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April 20, 2010

SCOTUS affirms unconstitutionality of federal "animal porn" prohibition in Stevens

In the only opinion handed down this morning, the Supreme Court today in United States v. Stevens, No. 08-769 (available here), affirmed the Third Circuit's judgment that 18 U.S.C. § 48, which criminalizes certain depictions of animal cruelty, is unconstitutional.  The vote was 8-1, with Chief Justice Roberts writing the opinion for the Court and with Justice Alito writing a lengthy dissent.

The opinions appear to engage significantly with the Supreme Court's 30-year-old ruling in Ferber that child porn is not subject to First Amendment protections, though I will need some time to digest the opinion before seeing if there is anything in Stevens that could really impact day-to-day federal criminal justice policy or practice.

April 20, 2010 at 10:24 AM | Permalink

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Absolutely the majority farce impacts day-to-day prosecution. As a practical matter, the inhumane, twisted crush video industry can continue without fear of prosecution, since it is nearly impossible to determine the producer of the video. (And, I note, even more difficult than finding the producer of a child pornography video, since the animal is incapable of identifying the perpetrator.) Apparently the crush video industry completely died out until the Third Circuit opinion, after which it started to come back. The Supreme Court has pounded in the final nail in the coffin. The industry has been, for all practical purposes, immunized by our wise Ivy League Occult.

Further, the majority has implicitly expanded the overbreadth doctrine such that a person challenging it need not actually provide factual evidence showing a realistic chance that protected speech will be stifled. In my view, this will open up new overbreadth attacks that may not have been possible before.

Posted by: Res ipsa | Apr 20, 2010 10:55:58 AM

I was both happy and disappointed. I liked the result but Roberts attempt to distinguish Ferber was...laughable, to put it mildly. And I'm not sure that in the long run he didn't do free speech rights more harm than good. I would not call the reasoning behind the court's opinion in this case First Amendment friendly.

Posted by: Daniel | Apr 20, 2010 11:42:14 AM

I am not a first amendment scholar but I fail to see the connection between freedom of speech and these reprehensible depictions of animal cruelty. If it can not be considered art or journalism, where is the social value that would invoke a freedom of speech argument?

Further, if dog-fighting is illegal, how is a depiction of same lawful?

Posted by: mjs | Apr 20, 2010 1:04:27 PM

Res ipsa --

I largely, although not entirely, share your view. I have to be encouraged that the Court seems to want a robust First Amendment, because I do not trust the present Justice Department to respect First Amendment values. (I wonder when the first Tea Party protester is going to get charged with intimidation or whatever can be cooked up). At the same time, the notion that the law protects this sort of behavior is appalling. As I said over on Crime & Consequences, there is a danger that we become too concerned that the law remain stainless while the culture sinks into filth.

Posted by: Bill Otis | Apr 20, 2010 1:07:47 PM

what do you expect mjs this was brought to youi from the same retards who made it a sex crime to take a photo of your girlfriend nude but it's ok to have sex with them.

Posted by: rodsmith | Apr 20, 2010 1:18:20 PM

"As I said over on Crime & Consequences, there is a danger that we become too concerned that the law remain stainless while the culture sinks into filth."

Besides the fact that filth is in the eye of the beholder, what purpose does a Constitution serve? If the purpose of a Constitution is merely to reflect the fickleness of the moment then it is redundant with the legislature; it serves no purpose and we should just get rid of it.

If your underlying thesis is that we should just abolish the Supreme Court I might have a willing ear. But insofar as we are a Constitutional republic then the SC must stand against the will of the majority; that's it's purpose; that's judges get life tenure.

The real problem here is not the court; the real problem here is that both Democrats and Republicans alike want to have the halo of a Supreme Court decision surrounding their personal biases. Or, to use your analogy Bill, they want the law to be a chaste virgin precisely so they can rape her, degrade her, and mock her. But, as is always the case, once they have done their will they will leave her weeping in the gutter.

Posted by: Daniel | Apr 20, 2010 1:23:49 PM

The most telling line in the opinion is the statement from President Clinton that the law would be used only to punish sexually deviant material. The videos at issue in this case, whatever you think of them, clearly didn’t fit that description.

This is the problem with over-broad statutes. At any given time, people don’t know what is permitted. If the law had been written to prohibit precisely what Clinton said it did, it probably would have passed Constitutional muster.

Posted by: Marc Shepherd | Apr 20, 2010 2:01:55 PM

Bill Otis: As I said over on Crime & Consequences, there is a danger that we become too concerned that the law remain stainless while the culture sinks into filth.

Well, the law at issue was passed in 1999. Somehow, the Republic survived for well over two centuries without it. Personally, I don’t attach great value to the “speech” that today’s decision protects. At the same time, I do not see any great need for Congress to regulate it. Congress sticks its thumb into too many pies as it is.

Posted by: Marc Shepherd | Apr 20, 2010 2:09:50 PM

Marc. And for 200 years the Republic manged to live without a law banning child porn, but then the court suddenly decided that such conduct was so vile that it needed to make up a bunch of lies just to ban it.

One positive thing about this opinion is that the court really struggled with Ferber. I don't think that this same court would have upheld Ferber but I don't think they want to overturn it now. But the fact that they had to invent the most implausible reasons to reconcile the two cases tells me the court is deeply uncomfortable with its holding. Good. It's a only a glimmer of hope but a glimmer is better than nothing.

Posted by: Daniel | Apr 20, 2010 3:00:52 PM

Marc,

Come on, man, you're better than that--the law didn't exist for two centuries before 1999 because the crush video industry didn't meaningfully exist until the 1990s. That would be like criticizing Congress for not banning wire fraud before Alexander Graham Bell invented the telephone.

I agree with you that the dogfighting videos weren't sexually deviant material, but so what? (1) That doesn't mean videos of dogfighting are protected speech, and (2) Even if they are protected speech, that doesn't justify the majority's invocation of the overbreadth doctrine where a simple as-applied challenge would do.

I often think Alito is unjustifiably activist on the conservative side, but he nailed this one. The law should have a healthy dose of common sense in it, a dose that the majority was sorely lacking.

Posted by: Res ipsa | Apr 20, 2010 3:07:26 PM

@Daniel: I agree that the portion of the opinion that distinguished Ferber was awfully weak. In a system that requires courts to thread the needle between conflicting precedents, that inevitably will happen sometimes.

@Res ipsa: Sorry, but when a case is decided 8–1, I think you need to look a bit deeper than to suggest that the majority is “sorely lacking” in common sense. These are eight very sensible people—not to mention, of course, the three lower-court judges who reached the same result and the many amici who urged that result. Go ahead and disagree, but to suggest there is no other sensible outcome is just hyperbole.

Posted by: Marc Shepherd | Apr 20, 2010 3:18:52 PM

Res ipsa--On your last comment, if this was anything other than a 1st Amendment case (say, abortion), an as applied challenge would be the only way to go. But the broader 1st Amendment overbreadth test is what permits it here, right? So your quarrel should be with that, not the merits, it seems to me.

Posted by: Jay | Apr 20, 2010 4:42:43 PM

Marc Shepherd --

It is likewise hypebole to use, as you have, an argument that "the Republic survived for well over two centuries without [the statute struck down today]."

The Republic also survived for well over two centuries without a "safety net" (the one you were discussing the other day) even resembling, in size and expense, the one we have now.

Does that mean we should get rid of today's generous safety net?

No, it does not mean that. (Other things do, but not that).

An argument like, "We don't need X because we survived 200 years without it" is unpersuasive and remarkably unsophisticated for you. The question is not whether we can "survive" without X. It's whether X makes for a more wholesome, opportunity-filled and prosperous country.

A statute very similar to the one struck down today will. I agree it will need to be re-drafted with narrower and more specific language. But a country that cannot punish the commercial exploitation of behavior this sick and evil is a country in trouble.

Posted by: Bill Otis | Apr 20, 2010 5:00:40 PM

Bill, I was replying specifically to your claim that “the culture sinks into filth.” When something so ridiculously exaggerated is your argument, the retort that “the Republic survived for 200 years without it” seems like the only one possible.

You’re right that I mentioned the “safety net” the other day. But that, as I recall, is a law you don’t agree with. In fact, you argued (if I understood you) that the safety net ought to be done away with. So I am not really sure how that advances your argument.

Posted by: Marc Shepherd | Apr 20, 2010 5:55:15 PM

Marc --

Your recollection is incorrect. I did not say the safety net should be done away with. I said that this dramatic and unaffordable EXPANSION of it through Obamacare should be repealed. That would still leave a safety net of gargantuan breadth.

I am tempted to say at this point that the Republic has survived more than 200 years without Obamacare, but that would make me seem like, you know, a wisenheimer.

Posted by: Bill Otis | Apr 20, 2010 6:33:35 PM

Marc --

"The most telling line in the opinion is the statement from President Clinton that the law would be used only to punish sexually deviant material."

Over on Monica'sStillAtIt.com, they're saying that President Clinton, in his more, uh, energetic moments, could really......um.....

Oh wait. Wrong blog. Sorry about that.

Posted by: Bill Otis | Apr 20, 2010 6:52:48 PM

lol what you expect from this!

"The most telling line in the opinion is the statement from President Clinton that the law would be used only to punish sexually deviant material. The videos at issue in this case, whatever you think of them, clearly didn’t fit that description."

these are the same nazi's who brought us the RICO statues that would ONLY be used on Mafia dons!

they also brought us the FISA statues to ONLY be used in espeanoge cases around the world!

and so on and so on!

they are better liar's then any used car salesman ever thought about being!

Posted by: rodsmith | Apr 21, 2010 2:28:43 AM

Marc,

Plessy v. Ferguson only had one dissenting vote too, and I'd say that was about as ludicrous a decision as they came. Unless, of course, you want to defend the six in the majority, and the court of appeals below them, as reasonable. Same goes with Morrison v. Olson (where Scalia was the only dissenter--with exceptional portent at that).

I'm not saying that this decision is as nefarious as Plessy v. Ferguson, which rightfully resides in the pantheon of Supreme Court infamy. But to borrow a phrase from a commenter (forget which one) in a later post, Alito's "come on, guys" approach makes a lot more sense than unnecessarily invoking the overbreadth doctrine and using a prima facie bogus distinction of precedent. There's no reason why a court known for narrow decisions could not have used an as-applied challenge here.

Posted by: Res ipsa | Apr 22, 2010 9:14:02 AM

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