Supreme Court rejects animal cruelty law, upholds free speech

The US Supreme Court on Tuesday struck down a federal law that criminalized photographs and other depictions of animal cruelty, saying the law violated free speech rights protected by the First Amendment.

In an 8 to 1 ruling, the high court said the law was substantially overbroad and thus could not withstand constitutional scrutiny.

The majority opinion, written by Chief Justice John Roberts, criticized the Obama administration for proposing to the high court a balancing test that would pit the “value” of any speech against its “societal costs.”

“As a free-floating test for First Amendment coverage, that sentence is startling and dangerous,” Chief Justice Roberts wrote.

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social cost and benefits,” he said. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs.”

In a lone dissent, Justice Samuel Alito said instead of overturning the entire law the justices should have sent the case back to the lower courts to decide if the statute had been applied in an unconstitutional manner.

At issue in US v. Stevens was whether Congress overstepped its authority when it passed a 1999 law barring the creation, sale, or possession of any depiction of animal cruelty with the intent to distribute and sell it.

The law was initially aimed at blocking a small but growing market in underground sexual fetish videos that involve dominatrix women who step on and kill small animals. By one estimate in 1999 these so-called “crush videos” represented a million-dollar market.

But Congress did not stop there. Lawmakers decided to criminalize a wider range of conduct. The law was written to ban photographs and videos depicting “animal cruelty” in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.

The law applied if the underlying conduct violated federal or state law where the “creation, sale, or possession takes place.” Violators would face up to five years in prison.

Roberts said the statute created a criminal prohibition of “alarming breadth.”

“A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another state where the same conduct is unlawful,” he said.

He noted that since hunting is illegal in Washington, D.C., the law would extend to “any magazine or video depicting lawful hunting, so long as that depiction is sold within the nation’s capital.”

Roberts rejected pledges by the government that federal prosecutors would only enforce the statute against acts of what it viewed as “extreme cruelty.”

“The First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige,” Roberts wrote. “We would not uphold an unconstitutional statute merely because the government promised to use it reasonably.”

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