United States v. Stevens,
559 U.S. 460 (2010)

Annotate this Case
  • Syllabus  | 
  • Opinion (John G. Roberts, Jr.)  | 
  • Dissent (Samuel A. Alito, Jr.)




certiorari to the united states court of appeals for the third circuit

No. 08–769. Argued October 6, 2009—Decided April 20, 2010

Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “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,” §48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The legislative background of §48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under §48 for selling videos depicting dogfighting. He moved to dismiss, arguing that §48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared §48 facially unconstitutional as a content-based regulation of protected speech.

Held: Section §48 is substantially overbroad, and therefore invalid under the First Amendment. Pp. 5–20.

   (a) Depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment. Because §48 explicitly regulates expression based on content, it is “ ‘presumptively invalid,’ … and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817. Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—that “have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Depictions of animal cruelty should not be added to that list. While the prohibition of animal cruelty has a long history in American law, there is no evidence of a similar tradition prohibiting depictions of such cruelty. The Government’s proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. New York v. Ferber, 458 U. S. 747, distinguished. Pp. 5–9.

   (b) Stevens’s facial challenge succeeds under existing doctrine. Pp. 9–20.

      (1) In the First Amendment context, a law may be invalidated as overbroad if “a ‘substantial number’ of its applications are unconstitutional, ‘ “judged in relation to the statute’s plainly legitimate sweep.” ’ ” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449, n. 6. Stevens claims that common depictions of ordinary and lawful activities constitute the vast majority of materials subject to §48. The Government does not defend such applications, but contends that the statute is narrowly limited to specific types of extreme material. Section 48’s constitutionality thus turns on how broadly it is construed. Pp. 9–10.

      (2) Section 48 creates a criminal prohibition of alarming breadth. The statute’s definition of a “depiction of animal cruelty” does not even require that the depicted conduct be cruel. While the words “maimed, mutilated, [and] tortured” convey cruelty, “wounded” and “killed” do not. Those words have little ambiguity and should be read according to their ordinary meaning. Section 48 does require that the depicted conduct be “illegal,” but many federal and state laws concerning the proper treatment of animals are not designed to guard against animal cruelty. For example, endangered species protections restrict even the humane wounding or killing of animals. The statute draws no distinction based on the reason the conduct is made illegal.

      Moreover, §48 applies to any depiction of conduct that is illegal in the State in which the depiction is created, sold, or possessed, “regardless of whether the … wounding … or killing took place” there, §48(c)(1). Depictions of entirely lawful conduct may run afoul of the ban if those depictions later find their way into States where the same conduct is unlawful. This greatly expands §48’s scope, because views about animal cruelty and regulations having no connection to cruelty vary widely from place to place. Hunting is unlawful in the District of Columbia, for example, but there is an enormous national market for hunting-related depictions, greatly exceeding the demand for crush videos or animal fighting depictions. Because the statute allows each jurisdiction to export its laws to the rest of the country, §48(a) applies to any magazine or video depicting lawful hunting that is sold in the Nation’s Capital. Those seeking to comply with the law face a bewildering maze of regulations from at least 56 separate jurisdictions. Pp. 11–15.

      (3) Limiting §48’s reach to crush videos and depictions of animal fighting or other extreme cruelty, as the Government suggests, requires an unrealistically broad reading of the statute’s exceptions clause. The statute only exempts material with “serious” value, and “serious” must be taken seriously. The excepted speech must also fall within one of §48(b)’s enumerated categories. Much speech does not. For example, most hunting depictions are not obviously instructional in nature. The exceptions clause simply has no adequate reading that results in the statute’s banning only the depictions the Government would like to ban.

      Although the language of §48(b) is drawn from the Court’s decision in Miller v. California, 413 U. S. 15, the exceptions clause does not answer every First Amendment objection. Under Miller, “serious” value shields depictions of sex from regulation as obscenity. But Miller did not determine that serious value could be used as a general precondition to protecting other types of speech in the first place. Even “ ‘wholly neutral futilities … come under the protection of free speech.’ ” Cohen v. California, 403 U. S. 15, 25. The First Amendment presumptively extends to many forms of speech that do not qualify for §48(b)’s serious-value exception, but nonetheless fall within §48(c)’s broad reach. Pp. 15–17.

      (4) Despite the Government’s assurance that it will apply §48 to reach only “extreme” cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly. Nor can the Court construe this statutory language to avoid constitutional doubt. A limiting construction can be imposed only if the statute “is ‘readily susceptible’ to such a construction,” Reno v. American Civil Liberties Union, 521 U. S. 844, 884. To read §48 as the Government desires requires rewriting, not just reinterpretation. Pp. 18–19.

      (5) This construction of §48 decides the constitutional question. The Government makes no effort to defend §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene), and that the ban on such speech would satisfy the proper level of scrutiny. But the Government nowhere extends these arguments to other depictions, such as hunting magazines and videos, that are presumptively protected by the First Amendment but that remain subject to §48. Nor does the Government seriously contest that these presumptively impermissible applications of §48 far outnumber any permissible ones. The Court therefore does not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. Section 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment. Pp. 19–20.

533 F. 3d 218, affirmed.

   Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Sotomayor, JJ., joined. Alito, J., filed a dissenting opinion.

Primary Holding

The government may not ban depictions of animal cruelty for commercial gain because this law is overly broad under the First Amendment in regulating based on content.


Under 18 U.S.C. Section 48, Congress criminalized the portrayal of harmful acts toward animals, although not the acts themselves. Depictions of animal cruelty that violated federal or state laws in the place where they were made were forbidden to be created, sold, or possessed in any visual or auditory medium. The main purpose of this law was to prohibit crush videos, which depict the torture and killing of helpless animals in a manner that appeals to individuals with a specific sexual fetish. Steven was indicted under this law after he sold videos that depicted pit bulls fighting other animals. He argued that the law was facially unconstitutional under the First Amendment, but he was ultimately convicted. The intermediate appellate court agreed with his argument and vacated the conviction.



  • John G. Roberts, Jr. (Author)
  • John Paul Stevens
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas
  • Ruth Bader Ginsburg
  • Stephen G. Breyer
  • Sonia Sotomayor

No categorical exception to the First Amendment applies here. Those exceptions are limited to fighting words, obscenity, and child pornography, and they should not be extended. Although animal cruelty traditionally has been prohibited, depictions of animal cruelty have not shared this history. Therefore, the law is presumed to be invalid as a content-based regulation unless it passes strict scrutiny review. This means that the government must have a compelling interest and must have chosen a means that is narrowly tailored to that interest. The government has the burden of proof in these cases. Its suggested standard of balancing the value of the speech against its social costs presents too lenient an understanding of First Amendment protections. The existence of the First Amendment suggests that the American people determined that the benefits of free speech are inherently more important than their costs.

This law is facially unconstitutional under strict scrutiny review because it is overly broad. This means that a substantial number of situations in which it may be applied, in proportion to its overall scope, would result in unconstitutional results. Although the government argues that the statute is limited to the most extreme depictions, it can be interpreted to cover behavior toward animals that would not even be defined as cruel. Its reliance on federal and state laws does not inherently limit its scope to animal cruelty, since these laws often are designed to assure the proper treatment of animals and are not restricted to extreme contexts. Since the law criminalizes possession, it may be applied to depictions of lawful conduct in the jurisdiction where they are created if those depictions ultimately travel to a jurisdiction where they are prohibited. The wide range of views and regulations on animal cruelty make uniform enforcement impracticable.

Nothing in the statute specifically states that it is limited to crush videos or other depictions of extreme cruelty. The exceptions clause of the statute extends only to material with serious value, which suggests that it is meant to be narrowly interpreted. Congress took this language from judicial decisions on obscenity, but courts did not contemplate that decisions in that area could be extended to others. The government cannot be expected to enforce a statute in a responsible and limited manner only because it says so, and the government essentially admits that the statute as written would cover many more forms of legal than illegal behavior. It might be constitutional to ban this conduct specifically with regard to crush videos or other extreme forms of animal cruelty, but this issue need not be addressed because this is not how the statute was written.


  • Samuel A. Alito, Jr. (Author)

Crush videos and dog-fighting videos should not have access to First Amendment protections, and these two broad categories of expression are covered by the statute. This makes it constitutionally valid with regard to a substantial proportion of its applications. It also should be interpreted in a way that limits potential constitutional problems, whereas the majority seems to try to read constitutional problems into it. The statute may be construed to include only depictions of animal cruelty that are prohibited as such under state and federal law, rather than depictions of acts toward animals that are illegal but not defined as cruelty. For example, hunting depictions likely would fit into the exception for depictions of serious value.

The First Amendment rule that overly broad statutes are invalid on their face should be applied only if they are substantially overly broad. This law is a narrowly tailored means of combating what Congress identified as a compelling interest in combating crush videos by ceasing their commercial distribution. Crush videos are a virtually unique form of expression because they are based on violent criminal acts, which are committed for the sole purpose of creating the videos. This should be a categorical exception to First Amendment protection, similar to child pornography despite the greater government interest in protecting children than protecting animals. The burden should have remained on the defendant to prove that the law was overly broad rather than transferring to the government.

Case Commentary

Congress revised the statute to limit a narrower group of crush videos, thereby addressing the Court's concerns. It is interesting to note that the statute struck down by the Court was much more effective than the revised statute in curbing the undesirable behavior at issue.

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