United States v. Stevens Oral Arguments

From the sounds of the on-the-ground reports I am getting, it seems that United States v. Stevens is looking good for those of us on the side of Free Speech. Only Alito seems skeptical of the free speech arguments. Sotomayor seemed to strongly challenge the government’s position, and Scalia seemed to be reviving his prior free speech theories as articulated in R.A.V. v. City of St. Paul. A great play-by-play of the arguments is here.

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?” Source.

Yay Kennedy!

The full oral argument transcript is available here.

For background on the United States v. Stevens case, read “Protecting animals is not a reason to amputate part of the First Amendment.”

8 Responses to United States v. Stevens Oral Arguments

  1. jlynne says:

    Was the selective enforcement issue inherent in Katyal’s point addressed directly?

  2. Joe says:

    Dog fighting is such a hot issue these days. What will be next?

  3. Steven Hoover says:

    Let me use my freedom of speech to tell you what a moron you are. To defend such abhorrent behavior and sympathize with those who promote animal cruelty is beyond stupidity and narrow mindedness (which you are supposedly against). To follow an ideal with no consideration for it’s repercussions or effects on innocent sentient beings reeks of blind fanaticism with little or no comprehension of law itself.

  4. Encomiast says:

    One thing that is shocking about this is how bad the original legislation in § 48 is. The government opened their arguments with a statement about how narrowly defined the statute is, but you could really drive a truck through it. It’s broad and vague.

    The distinction in the arguments between limiting the content of the speech and the production of the speech was interesting. The law is not necessarily trying to ban depictions of animal cruelty—you can still do that if you like, just not with real animals. It seems it was trying to break the connection between the depiction and act, but I don’t think anyone in Congress is smart enough to actually do that without taking the 1st amendment with it. In fact, I’m not sure if it is possible to write a law that works the way Congress seemed to want this one to work. The law as it stands is a miserable failure.

    Some of the arguments reminds me of banning ivory: think of all the scrimshaw artists who no longer can express themselves in the glorious medium of elephant tusk. Was that a 1st amendment issue for them? No, because it does not limit the content, just production. Obviously it was easier in that case.

  5. Mike says:

    When I first heard of this law I thought of all the nature videos. From the point of view of the prey animals most of them could be considered cruel. Really did you think that small fish happened to swim by the hungry octopus of it own volition or is it more likely the whole event was staged to get a good shot?

    With that in mind perhaps it would be fun to put a 24 hour webcam on a pet snake. Either you get to watch someone bringing live mice* to thier doom which of course is cruel, or you watch the snake slowly starve to death which is also cruel.

    Now I certainly don’t condone dogfighting but animal cruelty seems a somewhat meaningless term in a carnivorous society.

    *For those who have never owned reptiles a lot of them don’t deal well with pre-killed prey. The movement gets thier appetite up.

  6. RBK says:

    It’s probably true, the statute is overbroad and Congress needs to redraft it. But at the end of the day, if this were about crushing children, or any other exploitation of a child, this would be a slam-dunk. Instead, it’s kittens, and rabbits, and dogs. This case shows how far from safety our animals are.

  7. mike says:

    Your absolutely correct there’s a vast difference between a child and an animal. What is the difference between a pet rabbit and a food rabbit anyway.

    However if the statute were written as images depicting cruelty to humans I suspect it would be equally unconstitutional. Wouldn’t that imply that all footage from the Vietnam war are illegal? How about the Holocaust? Outlawing Holocaust videos would probably make a certain Iranian leader very happy. I along with everyone in my watched the World Trade Center collapse live and with it many people die. Certainly that act is cruel, but the images themselves are not and should not be illegal.

    I’d say there is far more footage depicting human cruelty than that of animal cruelty. It has always had higher ratings as it should as it is a more important issue.

    The problem with the whole

  8. joe says:

    blah blah blah!!!!!

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