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July 18, 2008

En banc Third Circuit constitutionally distinguishes animal porn from child porn

In a ruling that surely will not please aminal rights activists (but provides great material for teachers of animal law), the en banc Third Circuit today found unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty in US v. Stevens, No. 05-2497 (3d Cir. July 18, 2008) (available here). Here is how the long opinion starts:

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. § 48 and to affirm Robert Stevens’ conviction. For the reasons that follow, we decline the Government’s invitation.  Moreover, because we agree with Stevens that 18 U.S.C. § 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.

Howard Bashman effectively covers the ruling in this new post, where he astutely suggests that the Stevens case is likely to get Supreme Court attention.  The US Solicitor General likely will seek cert, and that fact alone drive up the odds of a grant significantly.  (Plus, we may see some animal rights groups urging the Court to take up and reverse this ruling.)

UPDATE:  Eugene Volokh has some thoughtful analysis of Stevens in this long post.

July 18, 2008 at 03:22 PM | Permalink


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It amazes me that there are some crimes (child abuse, animal abuse) of which it's illegal to possess a photograph of the crime scene. But muder - the worst crime - is not among them. I can possess pictures of murdered bodies all day long.

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