Transcript of oral arguments
WASHINGTON — One by one yesterday, Supreme Court justices across the political spectrum registered their First Amendment concerns about a 1999 federal law that makes it a crime to make, possess or sell depictions of animal cruelty — except those with scientific, journalistic, religious or political value.
The Court was hearing argument in United States v. Stevens, a challenge to the law brought by Robert Stevens, who was prosecuted for making dogfighting videos — even though he claimed they were documentaries that did not foster or endorse illegal dogfighting.
For Chief Justice John Roberts Jr., the problem with the law was that “you have to look at the content” to decide if it fits the exceptions, making it the kind of content-based restriction on speech that is usually found unconstitutional.
For Justice Stephen Breyer, the flaw appeared to be that the exceptions are too broadly worded to guide people who “have to know what to do to avoid the risk of being prosecuted.”
Justice Antonin Scalia seemed most upset by passage of the law in the first place. “It’s not up to the government to tell us what our worst instincts are … Once you allow this [law], what other base instincts do people have?”
For her part, Justice Sonia Sotomayor said she found it hard to distinguish between dogfight videos deemed illegal and an explicit David Roma documentary exposing dogfighting. “Doesn’t there have to be a judgment inherent in this statute?” she asked.
Justice Ruth Bader Ginsburg had a similar concern. Why, she asked, would videos of bullfighting or cockfighting be viewed differently under the law from dogfighting?
Justice Anthony Kennedy’s flashpoint came when Deputy Solicitor General Neal Katyal, who was defending the law, pointed out that in its 10-year history, the law had not been used against speech worthy of protection under the First Amendment. When, Kennedy asked sharply, had the Court ever upheld a law that was challenged as overbroad just because “prosecutors have been restrained?”
These and other comments during a spirited hourlong argument led many in the packed courtroom to think that the statute was likely to be struck down as too broad or too vague. The concerns voiced by the justices echoed many of the arguments made in briefs filed by Stevens’ lawyers, media groups and First Amendment advocates. The possibility that the high court would carve out the first major exception to the First Amendment in more than 25 years seemed remote.
“Why not do a simpler thing?” asked Breyer at one point. “Rather than let the public guess what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit.”
Breyer was referring to the original target of the law when it was first passed: the then-growing market in so-called crush or fetish videos: films that appeal to prurient interests by showing women in high heels crushing small animals. (The Stevens case does not involve crush videos.) Stevens’ lawyer, Patricia Millett, seemed to gain points with the justices by acknowledging that a “properly drawn statute” that was narrowly aimed at just that kind of depiction might be constitutional. But she said the Court should not rewrite the law narrowly for Congress. “Congress has a job to write with a scalpel and not a buzzsaw in the First Amendment area,” she said.
Katyal told the justices that in fact the law had been “a success story,” effectively drying up the market for crush or fetish videos, until the 3rd U.S. Circuit Court of Appeals struck it down in July 2008. But that point did not appear to sway justices, who seemed more concerned with the law’s impact on less objectionable, borderline depictions.
“You can’t separate the means from the end and say, since its end is simply to prevent the activity, the means, which is to prevent the communication, is OK,” said Scalia.
Scalia also asked Katyal, “What if I am an aficionado of bullfights, and I think, contrary to the animal-cruelty people … they ennoble both beast and man?” He continued, “I would not be able to market videos showing how exciting a bullfight is, right?”
Katyal said there was “no realistic danger” that bullfight videos would be prosecuted. And more broadly, he asked justices to be “careful” about positing an “endless stream of fanciful hypotheticals” and ask themselves whether there is a “realistic danger” that the hypotheticals might come true.
But the hypotheticals kept coming. Breyer asked whether a video depicting “stuffing geese for pate de foie gras” would violate the law.
Justice John Paul Stevens posited videos of “hunting with a bow and arrow out of season,” when it would be illegal.
Justice Samuel Alito Jr. saved his hypotheticals for Millett, seeking to test the outer limits of her First Amendment argument against the law. Alito, the only justice who appeared poised to uphold the law, kept asking whether fears of the law's being overbroad had anything to do with what would happen “in the real world.” But then Alito too offered up fanciful hypotheticals. Could Congress ban a video depicting modern-day Roman gladiators fighting to the death? Or what about a pay-per-view “Human Sacrifice Channel”? he asked.
Millett hedged and seemed briefly in trouble on the human-sacrifice hypothetical. But Katyal in his rebuttal said such a channel would be hard to ban under the First Amendment, an answer that seemed to help his adversary.
At the end of the hard-fought hour, Roberts took the unusual step of thanking both lawyers for “very able” presentations.