Congress screwed up again.
Animal cruelty sucks. It’s against the law, in one form or another, in every single state. The feds wanted to outlaw it, as well. But they have that pesky jurisdictional hurdle to overcome, which they always try to get around by invoking interstate commerce. So in 1999, Congress passed a law making it a crime — not to commit acts of animal cruelty — but to have a photo or video of a living animal being wounded or killed, with the intention to place that depiction into interstate commerce for commercial gain. 18 U.S.C. §48.
That’s pretty awkward. And it doesn’t outlaw the actual cruelty itself. It’s sort of meant to stop animal cruelty from happening, by making it a federal crime to sell videos of it. Which is pretty lame and stupid, hardly a deterrent at all.
The law was really intended to focus on “crush videos,” which showed the killing of kitties and puppies, for an audience that derived sexual pleasure from such images. See Internet R. 34. The acts depicted in such videos are already against the law in every state, but there you go.
So Robert Stevens was a pit bull enthusiast and documentary film maker. He sold videos that were not “crush videos,” but which did depict dogfighting. Stevens said they were educational, to provide perspective on the phenomenon. The feds said they violated section 48.
This morning, an almost unanimous Court ruled that the statute is unconstitutionally overbroad. (Read the opinion here.) Writing for the majority, Chief Justice Roberts focused not on the First Amendment issues that had been raised (which would have required the carving out of new First Amenment law), but instead zeroed in on the fact that this statute is supposed to apply only to specific types of “extreme” material.
Overbreadth analysis doesn’t require the making of new constitutional law. All you do is look at what the law is intended to do, look at what the law actually covers, and determine whether the statute goes too far.
The text of the statute is clearly overbroad, as it includes depictions of any injury to an animal. That would include way more videos our there than the “crush videos” the law was intended to focus on. The feds argued that the law should be… construed, perhaps… as you know sort of kinda implying that the statute only applies to such depictions that also contain “accompanying acts of cruelty.” The statute’s phrase “wounded or killed” is ambiguous, said the feds, so this additional implied language would be a common sense judicial interpretation that would give the phrase more precise meaning.
Hogwash, the Court said. “Wounded or killed” isn’t ambiguous at all. The words have clear and ordinary meaning.
But Roberts was just getting started. The opinion got admirably snarky in sections C and D. In C, he relished pointing out the inherent contradiction of the government’s position on what counts as an exception under the statute. D starts off with “Not to worry, the Government says” — the DOJ will interpret it the right way, so that it will only be used against depictions of “extreme” cruelty. As the opinion’s language suggests, this was not a persuasive argument. “The First Amendment protects us against the Government,” Roberts pointed out. “It does not leave us at the mercy of nobless oblige.”
That sentence right there gets a rousing “bravo” from us. The whole point of the American system of government is to protect the citizens from the government, to limit what government is allowed to do, so the citizens don’t have to just hope that the government does the right thing. People keep forgetting this, and it’s nice to have it reaffirmed here.
The statute, Roberts concluded, “creates a criminal prohibition of alarming breadth.” They weren’t going to let an unconstitutional law stand just because “the government promises to use it responsibly.”
As the sole dissenter, Justice Alito makes a “yeah, but…” argument. Yeah, the statute as written could be interpreted as covering more than just the really bad depictions of cruelty, but now crush videos aren’t against federal law any more, and think of the social costs! Congress clearly didn’t mean to outlaw depictions of stuff that isn’t a crush video, so we shouldn’t say that the statute should be read otherwise. “Who cares what the language of the law says,” he seems to be arguing, “let’s focus on what the policy of the law was supposed to be, and let’s engage in a balancing of interests to determine what the law means at this particular moment.”
We thought Alito was a conservative jurist. What just happened there?
Anyway, this decision is hardly likely to encourage a massive increase in the production of crush videos. The people who make them tend not to get caught in the first place, because they’re not identified or depicted in the videos. The only people who get caught are those who bought them down the pipeline. As the drug war, kiddie porn and other campaigns have taught us, criminalizing demand has zero effect whatsoever on supply. The same is probably true for these sick videos as well. The law that just got struck down probably had no measurable effect on the infliction of cruelty to animals, and now that it’s been found unconstitutional the cruel people are just going to keep doing what they’ve been doing all along.
So how about, next time around, Congress passes a law criminalizing the making of a depiction of animal cruelty, period. No video camera in existence hasn’t passed through interstate or international commerce. Using the video camera gets you your jurisdiction. Ta dah. Now all you need to do is define animal cruelty specifically enough, and there you go.
It really isn’t that hard. Even a congressman should be able to handle it.