A Rare Victory Against Overcriminalization

Animal lovers throughout the United States may be distressed by today's ruling in United States v. Stevens. But they should not be. The laws against animal cruelty pending in every state remain intact. All that changed today is the Government's freedom to apply vague laws in whatsoever manner a prosecutor with a wild hair chose. Oh, that the language in this decision would be applied broadly, and serve as a potent tool in the battle against overcriminalization.

The 8-1 decision by the United States Supreme Court struck down the federal law criminalizing the commercial sale, creation or depiction of animal cruelty. The statute was a criminal offense carrying a penalty of up to five years in prison. To be guilty of such an offense, a defendant had to violate a state or federal law regarding illegal treatment of animals and then take the additional step of trying to profit from depictions of cruelty in foreign or interstate commerce. Material of scientific, education or artistic value was excluded.

The law was intended to outlaw sexual fetish films involving the crushing of small animals. Apparently, libidinal sparks can burst into flames at the mere sight of a woman in high heels killing cats, dogs, monkeys, mice and even hamsters while berating them in the style of a dominatrix. Kibbles and Bits is apparently an aphrodisiac in some households.

Robert Stevens, the winner in today's case, sold dogfighting videos. For this, he was prosecuted, convicted, and sentenced to a total effective sentence of 37 months in prison. No dominatrix he.

The Supreme Court decision does not overturn state laws barring animal cruelty. Those laws remain in effect. Frankly, I am glad those laws exist. I am a dog lover. My two border collies, Odysseus and Penelope, require me to support such laws. (The dogs insisted their picture be published with this piece; they will not tell me why. Penny is on the right.)

Stevens' lawyers attacked this law as overbroad within the meaning of the First Amendment. In other words, the statute is written in such terms that it covers both potentially prohibited conduct, and conduct that is plainly permissible. In this case, the court noted, the law could be read to prosecute the killing of a stolen cow, a result far at variance from the statute's purpose.

The Government tried to argue that these issues would never arise because speech depicting cruelty to animals is not protected by the First Amendment at all. Not so fast, the court said. While obscenity, defamation, fraud, criminal incitement, criminal conspiracy and child pornography lack First Amendment protection, speech about animal cruelty has never been held to be beyond the scope of First Amendment protection. The act is foul, but we are still free to speak of foul things.

Next, the Government tried to claim that it would be reasonable, and would not turn a law intended to clip the heels of high strung dominatrices. Justice Roberts was at his best in rejecting this claim: "[T]he First Amendment protects against the Government: it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

I like that language. It is far too rare a day when the Supreme Court turns it back on the new national anthem, "Trust and Obey," and trims the sails of the Government. Was the judicial scalpel easy to apply here because the stakes seemed low?

"This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint," Roberts wrote. Petitioners should make every effort to remind the chief and his colleagues of these words in a broader variety of claims that those involving the sale of films depicting animal cruelty. It needs repeating when the courts are poised to give the benefit of the doubt to police officers in conducting searches or making arrests.

There are now so many crimes on the books that prosecutors have the ability to pick and choose when to charge almost anyone of us.

But I digress. This is a First Amendment case, not a claim involving a denial or equal protection or due process arising from an abuse of prosecutorial discretion. One hopes the sentiment of mistrust remains, however. We could use a dose of healthy skepticism when evaluating the perpetual reach of Uncle Sam's legions.

I suspect that today's decision will not end the press for legislation intended to outlaw the sale of material depicting animal cruelly. The Court suggested that tighter, more cleanly drafted language might pass muster. The statutory language, for example, did not really require that the prohibited images depict cruelty. Hence, the crime of killing a stolen cow.

But a new law is not needed. Every state outlaws animal cruelty. We do not really need another federal offense. Why Congress acted in this area at all is mystery. You can love animals and still hold your nose when the Government goes on a toot and asserts itself once more.


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