AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
dissenting.
The Court strikes down in its entirety a valuable statute, 18 U. S. C. § 48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty â in particular, the creation and commercial exploitation of âcrush videos,â a form of depraved entertainment that has no social value. The Courtâs approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted. Respondent was convicted under §48 for selling videos depicting dogfights. On appeal, he argued, among other things, that §48 is unconstitutional as applied to the facts of this case, and he highlighted features of those videos that might distinguish them from other dogfight videos brought to our attention.
Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected. If the question of over-breadth is to be decided, however, I do not think the present record supports the Courtâs conclusion that § 48 bans a substantial quantity of protected speech.
I
A party seeking to challenge the constitutionality of a statute generally must show that the statute violates the partyâs own rights. New York v. Ferber, 458 U. S. 747, 767 (1982). The First Amendment overbreadth doctrine carves out a narrow exception to that general rule. See id., at 768; Broadrick v. Oklahoma, 413 U. S. 601, 611-612 (1973). Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to
The âstrong medicineâ of overbreadth invalidation need not and generally should not be administered when the statute under attack is unconstitutional as applied to the challenger before the court. As we said in Fox, supra, at 484-485, â[i]t is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily â that is, before it is determined that the statute would be valid as applied.â Accord, New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11 (1988); see also Broadrick, supra, at 613; United Reporting Publishing Corp., supra, at 45 (Stevens, J., dissenting).
I see no reason to depart here from the generally preferred procedure of considering the question of overbreadth only as a last resort.
II
The overbreadth doctrine âstrike[s] a balance between competing social costs.â Williams, 553 U. S., at 292. Specifically, the doctrine seeks to balance the âharmful effectsâ of âinvalidating a law that in some of its applications is per
In determining whether a statuteâs overbreadth is substantial, we consider a statuteâs application to real-world conduct, not fanciful hypothetieals. See, e. g., id., at 301-302; see also Ferber, supra, at 773; Houston v. Hill, 482 U. S. 451, 466-467 (1987). Accordingly, we have repeatedly emphasized that an overbreadth claimant bears the burden of demonstrating, âfrom the text of [the law] and from actual fact,â that substantial overbreadth exists. Virginia v. Hicks, 539 U. S. 113, 122 (2003) (quoting New York State Club Assn., supra, at 14; emphasis added; internal quotation marks omitted; alteration in original). Similarly, âthere must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.â Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 801 (1984) (emphasis added).
III
In holding that §48 violates the overbreadth rule, the Court declines to decide whether, as the Government maintains, § 48 is constitutional as applied to two broad categories of depictions that exist in the real world: crush videos and depictions of deadly animal fights. See ante, at 473, 481. Instead, the Court tacitly assumes for the sake of argument that § 48 is valid as applied to these depictions, but the Court concludes that §48 reaches too much protected speech to survive. The Court relies primarily on depictions of hunters killing or wounding game and depictions of animals being slaughtered for food. I address the Courtâs examples below.
I turn first to depictions of hunting. As the Court notes, photographs and videos of hunters shooting game are common. See ante, at 476. But hunting is legal in all 50 States, and §48 applies only to a depiction of conduct that is illegal in the jurisdiction in which the depiction is created, sold, or possessed. §§ 48(a), (c). Therefore, in all 50 States, the creation, sale, or possession for sale of the vast majority of hunting depictions indisputably falls outside §48âs reach.
Straining to find overbreadth, the Court suggests that §48 prohibits the sale or possession in the District of Columbia of any depiction of hunting because the District â undoubtedly because of its urban character â does not permit hunting within its boundaries. Ante, at 475-476. The Court also suggests that, because some States prohibit a particular type of hunting (e. g., hunting with a crossbow or âcannedâ hunting) or the hunting of a particular animal (e. g., the âsharp-tailed grouseâ), §48 makes it illegal for persons in such States to sell or possess for sale a depiction of hunting that was perfectly legal in the State in which the hunting took place. See ante, at 475-477.
The Courtâs interpretation is seriously flawed. âWhen a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction.â Ferber, 458 U. S., at 769, n. 24. See also Williams, supra, at 307 (Stevens, J., concurring) (â[T]o the extent the statutory text alone is unclear, our duty to avoid constitutional objections makes it especially appropriate to look beyond the text in order to ascertain the intent of its draftersâ).
Applying this canon, I would hold that §48 does not apply to depictions of hunting. First, because §48 targets depictions of âanimal cruelty,â I would interpret that term to apply only to depictions involving acts of animal cruelty as defined by applicable state or federal law, not to depictions
Second, even if the hunting of wild animals were otherwise covered by § 48(a), I would hold that hunting depictions fall within the exception in § 48(b) for depictions that have âseriousâ (i. e., not âtriflingâ
I do not have the slightest doubt that Congress, in enacting § 48, had no intention of restricting the creation, sale, or possession of depictions of hunting. Proponents of the law made this point clearly. See H. R. Rep. No. 106-397, p. 8 (1999) (hereinafter H. R. Rep.) (â[D]epictions of ordinary hunting and fishing activities do not fall within the scope of the statuteâ); 145 Cong. Rec. 25894 (1999) (Rep. McCollum) (â[T]he sale of depictions of legal activities, such as hunting and fishing, would not be illegal under this billâ); id., at 25895 (Rep. Smith) (â[L]et us be clear as to what this legislation will not do. It will in no way prohibit hunting, fishing, or wildlife videosâ). Indeed, even opponents acknowledged
For these reasons, I am convinced that §48 has no application to depictions of hunting. But even if § 48 did impermissibly reach the sale or possession of depictions of hunting in a few unusual situations (for example, the sale in Oregon of a depiction of hunting with a crossbow in Virginia or the sale in Washington State of the hunting of a sharp-tailed grouse in Idaho, see ante, at 476-477), those isolated applications would hardly show that §48 bans a substantial amount of protected speech.
B
Although the Courtâs overbreadth analysis rests primarily on the proposition that §48 substantially restricts the sale and possession of hunting depictions, the Court cites a few additional examples, including depictions of methods of slaughter and the docking of the tails of dairy cows. See ante, at 477.
Such examples do not show that the statute is substantially overbroad, for two reasons. First, as explained above, §48 can reasonably be construed to apply only to depictions involving acts of animal cruelty as defined by applicable state or federal law, and anticruelty laws do not ban the sorts of acts depicted in the Courtâs hypotheticals. See, e. g., Idaho Code §25-3514 (Lexis 2000) (âNo part of this chapter [prohibiting cruelty to animals] shall be construed as interfering with or allowing interference with . .. [t]he humane slaughter of any animal normally and commonly raised as food, or for production of fiber . . . [or] [n]ormal or accepted practices of . . . animal husbandryâ); Kan. Stat. Ann. §21 â 4310(b) (2007) (âThe provisions of this section shall not apply . . . with respect to farm animals, normal or accepted practices of animal husbandry, including the normal and accepted practices for the slaughter of such animalsâ); Md. Crim. Law Code Ann. § 10-603 (Lexis 2002) (sections prohibiting animal cruelty âdo not apply to ... customary and normal veterinary
Second, nothing in the record suggests that anyone has ever created, sold, or possessed for sale a depiction of the slaughter of food animals or of the docking of the tails of dairy cows that would not easily qualify under the exception set out in § 48(b). Depictions created to show proper methods of slaughter or tail docking would presumably have serious âeducationalâ value, and depictions created to focus attention on methods thought to be inhumane or otherwise objectionable would presumably have either serious âeducationalâ or âjournalisticâ value or both. In short, the Courtâs examples of depictions involving the docking of tails and humane slaughter do not show that § 48 suffers from any over-breadth, much less substantial overbreadth.
The Court notes, finally, that cockfighting, which is illegal in all States, is still legal in Puerto Rico, ante, at 477, and I take the Courtâs point to be that it would be impermissible to ban the creation, sale, or possession in Puerto Rico of a depiction of a cockfight that was legally staged in Puerto Rico.
In sum, we have a duty to interpret §48 so as to avoid serious constitutional concerns, and §48 may reasonably be construed not to reach almost all, if not all, of the depictions that the Court finds constitutionally protected. Thus, §48 does not appear to have a large number of unconstitutional
IV
A
1
As the Court of Appeals recognized, âthe primary conduct that Congress sought to address through its passage [of § 48] was the creation, sale, or possession of âcrush videos.â â 533 F. 3d 218, 222 (CA3 2008) (en banc). A sample crush video, which has been lodged with the Clerk, records the following event:
â[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kittenâs eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animalâs head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left dead in a moist pile of blood-sĂłaked hair and bone.â Brief for Humane Society of United States as Amicus Curiae 2 (hereinafter Humane Society Brief).
It is undisputed that the conduct depicted in crush videos may constitutionally be prohibited. All 50 States and the District of Columbia have enacted statutes prohibiting animal cruelty. See 533 F. 3d, at 223, and n. 4 (citing statutes); H. R. Rep., at 3. But before the enactment of §48, the underlying conduct depicted in crush videos was nearly impossible to prosecute. These videos, which âoften appeal to persons with a very specific sexual fetish,â id., at 2, were made in secret, generally without a live audience, and âthe faces of the women inflicting the torture in the material often were not shown, nor could the location of the place where
In light of the practical problems thwarting the prosecution of the creators of crush videos under state animal cruelty laws, Congress concluded that the only effective way of stopping the underlying criminal conduct was to prohibit the commercial exploitation of the videos of that conduct. And Congressâ strategy appears to have been vindicated. We are told that â[b]y 2007, sponsors of §48 declared the crush video industry dead. Even overseas websites shut down in the wake of §48. Now, after the Third Circuitâs decision [facially invalidating the statute], crush videos are
2
The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct. The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos. In addition, as noted above, Congress was presented with compelling evidence that the only way of preventing these crimes was to target the sale of the videos. Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue.
The most relevant of our prior decisions is Ferber, 458 U. S. 747, which concerned child pornography. The Court there held that child pornography is not protected speech, and I believe that Ferberâs reasoning dictates a similar conclusion here.
In Ferber, an important factor â I would say the most important factor â was that child pornography involves the commission of a crime that inflicts severe personal injury to the âchildren who are made to engage in sexual conduct for commercial purposes.â Id., at 758 (internal quotation marks omitted). The Ferber Court repeatedly described the production of child pornography as child âabuse,â âmolestation,â or âexploitation.â See, e.g., id., at 749 (âIn recent years, the exploitive use of children in the production of pornography has become a serious national problemâ); id., at 758, n. 9 (âSexual molestation by adults is often involved in the production of child sexual performancesâ). As later noted in Ashcroft v. Free Speech Coalition, 535 U. S. 234, 249 (2002), in Ferber â[t]he production of the work, not its content, was the target of the statute.â See also 535 U. S., at
Second, Ferber emphasized the fact that these underlying crimes could not be effectively combated without targeting the distribution of child pornography. As the Court put it, âthe distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.â 458 U. S., at 759. The Court added:
â[T]here is no serious contention that the legislature was unjustified in believing that it is difficult, if not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies____ The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.â Id., at 759-760.
See also id., at 761 (âThe advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materialsâ).
Third, the Ferber Court noted that the value of child pornography âis exceedingly modest, if not de minimis,â and that any such value was âoverwhelmingly outweigh[ed]â by âthe evil to be restricted.â Id., at 762-763.
All three of these characteristics, are shared by §48, as applied to crush videos. First, the conduct' depicted in crush videos is criminal in every State and the District of Columbia. Thus, any crush video made in this country records the actual commission of a criminal act that inflicts severe physical injury and excruciating pain and ultimately results in death. Those who record the underlying criminal acts are likely to be criminally culpable, either as aiders and abettors or conspirators. And in the tight and secretive market for these videos, some who sell the videos or possess
Second, the criminal acts shown in crush videos cannot be prevented without targeting the conduct prohibited by §48 â the creation, sale, and possession for sale of depictions of animal torture with the intention of realizing a commercial profit. The evidence presented to Congress posed a stark choice: Either ban the commercial exploitation of crush videos or tolerate a continuation of the criminal acts that they record. Faced with this evidence, Congress reasonably chose to target the lucrative crush video market.
Finally, the harm caused by the underlying crimes vastly outweighs any minimal value that the depictions might conceivably be thought to possess. Section 48 reaches only the actual recording of acts of animal torture; the statute does not apply to verbal descriptions or to simulations. And, unlike the child pornography statute in Ferber or its federal counterpart, 18 U. S. C. §2252, § 48(b) provides an exception for depictions having any âserious religious, political, scientific, educational, journalistic, historical, or artistic value.â
It must be acknowledged that § 48 differs from a child pornography law in an important respect: Preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appeals concluded that Ferber did not support the constitutionality of § 48. 533 F. 3d, at 228 (âPreventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harmâ). But while protecting children is unquestionably more important than protecting animals, the
The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country. In Ferber, the Court noted that âvirtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating 'child pornography/ â and the Court declined to âsecond-guess [that] legislative judgment.â
Section 48âs ban on trafficking in crush videos also helps to enforce the criminal laws and to ensure that criminals do not profit from their crimes. See 145 Cong. Ree. 25897 (1999) (Rep. Gallegly) (âThe state has an interest in enforcing its existing laws. Right now, the laws are not only being violated, but people are making huge profits from promoting the violationsâ); id., at 10685 (1999) (same) (explaining that he introduced the House version of the bill because âcriminals should not profit from [their] illegal actsâ). We have already judged that taking the profit out of crime is a compelling interest. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 119 (1991).
In short, Ferber is the case that sheds the most light on the constitutionality of Congressâ effort to halt the production of crush videos. Applying the principles set forth in Ferber, I would hold that crush videos are not protected by the First Amendment.
Application of the Ferber framework also supports the constitutionality of §48 as applied to depictions of brutal animal fights. (For convenience, I will focus on videos of dogfights, which appear to be the most common type of animal fight videos.)
First, such depictions, like crush videos, record the actual commission of a crime involving deadly violence. Dogfights are illegal in every State and the District of Columbia, Brief for United States 26-27, and n. 8 (citing statutes), and under federal law constitute a felony punishable by imprisonment for up to five years, 7 U. S. C. § 2156 et seq. (2006 ed. and Supp. II); 18 U. S. C. §49 (2006 ed., Supp. II).
Second, Congress had an ample basis for concluding that the crimes depicted in these videos cannot be effectively controlled without targeting the videos. Like crush videos and child pornography, dogfight videos are very often produced as part of a âlow-profile, clandestine industry,â and âthe need to market the resulting products requires a visible apparatus of distribution.â Ferber, 458 U. S., at 760. In such circumstances, Congress had reasonable grounds for concluding that it would be âdifficult, if not impossible, to haltâ the underlying exploitation of dogs by pursuing only those who stage the fights. Id., at 759-760; see 533 F. 3d, at 246 (Cowen, J., dissenting) (citing evidence establishing âthe existence of a lucrative market for depictions of animal cruelty,â including videos of dogfights, âwhich in turn provides a powerful incentive to individuals to create [such] videosâ).
The commercial trade in videos of dogfights is âan integral part of the production of such materials,â Ferber, supra, at 761. As the Humane Society explains, â[videotapes memorializing dogfights are integral to the success of this criminal industryâ for a variety of reasons. Humane Society Brief 5. For one thing, some dogfighting videos are made âsolely for the purpose of selling the video (and not for a live audience).â Id., at 9. In addition, those who stage dogfights profit not just from the sale of the videos themselves, but from the
Third, depictions of dogfights that fall within § 48âs reach have by definition no appreciable social vĂĄlue. As noted, § 48(b) exempts depictions having any appreciable social value, and thus the mere inclusion of a depiction of a live fight in a larger work that aims at communicating an idea or a message with a modicum of social value would not run afoul of the statute.
Finally, the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess. As the Humane Society explains;
âThe abused dogs used in fights endure physical torture and emotional manipulation throughout their lives to*499 predispose them to violence; common tactics include feeding the animals hot peppers and gunpowder, prodding them with sticks, and electrocution. Dogs are conditioned never to give up a fight, even if they will be gravely hurt or killed. As a result, dogfights inflict horrific injuries on the participating animals, including lacerations, ripped ears, puncture wounds and broken bones. Losing dogs are routinely refused treatment, beaten further as âpunishmentâ for the loss, and executed by drowning, hanging, or incineration.â Id., at 5-6 (footnotes omitted).
For these dogs, unlike the animals killed in crush videos, the suffering lasts for years rather than minutes. As with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nationâs criminal laws and preventing criminals from profiting from their illegal activities. See Ferber, supra, at 757-758; Simon & Schuster, 502 U. S., at 119.
In sum, §48 may validly be applied to at least two broad real-world categories of expression covered by the statute: crush videos and dogfighting videos. Thus, the statute has a substantial core of constitutionally permissible applications. Moreover, for the reasons set forth above, the record does not show that §48, properly interpreted, bans a substantial amount of protected speech in absolute terms. A fortiori, respondent has not met his burden of demonstrating that any impermissible applications of the statute are âsubstantialâ in relation to its âplainly legitimate sweep.â Williams, 553 U. S., at 292. Accordingly, I would reject respondentâs claim that § 48 is facially unconstitutional under the overbreadth doctrine.
* * *
For these reasons, I respectfully dissent.
As the following chart makes clear, virtually all state laws prohibiting animal cruelty either expressly define the term âanimalâ to exclude wildlife or else specifically exempt lawful hunting activities.
Alaska Alaska Stat. § 11.61.140(c)(4) (2008) (âIt is a defense to a prosecution under this section that the conduct of the defendant... was necessarily incidental to lawful fishing, hunting or trapping activitiesâ)
Arizona Ariz. Rev. Stat. Ann. §§ 13-2910(0(1), (3) (West Supp. 2009) (âThis section does not prohibit or restrict . . . [t]he taking of wildlife or other activities permitted by or pursuant to title 17 ... [or] [activities regulated by the Arizona game and fish department or the Arizona department of agricultureâ)
Arkansas Ark. Code Ann. §5-62-105(a) (Supp. 2009) (âThis sub-chapter does not prohibit any of the following activities: ... (9) Engaging in the taking of game or fish through hunting, trapping, or fishing, or engaging in any other activity authorized by Arkansas Constitution, Amendment 35, by § 15-41-101 et seq., or by any Arkansas State Game and Fish Commission regulation promulgated under either Arkansas Constitution, Amendment 35, or statuteâ)
California Cal. Penal Code Ann. §599c (West 1999) (âNo part of this title shall be construed as interfering with any of the laws of this state known as the âgame laws,â . . . or to interfere with the right to kill all animals used for foodâ)
Colorado Colo. Rev. Stat. Ann. § 18-9-201.5(2) (2009) (âIn case of any conflict between this part 2 [prohibiting cruelty to animals] or section 35-43-126, [Colo. Rev. Stat.], and section 35-43-126, [Colo. Rev. Stat.], and the wildlife statutes of the state, said wildlife statutes shall controlâ), § 18-9-202(3) (âNothing in this part 2 shall be construed to amend or in any manner change the authority of the wildlife commission, as established in title 33, [Colo. Rev. Stat.], or to prohibit any conduct therein authorized or permittedâ)
Delaware Del. Code Ann., Tit. 11, § 1325(f) (2007) (âThis section shall not apply to the lawful hunting or trapping of animals as provided by lawâ)
Florida Fla. Stat. §828.122(9)(b) (2007) (âThis section shall not apply to . . . [a]ny person using animals to pursue or take wildlife or to participate in any hunting regulated or subject to being regulated by the rules and regulations of the Fish and Wildlife Conservation Commissionâ)
Georgia Ga. Code Ann. § 16-12-4(e) (2007) (âThe provisions of this Code section shall not be construed as prohibiting conduct which is otherwise permitted under the laws of this state or of the United States, including, but not limited to . . . hunting, trapping, fishing, [or] wildlife managementâ)
Hawaii Haw. Rev. Stat. §711-1108.5(1) (2008 Cum. Supp.) (âA person commits the offense of cruelty to animĂĄis in the first degree if the person intentionally or knowingly tortures, mutilates, or po