Stevens court left open issue of compelling state interest in preventing animal cruelty

Matthew Liebman [Staff Attorney, Animal Legal Defense Fund]: "The Animal Legal Defense Fund filed an amicus brief in defense of 18 U.S.C. Section 48, so we are obviously disappointed by the Court's opinion [PDF file] in United States v. Stevens. Nevertheless, we are heartened by Justice Alito's dissent and the way in which the majority chose to frame its decision.

First of all, we agree with Justice Alito's analysis of the case. Although there are significant differences between child pornography and depictions of animal cruelty, the similarities are overwhelming. Both involve the exploitation of vulnerable subjects; both involve commercial profit from suffering; both are produced in ways that make it difficult, if not impossible, to prosecute the underlying conduct depicted; and, perhaps most significantly from a constitutional perspective, the existence of a market for both kinds of depictions fuels the commission of the illegal conduct itself. This last point is proven by the fact that the market for crush videos - gruesome videos that depict women crushing small animals with their feet - was virtually eradicated in the wake of Section 48's passage, then reemerged after the Third Circuit invalidated Section 48.

Obviously the majority disagreed, at least insofar as these arguments apply to depictions of animal cruelty generally. It's always an uphill battle when you're urging the Supreme Court to recognize a new category of unprotected speech. But I find it extremely significant that the majority did not follow the Third Circuit in holding that the prevention of animal cruelty is not a compelling government interest. Such a holding would have had devastating implications for the hundreds of local, state, and federal laws that protect animals. Instead, the Court based its opinion on overbreadth grounds, while recognizing that "the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies." The Court did not explicitly hold that preventing animal cruelty is a compelling government interest, but it refused to foreclose the question when it had a clear invitation to do so. I view that as an important sign of the progress of animal law and the evolving public consciousness of the importance of protecting animals.

It is also important to recognize that the Court left open the question of whether a narrower law that covers only "extreme" forms of animal cruelty would pass constitutional muster. The next steps are clear: we'll go back to Congress and push for a narrower law that prohibits depictions of crush videos, and perhaps other forms of extreme cruelty such as animal fighting."

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