Legal Commentary

Big First Amendment win in United States v. Stevens

By David Kopel

At issue: a federal statute bans commercials depictions of ?animal cruelty,? namely a depiction ?in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,? if killing or other action violates the law where the ?the creation, sale, or possession takes place.? The statute would therefore outlaw the sale in the United States of a bullfighting video produced in Spain (since bullfighting is not legal in the United States), the sale of any hunting video or magazine in the District of Columbia (since no hunting is allowed in the District) or the sale of a crossbow hunting video or magazine in the many states which allow hunting with compound bows but not with crossbows.

There is an exception for a depiction ?that has serious religious, political,scientific, educational, journalistic, historical, or artistic value.?

An 8?1 decision by written by Chief Justice Roberts held the statute to violate the First Amendment. The decision declines the government?s invitation to create a balancing test in order to add a new exception to the First Amendment. The government?s promise to enforce the very overbroad statute narrowly could only rescue the statute if the statutory language were susceptible to a limiting construction.

Relying on amici briefs from two organizations to which I happily belong (the Professional Outdoor Media Association and the National Rifle Association), the Court details how the statute means that the sale of videos and magazines depicting lawful hunting in one state would be a felony if the video were sold in a state whose regulations did not allow that particular type of hunting.

The government argued that hunting videos and magazines are protected by the exception for depictions of ?serious? educational, journalistic, etc. value. However, as the Court notes, relying on amici briefs from Safari Club International, the Congressional Sportsmen?s Foundation, and the National Rifle Association, many hunting videos or magazines are not instructional, artistic, or historical, but are mainly for entertainment or recreation. The government urged that the exception be applied to any depiction which has at least ?scant? value. However, the majority declines to read ?serious? as equivalent to ?scant.? Therefore, the statute outlaws most of the billion-dollar industry in hunting videos and magazines, at least if any of those videos are ever sold in the District of Columbia.

Accordingly, the statute is plainly invalid under well-established First Amendment doctrine.

Justice Alito, the lone dissenter, would read the statute to encompass only ?animal cruelty? and would also presume that any depiction of lawful hunting has ?serious? value. He notes ?the predominant view in this country has long been that hunting serves many important values, and it is clear that Congress shares that view.? (Citing many presidential proclamations of National Hunting and Fishing Day, which was instituted at congressional request).

Further, writes Justice Alito, ?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.? Therefore, Justice Alito would construe the statute so narrowly that it reaches its intended targets (?crush? videos and dog-fighting videos) without causing extensive collateral damage.

Full post as published by The Volokh Conspiracy on April 20, 2010 (boomark / email).