Yesterday, the United States Supreme Court issued its opinion in United States v. Stevens.  The court’s ruling struck down a 1999 law aimed at stopping the creation and distribution of “crush videos,” which typically depict women crushing small animals with high-heeled shoes or their bare feet. 

The Supreme Court held the law unconstitutional on its face because it violates the First Amendment’s guarantee of free speech, and specifically because the language of the statute was “overbroad.”  (You can read the Court's entire opinion at this website: http://www.scotusblog.com/2010/04/todays-opinion-united-states-v-stevens/)

When an appellate court says that a law is overbroad, it’s saying that the law as written goes beyond criminalizing the conduct that the drafters of the law intended to criminalize (e.g., distributing crush videos) and could be used to criminalize conduct that should not be so deemed (e.g., distributing videos of hunting).  (The defendant in the Stevens case was prosecuted under this law for distributing videos of dog fighting, not crush videos.)

As written, the statute in this case made it illegal to possess or sell any depiction of the maiming, mutilating, wounding, torturing, or killing of an animal, if the conduct depicted is illegal in the place where the prosecution is brought.  The law contained an exception for depictions with “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

Here’s the problem the court has with the law as written.  Say you own a video about hunting deer with a crossbow.  And say you happen to live in an area where hunting deer with a crossbow is illegal.  The video depicts the killing of a deer.  You’re in violation of the law. 

The Government argued to the Supreme Court that even though the language describing what is covered under the statute (killing, maiming, etc.) is broad, the exception for content with “serious religious, political, scientific, educational, journalistic, historical or artistic value” would prevent overbroad interpretation.  The Court didn’t buy this line of argument.

According to the Court, the problem with the exception is the word “serious” and how that might be interpreted.  Going back to my hypothetical above, a video made for hunting enthusiasts might be deemed not to have “serious” religious, political, scientific, educational, journalistic, historical or artistic value.  Thus owning or selling such a video could be illegal under the statute.

So that’s the gist of the Supreme Court’s ruling, and in my opinion it reached the right result.  Laws that restrict citizens’ constitutional rights need to be narrowly drafted in order to be upheld – and that’s as it should be.  The court’s decision was 8 to 1, arguably showing that this case didn’t even present a close call.

In fact, when I read in the Court’s opinion that the Government had actually “assured” the Court that it would apply the statute only in cases of “extreme” cruelty, I couldn’t help but laugh.  If the Solicitor General seriously found herself having to resort to this line of argument (“trust us, we won’t over-step, I promise”) she should have withdrawn the appeal!  I mean, come on!  We don’t write unspecific laws and then “trust” prosecutors to only prosecute the "really guilty" people.  We write laws that specifically define what is and is not criminal conduct and allow prosecutors discretion in determining what crime to charge under the facts presented.  If the Government intends to use the law only in cases of “extreme cruelty” than it must enact a law in which “extreme cruelty” is an element of the offense.    

Just in case there is any question about where I stand -- I agree that crush videos should be illegal to create and distribute and I sympathize with the Government’s case for that reason.  But I also see the Supreme Court’s view that the law at issue here was not sufficiently narrow in scope.  Drafting a law that specifically targets crush videos is not going to be easy.  The underlying conduct of crushing a mouse with a shoe is probably not even considered 'cruelty to animals' in most jurisdictions, since mice are considered vermin and it’s o.k. to employ any number of inhumane methods of extermination.  Nevertheless, I hope that the proponents of the law return to the drafting process and try again.

On a general note, those who seek to establish protections for animals under the law have to realize that specificity is essential to progress.  Any law that tries to do too much is doomed to failure.  If the goal is to stop the distribution of dog-fighting videos, then draft a law that addresses dog-fighting videos. That might mean drafting more laws, but that’s what it’s going to take.  The broad-brush approach is not going to work.

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