United States v. Stevens

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

7-18-2008

USA v. Stevens
Precedential or Non-Precedential: Precedential

Docket No. 05-2497

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-2497

UNITED STATES OF AMERICA

v.

ROBERT J. STEVENS,

Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cr-00051)
District Judge: Hon. Alan N. Bloch

Argued October 25, 2006
Argued En Banc November 13, 2007

BEFORE: SCIRICA, Chief Judge, SLOVITER,
McKEE, RENDELL, BARRY, AMBRO,
FUENTES, SMITH, FISHER, CHAGARES, JORDAN,
HARDIMAN and COWEN, Circuit Judges
 (Filed July 18, 2008)

Karen S. Gerlach, Esq. (Argued)
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222

Counsel for Appellant

Robert L. Eberhardt, Esq. (Argued)
Laura S. Irwin, Esq.
Office of the United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219

Counsel for Appellee

OPINION

SMITH, Circuit Judge.

The Supreme Court has not recognized a new category of
speech that is unprotected by the First Amendment in over

2
twenty-five years.1 Nonetheless, in this case the Government
invites this Court to take just such a step in order to uphold the
constitutionality of 18 U.S.C. § 48 and to affirm Robert Stevens’

1
The Supreme Court reaffirmed, in its recent decision in
United States v. Williams, that “[o]ffers to engage in illegal
transactions are categorically excluded from First Amendment
protection.” United States v. Williams, __ U.S. __ (2008), 2008
WL 2078503 at *8 (citing Pittsburgh Press Co. v. Pittsburgh
Comm’n on Human Relations, 413 U.S. 376, 388 (1973);
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498
(1949)). The Court’s application of that proposition to child
pornography in Williams was undoubtedly new. However, the
Court’s decision in Williams did not create a new category of
unprotected speech. To the contrary, the general principle that
“offers to give or receive what it is unlawful to possess . . .” fall
outside the realm of First Amendment protection is well
established. Williams, __ U.S. __ (2008), 2008 WL 2078503 at
*8. For example, the law has long recognized that the inclusion
of a verbal or written component as part of the commission of an
inchoate crime, like conspiracy or attempt, does not immunize
a defendant from prosecution. Giboney, 336 U.S. at 498 (“It
rarely has been suggested that the constitutional freedom for
speech and press extends its immunity to speech or writing used
as an integral part of conduct in violation of a valid criminal
statute. We reject the contention now.”). As such, we consider
Williams distinct from the instant case, in which the
Government seeks to exclude a new category of speech from
First Amendment protections, rather than target the offer or
solicitation of materials already proscribable.

3
conviction.2 For the reasons that follow, we decline the
Government’s invitation. Moreover, because we agree with
Stevens that 18 U.S.C. § 48 is an unconstitutional infringement
on free speech rights guaranteed by the First Amendment, we
will vacate his conviction.3

I.

In March of 2004, a federal grand jury sitting in the
Western District of Pennsylvania returned a three-count
indictment against Stevens, a resident of Virginia. All three
counts charged Stevens with 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. § 48.

2
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. The
District Court had jurisdiction under 18 U.S.C. § 3231. We
exercise plenary review over a challenge to the constitutionality
of a federal statute. Blackhawk v. Pennsylvania, 381 F.3d 202,
206 (3d Cir. 2004).
3
Stevens raises other challenges to his conviction based on
the sufficiency of the evidence, the propriety of the jury
instructions, and possible errors in the jury selection process.
He also challenges the appropriateness of the District Court’s
sentencing him based on Guidelines intended for child
pornography offenses. It is unnecessary for us to reach these
issues.

4
 The indictment arose out of an investigation by federal
and Pennsylvania law enforcement agents who had discovered
that Stevens had been advertising pit bull related videos and
merchandise through his business. Stevens advertised these
videos in Sporting Dog Journal, an underground publication
featuring articles on illegal dogfighting. Law enforcement
officers arranged to buy three videotapes from Stevens, which
form the basis for each of the counts in the indictment. The first
two tapes, entitled “Pick-A-Winna” and “Japan Pit Fights,”
show circa 1960s and 70s footage of organized dog fights that
occurred in the United States and involved pit bulls, as well as
footage of more recent dog fights, also involving pit bulls, from
Japan. The third video, entitled “Catch Dogs,” shows footage
of hunting excursions in which pit bulls were used to “catch”
wild boar, as well as footage of pit bulls being trained to
perform the function of catching and subduing hogs or boars.
This video includes a gruesome depiction of a pit bull attacking
the lower jaw of a domestic farm pig. The footage in all three
videos is accompanied by introductions, narration and
commentary by Stevens, as well as accompanying literature of
which Stevens is the author.

As a result of their investigation, law enforcement
officers obtained a search warrant for Stevens’ Virginia
residence. One day later, on April 23, 2003, officers executed
the search warrant and found several copies of the three videos,
as well as other dogfighting merchandise. On March 2, 2004, a
grand jury in the Western District of Pennsylvania returned an

5
indictment charging Stevens 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. § 48. In November of 2004, the District
Court denied Stevens’ motion to dismiss the indictment based
on his assertion that § 48 abridged his First Amendment right to
freedom of speech. The case proceeded to trial, and on January
13, 2005, the jury returned a verdict of guilty on each of the
three counts. The District Court sentenced Stevens to 37 months
of imprisonment and three years of supervised release. This
appeal followed.

II.

Stevens’ case is the first prosecution in the nation under
§ 48 to proceed to trial, and this appeal represents the first
substantive constitutional evaluation of the statute by a federal
appellate court. 18 U.S.C. § 48 states:

(a) Creation, sale, or possession.--Whoever
knowingly creates, sells, or possesses a depiction
of animal cruelty with the intention of placing that
depiction in interstate or foreign commerce for
commercial gain, shall be fined under this title or
imprisoned not more than 5 years, or both.

6
(b) Exception.--Subsection (a) does not apply to
any depiction that has serious religious, political,
scientific, educational, journalistic, historical, or
artistic value.

(c) Definitions.--In this section–

(1) the term “depiction of animal
cruelty” means 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; and

(2) the term “State” means each of
the several States, the District of
Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands,

7
 Guam, American Samoa, the
Commonwealth of the Northern
Mariana Islands, and any other
commonwealth, territory, or
possession of the United States.

Resort here to some legislative history is instructive, not
as a device to help us construe or interpret the statute, but rather
to demonstrate the statute’s breadth as written compared to what
may originally have been intended. The legislative history for
§ 48 indicates that the primary conduct that Congress sought to
address through its passage was the creation, sale, or possession
of “crush videos.” A crush video is a depiction of “women
inflicting . . . torture [on animals] with their bare feet or while
wearing high heeled shoes. In some video depictions, the
woman’s voice can be heard talking to the animals in a kind of
dominatrix patter. The cries and squeals of the animals,
obviously in great pain, can also be heard in the videos.” H.R.
REP. NO. 106-397, at 2 (1999). Testimony presented at a
hearing on the Bill, and referenced in the House Committee
Report, indicates that “these depictions often appeal to persons
with a very specific sexual fetish who find them sexually
arousing or otherwise exciting.” Id. at 2–3.

One of the distinctive features of crush videos is that “the
faces of the women inflicting the torture in the material often
were not shown, nor could the location of the place where the
cruelty was being inflicted or the date of the activity be

8
ascertained from the depiction.” H.R. REP. NO. 106-397, at 3.
Consequently:

defendants arrested for violating a State cruelty to
animals statute in connection with the production
and sale of these materials . . . often were able to
successfully assert as a defense that the State
could not prove its jurisdiction over the place
where the act occurred or that the actions depicted
took place within the time specified in the State
statute of limitations.

Id. The sponsor of the Bill in the House of Representatives,
Rep. Elton Gallegly, emphasized that the purpose of the
legislation was to target crush videos. These videos evidently
turn a brisk business, particularly over the Internet. See 145
CONG. REC. E1067-01 (May 24, 1999) (extension of remarks by
Rep. Elton Gallegly); 145 CONG. REC. H10267-01 (Oct. 19,
1999). The discussion of the Bill in the Senate similarly focused
on § 48 as a tool to aid in the elimination of crush videos. See
145 CONG. REC. S15220-03 (Nov. 19, 1999).

Yet, the government interests identified in the House
Committee Report in support of § 48 do not focus on crush
videos. The primary interest identified there is the federal
government’s interest in “regulating the treatment of animals.”
H.R. REP. NO. 106-397, at 3. Similarly, the House Report states
that the Government has an interest in discouraging individuals
from becoming desensitized to animal violence generally,

9
because that may serve to deter future antisocial behavior
toward human beings. Id. at 4.

This broader focus on animal cruelty is consistent with
the text of § 48 and it is also reflected in the House Report’s
discussion of why the speech that § 48 targets should be deemed
outside the protection of the First Amendment. Id. at 4–5. The
Report concedes that § 48 is a content-based restriction, but
states that the harm it would address, by reducing cruelty to
animals, “so outweighs the expressive interest, if any, at stake,
that the materials [prohibited by § 48] may be prohibited as a
class.” Id. at 5. The Report minimizes the expressive interest
of any speech prohibited by the statute because “[b]y the very
terms of the statute, material depicting cruelty to animals that
has serious utility–whether it be religious, political, scientific,
educational, journalistic, historic, or artistic–falls outside the
reach of the statute.” Id. at 4.

III.

The Government does not allege that Stevens participated
in the interstate transport of “crush videos.” Nor does the
Government allege that the videos Stevens sold contained
prurient material. The Government also concedes that § 48
constitutes a content-based restriction on speech. Nonetheless,
the Government argues that the type of speech regulated by § 48
falls outside First Amendment protection. By doing so, the
Government asks us to create a new category of unprotected

10
speech. We proceed in two parts. First, we show how § 48
regulates protected speech. Second, because § 48 regulates
protected speech, we must subject the statute to strict scrutiny.
As shown below, the statute cannot withstand that heightened
level of scrutiny.

The acts of animal cruelty that form the predicate for §
48 are reprehensible, and indeed warrant strong legal sanctions.
The Government is correct in arguing that animal cruelty should
be the subject of not only condemnation but also prosecution.
To this end, anti-animal cruelty statutes have been enacted in all
fifty states and the District of Columbia.4 These statutes target

4
The following state animal protection statutes are currently
in place: ALASKA STAT. § 11.61.140 (2004); ALA. CODE
§ 13A-11-14 (1977); ARIZ. REV. STAT. ANN. § 13-2910 (2002);
ARK. CODE ANN. § 5-62-101 (2001); CAL. PENAL CODE § 597
(1998); COLO. REV. STAT. § 18-9-202 (2007); CONN. GEN.
STAT. § 53-247 (2004); DEL. CODE ANN. tit. 11, § 1325 (2002);
FLA. STAT. § 828.12 (2002); GA. CODE ANN. § 16-12-4 (2000);
HAW. REV. STAT. § 711-1109 (2007); IDAHO CODE Ann. §§ 25-
3501-3507 (2008); 510 ILL. COMP. STAT. §§ 70/3.01-3.03,
70/3.03-1 (2008); IND. CODE §§ 35-46-3-7, 35-46-3-8, 35-46-3-
9, 35-46-3-9.5 (2007); IOWA CODE § 717B.3A (2003), amended
by 2008 Ia. Legis. Serv. S.F. 2177 (West); KAN. STAT. Ann. §
21-4310 (2007); KY. REV. STAT. ANN. §§ 525.125, 525.130,
525.135 (2007), amended by 2008 Kentucky Laws Ch. 136 (SB
58); LA. REV. STAT. ANN. §§ 14:102.1, 14:102.4 (2008); ME.
REV. STAT. ANN. tit. 17, §§ 1031, 1033 (2007), amended by

11
the actual conduct that offends the sensibilities of most citizens.

2008 Me. Legis. Serv. Ch. 702 (West); MD. CODE ANN., CRIM.
LAW §§ 10-604, 10-606, 10-607, 10-608 (2008);
MASS.GEN.LAWS ch. 272, § 77 (2006); MICH. COMP. LAWS §§
750.50(2), (4), 750.50b(2) (2003); MINN. STAT. §§ 343.21(7),
(9) (2004); MISS. CODE ANN. §§ 97-41-2, -3, -5, -7, -9, -11, 13,
-15, -17, -19, -21, -23 (2008); MO. REV. STAT. §§ 578.012, .025,
.050 (2008); MONT. CODE ANN. §§ 45-8-211, 217 (2007); NEB.
REV. STAT. §§ 28-1005, -1009, -1010, -1017 (2007); NEV. REV.
STAT. § 574.050-.200 (2008); N.H. REV. STAT. ANN. §§ 644:8
(III), (III-a) (2008); N.J. STAT. ANN. § 4:22-17(b) (2008); N.M.
STAT. ANN. § 30-18-1 (2008); N.Y. AGRIC. & MKTS. LAW §§
350-353-a (McKinney 2008); N.C. GEN. STAT. §§ 14-360 to -
363.2 (2007); N.D. Cent. Code §§ 36-21.1-01 to -21.1-15
(2007); OHIO REV. CODE ANN. §§ 959.01-.20 (2008); OKLA.
STAT. ANN. tit. 21, § 1685 (2008); OR. REV STAT. ANN. §§
167.310, .315, .320, .322, .325, .330, .333, .340 (2007); 18 PA.
CONS. STAT. ANN. § 5511(a)(2.1) (2007); R.I. GEN. LAWS §§
4-1-1 to 4-1-38 (2007); S.C. CODE ANN. § 47-1-10 to -210
(2007); S.D. CODIFIED LAWS §§ 40-1-1–40-1-41 (2008); TENN.
CODE ANN. §§ 39-14-201 to 39-14- 214 (2008); TEX. PENAL
CODE ANN. §§ 42.09–.10 (2008); UTAH CODE ANN. §§
76-9-301–307 (2008), amended by 2008 Utah Laws Ch. 292;
VT. STAT. ANN. tit. 13, §§ 351–354 (2007); 2008 Va. Acts. 860
(to be codified at VA. CODE ANN. §§ 3.2-6566–6573); WASH
REV. CODE §§ 16.52.011–.305 (2008); W. VA. CODE §§ 7-10-3
to -4a (2008); WIS. STAT. §§ 951.01–.18 (2007); WYO. STAT.
ANN. § 6-3-203 (2007); D.C. CODE ANN. §§ 22-1001–.1015
(2008).

12
The fundamental difference between these state statutes and §
48 is that the latter does not federally criminalize the conduct
itself. Rather, § 48 prohibits the creation, sale, or possession of
a depiction of animal cruelty. That regulating a depiction has
First Amendment implications is obvious. We begin, then, with
the Government’s contention that the depictions of animal
cruelty restricted by 18 U.S.C. § 48 qualify as categorically
unprotected speech.

A. § 48 Regulates Protected Speech

It has been two and a half decades since the Supreme
Court last declared an entire category of speech unprotected.
See New York v. Ferber, 458 U.S. 747 (1982) (holding that child
pornography depicting actual children is not protected speech);
see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256
(2002) (refusing to recognize virtual child pornography as a
category of unprotected speech). Other types of speech that are
categorically unprotected include: fighting words, Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942), threats, Watts v. United
States, 394 U.S. 705 (1969), speech that imminently incites
illegal activity, Brandenburg v. Ohio, 395 U.S. 444 (1969), and
obscenity, Miller v. California, 413 U.S. 15 (1973). The
common theme among these cases is that the speech at issue
constitutes a grave threat to human beings or, in the case of
obscenity, appeals to the prurient interest.

The Government acknowledges that the speech at issue

13
in this case does not fall under one of the traditionally
unprotected classes. The Government argues, however, that
these categories may be supplemented. That, in itself, is an
unassailable proposition. But, we disagree with the suggestion
that the speech at issue here can appropriately be added to the
extremely narrow class of speech that is unprotected. Out of
these categories, only Ferber is even remotely similar to the
type of speech regulated by § 48.5 Recognizing this difficulty,
the Government attempts to analogize between the depiction of
animal cruelty and the depiction of child pornography.6 That

5
We do not address the constitutionality of a hypothetical
statute that would only regulate crush videos. While such a
hypothetical statute might target obscenity under the Miller test
because crush videos appeal to a prurient interest, the actual text
of § 48 and the facts of this case show just how far afield the
statute’s language drifted from the original emphasis in the
Congressional Record on the elimination of crush videos.
6
The Government suggests that its position is supported by
the Supreme Court’s decision in Chaplinsky v. New Hampshire,
315 U.S. 568 (1942). The Government reads Chaplinsky to
establish a simple balancing test to determine whether to
recognize a class of speech as unworthy of First Amendment
protection. The test weighs the government interest in
restricting the speech against the value of the speech. See id. at
572. As we show, the only possible way to conclude that § 48
regulates unprotected speech is through an analogy to the Ferber
rationale. In our discussion of Ferber, we will address both
parts of the Chaplinsky inquiry. We note, however, that the
limited number of unprotected speech categories recognized

14
attempt simply cannot carry the day.

In Ferber, the Court considered the constitutionality of
a New York criminal statute that prohibited persons from
knowingly promoting sexual performances by children under the
age of 16 by distributing material that depicted such
performances. Ferber, 458 U.S. at 747. The case arose when
Paul Ferber, the owner of a Manhattan bookstore specializing in
sexually oriented products, sold to undercover officers two films
that were “devoted almost exclusively to depicting young boys
masturbating.” Id. at 751–52. A jury convicted Ferber of
disseminating child pornography, in violation of a statute that
did not require proof that such materials were obscene. Id. at
752. The New York Court of Appeals reversed, holding that the
statute at issue violated the First Amendment because it “could
not be construed to include an obscenity standard, and therefore
would prohibit the promotion of materials traditionally entitled
to protection under the First Amendment.” Id. at 747.

The Supreme Court in turn reversed the New York Court
of Appeals, holding that the statute was constitutional because

since Chaplinsky strongly suggests that the balancing test tilts in
favor of protection. See James L. Swanson, Unholy Fire: Cross
Burning, Symbolic Speech, and the First Amendment: Virginia
v. Black, 2003 CATO SUP. CT. REV. 81, 90 (2002-2003) (noting
that “later precedents diluted the authority of Chaplinsky and,
while the Court has never overruled it, Chaplinsky has certainly
been marginalized”).

15
child pornography, whether obscene or not, is unprotected by
the First Amendment. Id. at 756. In reaching that conclusion,
the Court cited five factors favoring the creation of a new
category of unprotected speech:

1. The State has a “compelling”
interest in “safeguarding the
physical and psychological
well-being of a minor.” Id. at
756-57 (quoting Globe Newspaper
Co. v. Superior Court, 457 U.S.
596, 607 (1982)).

2. Child pornography is “intrinsically
related to the sexual abuse of
children in at least two ways. First,
the materials produced are a
permanent record of the children’s
participation and the harm to the
child is exacerbated by their
circulation. Second, the
distribution network for child
pornography must be closed” in
order to control the production of
child pornography. Id. at 759
(citations omitted). The Court
explained that the production of
child pornography is a “low-profile,
clandestine industry” and that the
“most expeditious if not the only
practical me thod of law

16
 enforcement may be to dry up the
market for this material” by
punishing its use. Id. at 760.

3. “The advertising and selling of
child pornography provide an
economic motive for and are thus
an integral part of the production”
of child pornography. Id. at 761.

4. The possibility that there would be
any material of value that would be
prohibited under the category of
child pornography is “exceedingly
modest, if not de minimis.” Id. at
762.

5. Banning full categories of speech is
an accepted approach in First
Amendment law and is therefore
appropriate in this instance. Id. at
763-64.

Amy Adler, Inverting the First Amendment, 149 U. PA. L. REV.
921, 938 n.77 (2001); see also Ashcroft v. Free Speech
Coalition, 535 U.S. at 249–50 (focusing on factor number two
in striking down part of an anti-child pornography federal statute
that criminalized pornographic images made with virtual
(computer-generated) children or adults dressed to look like
children).

17
 Without guidance from the Supreme Court, a lower
federal court should hesitate before extending the logic of
Ferber to other types of speech. The reasoning that supports
Ferber has never been used to create whole categories of
unprotected speech outside of the child pornography context.
Furthermore, Ferber appears to be on the margin of the Supreme
Court’s unprotected speech jurisprudence. Adler, supra, at 936
(noting that, aside from child pornography, “when the Court
eliminates a category of expression from constitutional
protection, it carefully defines the speech that can be banned; the
definition then serves as a limit on legislative enactments”).
Part of what locates child pornography on the margin as an
unprotected speech category is the conflation of the underlying
act with its depiction. By criminalizing the depiction itself,
“[c]hild pornography law has collapsed the ‘speech/action’
distinction that occupies a central role in First Amendment
law[,]” and “is the only place in First Amendment law where the
Supreme Court has accepted the idea that we can
constitutionally criminalize the depiction of a crime.” Id. at 970,
984; see Osborne v. Ohio, 495 U.S. 103, 144 n.18 (1990)
(Brennan, J., dissenting). Child pornography contrasts with
other categories of unprotected speech that share a much closer
nexus between speech and an unlawful action that proximately
results from the unprotected speech. See, e.g., Brandenburg v.
Ohio, 395 U.S. 444 (1969) (addressing speech that imminently
incites illegal activity). For these reasons, we are unwilling to
extend the rationale of Ferber beyond the regulation of child
pornography without express direction from the Supreme Court.

18
 Even assuming that Ferber may, in limited circumstances
and without Supreme Court guidance, be applied to other
categories of speech, 18 U.S.C. § 48 does not qualify for such
treatment. The Court cited five bases in Ferber for upholding
the anti-child pornography law. That reasoning does not
translate well to the animal cruelty realm. We address the five-
factor rationale in its entirety, although the first factor is the
most important because, under Ferber, if the Government’s
interest is not compelling, then this type of statute necessarily
violates the First Amendment.

1. First Ferber Factor

The compelling government interest inquiry at issue here
overlaps with the strict scrutiny analysis discussed presently.
No matter how appealing the cause of animal protection is to our
sensibilities, we hesitate–in the First Amendment context–to
elevate it to the status of a compelling interest.

Three reasons give us pause to conclude that “preventing
cruelty to animals” rises to a compelling government interest
that trumps an individual’s free speech rights. First, the
Supreme Court has suggested that the kind of government
interest at issue in § 48 is not compelling. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
(1993). The Supreme Court in Lukumi held that city ordinances
that outlawed animal sacrifices could not be upheld based on the
city’s assertion that protecting animals was a compelling

19
government interest. Id. at 546–47. The Government contends
that Lukumi is inapplicable to a compelling government interest
analysis.

Although that case dealt with the Free Exercise Clause
rather than the Free Speech Clause, and was limited by the
Court to the context of the particular ordinances at issue, it
remains instructive. The possible relevance of Lukumi was
noted under the “Dissenting Views” section of the House Report
of § 48:

Although the Supreme court [sic] recognized the
governmental interest in protecting animals from
cruelty, as against the constitutional right of free
exercise of religion[,] the governmental interest
did not prevail. Therefore, it seems that, on
balance, animal rights do not supersede
fundamental human rights. Here, while
Government can and does protect animals from
acts of cruelty, to make possession of films of
such acts illegal would infringe upon the free
speech rights of those possessing the films.

H.R. REP. NO. 106-397, at 11. When we consider Lukumi along
with the fact that the Supreme Court has not expanded the
extremely limited number of unprotected speech categories in a
generation, the only conclusion we are left with is that we—as
a lower federal court—should not create a new category when

20
the Supreme Court has hinted at its hesitancy to do so on this
same topic.

Second, while the Supreme Court has not always been
crystal clear as to what constitutes a compelling interest in free
speech cases, it rarely finds such an interest for content-based
restrictions. When it has done so, the interest has–without
exception–related to the well-being of human beings, not
animals. When looking at these cases, as well as the interests
at issue in the unprotected speech categories, it is difficult to see
how § 48 serves a compelling interest that represents “a
government objective of surpassing importance.” Ferber, 458
U.S. at 757.

The Supreme Court has suggested that a state interest in
avoiding an Establishment clause violation may be compelling,
although that remains an unsettled question of law. Compare
Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,
761–62 (1995) (“compliance with the Establishment Clause is
a state interest sufficiently compelling to justify content-based
restrictions on speech.”) with Good News Club v. Milford
Central School, 533 U.S. 98, 112–13 (2001) (“We have said that
a state interest in avoiding an Establishment Clause violation
‘may be characterized as compelling,’ and therefore may justify
content-based discrimination. However, it is not clear whether
a State's interest in avoiding an Establishment Clause violation
would justify viewpoint discrimination.”) (citations omitted).
The Government also “has a compelling interest in ensuring that

21
victims of crime are compensated by those who harm them” and
“ensuring that criminals do not profit from their crimes.” Simon
& Schuster, Inc. v. Members of the N.Y. State Crime Victims
Bd., 502 U.S. 105, 118–19 (1991). But see McIntyre v. Ohio
Elections Comm’n, 514 U.S. 334, 348–49 (1995); Boos v. Barry,
485 U.S. 312, 322–25 (1988); Ark. Writers’ Project, Inc. v.
Ragland, 481 U.S. 221, 230–32 (1987). Similarly important
human interests are at issue in constitutionally valid statutes
regulating fighting words, threats, speech that imminently
incites illegal activity, and obscenity. In Ferber, the Court
illustrated the type of interest that must be at stake in order for
it to be compelling. The Court stated, “[i]t is evident beyond the
need for elaboration that a State’s interest in safeguarding the
physical and psychological well-being of a minor is compelling”
because “[a] democratic society rests, for its continuance, upon
the healthy, well-rounded growth of young people into full
maturity as citizens.” Ferber, 458 U.S. at 756–57 (quotations
and citations omitted); see also Ashcroft v. Free Speech
Coalition, 535 U.S. at 244 (“The sexual abuse of a child is a
most serious crime and an act repugnant to the moral instincts of
a decent people.”); Eugene Volokh, Freedom of Speech,
Permissible Tailoring and Transcending Strict Scrutiny, 144 U.
PA. L. REV. 2417, 2420–21 (1996) (discussing other legitimate
compelling government interests). Nothing in these cases
suggests that a statute that restricts an individual’s free speech
rights in favor of protecting an animal is compelling.

Similarly, and even more fatal to the Government’s

22
position, because the statute does not regulate the underlying act
of animal cruelty–which must be a crime under state or federal
law in order to trigger § 48–we can see no persuasive argument
that such a statute serves a compelling government interest.
While the statute at issue in Ferber also prohibited the
distribution of the depiction of sexual performances by children
under the age of 16, 458 U.S. at 749, the Supreme Court went to
great lengths to cabin its discussion of the depiction/act
conflation because of the special role that children play in our
society.7 Preventing cruelty to animals, although an exceedingly
worthy goal, simply does not implicate interests of the same
magnitude as protecting children from physical and
psychological harm.

7
See Ferber, 458 U.S. at 756–57; id. at 758 (stating that “the
use of children as subjects of pornographic materials is harmful
to the physiological, emotional, and mental health of the child”);
id. at 776 (Brennan, J., concurring in the judgment) (“This
special and compelling interest [in protecting the well being of
children], and the particular vulnerability of children, afford the
State the leeway to regulate pornographic material, the
promotion of which is harmful to children, even though the State
does not have such leeway when it seeks only to protect
consenting adults from exposure to such material.”); id. at
777–78 (Stevens, J., concurring in the judgment) (“The
character of the State’s interest in protecting children from
sexual abuse justifies the imposition of criminal sanctions
against those who profit, directly or indirectly, from the
promotion of such films.”).

23
 Third, there is not a sufficient link between § 48 and the
interest in “preventing cruelty to animals.” As the Government
recognizes, Congress and the states already have in place
comprehensive statutory schemes to protect animals from
mistreatment. The Government states that “all fifty states have
enacted laws which criminalize the infliction of cruelty on
animals. This includes laws which outlaw dog fighting in all 50
states.” Gov’t Br. 32. These statutes are materially different
from § 48. Section 48 does nothing to regulate the underlying
conduct that is already illegal under state laws. Rather, it
regulates only the depiction of the conduct.

In order to serve the purported compelling government
interest of preventing animal cruelty, the regulation of these
depictions must somehow aid in the prevention of cruelty to
animals. With this depiction/act distinction in mind, it seems
appropriate to recast the compelling government interest as
“preventing cruelty to animals that state and federal statutes
directly regulating animal cruelty under-enforce.” See Ashcroft
v. ACLU, 542 U.S. 656, 683 (2004) (Breyer, J., dissenting)
(noting that “the question here is whether the Act, given its
restrictions. . ., significantly advances that [compelling]
interest”). The House Committee Report for § 48 stated that the
statute targeted the depiction rather than the act because under-
enforcement of state animal cruelty laws is a particular problem
in the crush video industry. H.R. REP. NO. 106-397, at 3. The

24
Report approvingly cited witnesses who testified to this effect.8

8
As the House Committee Report stated:

The witnesses testified that the faces of the
women inflicting the torture in the material often
were not shown, nor could the location of the
place where the cruelty was being inflicted or the
date of the activity be ascertained from the
depiction. As a result, defendants arrested for
violating a State cruelty to animals statute in
connection with the production and sale of these
materials in that State often were able to
successfully assert as a defense that the State
could not prove its jurisdiction over the place
where the act occurred or that the actions depicted
took place within the time specified in the State
statute of limitations. While all States have some
form of a cruelty to animal statute, none have a
statute that prohibits the sale of depictions of such
cruelty. Accordingly, according to the witnesses,
only if the person making these depictions were
caught in the act (often through some type of
undercover operation) could the State’s laws be
brought to bear on their actions, and then only for
the cruelty itself, not for the production and sale
of the depictions.

H.R. REP. NO. 106-397, at 3. Perhaps wary of the federalism
implications of § 48, the House Committee Report made sure to
state that “[t]he statute is intended to augment, not supplant,

25
Consistent with these findings, the Government states that “as
a practical matter, it is nearly impossible to identify the persons
involved in the acts of cruelty or the place where the acts
occurred.” Gov’t Br. 32. While this justification is plausible for
crush videos, it is meaningless when evaluating § 48 as written.
By its terms, the statute applies without regard to whether the
identities of individuals in a depiction, or the location of a
depiction’s production, are obscured.

The Government also argues that § 48 indirectly serves
to deter future animal cruelty and other antisocial behavior by
discouraging individuals from becoming desensitized to animal
violence. As support for its position, the Government
approvingly cited the House Committee Report, which cited
research that “suggest[ed] that violent acts committed by
humans may be the result of a long pattern of perpetrating
abuse, which ‘often begins with the torture and killing of
animals.’” Gov’t Br. 31–32 (citing H.R. REP. NO. 106-397, at
4 [sic]). The full quote is as follows:

The committee also notes the increasing body of
research which suggests that humans who kill or
abuse others often do so as the culmination of a
long pattern of abuse, which often begins with the

State animal cruelty laws by addressing behavior that may be
outside the jurisdiction of the States, as a matter of law, and
appears often beyond the reach of their law enforcement
officials, as a practical matter.” Id.

26
 torture and killing of animals. When society fails
to prevent these persons from inflicting harm
upon animals as children, they may fail to learn
respect for any living being. If society fails to
prevent adults from engaging in this behavior,
they may become so desensitized to the suffering
of these beings that they lose the ability to
empathize with the suffering of humans.

H.R. REP. NO. 106-397, at 4. We read this passage to mean that,
by broadly prohibiting these depictions of animal cruelty, the
drafters of the House Committee Report believed that fewer
individuals will see and make such depictions and therefore not
be subject to this desensitization.

This reasoning is insufficient to override First
Amendment protections for content-based speech restrictions.
The Supreme Court has rejected a similar argument in the
context of virtual child pornography, stating that “[w]hile the
Government asserts that the images can lead to actual instances
of child abuse, the causal link is contingent and indirect. The
harm does not necessarily follow from the speech, but depends
upon some unquantified potential for subsequent criminal acts.”
Ashcroft v. Free Speech Coalition, 535 U.S. at 250 (internal
citation omitted). When balanced against First Amendment
rights, the “mere tendency of speech to encourage unlawful acts
is not a sufficient reason for banning it.” Id. at 253. The
Supreme Court cannot speak more clearly than it has on this
issue: “The prospect of crime . . . by itself does not justify laws

27
suppressing protected speech.” Id. at 245. Similarly, general
references to speech repugnant to public mores cannot serve as
a compelling government interest sufficient to override
constitutional protections of speech. See, e.g., United States v.
Eichman, 496 U.S. 310, 319 (1990) (“If there is a bedrock
principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable.”)
(citing Texas v. Johnson, 491 U.S. 397, 414 (1989)); United
States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 826
(2000)).

For these reasons, we fail to see how 18 U.S.C. § 48
serves a compelling government interest.

2. Second Ferber Factor

The second factor in the Ferber rationale, that child
pornography is “intrinsically related to the sexual abuse of
children,” Ferber, 458 U.S. at 759, is a similarly weak position
for the Government to rely upon in this case. In Ferber, the
Court reasoned that child pornography should be banned, in
part, because the pornographic material continues to harm the
children involved even after the abuse has taken place. While
animals are sentient creatures worthy of human kindness and
human care, one cannot seriously contend that the animals
themselves suffer continuing harm by having their images out in
the marketplace. Where children can be harmed simply by

28
knowing that their images are available or by seeing the images
themselves, animals are not capable of such awareness. Put
differently, when an animal suffers an act of cruelty that is
captured on film (or by some other medium of depiction or
communication), the fact that the act of cruelty was captured on
film in no way exacerbates or prolongs the harm suffered by that
animal.

3. Third Ferber Factor

Both the second and third Ferber factors assert that the
distribution network for child pornography must be closed so
that the production of child pornography will decrease.9 This
drying-up-the-market theory, based on decreasing production,
is potentially apt in the animal cruelty context. However, there
is no empirical evidence in the record to confirm that the theory
is valid in this circumstance. See Bartnicki v. Vopper, 532 U.S.
514, 531 n.17 (2001); see also Ashcroft v. Free Speech
Coalition, 535 U.S. at 250–51 (apparently questioning the
independent value of Ferber’s drying-up-the-market rationale);
Eugene Volokh, Speech as Conduct: Generally Applicable
Laws, Illegal Courses of Conduct, “Situation-Altering
Utterances,” and the Uncharged Zones, 90 CORNELL L. REV.

9
The third Ferber factor specifically states that “[t]he
advertising and selling of child pornography provide an
economic motive for and are thus an integral part of the
production” of child pornography. Ferber, 458 U.S. at 761.

29
1277, 1324–25 (2005). Indeed, the fact that most dog fights are
conducted at live venues and produce significant gambling
revenue suggests that the production of tapes such as those at
issue in this case does not serve as the primary economic motive
for the underlying animal cruelty the Government purports to
target.10 Moreover, standing alone this factor sweeps so broadly
it should not be deployed to justify extracting an entire category
of speech from First Amendment protections. Restriction of the
depiction of almost any activity can work to dry up, or at least
restrain, the activity’s market.

4. Fourth Ferber Factor

The fourth Ferber factor is that the value of the
prohibited speech is “exceedingly modest, if not de minimis.”11
458 U.S. at 762; see also Chaplinsky, 315 U.S. at 572. The
Government finds support for the low value of the speech
restricted by the Act by pointing to the exceptions clause of 18

10
To that end, a Dogfighting Fact Sheet prepared by the
Humane Society of the United States, which filed an Amicus
Brief in this case, states that “[s]pectators provide much of the
profit associated with dogfighting. The money generated by
admission fees and gambling helps keep this ‘sport’ alive.” The
Humane Society of the United States Dogfighting Fact Sheet,
http://www.hsus.org/hsus_field/animal_fighting_the_final_ro
und/dogfighting_fact_sheet/ (last visited May 9, 2008).
11
As to the fifth Ferber factor, it is discussed throughout this
opinion.

30
U.S.C. § 48(b). Section (b) states that the Act “does not apply
to any depiction that has serious religious, political, scientific,
educational, journalistic, historical, or artistic value.” The
House Committee Report viewed these categories as broad.12
Still, just how broad these categories actually are is subject to
debate because most of the legislative history focuses on the
depiction of animal cruelty for prurient purposes in so-called
crush videos.13

12
See H.R. REP. NO. 106-397, at 4 (“While the exclusion
described in the statute is expressed in seven different
categories, the committee believes that any material depicting
animal cruelty which society would find to be of at least some
minimal value, falls within one of these broad, general
categories.”).
13
One further point of clarification should be mentioned in
reference to the section (b) defense. The parties in this case
agree that the Government must prove, beyond a reasonable
doubt, that the speech contains no serious value. In contrast, the
legislative history of the statute specifically states that “[t]he
defendant bears the burden of proving the value of the material
by a preponderance of the evidence.” See H.R. REP. No. 106-
397, at 8. Because Stevens brings a facial challenge to the
statute and there is a chance that prosecutors in the future will
frame the exceptions clause as an affirmative defense, we take
this opportunity to sound an alarm. In the free speech context,
using an affirmative defense to save an otherwise
unconstitutional statute presents troubling issues. “The
Government raises serious constitutional difficulties by seeking
to impose on the defendant the burden of proving his speech is

31
 The exceptions clause cannot on its own constitutionalize
§ 48. The exceptions clause in this case is a variation of the
third prong of the Miller obscenity test. This prong asks
“whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.” Miller v. California, 413
U.S. 15, 24 (1973); see also Ashcroft v. Free Speech Coalition,
535 U.S. at 246–47. As one scholar has stated, “[i]t has long
been a principle of adult obscenity law that no matter how
shocking or how offensive a sexually explicit work might
otherwise be, it should be protected speech if it demonstrates
serious artistic value.” Adler, supra, at 967. The role of the
clause in Miller cannot be divorced from the first two parts of
the obscenity test, which emphasize patent offensiveness and an
appeal to the prurient interest.

This type of exceptions clause has not been applied in
non-prurient unprotected speech cases, and taking it out of this
context ignores the essential framework of the Miller test.
Congress and the Government would have the statute operate in
such a way as to permit the restriction of otherwise

not unlawful. An affirmative defense applies only after
prosecution has begun, and the speaker must himself prove, on
pain of a felony conviction, that his conduct falls within the
affirmative defense.” Ashcroft v. Free Speech Coalition, 535
U.S. at 255. Viewing the exceptions clause as an affirmative
defense poses an even greater threat to chill constitutional
speech than the interpretation of § 48 offered by the
Government in this case.

32
constitutional speech so long as part of the statute allows for an
exception for speech that has “serious value.” The problem with
this view is twofold. First, outside of patently offensive speech
that appeals to the prurient interest, the First Amendment does
not require speech to have serious value in order for it to fall
under the First Amendment umbrella. What this view overlooks
is the great spectrum between speech utterly without social
value and high value speech. Second, if the mere appendage of
an exceptions clause serves to constitutionalize § 48, it is
difficult to imagine what category of speech the Government
could not regulate through similar statutory engineering. That
is not a road down which this Court is willing to proceed.

In sum, the speech restricted by 18 U.S.C. § 48 is
protected by the First Amendment. The attempted analogy to
Ferber fails because of the inherent differences between
children and animals. Those profound differences require no
further explication here.

B. §48 Cannot Survive Heightened Scrutiny

Because the speech encompassed by § 48 does not
qualify as unprotected speech, it must survive a heightened form
of scrutiny.14 A content-based restriction on speech is

14
For an illuminating discussion of the Supreme Court’s
application of strict scrutiny in examining content-based
restrictions on speech, see Barry P. McDonald, Speech and

33
“presumed invalid,” and the Government bears the burden of
showing its constitutionality. Ashcroft v. ACLU, 542 U.S. 656,
660 (2004) (citations omitted). One scholar notes that “a
majority of the Court has never sustained a regulation that was
strictly scrutinized for content discrimination reasons.” Barry
P. McDonald, Speech and Distrust: Rethinking the Content
Approach to Protecting the Freedom of Expression, 81 NOTRE
DAME L. REV. 1347, 1365 n.63 (2006); see also Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819, 828 (1995)
(“It is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys.”);
Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L.
REV. 793, 844–57 (2006) (discussing the results of applying
strict scrutiny in a variety of free speech contexts at all federal
court levels). Section 48 fails strict scrutiny because it serves no
compelling government interest, is not narrowly tailored to
achieve such an interest, and does not provide the least
restrictive means to achieve that interest. See Sable Commc’ns

Distrust: Rethinking the Content Approach to Protecting the
Freedom of Expression, 81 NOTRE DAME L. REV. 1347, 1363-67
(2006); see also Playboy Entm’t Group, 529 U.S. at 818 (“It is
rare that a regulation restricting speech because of its content
will ever be permissible. Indeed, were we to give the
Government the benefit of the doubt when it attempted to
restrict speech, we would risk leaving regulations in place that
sought to shape our unique personalities or to silence dissenting
ideas.”).

34
of Calif., Inc. v. F.C.C., 492 U.S. 115, 126 (1989).

We have already shown why § 48 does not serve a
compelling government interest, thus failing strict scrutiny.
Because of the peculiarities of this statute, though, we briefly
discuss the relationship between § 48 and the strict scrutiny
analysis. The Supreme Court’s free speech jurisprudence
regarding content-based restrictions on speech in the first
instance appears simple to apply. First, is the speech protected
or unprotected? If the speech is unprotected, then Congress can
regulate fairly easily. If the speech is protected, does the statute
survive strict scrutiny? In practice, as pointed out previously,
this heightened level of scrutiny nearly always results in the
statute being invalidated. At the risk of complicating this
parsimonious two-tiered structure, we note that federalism
concerns illustrate the difficulties with the strict scrutiny
analysis.

The problem lies in defining the compelling government
interest when Congress does not have the constitutional power
to regulate an area that has traditionally been governed by state
statutes. When federalism concerns arise, the “least restrictive
means” analysis necessarily informs the “compelling
government interest” analysis. The stated governmental interest
in 18 U.S.C. § 48 is to “prevent cruelty to animals.” Taking
federalism concerns into account, the interest stated in this
manner is too broad. Absent demonstration of the requisite
impact on commerce which is absent on this record, Congress

35
does not have the constitutional authority to pass the types of
animal cruelty statutes that are seen in the fifty states and the
District of Columbia. It is for this reason that we have
suggested that the compelling government interest should be
redefined as “preventing cruelty to animals that state and federal
statutes directly regulating animal cruelty under-enforce.” And
once this reformulation of the interest targeted by § 48 is
accepted, we do not see how a sound argument can be made that
the Free Speech Clause is outweighed by a statute whose
primary purpose is to aid in the enforcement of an already
comprehensive state and federal anti-animal-cruelty regime.
Conversely, if we agree with the Government that the
compelling government interest is “preventing cruelty to
animals,” then we do not see how a sound argument can be
made that § 48 is narrowly tailored and uses the least restrictive
means.

The Supreme Court routinely strikes down content-based
restrictions on speech on the narrow tailoring/least restrictive
means prong of strict scrutiny. See, e.g., Ashcroft v. ACLU, 542
U.S. 656 (2004); Playboy Entm’t Group, 529 U.S. at 816; Sable
Commc’ns of Calif., Inc., 492 U.S. at 126–31; R.A.V. v. City of
St. Paul, Minn., 505 U.S. 377, 395–96 (1992); Volokh, Freedom
of Speech, supra, at 2421–23. Accepting for a moment that the
Government’s interest is “preventing cruelty to animals,” then
§ 48 is not narrowly tailored.

First, with respect to the reach of the Commerce Clause,

36
§ 48 does not prohibit any depictions—including crush
videos—that are made solely for personal rather than interstate
commercial use. Party X may create a depiction of animal
cruelty in Virginia and sell it in Virginia without violating § 48,
so long as Party X does not intend to place that depiction in
interstate or foreign commerce. Accordingly, if we accept that
the government interest served by § 48 is to prevent animal
cruelty, the statute is–by its very terms–underinclusive.

Second, § 48 is overinclusive. Although the statute
would fail to reach depictions made solely for personal use,
Party Y may, however, be prosecuted for selling a depiction in
Pennsylvania made in Virginia even if the underlying activity is
legal in Virginia but illegal in Pennsylvania. Party Z may be
prosecuted for possessing a depiction in Virginia made in the
Northern Mariana Islands even if the underlying activity is legal
in the Northern Mariana Islands so long as Party Z intends to
sell the depiction. See H.R. REP. NO. 106-397, at 11–12
(dissenting view). If the government interest is to prevent acts
of animal cruelty, the statute’s criminalization of depictions that
were legal in the geographic region where they were produced
makes § 48 overinclusive. See Simon & Schuster, 502 U.S. at
121–22.

Third, the second Ferber factor implicitly addressed the
fit between regulating the depiction of a behavior with
preventing that behavior. Specifically, the Supreme Court stated
that “the distribution network for child pornography must be

37
closed if the production of material which requires the sexual
exploitation of children is to be effectively controlled.” Ferber,
458 U.S. at 759. To the extent that this aspect of the intrinsic
relationship between banned speech and the harm to be
prevented applies to § 48, it applies to a lesser degree, and the
arguments by the Government in support of this analogy fall
flat.15 The Government first asserts that, as is true in the case of
child pornography, the actors and producers of crush videos and
other speech banned by § 48– i.e., the perpetrators of the
underlying acts of animal cruelty–are very difficult to find and
prosecute for those underlying acts. This is true as to crush
videos because the only person typically onscreen is the
“actress,” and only her legs or feet are typically shown.
However, as demonstrated by Stevens’ prosecution, crush
videos constitute only a portion of the speech banned by the
terms of § 48. Prosecution of this sliver of the speech covered
by § 48 could not, by itself, justify banning all of the speech
covered by the statute.

15
The Government states that “[b]y providing a tool to
prosecute those who openly sell films and photographs showing
animal cruelty, Section 48 plugs the inadequacies inherent in
attempting to address this animal cruelty problem through state
laws which prohibit only the actual conduct.” Gov’t. Br. 32-33.
However, as shown by the videos in this case, § 48 regulates
depictions produced legally in foreign countries as well as
depictions in the United States produced prior to the Act’s
passage in 1999.

38
 As to dog fighting, the Government argues that the
camera typically focuses on the dogs, with their “handlers”
being shown mostly from the waist or elbows down, and it is
often difficult to determine when and where such fights occur
for purposes of the statute of limitations and other enforcement
matters. At least with respect to the videos at issue in this case,
we find the Government’s argument empirically inaccurate. It
is true that in the first video, “Pick-A-Winna,” much of the
footage is old, but the faces of the individuals involved are
sometimes quite clear. In the second video, “Japan Pit Fights,”
the fights take place in Japan, where dog fighting is apparently
legal and prosecution of those individuals for those particular
acts of animal cruelty could not be pursued. The third video,
“Catch Dogs,” primarily features footage of dogs hunting and
subduing wild hogs and being trained to do so. This video gives
the name and address of a catch dog supplier, and also takes the
viewer on several hunting trips with these dogs. There is no
effort to conceal any of the faces of the people in the video, and
Stevens at several points mentions their names and the location
of the hunts. In short, the research and empirical evidence in the
record before us simply does not support the notion that banning
depictions of animal cruelty is a necessary or even particularly
effective means of prosecuting the underlying acts of animal
cruelty. Much less is it the “most expeditious” or the “only
practical method” of prosecuting such acts, as is the case within
the realm of child pornography and child sexual abuse. Ferber,
458 U.S. at 760.

39
 For these reasons, § 48 is not narrowly tailored using the
least restrictive means.

IV.

“When the Government restricts speech, the Government
bears the burden of proving the constitutionality of its actions.”
Playboy Entm’t Group, 529 U.S. at 816. The Government has
not met this burden. Therefore, we will strike down 18 U.S.C.
§ 48 as constitutionally infirm because it constitutes an
impermissible infringement on free speech. In light of this
conclusion, we will vacate Robert Stevens’ conviction.16

16
18 U.S.C. § 48 might also be unconstitutionally overbroad.
The Government is too quick to conclude that a reading of the
statute that covers a wide variety of ostensibly technical
violations like hunting and fishing will not lead to prosecutions.
This Court is required to examine the plain language of the
statute to determine whether “a substantial amount of protected
speech is prohibited or chilled in the process” of regulating
depictions of animal cruelty. Ashcroft v. Free Speech Coalition,
535 U.S. at 255. Even if we incorrectly assume that § 48
constitutionally reaches the type of depictions sold by Stevens,
we must pose reasonable but challenging hypotheticals to
determine the statute’s sweep. See, e.g., id. at 247–48 (positing,
in an overbreadth analysis, that Shakespeare’s Romeo and Juliet
and Steven Soderberg’s Academy Award-nominated Traffic
potentially fell under the ambit of the Child Pornography
Prevention Act of 1996). We must not forget that “[t]he

40
Constitution gives significant protection from overbroad laws
that chill speech within the First Amendment’s vast and
privileged sphere.” Id. at 244.
The statute potentially covers a great deal of
constitutionally protected speech, and prosecutions that stray far
from crush videos may chill this type of speech. Section 48
broadly proclaims that “the term ‘depiction of animal cruelty’
means 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.” 18 U.S.C. §
48(c)(1). If a person hunts or fishes out of season, films the
activity, and sells it to an out-of-state party, it appears that the
statute has been violated. Similarly, the same person could be
prosecuted for selling a film which contains a depiction of a
bullfight in Spain if bullfighting is illegal in the state in which
this person sells the film. The only possible protections for this
violator are prosecutorial discretion and the exceptions clause in
section (b). If this depiction has “religious, political, scientific,
educational, journalistic, historical, or artistic value” but the
value is not “serious,” then this violator only has prosecutorial
discretion to fall back on. The penalty for these hypothetical
violations includes a fine and up to five years in prison. 18
U.S.C. § 48(a). We do not believe that the constitutionality of
§ 48 should depend on prosecutorial discretion for a statute that
sweeps this widely. See Alan K. Chen, Statutory Speech

41
COWEN, Circuit Judge, dissenting with whom FUENTES and
FISHER, Circuit Judges join

Bubbles, First Amendment Overbreadth, and Improper
Legislative Purpose, 38 HARV. C.R.-C.L. L. REV. 31, 42 (2003)
(“If the Constitution permits broadly worded statutes that sweep
a great deal of protected speech within their provisions, officials
have unbridled discretion to arrest and prosecute speakers based
on the government’s disagreement with their messages or
content.”). There is no reason to believe that prosecutors will
limit themselves to targeting crush videos through § 48. The
American Prosecutors Research Institute, a non-profit research
arm of the National District Attorneys Association, for example,
has noted in a report that “[d]espite the originally narrow focus,
the law [§ 48] was used in 2005 to successfully prosecute a
Virginia man charged with selling and mailing videotapes of
fighting pit bulls.” ANIMAL CRUELTY PROSECUTION:
OPPORTUNITIES FOR EARLY RESPONSE TO CRIME AND
INTERPERSONAL VIOLENCE 33 (July 2006). This report is
essentially a how-to guide for prosecutors, and publicizing
Stevens’ indictment has the potential to spur future similar
prosecutions.
However, because voiding a statute on overbreadth
grounds is “strong medicine” and should be used “sparingly and
only as a last resort,” we are satisfied to rest our analysis on
strict scrutiny grounds alone. See Broadrick v. Oklahoma, 413
U.S. 601, 613 (1973).

42
 The majority today declares that the Government can
have no compelling interest in protecting animals from
intentional and wanton acts of physical harm, and in doing so
invalidates as unconstitutional a federal statute targeting the
distribution and trafficking of depictions of these senseless acts
of animal cruelty. Because we cannot agree, in light of the
overwhelming body of law across the nation aimed at
eradicating animal abuse, that the Government’s interest in
ensuring the humane treatment of animals is anything less than
of paramount importance, and because we conclude the speech
prohibited by 18 U.S.C. § 48 to be of such minimal socially
redeeming value that its restriction may be affected consistent
with the First Amendment, we respectfully dissent.

I.

In the seminal case Chaplinsky v. New Hampshire, 315
U.S. 568 (1942), the Supreme Court articulated the fundamental
limits of the First Amendment’s protections:There are certain
well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to
raise any Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or “fighting”
words – those which by their very utterance inflict injury or tend

43
to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.

Id. at 571-72 (footnotes omitted) (emphasis added). It is
undisputed that the speech at issue in this case does not fit
within one of the traditionally unprotected17 classes. However,
as even the majority agrees, that these categories may be
supplemented is beyond dispute. Most recently, the Supreme
Court in New York v. Ferber, 458 U.S. 747 (1982) did just this,
when it recognized child pornography as an additional category
of unprotected speech.

The Supreme Court has provided us with two beacons to
guide our inquiry into whether depictions of animal cruelty

17
Throughout this opinion we refer to speech as
“unprotected” as a form of shorthand. We mean that “these
areas of speech can, consistently with the First Amendment, be
regulated because of their constitutionally proscribable
content.” R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992)
(emphasis in original). Because 18 U.S.C. § 48 does not engage
in any content discrimination within the category of animal
cruelty depictions, cf. id. at 386, using such shorthand does not
raise constitutional concerns.

44
should be recognized as beyond the reach of the First
Amendment. First, the Supreme Court has consistently
reaffirmed that the Government may, consistent with the
Constitution, restrict certain types of speech when the social
value of the speech is so minimal as to be plainly outweighed by
the Government’s compelling interest in its regulation. See,
e.g., Virginia v. Black, 538 U.S. 343, 358-59 (2003) (citing
Chaplinsky, 315 U.S. at 571-72); R.A.V. v. City of St. Paul, 505
U.S. 377, 382-83 (1992) (quoting Chaplinsky, 315 U.S. at
572).18 Second, in Ferber, the Court articulated four critical
considerations demonstrating the inextricable connection

18
To the extent the majority suggests that Chaplinsky is
somehow of diminished precedential force, we respectfully
disagree. While it is true that the broad “fighting words”
doctrine first recognized in Chaplinsky has been subsequently
narrowed, see James L. Swanson, Unholy Fire: Cross Burning,
Symbolic Speech, and the First Amendment: Virginia v. Black,
2003 CATO SUP. CT. REV. 81, 90 (2002-2003) (suggesting only
that the fighting words category of unprotected speech has later
been “diluted”), the expansiveness of the particular exception at
issue does not detract from the integrity of the constitutional
principle articulated there – that certain speech may be
categorically unprotected under the First Amendment.
Furthermore, that few types of speech have been so deemed
under the balancing inquiry says nothing of the continuing
vitality of the inquiry itself, especially when this principle
continues to be cited by the Supreme Court. See, e.g., Virginia
v. Black, 538 U.S. 343, 358-59 (2003) (citing Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-72 (1942)).

45
necessary between the evil sought to be prevented and the
speech sought to be proscribed sufficient to render an entire
category of speech unprotected. Because depictions of animal
cruelty possess the integral characteristics of unprotected speech
when considered under these precedents, we conclude that it
escapes First Amendment protection.

a.

In discussing the contours of permissible content-based
regulations, the Supreme Court has explained speech may be
restricted when its “utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.”
Chaplinsky, 315 U.S. at 572. The Court reiterated this statement
in Ferber: “[I]t is not rare that a content-based classification of
speech has been accepted because it may be appropriately
generalized that within the confines of the given classification,
the evil to be restricted so overwhelmingly outweighs the
expressive interests, if any, at stake, that no process of
case-by-case adjudication is required.” 458 U.S. at 763-64;
R.A.V., 505 U.S. at 382-83 (“From 1791 to the present, [] our
society, like other free but civilized societies, has permitted

46
restrictions upon the content of speech in a few limited areas,
which are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by
the social interest in order and morality”) (internal quotations
omitted). Justice Brennan, in his concurrence in Ferber,
isolated the salient features: “[T]he limited classes of speech, the
suppression of which does not raise serious First Amendment
concerns, have two attributes. They are of exceedingly ‘slight
social value,’ and the State has a compelling interest in their
regulation.” Id. at 776 (Brennan, J., concurring). These
statements establish the constitutional floor: for speech to be
unprotected, at a bare minimum, its value must be plainly
outweighed by the Government’s asserted interest. The speech
in this case shares those repeatedly emphasized features.

1.

We agree with the Government that its interest in
preventing animal cruelty is compelling.19 The importance of

19
While the Supreme Court has not established a precise test
to determine when a particular interest is sufficiently important

47
this interest is readily apparent from the expansive regulatory
framework that has been developed by state and federal
legislatures to address the problem. These laws serve to protect
not only the animals, but also the individuals who would commit
the cruelty, and more generally, the morals of society.

Our nation’s aversion to animal cruelty is deep-seated.
Laws prohibiting cruelty to animals have existed in this country
since 1641, when the Puritans of the Massachusetts Bay Colony
enacted a law entitled “Off the Bruite Creature,” which stated:
“No man shall exercise any Tirranny or Crueltie towards any
bruite Creature which are usuallie kept for man’s use.” Emily
Stewart Leavitt, Animals and Their Legal Rights: A Survey of
American Laws from 1641 to 1970 13 (Animal Welfare Institute

to warrant such a label, we note that it has found interests
compelling in a wide variety of contexts. See, e.g., Grutter v.
Bollinger, 539 U.S. 306, 328 (2003) (“attaining a diverse student
body”); Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 118, 119 (1991) (“ensuring that
victims of crime are compensated by those who harm them” and
“that criminals do not profit from their crimes”); Eu v. San
Francisco County Democratic Cent. Comm., 489 U.S. 214, 226
(1989) (“[m]aintaining a stable political system”); Federal
Election Comm’n v. Nat’l Conservative Political Action Comm.,
470 U.S. 480, 496-97 (1985) (preventing governmental
corruption).

48
1970). In 1828, the first modern animal cruelty law was enacted
in New York, and by 1913 every state had such a law. Id. at 17;
see also Pamela D. Frasch et al., State Animal Anti-Cruelty
Statutes: An Overview, 5 Animal L. 69 (1999) (examining
current state of anti-cruelty laws throughout the country). As
one early jurist stated: “[L]aws, and the enforcement or
observance of laws, for the protection of dumb brutes from
cruelty, are, in my judgment, among the best evidences of the
justice and benevolence of men.” Stephens v. State, 3 So. 458,
458 (Miss. 1888). These anti-cruelty laws have continued to
evolve and proliferate. In 1867, New York enacted a law
outlawing animal fighting, David Favre & Vivien Tsang, The
Development of Anti-Cruelty Laws During the 1800's, 1993 Det.
C.L. Rev. 1, 16 (1993); and today, dogfighting is prohibited in
all the fifty states, (App. at 155-57). The fact that many states
have taken the additional step of empowering local humane
societies to directly enforce anti-cruelty laws further highlights
the ardor with which our society seeks to prevent cruelty. See,
e.g., 18 PA. CONS. STAT. § 5511(i) (“An agent of any society or
association for the prevention of cruelty to animals, incorporated
under the laws of the Commonwealth, shall have the same
powers to initiate criminal proceedings provided for police
officers by the Pennsylvania Rules of Criminal Procedure. An
agent of any society or association for the prevention of cruelty
to animals, incorporated under the laws of this Commonwealth,
shall have standing to request any court of competent
jurisdiction to enjoin any violation of this section.”).

49
 Congress has also regularly enacted laws that protect
animals from maltreatment, including, inter alia, laws that:
proscribe animal fighting, 7 U.S.C. § 2156; require that
livestock be slaughtered humanely, 7 U.S.C. § 1901; help
establish humane guidelines governing the purchase, sale, and
handling of animals, 7 U.S.C. § 2142; create standards to protect
pets in pounds and shelters, 7 U.S.C. § 2158; prevent the “cruel
and inhumane” soring20 of horses, 15 U.S.C. §§ 1821-1831;
protect free-roaming horses and burros from capture, branding,
harassment, and death, 16 U.S.C. §§ 1331-1340; help conserve
endangered species, 16 U.S.C. §§ 1531-43; and protect marine
mammals, 16 U.S.C. §§ 1361-1421(h). The very statute before
us illustrates Congress’s solicitude for animal welfare. This
interest is now so interwoven into the fabric of society that the
Internal Revenue Code grants tax-exempt status to organizations
striving to prevent cruelty to animals. See 26 U.S.C. §
501(c)(3).

These statutes are animated by concerns for animals, the

20
The statute defines “sore” to cover any situation where a
horse suffers because “an irritating or blistering agent has been
applied, internally or externally, by a person to any limb of a
horse, . . . any burn, cut, or laceration has been inflicted by a
person on any limb of a horse, . . . [or] any tack, nail, screw, or
chemical agent has been injected by a person into or used by a
person on any limb of a horse.” 15 U.S.C. § 1821.

50
aspirant abuser, and the public in general. It cannot be
insignificant, as even the majority acknowledges, see Majority
Op., supra at __ n.4, that the conduct underlying the depictions
at hand is subject to criminal penalties in every state in the
nation. This overwhelming body of law reflects the
“widespread belief that animals, as living things, are entitled to
certain minimal standards of treatment by humans,” H.R. Rep.
No. 106-397, at 4 (1999), and is powerful evidence of the
importance of the governmental interest at stake. Indeed, the
Supreme Court often cites to the prevalence of nationwide
legislation on a matter as support for its conclusion that the
asserted interest is sufficiently important as to be deemed
compelling. See, e.g., Simon & Schuster, Inc. v. Members of
N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (“There
can be little doubt ... that the State has a compelling interest in
ensuring that victims of crime are compensated by those who
harm them. Every State has a body of tort law serving exactly
this interest.”); Roberts v. United States Jaycees, 468 U.S. 609,
624-25 (1984) (discussing various state laws prohibiting public
accommodation discrimination as evidence of government’s
compelling interest in ensuring equal access); Ferber, 458 U.S.
at 758 (“We shall not second-guess [the] legislative judgment
[that preventing child exploitation and abuse is a compelling
governmental objective] ... Suffice it to say that virtually all of
the States and the United States have passed legislation
proscribing the production of or otherwise combating ‘child
pornography.’”); see also Roth v. United States, 354 U.S. 476,
484-85 (1957) (concluding obscenity is “utterly without

51
redeeming social importance” based on “the universal judgment
that obscenity should be restrained, [as] reflected in the
international agreement of over 50 nations, in the obscenity laws
of all of the 48 States, and in the 20 obscenity laws enacted by
the Congress from 1842 to 1956") (internal footnotes omitted).

Less obvious, but no less important, cruelty to animals is
a form of antisocial behavior that erodes public mores and can
have a deleterious effect on the individual inflicting the harm.
Early jurists accepted this contention implicitly. See Broadway
v. Am. Soc’y for the Prevention of Cruelty to Animals, 15 Abb.
Pr. (n.s.) 51 (N.Y. 1873) (“[The anti-cruelty statute] truly has its
origin in the intent to save a just standard of humane feeling
from being debased by pernicious effects of bad example – the
human heart from being hardened by public and frequent
exhibitions of cruelty to dumb creatures, committed to the care
and which were created for the beneficial use of man.”);
Commonwealth v. Turner, 14 N.E. 130, 132 (Mass. 1887) (“The
offense is against the public morals, which the commission of
cruel and barbarous acts tends to corrupt.”); Waters v. People,
46 P. 112, 113 (Colo. 1896) (“[The anti-cruelty statutes’] aim is
not only to protect these animals, but to conserve public morals,
both of which are undoubtedly proper subjects of legislation.”).
And empirical evidence now bears out that understanding. See
H.R. Rep. No. 106-397, at 4 (“the increasing body of research
which suggests that humans who kill or abuse others often do so
as the culmination of a long pattern of abuse, which often begins

52
with the torture and killing of animals”); Brief for the Humane
Society of the United States as Amicus Curiae in support of
Appellee, at 4 n.10 (citation to various psychological studies
discussing link between animal abuse and violent crime). These
multi-layered sub-interests elucidate why preventing animal
cruelty is so crucial.

Our nation has extended solicitude to animals from an
early date, and has now established a rich tapestry of laws
protecting animals from the cruelty we so abhor. This interest
has nested itself so deeply into the core of our society – because
the interest protects the animals themselves, humans, and public
mores – that it warrants being labeled compelling.

Notwithstanding the majority’s assertion, the Supreme
Court in no way suggested to the contrary in Church of the
Lukumi Babalu Aye, Incorporated v. City of Hialeah, 508 U.S.
520 (1993). In Lukumi, a church practicing the Santeria faith
challenged city ordinances that prohibited its ritual slaughter of
animals. Id. at 525-28. Although the state contended that the
ordinances were motivated, inter alia, by the government’s
interest in preventing cruelty to animals, the Supreme Court
struck down the ordinances. However, the ordinances there
failed not because preventing cruelty to animals was not a

53
sufficiently paramount interest to be deemed compelling; rather,
the Court found that the ordinances were so riddled with
exceptions exempting all other killings except those practiced by
Santeria adherents betrayed that the real rationale behind the
prohibitions was an unconstitutional suppression of religion.
See, e.g., id. at 536 (noting the numerous exemptions for kosher
and for other forms of animal killings, concluding “the burden
of the ordinance, in practical terms, falls on Santeria adherents
but almost no others”); id. at 542 (legislative history “discloses
the object of the ordinances to target animal sacrifice by
Santeria worshippers because of its religious motivation”).
Indeed, Justice Blackmun was explicit in rejecting the majority’s
instant characterization of the decision:

A harder case would be presented if petitioners
were requesting an exemption from a generally
applicable anticruelty law. The result in the case
before the Court today, and the fact that every
Member of the Court concurs in that result, does
not necessarily reflect this Court’s views of the
strength of a State’s interest in prohibiting cruelty
to animals. This case does not present, and I
therefore decline to reach, the question whether
the Free Exercise Clause would require a religious
exemption from a law that sincerely pursued the
goal of protecting animals from cruel treatment.

54
Id. at 580 (Blackmun, J., concurring) (emphasis added). Thus,
Lukumi does not contradict our conclusion that preventing
animal cruelty is a compelling interest.21

Furthermore, insofar as we understand the majority to
suggest that Congress cannot have a compelling interest to
advance a goal when the subject of the regulation is not directly
within its constitutional sphere of legislative authority, we must
disagree with this novel proposition. A congressional act may
certainly significantly advance a governmental interest of
paramount significance, whether or not it does so directly. For
example, Congress has sought to protect children from physical

21
We further reject Stevens’s assertion that the fact that
society accepts the subjugation of animals for certain utilitarian
purposes undercuts this conclusion. While sometimes the line
between cruelty to animals and acceptable use of animals may
be fine, our society has been living and legislating within these
boundaries for centuries, since the advent of the first anti-cruelty
law. Although an imprecise analogy, we would posit that
preventing torture to humans is an undisputedly compelling
interest despite the fact that under certain circumstances it is
legal to put a person to death. Compare Gregg v. Georgia, 428
U.S. 153, 169 (1976), with Estelle v. Gamble, 429 U.S. 97, 102
(1976).

55
harm by criminalizing the distribution of child pornography, see
18 U.S.C. § 2252, and to ensure the public’s health and general
welfare by enacting laws proscribing narcotics trafficking, see
21 U.S.C. § 201 et seq. That the states have already
comprehensively criminalized child abuse and drug distribution
in no way relegates the federal government’s interests in doing
the same to a subordinate level; the means through which
Congress seeks to advance these interests – that is, pursuant to
its Commerce Clause authority – has no bearing on the
uncontroversial propositions that the interests implicated are
nevertheless ones of the most paramount order. In short,
whether a governmental interest is compelling does not, in our
view, depend on the extent of the particular government’s
constitutional authority to directly regulate the core conduct at
issue. See United States v. Salerno, 481 U.S. 739, 748-50
(1987) (upholding the Bail Reform Act based on the federal
government’s compelling interest in public safety, citing to
cases establishing the individual states’s interests in the same).
Applied to this case, we do not think it proper for the majority
to so narrowly redefine the Government’s interest under section
48 – as implicating only the evils arising from the under-
enforcement of state animal cruelty statutes – so as to diminish
the importance of the Government’s posited goals.

Nor do we find that section 48 is sufficiently under-
inclusive as to undercut the Government’s claim of the

56
significance of its interest. Cf. The Florida Star v. B.J.F., 491
U.S. 524, 541-42 (1989) (Scalia, J., concurring) (“a law cannot
be regarded as protecting an interest ‘of the highest order’ ...
when it leaves appreciable damage to that supposedly vital
interest unprohibited”). Where the allegedly ignored evils are
at the fringes of Congress’s legislative authority, that section 48
does not criminalize the personal possession of depictions of
animal cruelty or the intrastate trafficking of such materials does
not render it impermissibly under-inclusive.22 On the contrary,
Congress could have reasonably decided to focus its attention on
purely interstate conduct, lest enforcement efforts be hampered
by costly constitutional litigation. This is especially so in light
of the indication that the materials Congress sought to prohibit
“were almost exclusively distributed for sale through interstate
or foreign commerce.” H.R. Rep. No. 106-397, at 3
(summarizing witness testimony on nature of commercial

22
Indeed, the question of whether Congress exceeds its
constitutional authority when regulating intrastate activities was
one that had, until just recently, divided the circuits. Compare,
e.g., United States v. Rodia, 194 F.3d 465, 474-82 (3d Cir. 1999)
(upholding statute prohibiting intrastate possession of child
pornography made with materials that had traveled in interstate
commerce) with United States v. Smith, 402 F.3d 1303, 1315-16
(11th Cir. 2005) (finding the same statute unconstitutional), cert.
granted and vacated, 545 U.S. 1125 (2005), and rev’d on
remand, 459 F.3d 1276, 1284-85 (11th Cir. 2006) (upholding
statute as proper exercise of Commerce Clause power in light of
Gonzales v. Raich, 545 U.S. 1 (2005)).

57
market for depictions of animal cruelty). We thus find no
under-inclusion in section 48 sufficient to cast doubt on the
Government’s asserted interest here. Cf. Lukumi, 508 U.S. at
543 (invalidating ordinances upon finding “[t]he underinclusion
[] substantial, not inconsequential” where “[d]espite the city’s
proffered interest in preventing cruelty to animals, the
ordinances are drafted with care to forbid few killings but those
occasioned by religious sacrifice”).23

23
On the other hand, there is nothing over-inclusive about a
statute that criminalizes the knowing distribution of depictions
between locales where the particular depicted act is illegal in at
least one of the two places. On this point, we initially wish to
note that the example given by the majority, supra at __,
pertaining to Party Z is, in our opinion, somewhat incomplete.
Under our reading of section 48, Party Z may be prosecuted for
possessing a depiction of animal cruelty in Virginia originally
made in the Northern Mariana Islands, even where the
underlying activity depicted is legal in the Northern Mariana
Islands, only if the act is otherwise illegal in Virginia or in the
state or territory to which Party Z knowingly directs the sale of
the depiction. Were the acts legal in both Virginia and the
Northern Mariana Islands, Party Z could not be prosecuted for
selling the depiction in Virginia to someone back in the
Northern Mariana Islands.
In any event, Congress was entitled to simply target the
“visible apparatus” that is the commercial trafficking of the
prohibited materials, especially where the underlying criminal
acts are being carried out clandestinely so as to thwart detection
and prosecution. New York v. Ferber, 458 U.S. 747, 760 (1982);

58
 2.

Next, we find that the depictions of animal cruelty
prohibited by section 48 also satisfy the second part of the
fundamental First Amendment balancing inquiry because they
have little or no social value. This is guaranteed by the very
terms of the statute, which excepts speech that has “serious
religious, political, scientific, educational, journalistic,
historical, or artistic value” from its reach. 18 U.S.C. § 48(b).
While this exception removes the possibility of the statute
reaching serious works, we consider it unlikely that visual
depictions of animal cruelty will often constitute an important
and necessary part of a literary performance, a scientific or
educational work, or political discourse. See Ferber, 458 U.S.
at 762-63. Nor do we see any reason why, if some serious work
were to demand a depiction of animal cruelty, either the cruelty
or the animal could not be simulated. See id. at 763. Here, we
have little trouble concluding that the depictions outlawed by
section 48, by and large, can only have value to those with a

H.R. Rep. No. 106-397, at 3 (1999) (discussing witness
testimony that the perpetrators and the locations of the actual
acts of animal abuse were difficult to ascertain based on the
tapes themselves, thereby posing significant enforcement
problems for state authorities under existing anti-cruelty
statutes).

59
morbid fascination with suffering and thus are of only de
minimis value. See H.R. Rep. No. 106-397, at 5 (“The
committee believes that no reasonable person would find any
redeeming value in the material proscribed by [18 U.S.C.
§ 48]”).

It is true, as a matter of First Amendment law, that the
Government may not proscribe constitutionally protected speech
merely by limiting its regulation to a subset of that speech
devoid of serious value. On the other hand, however, the
Supreme Court has made clear that a category of constitutionally
unprotected speech may be regulated as long as the regulations
do not extend to portions of speech within that category with
“serious literary, artistic, political, or scientific value.” Miller
v. California, 413 U.S. 15, 24 (1973). Like in the case of
obscenity, the relevant analytical starting point here is with the
legislative judgment that the category of speech at issue –
depictions of animals being intentionally tortured and killed – is
of such minimal redeeming value as to render it unworthy of
First Amendment protection. But acknowledging that certain
subsets of these materials may have value for “religious,
political, scientific, educational, journalistic, historical, or
artistic” purposes, 18 U.S.C. § 48(b), Congress has
circumscribed the scope of its regulation to only this category’s
plainly unprotected portions. Viewed in this light, section 48 is
nothing more than an analogous codification of the Miller v.

60
California framework, tailored to the animal cruelty context.
Thus, the analytical significance of the exceptions clause at
issue here is not, as the majority suggests, an attempt to
“constitutionalize” an otherwise unconstitutional restriction of
protected speech; rather, it merely establishes the outer bounds
for the permissible regulation of a category of otherwise
unprotected speech, not unlike what the Supreme Court did in
Miller.

We find that section 48 outlaws depictions that “are no
essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality.” Chaplinsky, 315 U.S. at 572. The speech
outlawed by the statute at issue shares the salient characteristics
of the other recognized categories of unprotected speech, and
thus falls within the heartland of speech that may be proscribed
based on its content. Having satisfied this threshold inquiry, we
thus turn to a discussion of the Ferber considerations.

b.

61
 We read Ferber, at its core, to stand for the narrow
proposition that a category of speech may be constitutionally
restricted where it depicts – and thus necessarily requires – the
intentional infliction of physical harm on a class of especially
vulnerable victims in violation of law, where the distribution of
such depictions spurs their production but laws prohibiting the
underlying acts are woefully under-enforced, and where the
speech’s social value is so de minimus as to be outweighed by
the important governmental goal of protecting the victims. We
find that the depictions of animal cruelty proscribed by section
48 possesses these essential attributes.24

In Ferber, the Supreme Court justified the prohibition of
child pornography based on four grounds: (1) “a State’s interest
in safeguarding the physical and psychological well-being of a
minor is compelling,” Ferber, 458 U.S. at 756-57 (internal
quotation marks omitted); (2) “[t]he distribution of photographs

24
In analogizing to Ferber, we do not mean to suggest that
the conduct underlying the creation of depictions of animal
cruelty is of the same order as the reprehensible behavior
implicit in child abuse. Nevertheless, insofar as Ferber
highlighted the critical circumstances when a new category of
constitutionally proscribable speech may warrant recognition,
we find its discussion highly instructive to our resolution of the
question at hand – the proper place that depictions of animal
cruelty should have in our First Amendment jurisprudence.

62
and films depicting sexual activity by juveniles is intrinsically
related to the sexual abuse of children,” id. at 759; (3) “[t]he
advertising and selling of child pornography provide an
economic motive for and are thus an integral part of the
production of [child pornography],” id. at 761; and (4) “[t]he
value of permitting live performances and photographic
reproductions of children engaged in lewd sexual conduct is
exceedingly modest, if not de minimis,” id. at 762. We elaborate
each of these four parts below and detail how depictions of
animal cruelty implicate the same interests.

First, the Supreme Court recognized the state’s interest
in protecting minors as compelling. Id. at 756-57. As discussed
at length above, we find preventing animal cruelty to also be a
governmental interest of the most paramount importance. See
supra section I.a.1.

Second, the Supreme Court explained that child
pornography was an unprotected form of speech because of the
intrinsic relationship between the distribution of child
pornography and the sexual abuse of children, which it found
existed in at least two ways. Ferber, 458 U.S. at 759. First,
child pornography materials create a lasting record of the child
abuse, and as the materials are distributed, the harm to the child

63
is exacerbated, id., and second, because of the daunting
obstacles in prosecuting the “low-profile, clandestine industry”
responsible for the production of child pornography, targeting
the more-visible distribution network was “the most expeditious
if not the only practical method” of ensuring enforcement, id. at
760.

The speech at issue here is also intrinsically related to the
underlying crime of animal cruelty, most clearly because its
creation is also predicated on a violation of criminal law.
Implicated by the depictions at hand is not the mere prospect of
future crime, nor is the instant proscription premised on
society’s disapproval of the views underlying the depictions. Cf.
Texas v. Johnson, 491 U.S. 397, 414 (1989) (“the government
may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable”). Unlike
the virtual child pornography statute invalidated in Ashcroft v.
Free Speech Coalition, the harm the Government is seeking to
prevent here depends not “upon some unquantified potential for
subsequent criminal acts” purportedly flowing from the
prohibited depictions, 535 U.S. 234, 250 (2002), but arises
directly and necessarily from the creation of the depictions
itself.

64
 In Ferber, the Supreme Court found an inextricable
connection between child pornography and the underlying abuse
based in part on its observation that the pornography’s
deleterious and stigmatizing effects transcend the single instance
of abuse depicted. 458 U.S. at 759 n.10. We do not quarrel
with the majority’s statement that it would be difficult to
directly analogize this ongoing psychological harm suffered by
child abuse victims to that of animals. However, even a cursory
consideration of well-documented circumstances surrounding
animal abuse, such as those present in the dogfighting context,
counsels toward the conclusion that the harms suffered by
abused animals also extend far beyond that directly resulting
from the single abusive act depicted. Indeed, dogs that are
forced to fight are commonly the subjects of brutality and
cruelty for the entire span of their lives: prior to the fights, they
are intentionally emotionally abused and physically tortured in
order to predispose them to violence; after the fights, dogs that
do not perform well are not infrequently left to die untreated
from their injuries or are simply executed. See generally Brief
for the Humane Society of the United States as Amicus Curiae,
at 2-3 (citing various authorities on the treatment of dogs
involved in dogfighting). Further, the creation of the depictions
at issue often spells the actual end of the lives of the animals
involved. See H.R. Rep. No. 106-397, at 2 (describing crush
videos as “videotapes ... depicting [] small animals being slowly
crushed to death”); see also H.R. Rep. No. 94-801, at 9 (1976)
(“Dog fighting itself is a grisly business in which two dogs
either trained specifically for the purpose or maddened by drugs

65
and abuse are set upon one another and required to fight, usually
to the death of at least one and frequently both animals.”). Thus,
while animals may not suffer psychological harm merely
because of the continued existence of the depictions as
permanent records of their abuse, that significant attendant
harms (both leading up to the abuse and following from it)
emanate from the single instance of depicted cruelty
nevertheless supports our finding here that the prohibited
depictions are intrinsically linked to the underlying abuse.

In addition, law enforcement officials face similar
difficulties in prosecuting the creation of animal cruelty
depictions as they do in policing child pornography, and
Congress could have thus reasonably concluded that targeting
the distributors would be the most effective way of drying up the
animal-cruelty depictions market. In particular, police struggle
to prosecute those involved in crush videos because the videos
are generally created by a bare-boned, clandestine staff; the
woman doing the crushing is filmed in a manner that shields her
identity, and the location of the action is imperceptible. See
H.R. Rep. No. 106-397, at 3. Similarly, individuals involved in
dogfights are also elaborately insulated from law enforcement.
See App. at 476-77 (expert witness describing the difficulty of
infiltrating a dogfighting group where each member knows the
others); see also Susan E. Davis, Blood Sport: Dog Fighting Is
Big Business in California, and Just About Impossible to Stop,

66
17 Cal. Law. 44, 84 (1997) (explaining the difficulties of
gaining access to dogfighting rings, as organizers often require
newcomers to fight a dog before accepting that person). Indeed,
in the videos at issue in this case, while the faces of the
spectators of the dogfights taking place in Japan were sometimes
clearly pictured (e.g., in “Japan Pit Fights”), Stevens himself
stated in “Pick-A-Winna” that he purposefully edited out the
faces of the handlers involved in the fights occurring in the
United States.25 Therefore, we must disagree with the majority’s
characterization of the Government’s claims pertaining to the
difficulties in the enforcement of state animal cruelty statutes as
“empirically inaccurate.” As is evident in the record before us,
the same policing concerns that necessitated a focus on the
more-visible distribution network in Ferber are present in this
case. Accordingly, we conclude that the creation and
distribution of depictions of animal cruelty is intrinsically
related to animal cruelty so as to weigh in favor of its
prohibition.

Third, the Supreme Court held in Ferber that the
advertising and sale of child pornography must be targeted since

25
And although “Catch Dogs” contains substantial footage
of dogs physically restraining wild hogs, we note nevertheless
that the video also plainly depicts a Japanese dogfight in its
entirety.

67
they “provide an economic motive for and are thus an integral
part of the production of such materials.” 458 U.S. at 761.
Because the First Amendment does not protect speech that
forms an integral part of a criminal violation, and because of the
glaring under-enforcement of the underlying laws prohibiting
the production of child pornography, the Ferber Court
concluded that these considerations counseled towards
permitting regulation of the pornographic materials. Id. at 762.

These factors are self-evidently present in the instant
case. As discussed, substantial obstacles exist in effectively
detecting and prosecuting those directly involved in the creation
of animal cruelty depictions. Furthermore, the record here
amply demonstrates that a thriving market exists for depictions
of animal cruelty: Crush videos and dogfighting videos are
advertised and sold in copious amounts over the internet and
through magazines.26 See 145 Cong. Rec. S15220-03 (1999)
(noting that there are over 2,000 crush-video titles available in
the marketplace, priced from $15 to $300); App. at 447-49

26
Caselaw demonstrates that it is not unusual for dog fights
to be filmed. See Ash v. State, 718 S.W.2d 930, 931 (Ark. 1986)
(describing police raid of dogfight where fight was being
videotaped); People v. Lambert, Nos. 2001QN043659,
2001QN043660, 2001QU043661, 2001QN043662,
2001QU043663, 2002 WL 1769931, at *2 (N.Y. Crim. Ct. June
18, 2002) (same); State v. Shelton, 741 So. 2d 473, 474 (Ala.
Crim. App. 1999) (same).

68
(witness explaining that the Sporting Dog Journal reports results
of illegal dogfights and runs advertisements for dogfighting
videos); PSR 6 (showing that Stevens had sold almost 700
videos depicting dogfights in two-and-a-half years for which he
earned over $20,000). This evidence establishes the existence
of a lucrative market for depictions of animal cruelty, which in
turn provides a powerful incentive to individuals to create
videos depicting animal cruelty.

In our view, the presence of an economic motive driving
the production of depictions of animals being tortured or killed
is perhaps the critical consideration that distinguishes the speech
at issue here from ordinary depictions of criminal activities. A
decision here allowing prohibition of the distribution of
depictions of animal abuse will no more threaten the examples
of speech posited by Stevens – crime scene photographs and
surveillance videos – than did the Supreme Court’s decision in
Ferber. Stevens’s examples are easily distinguishable from the
speech prohibited by section 48 as they plainly have more than
de minimis value; crime scene photographs, for instance, are
eminently useful to police officers. Furthermore, most critically,
no commercial market exists for depictions of run-of-the-mill
criminal activities so as to incentivize the commission of the
underlying illegal acts; there thus is little danger that individuals
will be directly motivated to physically harm others in order to
create depictions of the same solely in hopes of commercial

69
gain.

Fourth, the Supreme Court justified its restriction in
Ferber on the fact that the value of child pornography is de
minimis. 458 U.S. at 762. The Court considered it unlikely that
such depictions would be an important or necessary part of
scientific, literary, or educational works, and in the off-chance
that such was necessary, they could simply be simulated. Id. at
762-63. While we have already articulated our reasons for
concluding that depictions of animal cruelty are of de minimis
value, see supra section I.a.2, we stress here that this case is
even clearer than that in Ferber because section 48, unlike the
statute at issue in Ferber, already expressly excludes depictions
that have any serious value. Thus, there is simply no potential
that the present statute will reach any work that plays an
important role in the world of ideas.

The speech at issue in this case possesses the essential
attributes of unprotected speech identified generally in
Chaplinsky and of child pornography as discussed in Ferber. To
reiterate, the Government has a compelling interest in
eradicating animal cruelty, depictions of animal cruelty are
intrinsically related to the underlying animal cruelty, the market
for videos of animal cruelty incentivizes the commission of acts

70
of animal cruelty, and such depictions are of de minimis value.
In reaching this decision, however, we emphasize that we have
before us, not a statute broadly purporting to ban all depictions
of criminal acts, but merely one prohibiting depictions of a
narrow subclass of depraved acts committed against an uniquely
vulnerable and helpless class of victims. As such, we deem it
unlikely that our ruling as to the constitutionality of the latter
would have broad negative repercussions to First Amendment
freedoms. Accordingly, because Congress may proscribe
depictions of animal cruelty without running afoul of the First
Amendment, we would reject Stevens’s challenge to the
constitutional validity of 18 U.S.C. § 48.

II.

Section 48 is also not unconstitutionally overbroad. The
overbreadth doctrine is designed to abate the “possibility that
protected speech of others may be muted and perceived
grievances left to fester because of the possible inhibitory effects
of overly broad statutes.” Broadrick v. Oklahoma, 413 U.S.
601, 612 (1973). Overbreadth is fundamentally concerned with
striking a delicate balance between the “competing social costs”
of deterring people from engaging in constitutionally protected
conduct and of ensuring that certain criminal behavior is

71
regulated. United States v. Williams, 128 S. Ct. 1830, 1838
(2008). Resort to this doctrine is “strong medicine that is not to
be casually employed.” Id. (quoting Los Angeles Police Dep’t.
v. United Reporting Publishing Corp., 528 U.S. 32, 39 (1999))
(internal quotations omitted).

As the Supreme Court recently emphasized: “In order to
maintain an appropriate balance, we have vigorously enforced
the requirement that a statute’s overbreadth be substantial, not
only in an absolute sense, but also relative to the statute’s
plainly legitimate sweep.” Id. (emphasis in original). Courts
should invalidate a statute on overbreadth grounds only when
the law “reaches a substantial number of impermissible
applications,” Ferber, 458 U.S. at 772 (emphasis added). Thus,
“[t]he mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible
to an overbreadth challenge.” Williams, 128 S. Ct. at 1844
(quoting Members of City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 800 (1984)). Rather, “there must be a
realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties
not before the Court for it to be facially challenged on
overbreadth grounds.” Taxpayers for Vincent, 466 U.S. at 801.
There is no such substantial overbreadth here.

72
 Stevens first argues that the statute is overbroad because
it criminalizes depictions of conduct that was not illegal when
or where it occurred, such as videos of dogfights in Japan, where
dogfighting is legal, or videos that were produced in the United
States before dogfighting was outlawed. However, such speech
is within the statute’s legitimate scope. In Ferber, the Court
held that a “State is not barred by the First Amendment from
prohibiting the distribution of unprotected materials produced
outside the State,” 458 U.S. at 765-66, because “the
maintenance of the market itself ‘leaves open the financial
conduit by which the production of such material is funded and
materially increases the risk that [local] children will be
injured,’” id. at 766 n.19 (quoting People v. Ferber, 422 N.E.2d
523, 531 (N.Y. 1981) (Jasen, J., dissenting)); see also 18 U.S.C.
§ 2252A (federal child pornography statute explicitly reaches
works produced overseas). The same interests are implicated
here: so long as the industry peddling depictions of animal
cruelty survives, there remains a financial incentive to create
more videos of animal cruelty within this country. The state of
the law numerous years ago in this country, or that in foreign
jurisdictions is simply irrelevant to this consideration. The
Government may legitimately endeavor to quash the entire
industry in all its manifestations. Furthermore, because the
difficulty in determining where or when the underlying acts of
animal cruelty occurred was part of Congress’s motivation for
enacting section 48 in the first place, see H.R. Rep. No. 106-
397, at 2, excepting depictions that occurred at a time or in a
place where the conduct was not illegal would essentially gut

73
the instant statute.

Stevens also argues that the statute is overbroad because
it reaches individuals who took no part in the underlying
conduct. This argument is likewise foreclosed by Ferber, where
the Court ruled that it was permissible for the government to
annihilate the child pornography market at all levels, which
included penalizing distributors. 458 U.S. at 759-60. Similarly,
for the Government to extinguish the market for depictions of
animal cruelty, it must be allowed to attack its most visible
apparatus – the commercial distribution network.

Stevens’s final argument that the statute is overbroad
because it could extend to technical violations of hunting and
fishing statutes is also unpersuasive. The Supreme Court
recently rejected similar contentions in upholding 18 U.S.C.
§ 2252A(a)(3)(B) – a federal statute criminalizing the promotion
and possession of child pornography – against an overbreadth
challenge. Williams, 128 S. Ct. at 1843-45. While
acknowledging that the plain language of the statute could be
read to criminalize the act of turning child pornography over to
law enforcement, the Court nevertheless stated that as it was
unaware of any prosecutions for such conduct under analogous
state statutes, there was simply no real threat that such activity

74
would be deterred by the federal prohibition. Id. at 1843-44.
Furthermore, that the statute could also apply to documentary
footage of foreign war atrocities did not render it facially
unconstitutional; even if such an application violated the First
Amendment, “the existence of that exception would not
establish that the statute is substantially overbroad.” Id. at 1844
(emphasis in original).

Turning to the statute at hand, we are unable to imagine
the circumstances that would have to coalesce for such a video
to come within the reaches of section 48, especially in light of
its exceptions clause. See id. at 1843 (remarking the examples
posited “demonstrates nothing so forcefully as the tendency of
our overbreadth doctrine to summon forth an endless stream of
fanciful hypotheticals”). In short, there is simply no “realistic
danger” that the challenged statute will deter such depictions.
Id. at 1844 (quoting New York State Club Assn., Inc. v. City of
New York, 487 U.S. 1, 11 (1988)). Moreover, even if technical
violations were to slip through the section 48(b) bulwark, we are
confident that they would amount to no more than a “tiny
fraction” of the depictions subject to the statute, which thus may
“be cured through case-by-case analysis of the fact situations to
which its sanctions, assertedly, may not be applied.” Ferber,
458 U.S. at 773-74 (quoting Broadrick, 413 U.S. at 615-616).
Accordingly, section 48 is not substantially overbroad.

75
 III.

Finally, Stevens contends that the statute is
unconstitutionally vague. A statute is void on vagueness
grounds if it: (1) “fails to provide people of ordinary intelligence
a reasonable opportunity to understand what conduct it
prohibits”; or (2) “authorizes or even encourages arbitrary and
discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703,
732 (2000). Section 48 is not unconstitutionally vague under
either standard.

Stevens’s primary argument, that the statute is
necessarily vague because the definition of “depiction of animal
cruelty” is predicated on state law is unavailing. A federal
statute is not rendered unconstitutionally vague merely because
it incorporates state law; to the contrary, such is a legitimate
drafting technique frequently utilized by Congress. See, e.g., 18
U.S.C. § 922 (prohibiting selling “firearm to any person in any
State where the purchase or possession by such person of such
firearm would be in violation of any State law”); 18 U.S.C. §
1202(b) (criminalizing the transfer of proceeds from any
kidnapping punishable under state law). Not surprisingly, courts
consistently reject due process challenges premised on
incorporation grounds. See, e.g., United States v. Iverson, 162

76
F.3d 1015, 1021 (9th Cir. 1998) (“a statute is not
unconstitutionally vague merely because it incorporates other
provisions by reference; a reasonable person of ordinary
intelligence would consult the incorporated provisions”); United
States v. Tripp, 782 F.2d 38, 42 (6th Cir. 1986) (“[n]or is there
any constitutional objection to a criminal statute that
incorporates state law for purposes of defining illegal conduct”);
United States v. Morrison, 531 F.2d 1089, 1093 (1st Cir. 1976)
(same).

Stevens’s next contention is that section 48 is void-for-
vagueness because the word “animal” is defined differently in
different states. We reject this argument as plainly against the
weight of legal authority. See, e.g., Tripp, 782 F.2d at 42
(federal statute does not violate due process in incorporating
state laws “even if the result is that conduct that is lawful under
the federal statute in one state is unlawful in another”); United
States v. Abramson, 553 F.2d 1164, 1173 (8th Cir. 1977) (same);
United States v. Schwartz, 398 F.2d 464, 467 (7th Cir. 1968)
(federal statute “does not violate the Fifth Amendment even
though there is a lack of uniformity among the state laws upon
which it depends”). Notwithstanding Stevens’s claims to the
contrary, section 48 is not unconstitutionally vague.

77
 IV.

To be sure, we are not insensitive to the concerns
implicated when a federal court declares an entire category of
speech outside the purview of the First Amendment. Nor can
we disagree with our majority colleagues that the judicial power
in this realm of constitutional law is one that should be wielded
sparingly, and then only with great deliberation and care.
However, we know of no principle that lower courts should
refrain from developing our nation’s free speech jurisprudence
and decline to analogize and apply the Supreme Court’s
precedents in this area without first receiving the express
permission to do so. In the absence of a Supreme Court
pronouncement to the contrary, and in light of the unique
circumstances before us, we believe our determination – that the
depictions of animal cruelty prohibited by 18 U.S.C. § 48 are
not protected by the Constitution – both faithfully discharges our
judicial obligation to duly advance the law’s development when
appropriate to do so, and comports with the Supreme Court’s
articulation of the limits of the First Amendment’s protections
as set forth in Chaplinsky and Ferber.

In conclusion, 18 U.S.C. § 48 significantly advances the
Government’s compelling interest in protecting animals from

78
wanton acts of cruelty, and the depictions it prohibits are of such
minimal social value as to render this narrow category of speech
outside the scope of the First Amendment. Furthermore, the
statute is neither substantially overbroad nor unconstitutionally
vague. Thus, we would hold that section 48 is a valid
congressional act, and would therefore affirm Stevens’s
conviction.

79