ALITO, J., DISSENTING
UNITED STATES V. STEVENS
559 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-769
UNITED STATES, PETITIONER
v. ROBERT J.
STEVENS
on writ of certiorari to the united states court of
appeals for the third circuit
[April 20, 2010]
Justice Alito, dissenting.
The Court strikes down in its
entirety a valuable statute, 18 U. S. C. §48, that was enacted
not to suppress speech, but to prevent horrific acts of animal
cruelty—in particular, the creation and commercial exploitation of
“crush videos,” a form of depraved entertainment that has no social
value. The Court’s approach, which has the practical effect of
legalizing the sale of such videos and is thus likely to spur a
resumption of their production, is unwarranted. Respondent was
convicted under §48 for selling videos depicting dogfights. On
appeal, he argued, among other things, that §48 is unconstitutional
as applied to the facts of this case, and he highlighted features
of those videos that might distinguish them from other dogfight
videos brought to our attention.[
Footnote 1] The Court of Appeals—incorrectly, in my
view—declined to decide whether §48 is unconstitutional as applied
to respondent’s videos and instead reached out to hold that the
statute is facially invalid. Today’s decision does not endorse the
Court of Appeals’ reasoning, but it nevertheless strikes down §48
using what has been aptly termed the “strong medicine” of the
overbreadth doctrine,
United States v.
Williams,
553 U. S. 285,
293 (2008) (internal quotation marks omitted), a potion that
generally should be administered only as “a last resort.”
Los
Angeles Police Dept. v.
United Reporting Publishing
Corp.,
528 U. S.
32, 39 (1999) (internal quotation marks omitted).
Instead of applying the doctrine of
overbreadth, I would vacate the decision below and instruct the
Court of Appeals on remand to decide whether the videos that
respondent sold are constitutionally protected. If the question of
overbreadth is to be decided, however, I do not think the present
record supports the Court’s conclusion that §48 bans a substantial
quantity of protected speech.
I
A party seeking to challenge the
constitutionality of a statute generally must show that the statute
violates the party’s own rights.
New York v.
Ferber,
458 U. S. 747, 767 (1982). The First
Amendment overbreadth doctrine carves out a narrow exception to
that general rule. See
id., at 768;
Broadrick v.
Oklahoma,
413 U. S. 601, 611–612
(1973). Because an overly broad law may deter constitutionally
protected speech, the overbreadth doctrine allows a party to whom
the law may constitutionally be applied to challenge the statute on
the ground that it violates the First Amendment rights of others.
See,
e.g.,
Board of Trustees of State Univ. of N.
Y. v.
Fox,
492 U. S. 469, 483
(1989) (“Ordinarily, the principal advantage of the overbreadth
doctrine for a litigant is that it enables him to benefit from the
statute’s unlawful application
to someone else”); see also
Ohralik v.
Ohio State Bar Assn.,
436 U. S. 447, 462,
n. 20 (1978) (describing the doctrine as one “under which a
person may challenge a statute that infringes protected speech even
if the statute constitutionally might be applied to him”).
The “strong medicine” of
overbreadth invalidation need not and generally should not be
administered when the statute under attack is unconstitutional as
applied to the challenger before the court. As we said in
Fox,
supra, at 484–485, “[i]t is not the usual
judicial practice, … nor do we consider it generally desirable, to
proceed to an overbreadth issue unnecessarily—that is, before it is
determined that the statute would be valid as applied.” Accord,
New York State Club Assn., Inc. v.
City of New
York,
487 U. S.
1, 11 (1988); see also
Broadrick,
supra, at
613;
United Reporting Publishing Corp.,
supra, at
45 (Stevens, J., dissenting).
I see no reason to depart here from the
generally preferred procedure of considering the question of
overbreadth only as a last resort.[
Footnote 2] Because the Court has addressed the
overbreadth question, however, I will explain why I do not think
that the record supports the conclusion that §48, when properly
interpreted, is overly broad.
II
The overbreadth doctrine
“strike[s] a balance between competing social costs.”
Williams, 553 U. S., at 292. Specifically, the doctrine
seeks to balance the “harmful effects” of “invalidating a law that
in some of its applications is perfectly constitutional” against
the possibility that “the threat of enforcement of an overbroad law
[will] dete[r] people from engaging in constitutionally protected
speech.”
Ibid. “In order to maintain an appropriate
balance, we have vigorously enforced the requirement that a
statute’s overbreadth be
substantial, not only in an
absolute sense, but also relative to the statute’s plainly
legitimate sweep.”
Ibid.
In determining whether a
statute’s overbreadth is substantial, we consider a statute’s
application to real-world conduct, not fanciful hypotheticals. See,
e.g.,
id., at 301–302; see also
Ferber,
supra, at 773;
Houston v.
Hill,
482 U. S. 451, 466–467
(1987). Accordingly, we have repeatedly emphasized that an
overbreadth claimant bears the burden of demonstrating, “from the
text of [the law]
and from actual fact,” that substantial
overbreadth exists.
Virginia v.
Hicks,
539 U. S. 113, 122
(2003) (quoting
New York State Club Assn.,
supra,
at 14; emphasis added; internal quotation marks omitted; alteration
in original). Similarly, “there must be a
realistic danger
that the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court for it
to be facially challenged on overbreadth grounds.”
Members of
City Council of Los Angeles v.
Taxpayers for Vincent,
466 U. S. 789,
801 (1984) (emphasis added).
III
In holding that §48 violates the
overbreadth rule, the Court declines to decide whether, as the
Government maintains, §48 is constitutional as applied to two broad
categories of depictions that exist in the real world: crush videos
and depictions of deadly animal fights. See
ante, at 10,
19. Instead, the Court tacitly assumes for the sake of argument
that §48 is valid as applied to these depictions, but the Court
concludes that §48 reaches too much protected speech to survive.
The Court relies primarily on depictions of hunters killing or
wounding game and depictions of animals being slaughtered for food.
I address the Court’s examples below.
A
I turn first to depictions of
hunting. As the Court notes, photographs and videos of hunters
shooting game are common. See
ante, at 13–14. But hunting
is legal in all 50 States, and §48 applies only to a depiction of
conduct that is illegal in the jurisdiction in which the depiction
is created, sold, or possessed. §§48(a), (c). Therefore, in all 50
States, the creation, sale, or possession for sale of the vast
majority of hunting depictions indisputably falls outside §48’s
reach.
Straining to find overbreadth, the Court
suggests that §48 prohibits the sale or possession in the District
of Columbia of any depiction of hunting because the
District—undoubtedly because of its urban character—does not permit
hunting within its boundaries.
Ante, at 13. The Court also
suggests that, because some States prohibit a particular type of
hunting (
e.g., hunting with a crossbow or “canned”
hunting) or the hunting of a particular animal (
e.g., the
“sharp-tailed grouse”), §48 makes it illegal for persons in such
States to sell or possess for sale a depiction of hunting that was
perfectly legal in the State in which the hunting took place. See
ante, at 12–14.
The Court’s interpretation is seriously
flawed. “When a federal court is dealing with a federal statute
challenged as overbroad, it should, of course, construe the statute
to avoid constitutional problems, if the statute is subject to such
a limiting construction.”
Ferber, 458 U. S., at 769,
n. 24. See also
Williams,
supra, at 307
(Stevens, J., concurring) (“[T]o the extent the statutory text
alone is unclear, our duty to avoid constitutional objections makes
it especially appropriate to look beyond the text in order to
ascertain the intent of its drafters”).
Applying this canon, I would hold that §48
does not apply to depictions of hunting. First, because §48 targets
depictions of “animal cruelty,” I would interpret that term to
apply only to depictions involving acts of animal cruelty as
defined by applicable state or federal law, not to depictions of
acts that happen to be illegal for reasons having nothing to do
with the prevention of animal cruelty. See
ante, at 12–13
(interpreting “[t]he text of §48(c)” to ban a depiction of “the
humane slaughter of a stolen cow”). Virtually all state laws
prohibiting animal cruelty either expressly define the term
“animal” to exclude wildlife or else specifically exempt lawful
hunting activities,[
Footnote 3]
so the statutory prohibition set forth in §48(a) may reasonably be
interpreted not to reach most if not all hunting depictions.
Second, even if the hunting of wild animals
were otherwise covered by §48(a), I would hold that hunting
depictions fall within the exception in §48(b) for depictions that
have “serious” (
i.e., not “trifling”[
Footnote 4]) “scientific,” “educational,” or
“historical” value. While there are certainly those who find
hunting objectionable, the predominant view in this country has
long been that hunting serves many important values, and it is
clear that Congress shares that view. Since 1972, when Congress
called upon the President to designate a National Hunting and
Fishing Day, see S. J. Res. 117, 92d Cong., 2d Sess. (1972),
86 Stat. 133, Presidents have regularly issued proclamations
extolling the values served by hunting. See Presidential
Proclamation No. 8421, 74 Fed. Reg. 49305 (Pres. Obama 2009)
(hunting and fishing are “ageless pursuits” that promote “the
conservation and restoration of numerous species and their natural
habitats”); Presidential Proclamation No. 8295, 73 Fed. Reg. 57233
(Pres. Bush 2008) (hunters and anglers “add to our heritage and
keep our wildlife populations healthy and strong,” and “are among
our foremost conservationists”); Presidential Proclamation No.
7822, 69 Fed. Reg. 59539 (Pres. Bush 2004) (hunting and fishing are
“an important part of our Nation’s heritage,” and “America’s
hunters and anglers represent the great spirit of our country”);
Presidential Proclamation No. 4682, 44 Fed. Reg. 53149 (Pres.
Carter 1979) (hunting promotes conservation and an appreciation of
“healthy recreation, peaceful solitude and closeness to nature”);
Presidential Proclamation No. 4318, 39 Fed. Reg. 35315 (Pres. Ford
1974) (hunting furthers “appreciation and respect for nature” and
preservation of the environment). Thus, it is widely thought that
hunting has “scientific” value in that it promotes conservation,
“historical” value in that it provides a link to past times when
hunting played a critical role in daily life, and “educational”
value in that it furthers the understanding and appreciation of
nature and our country’s past and instills valuable character
traits. And if hunting itself is widely thought to serve these
values, then it takes but a small additional step to conclude that
depictions of hunting make a non-trivial contribution to the
exchange of ideas. Accordingly, I would hold that hunting
depictions fall comfortably within the exception set out in
§48(b).
I do not have the slightest doubt that
Congress, in enacting §48, had no intention of restricting the
creation, sale, or possession of depictions of hunting. Proponents
of the law made this point clearly. See H. R. Rep. No.
106–397, p. 8 (1999) (hereinafter H. R. Rep.)
(“[D]epictions of ordinary hunting and fishing activities do not
fall within the scope of the statute”); 145 Cong. Rec. 25894 (Oct.
19, 1999) (Rep. McCollum) (“[T]he sale of depictions of legal
activities, such as hunting and fishing, would not be illegal under
this bill”);
id., at 25895 (Rep. Smith) (“[L]et us be
clear as to what this legislation will not do. It will in no way
prohibit hunting, fishing, or wildlife videos”). Indeed, even
opponents acknowledged that §48 was not intended to reach
ordinary hunting depictions. See
ibid. (Rep. Scott);
id., at 25897 (Rep. Paul).
For these reasons, I am convinced that §48 has
no application to depictions of hunting. But even if §48 did
impermissibly reach the sale or possession of depictions of hunting
in a few unusual situations (for example, the sale in Oregon of a
depiction of hunting with a crossbow in Virginia or the sale in
Washington State of the hunting of a sharp-tailed grouse in Idaho,
see
ante, at 14), those isolated applications would hardly
show that §48 bans a substantial amount of protected speech.
B
Although the Court’s overbreadth
analysis rests primarily on the proposition that §48 substantially
restricts the sale and possession of hunting depictions, the Court
cites a few additional examples, including depictions of methods of
slaughter and the docking of the tails of dairy cows. See
ante, at 14–15.
Such examples do not show that
the statute is substantially overbroad, for two reasons. First, as
explained above, §48 can reasonably be construed to apply only to
depictions involving acts of animal cruelty as defined by
applicable state or federal law, and anti-cruelty laws do not ban
the sorts of acts depicted in the Court’s hypotheticals. See,
e.g., Idaho Code §25–3514 (Lexis 2000) (“No part of this
chapter [prohibiting cruelty to animals] shall be construed as
interfering with or allowing interference with … [t]he humane
slaughter of any animal normally and commonly raised as food or for
production of fiber … [or] [n]ormal or accepted practices of …
animal husbandry”); Kan. Stat. Ann. § 21–4310(b) (2007) (“The
provisions of this section shall not apply to … with respect to
farm animals, normal or accepted practices of animal husbandry,
including the normal and accepted practices for the slaughter of
such animals”); Md. Crim. Law Code Ann. §10–603 (Lexis 2002)
(sections prohibiting animal cruelty “do not apply to … customary
and normal veterinary and agricultural husbandry practices,
including dehorning, castration, tail docking, and limit
feeding”).
Second, nothing in the record suggests that
any one has ever created, sold, or possessed for sale a depiction
of the slaughter of food animals or of the docking of the tails of
dairy cows that would not easily qualify under the exception set
out in §48(b). Depictions created to show proper methods of
slaughter or tail-docking would presumably have serious
“educational” value, and depictions created to focus attention on
methods thought to be inhumane or otherwise objectionable would
presumably have either serious “educational” or “journalistic”
value or both. In short, the Court’s examples of depictions
involving the docking of tails and humane slaughter do not show
that §48 suffers from any overbreadth, much less substantial
overbreadth.
The Court notes, finally, that cockfighting,
which is illegal in all States, is still legal in Puerto Rico,
ante, at 15, and I take the Court’s point to be that it
would be impermissible to ban the creation, sale, or possession in
Puerto Rico of a depiction of a cockfight that was legally staged
in Puerto Rico.[
Footnote 5] But
assuming for the sake of argument that this is correct, this
veritable sliver of unconstitutionality would not be enough to
justify striking down §48
in toto.
In sum, we have a duty to interpret §48 so as
to avoid serious constitutional concerns, and §48 may reasonably be
construed not to reach almost all, if not all, of the depictions
that the Court finds constitutionally protected. Thus, §48 does not
appear to have a large number of unconstitutional applications.
Invalidation for overbreadth is appropriate only if the challenged
statute suffers from
substantial overbreadth—judged not
just in absolute terms, but in relation to the statute’s “plainly
legitimate sweep.”
Williams, 553 U. S., at 292. As I
explain in the following Part, §48 has a substantial core of
constitutionally permissible applications.
IV
A
1
As the Court of Appeals
recognized, “the primary conduct that Congress sought to address
through its passage [of §48] was the creation, sale, or possession
of ‘crush videos.’ ” 533 F. 3d 218, 222 (CA3 2008) (en
banc). A sample crush video, which has been lodged with the Clerk,
records the following event:
“[A] kitten, secured to the ground, watches and
shrieks in pain as a woman thrusts her high-heeled shoe into its
body, slams her heel into the kitten’s eye socket and mouth loudly
fracturing its skull, and stomps repeatedly on the animal’s head.
The kitten hemorrhages blood, screams blindly in pain, and is
ultimately left dead in a moist pile of blood-soaked hair and
bone.” Brief for Humane Society of United States as
Amicus
Curiae 2 (hereinafter Humane Society Brief).
It is undisputed that the
conduct depicted in crush videos may constitutionally be
prohibited. All 50 States and the District of Columbia have enacted
statutes prohibiting animal cruelty. See 533 F. 3d
,
at 223, and n. 4 (citing statutes); H. R. Rep., at 3. But
before the enactment of §48, the underlying conduct depicted in
crush videos was nearly impossible to prosecute. These videos,
which “ often appeal to persons with a very specific sexual
fetish,”
id., at 2, were made in secret, generally without
a live audience, and “the faces of the women inflicting the torture
in the material often were not shown, nor could the location of the
place where the cruelty was being inflicted or the date of the
activity be ascertained from the depiction.”
Id., at 3.
Thus, law enforcement authorities often were not able to identify
the parties responsible for the torture. See Punishing Depictions
of Animal Cruelty and the Federal Prisoner Health Care Co-Payment
Act of 1999: Hearing before the Subcommittee on Crime of the House
Committee on the Judiciary, 106th Cong., 1st Sess., p. 1
(1999) (hereinafter Hearing on Depictions of Animal Cruelty). In
the rare instances in which it was possible to identify and find
the perpetrators, they “often were able to successfully assert as a
defense that the State could not prove its jurisdiction over the
place where the act occurred or that the actions depicted took
place within the time specified in the State statute of
limitations.” H. R. Rep., at 3
; see also 145 Cong.
Rec. 25896 (Rep. Gallegly) (“[I]t is the prosecutors from around
this country, Federal prosecutors as well as State prosecutors,
that have made an appeal to us for this”); Hearing on Depictions of
Animal Cruelty 21 (“If the production of the video is not
discovered during the actual filming, then prosecution for the
offense is virtually impossible without a cooperative eyewitness to
the filming or an undercover police operation”);
id., at
34–35 (discussing example of case in which state prosecutor “had
the defendant telling us he produced these videos,” but where
prosecution was not possible because the State could not prove
where or when the tape was made).
In light of the practical problems thwarting
the prosecution of the creators of crush videos under state animal
cruelty laws, Congress concluded that the only effective way of
stopping the underlying criminal conduct was to prohibit the
commercial exploitation of the videos of that conduct. And
Congress’ strategy appears to have been vindicated. We are told
that “[b]y 2007, sponsors of §48 declared the crush video industry
dead. Even overseas Websites shut down in the wake of §48. Now,
after the Third Circuit’s decision [facially invalidating the
statute], crush videos are already back online.” Humane Society
Brief 5 (citations omitted).
2
The First Amendment protects
freedom of speech, but it most certainly does not protect violent
criminal conduct, even if engaged in for expressive purposes. Crush
videos present a highly unusual free speech issue because they are
so closely linked with violent criminal conduct. The videos record
the commission of violent criminal acts, and it appears that these
crimes are committed for the sole purpose of creating the videos.
In addition, as noted above, Congress was presented with compelling
evidence that the only way of preventing these crimes was to target
the sale of the videos. Under these circumstances, I cannot believe
that the First Amendment commands Congress to step aside and allow
the underlying crimes to continue.
The most relevant of our prior
decisions is
Ferber,
458 U. S. 747, which concerned child
pornography. The Court there held that child pornography is not
protected speech, and I believe that
Ferber’s reasoning
dictates a similar conclusion here.
In
Ferber, an important factor—I
would say the most important factor—was that child pornography
involves the commission of a crime that inflicts severe personal
injury to the “children who are made to engage in sexual conduct
for commercial purposes.’ ”
Id., at 753 (internal
quotation marks omitted). The
Ferber Court repeatedly
described the production of child pornography as child “abuse,”
“molestation,” or “exploitation.” See,
e.g.,
id.,
at 749 (“In recent years, the exploitive use of children in the
production of pornography has become a serious national problem”);
id., at 758, n. 9 (“Sexual molestation by adults is
often involved in the production of child sexual performances”). As
later noted in
Ashcroft v.
Free Speech Coalition,
535 U. S. 234,
249 (2002), in
Ferber “[t]he production of the work, not
its content, was the target of the statute.” See also 535 U.S., at
250 (
Ferber involved “speech that itself is the record of
sexual abuse”).
Second,
Ferber emphasized the fact
that these underlying crimes could not be effectively combated
without targeting the distribution of child pornography. As the
Court put it, “the distribution network for child pornography must
be closed if the production of material which requires the sexual
exploitation of children is to be effectively controlled.” 458 U.
S., at 759. The Court added:
“[T]here is no serious contention that the
legislature was unjustified in believing that it is difficult, if
not impossible, to halt the exploitation of children by pursuing
only those who produce the photographs and movies… . The most
expeditious if not the only practical method of law enforcement may
be to dry up the market for this material by imposing severe
criminal penalties on persons selling, advertising, or otherwise
promoting the product.”
Id., at 759–760.
See also
id., at 761 (“The advertising and
selling of child pornography provide an economic motive for and are
thus an integral part of the production of such materials”).
Third, the
Ferber Court noted that
the value of child pornography “is exceedingly modest, if not
de minimis,” and that any such value was “overwhelmingly
outweigh[ed]” by “the evil to be restricted.”
Id., at
762–763.
All three of these characteristics are shared
by §48, as applied to crush videos. First, the conduct depicted in
crush videos is criminal in every State and the District of
Columbia. Thus, any crush video made in this country records the
actual commission of a criminal act that inflicts severe physical
injury and excruciating pain and ultimately results in death. Those
who record the underlying criminal acts are likely to be criminally
culpable, either as aiders and abettors or conspirators. And in the
tight and secretive market for these videos, some who sell the
videos or possess them with the intent to make a profit may be
similarly culpable. (For example, in some cases, crush videos were
commissioned by purchasers who specified the details of the acts
that they wanted to see performed. See H. R. Rep., at 3;
Hearing on Depictions of Animal Cruelty 27). To the extent that §48
reaches such persons, it surely does not violate the First
Amendment.
Second, the criminal acts shown in crush
videos cannot be prevented without targeting the conduct prohibited
by §48—the creation, sale, and possession for sale of depictions of
animal torture with the intention of realizing a commercial profit.
The evidence presented to Congress posed a stark choice: Either ban
the commercial exploitation of crush videos or tolerate a
continuation of the criminal acts that they record. Faced with this
evidence, Congress reasonably chose to target the lucrative crush
video market.
Finally, the harm caused by the underlying
crimes vastly outweighs any minimal value that the depictions might
conceivably be thought to possess. Section 48 reaches only the
actual recording of acts of animal torture; the statute does not
apply to verbal descriptions or to simulations. And, unlike the
child pornography statute in
Ferber or its federal
counterpart, 18 U. S. C. §2252, §48(b) provides an exception
for depictions having any “serious religious, political,
scientific, educational, journalistic, historical, or artistic
value.”
It must be acknowledged that §48 differs from
a child pornography law in an important respect: preventing the
abuse of children is certainly much more important than preventing
the torture of the animals used in crush videos. It was largely for
this reason that the Court of Appeals concluded that
Ferber did not support the constitutionality of §48. 533
F. 3d, at 228 (“Preventing cruelty to animals, although an
exceedingly worthy goal, simply does not implicate interests of the
same magnitude as protecting children from physical and
psychological harm”). But while protecting children is
unquestionably
more important than protecting animals, the
Government also has a compelling interest in preventing the torture
depicted in crush videos.
The animals used in crush videos are living
creatures that experience excruciating pain. Our society has long
banned such cruelty, which is illegal throughout the country. In
Ferber, the Court noted that “virtually all of the States
and the United States have passed legislation proscribing the
production of or otherwise combating ‘child pornography,’ ”
and the Court declined to “second-guess [that] legislative
judgment.”[
Footnote 6] 458 U.
S., at 758. Here, likewise, the Court of Appeals erred in
second-guessing the legislative judgment about the importance of
preventing cruelty to animals.
Section 48’s ban on trafficking in crush
videos also helps to enforce the criminal laws and to ensure that
criminals do not profit from their crimes. See 145 Cong. Rec. 25897
(Oct. 19, 1999) (Rep. Gallegly) (“The state has an interest in
enforcing its existing laws. Right now, the laws are not only being
violated, but people are making huge profits from promoting the
violations”);
id., at 10685 (May 24, 1999) (Rep. Gallegly)
(explaining that he introduced the House version of the bill
because “criminals should not profit from [their] illegal acts”).
We have already judged that taking the profit out of crime is a
compelling interest. See
Simon & Schuster, Inc. v.
Members of N. Y. State Crime Victims Bd.,
502 U. S. 105, 119 (1991).
In short,
Ferber is the case that
sheds the most light on the constitutionality of Congress’ effort
to halt the production of crush videos. Applying the principles set
forth in
Ferber, I would hold that crush videos are not
protected by the First Amendment.
B
Application of the
Ferber framework also supports the constitutionality of
§48 as applied to depictions of brutal animal fights. (For
convenience, I will focus on videos of dogfights, which appear to
be the most common type of animal fight videos.)
First, such depictions,
like crush videos, record the actual commission of a crime
involving deadly violence. Dogfights are illegal in every State and
the District of Columbia, Brief for United States 26–27, and
n. 8 (citing statutes), and under federal law constitute a
felony punishable by imprisonment for up to five years, 7 U.
S. C. §2156
et seq. (2006 ed. and Supp. II),
18 U. S. C. §49 (2006 ed., Supp. II).
Second, Congress had an ample basis for
concluding that the crimes depicted in these videos cannot be
effectively controlled without targeting the videos. Like crush
videos and child pornography, dogfight videos are very often
produced as part of a “low-profile, clandestine industry,” and “the
need to market the resulting products requires a visible apparatus
of distribution.”
Ferber, 458 U. S., at 760. In such
circumstances, Congress had reasonable grounds for concluding that
it would be “difficult, if not impossible, to halt” the underlying
exploitation of dogs by pursuing only those who stage the fights.
Id., at 759–760; see 533 F. 3d, at 246 (Cowen, J.,
dissenting) (citing evidence establishing “the existence of a
lucrative market for depictions of animal cruelty,” including
videos of dogfights, “which in turn provides a powerful incentive
to individuals to create [such] videos”).
The commercial trade in videos of dogfights is
“an integral part of the production of such materials,”
Ferber,
supra, at 761. As the Humane Society explains, “[v]ideotapes
memorializing dogfights are integral to the success of this
criminal industry” for a variety of reasons. Humane Society Brief
5. For one thing, some dogfighting videos are made “solely for the
purpose of selling the video (and not for a live audience).”
Id., at 9. In addition, those who stage dogfights profit
not just from the sale of the videos themselves, but from the
gambling revenue they take in from the fights; the videos
“encourage [such] gambling activity because they allow those
reluctant to attend actual fights for fear of prosecution to still
bet on the outcome.”
Ibid.; accord, Brief for Center on
the Administration of Criminal Law as
Amicus Curiae 12
(“Selling videos of dogfights effectively abets the underlying
crimes by providing a market for dogfighting while allowing actual
dogfights to remain underground”);
ibid. (“These videos
are part of a ‘lucrative market’ where videos are produced by a
‘bare-boned, clandestine staff’ in order to permit the actual
location of dogfights and the perpetrators of these underlying
criminal activities to go undetected” (citations omitted)).
Moreover, “[v]ideo documentation is vital to the criminal
enterprise because it provides
proof of a dog’s fighting
prowess—proof demanded by potential buyers and critical to the
underground market.” Humane Society Brief 9. Such recordings may
also serve as “ ‘training’ videos for other fight organizers.”
Ibid. In short, because videos depicting live dogfights
are essential to the success of the criminal dogfighting
subculture, the commercial sale of such videos helps to fuel the
market for, and thus to perpetuate the perpetration of, the
criminal conduct depicted in them.
Third, depictions of dogfights that fall
within §48’s reach have by definition no appreciable social value.
As noted, §48(b) exempts depictions having any appreciable social
value, and thus the mere inclusion of a depiction of a live fight
in a larger work that aims at communicating an idea or a message
with a modicum of social value would not run afoul of the
statute.
Finally, the harm caused by the underlying
criminal acts greatly outweighs any trifling value that the
depictions might be thought to possess. As the Humane Society
explains:
“The abused dogs used in fights endure physical
torture and emotional manipulation throughout their lives to
predispose them to violence; common tactics include feeding the
animals hot peppers and gunpowder, prodding them with sticks, and
electrocution. Dogs are conditioned never to give up a fight, even
if they will be gravely hurt or killed. As a result, dogfights
inflict horrific injuries on the participating animals, including
lacerations, ripped ears, puncture wounds and broken bones. Losing
dogs are routinely refused treatment, beaten further as
‘punishment’ for the loss, and executed by drowning, hanging, or
incineration.”
Id., at 5–6 (footnotes omitted).
For these dogs, unlike the
animals killed in crush videos, the suffering lasts for years
rather than minutes. As with crush videos, moreover, the statutory
ban on commerce in dogfighting videos is also supported by
compelling governmental interests in effectively enforcing the
Nation’s criminal laws and preventing criminals from profiting from
their illegal activities. See
Ferber,
supra, at
757–758;
Simon & Schuster, 502 U. S., at 119.
In sum, §48 may validly be applied to at least
two broad real-world categories of expression covered by the
statute: crush videos and dogfighting videos. Thus, the statute has
a substantial core of constitutionally permissible applications.
Moreover, for the reasons set forth above, the record does not show
that §48, properly interpreted, bans a substantial amount of
protected speech in absolute terms.
A fortiori, respondent
has not met his burden of demonstrating that any impermissible
applications of the statute are “substantial” in relation to its
“plainly legitimate sweep.”
Williams, 553 U. S., at 292.
Accordingly, I would reject respondent’s claim that §48 is facially
unconstitutional under the overbreadth doctrine.
* * *
For these reasons, I respectfully
dissent.
APPENDIX
As the following chart makes clear, virtually
all state laws prohibiting animal cruelty either expressly define
the term “animal” to exclude wildlife or else specifically exempt
lawful hunting activities.
Alaska
Alaska Stat. §11.61.140(c)(4) (2008) (“It is a defense to a
prosecution under this section that the conduct of the defendant …
was necessarily incidental to lawful fishing, hunting or trapping
activities”)
Arizona
Ariz. Rev. Stat. Ann. §§13–2910(C)(1), (3) (West Supp. 2009)
(“This section does not prohibit or restrict … [t]he taking of
wildlife or other activities permitted by or pursuant to title 17 …
[or] [a]ctivities regulated by the Arizona game and fish department
or the Arizona department of agriculture”)
Arkansas
Ark. Code Ann. §5–62–105(a) (Supp. 2009) (“This subchapter does
not prohibit any of the following activities: … (9) Engaging in the
taking of game or fish through hunting, trapping, or fishing, or
engaging in any other activity authorized by Arkansas Constitution,
Amendment 35, by §15–41–101 et seq., or by any Arkansas State Game
and Fish Commission regulation promulgated under either Arkansas
Constitution, Amendment 35, or statute”)
California
Cal. Penal Code Ann. §599c (West 1999) (“No part of this title
shall be construed as interfering with any of the laws of this
state known as the ‘game laws,’ … or to interfere with the right to
kill all animals used for food”)
Colorado
Colo. Rev. Stat. Ann. §18–9–201.5(2) (2009) (“In case of any
conflict between this part 2 [prohibiting cruelty to animals] or
section 35–43–126, [Colo. Rev. Stat.], and the wildlife statutes of
the state, said wildlife statutes shall control”), §18–9–202(3)
(“Nothing in this part 2 shall be construed to amend or in any
manner change the authority of the wildlife commission, as
established in title 33, [Colo. Rev. Stat.], or to prohibit any
conduct therein authorized or permitted”)
Connecticut
Conn. Gen. Stat. §53–247(b) (2009) (“Any person who maliciously
and intentionally maims, mutilates, tortures, wounds or kills an
animal shall be fined not more than five thousand dollars or
imprisoned not more than five years or both. The provisions of this
subsection shall not apply to … any person … while lawfully engaged
in the taking of wildlife”)
Delaware
Del. Code Ann., Tit. 11, §1325(f) (2007) (“This section shall
not apply to the lawful hunting or trapping of animals as provided
by law”)
Florida
Fla. Stat. §828.122(9)(b) (2007) (“This section shall not apply
to … [a]ny person using animals to pursue or take wildlife or to
participate in any hunting regulated or subject to being regulated
by the rules and regulations of the Fish and Wildlife Conservation
Commission”)
Georgia
Ga. Code Ann. §16–12–4(e) (2007) (“The provisions of this Code
section shall not be construed as prohibiting conduct which is
otherwise permitted under the laws of this state or of the United
States, including, but not limited to … hunting, trapping, fishing,
[or] wildlife management”)
Hawaii
Haw. Rev. Stat. §711–1108.5(1) (2008 Cum. Supp.) (“A person
commits the offense of cruelty to animals in the first degree if
the person intentionally or knowingly tortures, mutilates, or
poisons or causes the torture, mutilation, or poisoning of any pet
animal or equine animal resulting in serious bodily injury or death
of the pet animal or equine animal”)
Idaho
Idaho Code §25–3515 (Lexis 2000) (“No part of this chapter shall
be construed as interfering with, negating or preempting any of the
laws or rules of the department of fish and game of this state … or
to interfere with the right to kill, slaughter, bag or take all
animals used for food”)
Illinois
Ill. Comp. Stat., ch. 510, §70/13 (West 2006) (“In case of any
alleged conflict between this Act … and the ‘Wildlife Code of
Illinois’ or ‘An Act to define and require the use of humane
methods in the handling, preparation for slaughter, and slaughter
of livestock for meat or meat products to be offered for sale’, …
the provisions of those Acts shall prevail”), §70/3.03(b)(1) (“For
the purposes of this Section, ‘animal torture’ does not include any
death, harm, or injury caused to any animal by … any hunting,
fishing, trapping, or other activity allowed under the Wildlife
Code, the Wildlife Habitat Management Areas Act, or the Fish and
Aquatic Life Code” (footnotes omitted))
Indiana
Ind. Code §35–46–3–5(a) (West 2004) (subject to certain
exceptions not relevant here, “this chapter [prohibiting “Offenses
Relating to Animals”] does not apply to … [f]ishing, hunting,
trapping, or other conduct authorized under [Ind. Code
§]14–22”)
Iowa
Iowa Code §717B.2(5) (2009) (“This section [banning “animal
abuse”] shall not apply to … [a] person taking, hunting, trapping,
or fishing for a wild animal as provided in chapter 481A”),
§717B.3A(2)(e) (“This section [banning “animal torture”] shall not
apply to … [a] person taking, hunting, trapping, or fishing for a
wild animal as provided in chapter 481A”)
Kansas
Kan. Stat. Ann. §21–4310(b)(3) (2007) (“The provisions of this
section shall not apply to … killing, attempting to kill, trapping,
catching or taking of any animal in accordance with the provisions
of chapter 32 [Wildlife, Parks and Recreation] or chapter 47
[Livestock and Domestic Animals] of the Kansas Statutes
Annotated”)
Kentucky
Ky. Rev. Stat. Ann. §§525.130(2)(a), (e) (Lexis 2008) (“Nothing
in this section shall apply to the killing of animals … [p]ursuant
to a license to hunt, fish, or trap … [or] [f]or purposes relating
to sporting activities”), §525.130(3) (“Activities of animals
engaged in hunting, field trials, dog training other than training
a dog to fight for pleasure or profit, and other activities
authorized either by a hunting license or by the Department of Fish
and Wildlife shall not constitute a violation of this section”)
Louisiana
La. Rev. Stat. Ann. §14:102.1(C)(1) (West Supp. 2010) (“This
Section shall not apply to … [t]he lawful hunting or trapping of
wildlife as provided by law”)
Maine
Me. Rev. Stat. Ann., Tit. 17, §1031(1)(G) (West Supp. 2009)
(providing that hunting and trapping an animal is not a form of
prohibited animal cruelty if “permitted pursuant to” parts of state
code regulating the shooting of large game, inland fisheries, and
wildlife)
Maryland
Md. Crim. Law Code Ann. §10–603(3) (Lexis 2002) (“Sections
10–601 through 10–608 of this subtitle do not apply to … an
activity that may cause unavoidable physical pain to an animal,
including … hunting, if the person performing the activity uses the
most humane method reasonably available”)
Michigan
Mich. Comp. Laws Ann. §§750.50(11)(a), (b) (West Supp. 2009)
(“This section does not prohibit the lawful killing or other use of
an animal, including … [f]ishing … [h]unting, [or] trapping [as
regulated by state law]”), §750.50b(9)(a), (b) (“This section does
not prohibit the lawful killing or other use of an animal,
including … [f]ishing … [h]unting, [or] trapping [as regulated by
state law]”)
Missouri
Mo. Rev. Stat. §578.007(3) (2000) (“The provisions of sections
578.005 to 578.023 shall not apply to … [h]unting, fishing, or
trapping as allowed by” state law)
Montana
Mont. Code Ann. §45–8–211(4)(d) (2009) (“This section does not
prohibit … lawful fishing, hunting, and trapping activities”)
Nebraska
Neb. Rev. Stat. §28–1013(4) (2008) (exempting “[c]ommonly
accepted practices of hunting, fishing, or trapping”)
Nevada
Nev. Rev. Stat. §§574.200(1), (3) (2007) (provisions of Nevada
law banning animal cruelty “do not … [i]nterfere with any of the
fish and game laws … [or] the right to kill all animals and fowl
used for food”)
New Hampshire
N. H. Rev. Stat. Ann. §644:8(II) (West Supp. 2009) (“In
this section, ‘animal’ means a domestic animal, a household pet or
a wild animal in captivity”)
New Jersey
N. J. Stat. Ann. §4:22–16(c) (West 1998) (“Nothing
contained in this article shall be construed to prohibit or
interfere with … [t]he shooting or taking of game or game fish in
such manner and at such times as is allowed or provided by the laws
of this State”)
New Mexico
N. M. Stat. Ann. §30–18–1(I)(1) (Supp. 2009) (“The
provisions of this section do not apply to … fishing, hunting,
falconry, taking and trapping”)
New York
N. Y. Agric. & Mkts. Law Ann. §353–a(2) (West 2004)
(“Nothing contained in this section shall be construed to prohibit
or interfere in any way with anyone lawfully engaged in hunting,
trapping, or fishing”)
North Carolina
N. C. Gen. Stat. Ann. §14–360(c)(1) (Lexis 2009) (“[T]his
section shall not apply to … [t]he lawful taking of animals under
the jurisdiction and regulation of the Wildlife Resources
Commission …”)
North Dakota
N. D. Cent. Code Ann. §36–21.1–01(5)(a) (Lexis Supp. 2009)
(“ ‘Cruelty’ or ‘torture’ … does not include … [a]ny activity
that requires a license or permit under chapter 20.1–03 [which
governs gaming and other licenses]”)
Oregon
Ore. Rev. Stat. §167.335 (2007) (“Unless gross negligence can be
shown, the provisions of [certain statutes prohibiting animal
cruelty] do not apply to … (7) [l]awful fishing, hunting and
trapping activities”)
Pennsylvania
18 Pa. Cons. Stat. §5511(a)(3)(ii) (2008) (“This subsection
[banning killing, maiming, or poisoning of domestic animals or zoo
animals] shall not apply to … the killing of any animal or fowl
pursuant to … The Game Law”), §5511(c)(1) (“A person commits an
offense if he wantonly or cruelly illtreats, overloads, beats,
otherwise abuses any animal, or neglects any animal as to which he
has a duty of care”)
Rhode Island
R. I. Gen. Laws §4–1–3(a) (Lexis 1998) (prohibiting
“[e]very owner, possessor, or person having the charge or custody
of any animal” from engaging in certain acts of unnecessary
cruelty), §§4–1–5(a), (b) (prohibiting only “[m]alicious” injury to
or killing of animals and further providing that “[t]his section
shall not apply to licensed hunters during hunting season or a
licensed business killing animals for human consumption”)
South Carolina
S. C. Code Ann. §47–1–40(C) (Supp. 2009) (“This section
does not apply to … activity authorized by Title 50 [consisting of
laws on Fish, Game, and Watercraft]”)
South Dakota
S. D. Codified Laws §40–1–17 (2004) (“The acts and conduct
of persons who are lawfully engaged in any of the activities
authorized by Title 41 [Game, Fish, Parks and Forestry] … and
persons who properly kill any animal used for food and sport
hunting, trapping, and fishing as authorized by the South Dakota
Department of Game, Fish and Parks, are exempt from the provisions
of this chapter”)
Tennessee
Tenn. Code Ann. §39–14–201(1) (2010 Supp.) (“ ‘Animal’
means a domesticated living creature or a wild creature previously
captured”), §39–14–201(4) (“[N]othing in this part shall be
construed as prohibiting the shooting of birds or game for the
purpose of human food or the use of animate targets by incorporated
gun clubs”)
Texas
Tex. Penal Code Ann. §42.092(a)(2) (West Supp. 2009)
(“ ‘Animal’ means a domesticated living creature, including
any stray or feral cat or dog, and a wild living creature
previously captured. The term does not include an uncaptured wild
living creature or a livestock animal”), §42.092(f)(1)(A) (“It is
an exception to the application of this section that the conduct
engaged in by the actor is a generally accepted and otherwise
lawful … form of conduct occurring solely for the purpose of or in
support of … fishing, hunting, or trapping”)
Utah
Utah Code Ann. §76–9–301(1)(b)(ii)(D) (Lexis 2008)
(“ ‘Animal’ does not include … wildlife, as defined in Section
23–13–2, including protected and unprotected wildlife, if the
conduct toward the wildlife is in accordance with lawful hunting,
fishing, or trapping practices or other lawful practices”),
§76–9–301(9)(C) (“This section does not affect or prohibit … the
lawful hunting of, fishing for, or trapping of, wildlife”)
Vermont
Vt. Stat. Ann., Tit. 13, §351b(1) (2009) (“This subchapter shall
not apply to … activities regulated by the department of fish and
wildlife pursuant to Part 4 of Title 10”)
Virginia
Va. Code Ann. §3.2–6570D (Lexis 2008) (“This section shall not
prohibit authorized wildlife management activities or hunting,
fishing or trapping [as regulated by state law]”)
Washington
Wash. Rev. Code §16.52.180 (2008) (“No part of this chapter
shall be deemed to interfere with any of the laws of this state
known as the ‘game laws’ … or to interfere with the right to kill
animals to be used for food”)
West Virginia
W. Va. Code Ann. §61–8–19(f) (Lexis Supp. 2009) (“The provisions
of this section do not apply to lawful acts of hunting, fishing,
[or] trapping”)
Wisconsin
Wis. Stat. §951.015(1) (2007–2008) (“This chapter may not be
interpreted as controverting any law regulating wild animals that
are subject to regulation under ch. 169 [regulating, among other
things, hunting], [or] the taking of wild animals”)
Wyoming
Wyo. Stat. Ann. §6–3–203(m)(iv) (2009) (“Nothing in subsection
(a), (b) or (n) of this section shall be construed to prohibit …
[t]he hunting, capture or destruction of any predatory animal or
other wildlife in any manner not otherwise prohibited by law”)
Footnote 1
Respondent argued at length that the evidence
was insufficient to prove that the particular videos he sold lacked
any serious scientific, educational, or historical value and thus
fell outside the exception in §48(b). See Brief for Appellant in
No. 05–2497 (CA3), pp. 72–79. He added that, if the evidence
in this case was held to be sufficient to take his videos outside
the scope of the exception, then “this case presents … a situation”
in which “a constitutional violation occurs.”
Id., at 71.
See also
id., at 47 (“The applicability of 18 U.
S. C. §48 to speech which is not a crush video or an appeal to
some prurient sexual interest constitutes a restriction of
protected speech, and an unwarranted violation of the First
Amendment’s free speech guarantee”); Brief for Respondent 55
(“Stevens’ speech does not fit within any existing category of
unprotected, prosecutable speech”);
id., at 57 (“[T]he
record as a whole demonstrates that Stevens’ speech cannot
constitutionally be punished”). Contrary to the Court,
ante, at 10–11, n. 3 (citing 533 F. 3d 218, 231,
n. 13 (CA3 2008) (en banc)), I see no suggestion in the
opinion of the Court of Appeals that respondent did not preserve an
as-applied challenge.
Footnote 2
For the reasons set forth below, this is not a case
in which the challenged statute is unconstitutional in all or
almost all of its applications.
Footnote 3
See Appendix,
infra (citing
statutes); B. Wagman, S. Waisman, & P. Frasch, Animal Law:
Cases and Materials 92 (4th ed. 2010) (“Most anti-cruelty laws also
include one or more exemptions,” which often “exclud[e] from
coverage (1) whole classes of animals, such as wildlife or farm
animals, or (2) specific activities, such as hunting”); Note,
Economics and Ethics in the Genetic Engineering of Animals, 19
Harv. J. L. & Tech. 413, 432 (2006) (“Not surprisingly,
state laws relating to the humane treatment of wildlife, including
deer, elk, and waterfowl, are virtually non-existent”).
Footnote 4
Webster’s Third New International Dictionary
2073 (1976); Random House Dictionary of the English Language 1303
(1966). While the term “serious” may also mean “weighty” or
“important,”
ibid., we should adopt the former definition
if necessary to avoid unconstitutionality.
Footnote 5
Since the Court has taken pains not to decide
whether §48 would be unconstitutional as applied to graphic
dogfight videos, including those depicting fights occurring in
countries where dogfighting is legal, I take it that the Court does
not intend for its passing reference to cockfights to mean either
that all depictions of cockfights, whether legal or illegal under
local law, are protected by the First Amendment or that it is
impermissible to ban the sale or possession in the States of a
depiction of a legal cockfight in Puerto Rico.
Footnote 6
In other cases, we have regarded evidence of
a national consensus as proof that a particular government interest
is compelling. See
Simon & Schuster, Inc. v.
Members of N. Y. State Crime Victims Bd.,
502 U. S. 105, 118 (1991) (State’s
compelling interest “in ensuring that victims of crime are
compensated by those who harm them” evidenced by fact that “[e]very
State has a body of tort law serving exactly this interest”);
Roberts v.
United States Jaycees,
468 U. S. 609, 624–625
(1984) (citing state laws prohibiting discrimination in public
accommodations as evidence of the compelling governmental interest
in ensuring equal access).
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