Benjamin, Aaronson, Edinger & Patanzo, P.A.

Title 18 U.S.C. Section 48 ruled unconstitutional

Title 18 U.S.C. Section 48 criminalized for up to five years in prison anyone who
knowingly created, sold, or possessed a depiction of animal cruelty if it was done for commercial
gain.  The statute did not address the underlying acts that were harmful to animals, but only
portrayals of such conduct.  In that statute, animal cruelty was defined as “in which a living
animal is intentionally maimed, mutilated, tortured, wounded or killed”, if that conduct violates
Federal or State law where “the creation, sale or possession takes place”.

Robert J. Stevens was engaged in a business called “Dogs of Velvet and Steel” and had a
website where he sold videos of pit bulls engaging in dog fights and attacking other animals.
Three of his videos came under the scrutiny of the Federal authorities and Stevens was arrested
and indicted on three counts of violating Section 48.

At the Federal trial level Stevens was convicted after Motions to Dismiss that he filed had
been denied.  The case then went to the Third Circuit Court of Appeals where the entire Circuit
declared that Section 48 was unconstitutional and that it violated the First Amendment to the
United States Constitution.  The case then was appealed by the government to the United States
Supreme Court.

At the Supreme Court, the United States Government argued among other points, that
depictions of animal cruelty should be a new form of unprotected speech outside of the First
Amendment to the United States Constitution; or that Section 48 would only be applied to those
instances in which the videos portrayed “extreme cruelty”; and lastly that the Court should
construe the Statute in a way that made it constitutional.  For his part, Stevens contended that the
Statute was overbroad, meaning that many forms of videos or depictions that were not intended
to be covered by the Statute would fall under possible prosecution; and that this method of
speech no matter how repungnent was constitutionally protected.

Last month, the United States Supreme Court rendered its decision in the United States v.
Stevens.  In an eight to one opinion, Chief Justice Roberts delivered the opinion of the Court
which was that 18 U.S.C. Section 48 was unconstitutional as it was overbroad and violated the
First Amendment to the United States Constitution.  As part of the rationale, the Court also noted
that given the wording of the Statute it would be almost impossible for someone to know when
they were violating the law.  As the law was based upon an act that would be criminal in either a
State or a Federal jurisdiction, the Court noted for example that hunting is illegal in the District
of Columbia while it is legal in many other places.  Therefore, depictions of animals dying in the
hunting process would be legal if taken in some jurisdictions but illegal if taken in the District of
Columbia.  This would set up a scenario where the legality of the video depended upon where the
acts took place as opposed to the content of the video.

More importantly, the Court ruled that although these forms of videos may be distasteful,
that the First Amendment to the United States Constitution does protect distasteful speech.  If
only speech that was approved of by the majority was allowed, then minority voices would be
silenced.  The Court further declined the Government’s plea that the Court weigh the value of the
speech against the social cost of that speech to determine whether the First Amendment even
applies.  In essence, the Government wanted a new test where First Amendment protections
could be excluded if the Court was to decide if the value of the speech (a totally subjective
personal view) was less than the detriment to society (another totally subjective personal view).
Again, the Court refused to accept that proposed test.

Although, few people are fans of dog fighting or animal cruelty, the issues in this case
were totally First Amendment based.  Is the government going to be given the power to decide
what adults should or should not view?  Was the government going to be given the power to
curtail the speech even if it was distasteful?  In a ringing endorsement for the First Amendment,
the Supreme Court in an eight to one decision held no.

The test that the United States Government propounded,  could be applied to other First
Amendment situations and certainly the adult entertainment industry.  Rather, than having to rely
on obscenity as the basis for curtailment of adult films and adult freedoms, should the Court have
adopted the test, that the United States Government was propounding in this situation, a new test
as to what adults would be allowed to view could have been created.  In this test, community
standards would have been thrown out and been replaced with simply a purely subjective test that
harm to society was greater than the value of the speech.

This case was a great victory for the First Amendment.  Remember, that the First
Amendment protects unpopular speech as much as popular speech.  Popular speech does not
need protections as it is popular and therefore welcome.  But it is the unpopular speech that must
be protected in order that we all will always have the right to speak when we deem it appropriate
regardless of whether the majority believes that it is right or wrong or it is popular.

Lastly, the Court’s ruling that the Statute was overbroad was another victory for the First
Amendment.  Overbreath is a theory of the law that allows one whose speech is clearly covered
by a statute to contest that statute’s constitutionality based upon the fact that others may not
speak for fear that their constitutional speech could fall under the reach of the statute.  Under that
scenario, speech would be silenced because of fear, not because it was illegal.

Over the past decades the Courts have been retreating from the overbreadth doctrine,
trying to find ways around it.  The Steven’s decision breaths new life into overbreadth, one of the
greatest tools to secure your First Amendment freedoms.

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