The law, enacted primarily to bar “crush videos” that sexually fetishize the torture and killing of small animals, is unconstitutionally overbroad, the Court held in the 8-1 ruling in U.S. v. Stevens.
The ruling isn’t much of a surprise for anyone who attended or read about oral arguments in the case back in October. Several justices noted the law could prohibit hunting videos and other forms of speech that are a far cry from depictions of women crushing kittens under their stilettos. When an attorney for the government tried to argue that the statute didn’t violate the First Amendment because its language limited the ban to depictions of animals being “maimed, mutilated, tortured, wounded, or killed,” Justice Antonin Scalia leaned forward and interrupted him.
“Or ‘killed!'” Scalia exclaimed. “How do you limit ‘killed?!’ …‘Kill’ has one meaning, which is ‘kill!’ … You don’t have a single case in which an absolutely clear word like ‘kill’ is given a more narrow meaning because of other words that are different from that word.”
It was Chief Justice John G. Roberts, Jr. who wrote the opinion, though. In it, the Court acknowledged the long history of American laws outlawing animal cruelty. But it declined to carve out a specific First Amendment exclusion for depictions of such acts.
And when the law was put to the constitutional test, Roberts wrote, it failed. Badly.
“We read §48 to create a criminal prohibition of alarming breadth,” Roberts wrote, echoing Scalia oral argument sentiment. “To begin with, the text of the statute’s ban on a ‘depiction of animal cruelty’ nowhere requires that the depicted conduct be cruel. That text applies to ‘any . . . depiction’ in which ‘a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.’ ‘[M]aimed, mutilated, [and] tortured’ convey cruelty, but ‘wounded’ or ‘killed’ do not suggest any such limitation.”
Alito said an overbreadth ruling is “strong medicine” that should be reserved only for the most extreme of laws.
“Instead of applying the doctrine of overbreadth, I would vacate the decision below and instruct the Court of Appeals on remand to decide whether the videos that respondent sold are constitutionally protected,” Alito wrote. “If the question of overbreadth is to be decided, however, I do not think the present record supports the Court’s conclusion that [the law] bans a substantial quantity of protected speech.”