WASHINGTON — Next term the Supreme Court will hear U.S. v. Stevens, a case involving whether a law prohibiting depictions of animal cruelty is unconstitutional on its face. Given its past rulings and the voting record of the Roberts Court regarding such constitutional challenges, there is a real possibility that the justices will prune the facial-challenge doctrine even more, perhaps significantly.
Facial challenges are used to test the constitutionality of statutes, or legislative acts. The doctrine or practice, long used in American law, is important for the First Amendment because it allows litigants to challenge a law that infringes on people’s free-expression rights before a person’s speech is unconstitutionally silenced.
The law being challenged in Stevens (18 USC §48) prohibits people from knowingly creating, selling, or possessing depictions of “animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” The penalty is a fine, imprisonment for up to five years, or both. The respondent, Robert Stevens, faces up to three years in prison for producing and selling videos that include depictions of dogfighting.
The government’s brief to the Court asks the justices to reverse the 3rd U.S. Circuit Court of Appeals decision that the law is facially unconstitutional under the First Amendment. It also asks the Court to create a new exception to First Amendment protection. If this happens, depictions of animal cruelty will become a new category of unprotected speech.
Attack on facial challenges
The solicitor general argues that Section 48 “should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications.” Though the statute does make exceptions for videos with religious, political, scientific, educational, journalistic, historical or artistic value, Stevens maintains that the law is unconstitutional on its face.
Stevens’s brief to the Court maintains the “serious value” exceptions for Section 48 are unconstitutionally vague. Additionally, it outlines protected speech the statute reaches, including books such as Ernest Hemingway’s Death in the Afternoon, such films as David Roma’s documentary “Off the Chain,” television programs such as the "Dateline NBC" episode “Dogs of War,” and Web sites like those operated by the Humane Society.
Furthermore, Stevens argues that the real question before the Court is “whether the government can send an individual to jail for up to five years for making films — films that are not obscene, pornographic, inflammatory, defamatory, or even untruthful. They are controversial. But that is supposed to invigorate, not contract, the First Amendment’s protection.”
More broadly, Stevens argues that “the government’s only basis for obtaining and defending its conviction and putting Stevens’ films to the test has been to contend that the entire category of speech is properly proscribed and then to prove nothing more than that Stevens’ speech falls within that category.” Thus, the Stevens brief counters, his facial challenge “does nothing more than respond in kind by challenging the category enforced against him. Either the category constitutionally exists or it does not, and the constitutionality of this conviction rises or falls with that determination because there is no independent First Amendment justification for outlawing Stevens’ speech.”
The government maintains that there is much in Section 48 that is clearly constitutional. But more than that, it adds, even if Section 48 “reaches some protected speech, the law is not invalid on its face. Because Respondent brought a facial challenge to Section 48, and Section 48 has at least some constitutional applications, he was required to demonstrate that Section 48 is substantially overbroad in relation to its legitimate sweep. He has not made, and cannot make, such a showing.”
Additionally, the solicitor general argues, “isolated hypotheticals do not justify invalidating Section 48 on its face.” Furthermore, because “the statute has at its core a substantial number of plainly constitutional applications,” the government urges the Court to affirm its constitutionality.
The law of facial challenges allows a litigant to challenge the validity of a law even if, in its particular application, that law is not unconstitutional as to that litigant. Such challenges are linked to the overbreadth doctrine, by which a law is challenged because its sweep is unnecessarily broad and thus “invades the area of protected freedoms” (NAACP v. Alabama, 1958). Without such a doctrine, and unless he or she had a statutory right of action, a litigant bringing a facial challenge would be precluded under Article III of the Constitution from filing suit over a matter in which he was not personally aggrieved.
Even so, there has been longstanding hostility in the Supreme Court against facial challenges.
As early as 1912, the Supreme Court in Yazoo Mississippi Valley Railroad Co. v. Jackson Vinegar Co. determined a statute that imposed penalties on transportation services was valid as applied to the situation at hand and denied the facial challenge. The Court said that it didn’t need to consider then “how the state court may apply it to other cases.” (See also New York ex rel. Hatch v. Reardon, 1907).
Echoing this ruling decades later in 1971, when the Court voted 8-1 (Justice William O. Douglas dissenting) to deny the facial challenge in Younger v. Harris. Writing the majority opinion, Justice Hugo Black wrote that “testing the constitutionality of a statute ‘on its face’ is “fundamentally at odds with the function of the federal courts in our constitutional plan.”
Similarly, in Broadrick v. Oklahoma (1973) Justice Byron White described facial challenges to cure overbreadth as “strong medicine” and advised in his majority opinion denying the challenge that they be used “sparingly, and only as a last resort.” Accordingly, he stressed that “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.”
In his dissent in this 5-4 case, Justice William Brennan characterized the majority opinion an “unjustified retreat from fundamental and previously well-established First and Fourteenth Amendment principles.” More specifically, he added: “the Court makes no effort to define what it means by ‘substantial overbreadth.’ We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense a requirement of substantial overbreadth is already implicit in the doctrine.”
New York v. Ferber (1982) presented a facial challenge to a state statute prohibiting depictions of child pornography. The Court unanimously denied the First Amendment claim. In the opinion for a unanimous Court (with separate concurrences by Justices Sandra Day O’Connor, John Paul Stevens and William Brennan), Justice White relied on his Broadrick opinion. In relevant part, he said: “the traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court.”
In her concurring opinion, O’Connor wrote that “potential overbreadth is not sufficiently substantial to warrant facial invalidation.” Given the facts of the case, Brennan emphasized that the “tiny fraction of material of serious artistic, scientific, or educational value that could conceivably fall within the reach of the statute is insufficient to justify striking the statute on grounds of overbreadth.” Justice Stevens noted that he would refrain from making a decision about a hypothetical situation until it arose. He wrote that “hypothetical rulings are inherently treacherous, and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication.”
A different perspective arose in Brockett v. Spokane Arcades, Inc. (1985). There, the Court, by a 6-2 vote, denied a facial challenge to a Washington state statute aimed at preventing and punishing the publication of obscene material. Still, the majority opinion written by Justice White conceded that individuals whose speech may constitutionally be prohibited are “permitted to challenge a statute on its face because it also threatens others not before the court.” Of course, they must prove that the law in question was “substantially overbroad,” which they could not show in Brockett.
In that regard, White stressed the logic underlying the substantial overbreadth doctrine: “We call to mind two of the cardinal rules governing the federal courts: ‘[one], never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’”
Notably, in U.S. v. Salerno (1987), the Court (6-3) again denied a facial challenge, this time to the Bail Reform Act of 1984. Such challenges, declared Chief Justice William Rehnquist, are “the most difficult challenge[s] to mount successfully.”
Notwithstanding the above cases, in Ashcroft v. Free Speech Coalition (2002) the Court (6-3) upheld a facial challenge to the Child Pornography Prevention Act of 1996. In sustaining the challenge, Justice Anthony Kennedy, writing for the majority, stated: “The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere.”
Five First Amendment cases brought before the Court in the past two years have involved facial challenges. The facial challenges in four of these cases were denied by the Court:
Gonzales v. Carhart (2007)
Crawford v. Marion County Election Board (2008)
Washington State Grange v. Washington State Republican Party (2008)
U.S. v. Williams (2008)
The fifth case in which the facial challenge was upheld is Davis v. Federal Election Commission (2008). The skepticism toward facial challenges that has emerged from these opinions and others parallels much of the thinking offered by Justice Clarence Thomas in his Washington State majority opinion. Therein, he emphasized three significant reasons for being leery of facial challenges. First, claims of facial invalidity rest on speculation, not concrete evidence. Second, federal courts were not designed to make decisions about the constitutionality of a law until they are specifically asked to do so in a case brought by someone directly involved in it. And third, the Court does not agree to hear cases because of a hypothetical situation; thus a decision about the constitutionality of a law should not cover legal ground broader than the facts of the case.
In Williams, Justice Antonin Scalia, writing for a 7-2 majority that denied a First Amendment facial challenge against a federal anti-child pornography law, summarized the state of then-existing law:
"According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. ... On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional — particularly a law directed at conduct so antisocial that it has been made criminal — has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. ... Invalidation for overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’"
By contrast, a facial challenge was sustained in Davis, even though then-Solicitor General Paul Clement had argued that the Bipartisan Campaign Reform Act of 2002 was not substantially overbroad under the Court’s existing jurisprudence. As he argued in his brief: “The court of appeals’ overbreadth analysis was further undermined by the court’s failure, contrary to this Court’s decisions, to analyze the ratio between protected applications and unprotected applications, or even to quantify the supposed protected applications.” Nonetheless, and with no real discussion of that issue, Justice Samuel Alito, writing for a 5-4 majority, found the law to be facially unconstitutional.
In Davis and Washington State, Justice David Souter voted to oppose the facial challenge; in three other cases he accepted the doctrine. Despite his recent retirement, five justices remaining on the bench tend to oppose facial challenges: Chief Justice John Roberts, and justices Alito, Thomas, Scalia and Stevens. All five justices voted against facial challenges in Crawford and Williams. But this tendency to deny facial challenges is not, as we’ve seen, a recent development.
In light of the above history, it may well be that the Roberts Court agreed to review the Stevens case to limit the doctrine of facial challenges further. Or the justices may have been concerned primarily about the novel questions presented in the case concerning a First Amendment challenge to a law banning animal-cruelty videos. Either way, the Court will have to address the facial-challenge issue.
If the Court rejects respondent Stevens’ claim, his will be yet another in a long line of cases denying a First Amendment facial challenge. Decisions of this kind could be tantamount to a gradual erosion of the doctrine by creating numerous exceptions to it. The Court has done much the same with the exclusionary rule in the Fourth Amendment context under Mapp v. Ohio (1961), whereby evidence illegally obtained is excluded from use at trials, and in the Fifth Amendment context with Miranda v. Arizona (1966) governing the law of unlawfully obtained confessions.
Then again, if the Court acts boldly, it may level a foundational attack against the practice of facial challenges, which would be of major moment for future First Amendment cases. Alternatively, the Court could use the Stevens case to buttress what it said in Ashcroft v. Free Speech Coalition and what it did in Davis v. Federal Election Commission.
For a variety of reasons, then, what the Court does in United States v. Stevens is likely to be constitutionally significant.
Rachel Seeman Collins is an intern at the First Amendment Center. She holds a bachelor’s degree in journalism from Slippery Rock University and is working on her master’s in mass communication at Miami University in Ohio.