Last week, the Supreme Court ruled that the law 18 U.S.C. § 48, prohibiting the commercial creation, sale, or possession of certain depictions of animal cruelty unless for serious religious, political, scientific, educational, journalistic, historical, or artistic value, was unconstitutional. The main purpose of 18 U.S.C. § 48 was to criminalize the commercial gains of ‘crush videos’. The booming internet surfaced videos of women brutalizing small animals with high-heels. The act was illegal, but was hard to convict the individual performing the act because of anonymity. The government acted and passed 18 U.S.C. § 48. In 2004, Robert Stevens was arrested for the sale of pit bull videos including Japanese pit bull fighting, a contemporary documentary, and a third video of pit bulls hunting wild boar. The District Court denied the claim that the law was overbroad and ruled that animal cruelty depictions, as defined by the law, are categorically unprotected by the First Amendment like obscenity and child pornography. The appeals court reverses the lower court decision. The government appeals to the Supreme Court and argues the depictions of animal cruelty (as defined in the law) had no expressive value, thus, may be regulated free speech. They argue the First Amendment protection depends on the balancing of the value of speech against societal costs.The court responded, with an 8-1 vote, in favor of the defendant. Chief Justice Roberts, writing the majority opinion, stressed the court’s unwillingness to accept the government’s proposed free-floating standard to regulate free speech. Within case law, the government may not restrict speech because of content, unless the government has a compelling interest and the law in narrowly tailored. The court holds: 1. The act prohibits a “depiction of animal cruelty”, but does not require that the act be cruel. 2. Does not make the distinction that the intentional killing of an animal is illegal. 3. Interstate differences in hunting regulations can lead to material being legal till entering another jurisdiction. 4. The government claims the exception clause(exempts from prohibition “any depiction that has serious religious, political…) narrowly tailors the law. For the court, this could only tailor the law if read broadly.
