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Will the Supreme Court Create Another Exception to the First Amendment?

(May 6, 2009) – On April 20, the Supreme Court agreed to decide whether an odd federal law aimed at stamping out “crush videos” violates the First Amendment. The case has major implications.

The law in question criminalizes the creation, sale, or simple possession of a depiction of “animal cruelty,” with “the intention of placing that depiction in interstate or foreign commerce for commercial gain.” It defines “depiction of animal cruelty” as

any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State.1

The law has an exemption for “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Crush videos, the ostensible target of the law, are designed to appeal to a relatively small group of people who have a bizarre sexual interest in seeing women in dominatrix apparel stomping on small animals and torturing them to death. Obviously, the definition of “animal cruelty” in the law goes well beyond the crush video phenomenon.

For example, the defendant in the case before the Supreme Court, Robert Stevens, was criminally convicted for possessing two videos showing dogfights and one showing the training of pit bulls to catch and subdue wild boars. The dogfights were evidently legal where they were filmed. The videos contain narration and commentary.

The U.S. Court of Appeals for the Third Circuit reversed Stevens’s conviction. The court said it had been 25 years since the Supreme Court created a new exception to the protection of the First Amendment (in that instance, for child pornography). The judges saw no compelling reason to create another exception for depictions of animal cruelty, especially since acts of animal cruelty are already illegal in all 50 states. The court noted that the law potentially bans not only documentaries about dogfighting, cockfighting, and bullfighting, but even depictions of fishing and hunting if done off-season or without the proper permit.2

The Court of Appeals added that the exemption in the law for works with “serious value” creates more problems than it solves. Outside the field of obscenity law (which defines punishable obscenity as prurient, patently offensive sexual material that lacks “serious value”), the First Amendment protects expression regardless of whether a judge or jury thinks it is valuable.

The government’s petition to the Supreme Court to review this case raises at least two questions with broad implications for the future of free speech. One involves Congress’s stated justification for the law, which the Justice Department endorses: that depictions of cruelty to animals should be suppressed because they will desensitize people and lead them to be cruel to humans as well. This is an argument with very few limits.

For example, those who want to ban films and other forms of expression that contain graphic violence frequently argue that viewers will be desensitized, or will imitate the violence shown on the screen. But the First Amendment rejects the notion that speech should be suppressed because it might give people bad ideas. Justice Brandeis explained more than 80 years ago that “if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”3

Or as a federal appeals court judge put it in a more recent case involving an unconstitutional ordinance that banned certain forms of pornography: “any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.”4

The government also argues that any danger of censorship is averted by the law’s exemption for material with serious value. But apart from the “I know it when we see it” context of obscenity law, the question whether a work has serious value is one that the First Amendment puts beyond the power of local communities, prosecutors, judges, and juries to decide. These local authorities should not be in a position to say, for example, whether a news item about cockfights or bullfights has “journalistic” value, no less “serious journalistic” value.

According to the brief in opposition to the government's petition for review, filed by the public defender representing Stevens, there have been only three prosecutions under the animal-cruelty-depiction law since its passage in 1999. None have been for crush videos.5

Update: On April 20, 2010, the Supreme Court struck down the "depiction of animal cruelty" law in an 8-1 decision. Chief Justice Roberts's opinion for the Court rejected the government's argument that "whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” He explained: "As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."

For a copy of the government's brief on the merits to the Supreme Court, click here. For a copy of Stevens's brief, click here. For the Supreme Court's decision, click here.


1. 18 U.S.Code §48.

2. U.S. v. Stevens, No. 05-2497 (3rd Cir. July 18, 2008), available at

3. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).

4. American Booksellers Association v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985).

5. Brief in Opposition to Petition for Certiorari in U.S. v. Stevens, p. 12, available at


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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