, he was saying that the law, the way it was written, was so broad that it could sweep in other kinds of videos that really weren’t aimed at the so-called extreme cruelty, that…
MARCIA COYLE: Exactly. That’s exactly right.
MARGARET WARNER: Now, Justice Alito wrote his lone dissent. What were his arguments?
MARCIA COYLE: He had two problems. First, he felt the court shouldn’t have examined the law to see if it was overbroad. That’s a doctrine that the court uses, as he said, of last resort.
He said the case should have been sent back to the lower court to see if the law was unconstitutional as applied to these three videos. Then he also took on the overbroad argument.
And he said most of the examples the court relied on here, hunting, fishing regulations, they were exempted under state animal cruelty laws, and they would fall under an exception in the federal law. He said, this wasn’t substantially overbroad. It had many constitutional applications.
MARGARET WARNER: So, back to Justice Roberts, was he essentially saying that he doesn’t think this kind of cruelty to animals is in the same category as child pornography in terms of the damage it does to society?
MARCIA COYLE: No, not at all.
He was saying that the depictions of animal cruelty that this law tackled did not have — didn’t have the — the same kind of tradition of prohibition in the law as other categories of unprotected speech. So, he’s not saying animal cruelty is protected. It’s just the depiction…
MARGARET WARNER: Depiction of it.
MARCIA COYLE: Right. Exactly.
MARGARET WARNER: But he’s saying it doesn’t rise to the level, that is, the depiction of it, that, say, the depiction of children in obscene or provocative poses does?
MARCIA COYLE: Yes.
The — the real distinction here is that the commercial production of child pornography, he said, is — was so interrelated with the harm to children, that it could not be protected. And he the did not see that connection with animal cruelty depictions.
MARGARET WARNER: So, what happens next with this issue?
MARCIA COYLE: Well, the chief justice did leave something of an open door here. He said that the court did not have to decide and wouldn’t decide whether a law narrowly targeted specifically that dogfighting and crush videos was constitutional.
And, almost immediately, the Humane Society of the United States announced that it was going to seek that kind of a law. The other possible impact is, until we have another law, it would — the court’s decision will revive the market for these depictions of animal cruelty.
Law enforcement said that, after the law was enacted, the market almost dried up. And once it — the law was struck down by the lower court, it came back again.
MARGARET WARNER: Very interesting.
Marcia Coyle, thank you.
MARCIA COYLE: My pleasure.