Constitutional Law - First Amendment - En Banc Third Circuit Strikes Down Federal Statute Prohibiting the Interstate Sale of Depictions of Animal Cruelty

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The First Amendment generally prevents the government from prohibiting speech based on "disapproval of the ideas expressed." (1) For this reason, the Supreme Court has declared that "[c]ontent-based regulations are presumptively invalid" and has identified only a few categorical exclusions to the general presumption. (2) The Court last declared a category of speech to be unprotected in 1982, when it held that the First Amendment does not protect child pornography. (3) However, in response to a challenge to 18 U.S.C. [section] 48, a statute prohibiting the interstate sale of depictions of animal cruelty, the government has sought judicial recognition of a new category of unprotected speech. Recently, in United States v. Stevens, (4) the Third Circuit held that [section] 48 violates the First Amendment's Free Speech Clause. (5) Instead of following the general approach toward identifying categorical exceptions outlined by the Supreme Court in Chaplinsky v. New Hampshire, (6) the Third Circuit derived a test from the reasons the Supreme Court listed when recognizing the child pornography exception in New York v. Ferber, (7) reasons that were specific to the child pornography context and did not constitute a general test. This approach is inconsistent with the Supreme Court's First Amendment jurisprudence and sets a precedent that constricts courts' ability to recognize new categories of unprotected speech.

During an investigation, federal and Pennsylvania law enforcement officers learned that Robert Stevens had been advertising videotapes of pit bulls training to hunt hogs and participating in dog fights. (8) The officers bought three of the videotapes to form a basis for an indictment. The three videotapes included introductions, narration, and commentary by Stevens. The officers executed a search warrant for Stevens's residence and found several copies of the three videotapes along with other dogfighting merchandise. (9)

A federal grand jury indicted Stevens, charging him with three counts of "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. [section] 48." (10) Stevens filed a motion to dismiss the indictment, arguing that [section] 48 infringes upon free speech rights guaranteed by the First Amendment. (11) The district court denied Stevens's motion, and the case went to trial. (12) The jury found Stevens guilty on all three counts, and Stevens appealed. (13)

The Third Circuit, sitting en banc, vacated the conviction. (14) Writing for the majority, Judge Smith held that [section] 48 violates the First Amendment's protection of free speech. (15) The government conceded that depictions of animal cruelty do not fall into one of the established categories of unprotected speech. (16) Judge Smith disagreed with the government's stance that the Chaplinsky balancing test--which "weighs the government interest in restricting the speech against the value of the speech"--was the appropriate method of determining whether a new category should be identified. (17) The court suggested that Chaplinsky had been "marginalized" and chose not to apply its approach. (18) Judge Smith asserted that, of the established categories, "only Ferber is even remotely similar" to the speech prohibited by the statute. (19) Although Judge Smith observed that the "reasoning that supports Ferber has never been used to create whole categories of unprotected speech outside of the child pornography context," (20) he reasoned that the "only possible way to conclude that [section] 48 regulates unprotected speech is through an analogy to the Ferber rationale." (21) Thus, he proceeded to analyze [section] 48 by analogy to the five reasons underlying the child pornography exception in Ferber. …


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