Today's decision in United States v. Stevens was correct as a matter of law, even if its application makes me wince. You see, I am a dog lover, and regard my two border collies, Odysseus and Penelope, as integral parts of my family. So it pains me to applaud a decision striking down a law making it a crime to sell videos and other depictions of animal cruelty.
The Court held 8-1 that the law prohibiting such behavior was overly broad.
The text of the law, used to prosecute a Virginia man who had advertised videos of dogfights in an underground magazine, sweepingly covered "any depiction" in which "a living animal is intentionally maimed, mutilated, tortured, wounded, or killed."
Yet as the justices struck down that prohibition, they specifically said they were not deciding the validity of a law that would target only so-called "crush videos," which typically show women's high heels digging into kittens and other small animals and which had inspired Congress to write the 1999 law in the first place.
Robert Stevens, who had run a business known as "Dogs of Velvet and Steel," appealed his conviction under the law, saying it violated his First Amendment speech rights. He also contended he was trying to provide educational and historical materials about the pit bull breed, not promoting illegal dogfighting.
The U.S. Court of Appeals for the Third Circuit threw out his conviction, finding that the law was unconstitutional.
In spurning the Department of Justice's appeal Tuesday, the high court rejected the government's arguments across the board.
The majority forcefully denied the primary claim that animal cruelty, as a class, is not protected by the First Amendment, as obscenity, for example, is not. Roberts said past court cases provide no grounds for carving out a new categorical exception to speech rights, and he deemed the government's argument for more limited First Amendment coverage "startling and dangerous."
Roberts noted that while the 1999 law does not require the conduct depicted to be cruel, it must be "illegal." Yet, Roberts wrote, "There are myriad federal and state law concerning the proper treatment of animals, but many of them are not designed to guard against animal cruelty. Protections of endangered species, for example, restrict even the humane wounding or killing of living animals."
Roberts also swatted away government arguments that federal prosecutors would only go after the most "extreme" cruelty. "This prosecution (in the case of Stevens) is itself evidence of the danger in putting faith in government representations of prosecutorial restraint."
Only Samuel Alito dissented. He emphasized that the law was intended "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."