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No. 08-769

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

ROBERT J. STEVENS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GREGORY G. GARRE
Solicitor General
Counsel of Record
MATTHEW E. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
VICKI S. MARANI
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Section 48 of Title 18 of the United States Code pro hibits the knowing creation, sale, or possession of a de piction of a live animal being intentionally maimed, muti lated, tortured, wounded, or killed, with the intention of placing that depiction in interstate or foreign commerce for commercial gain, where the conduct depicted is ille gal under Federal law or the law of the State in which the creation, sale, or possession takes place, and the depiction lacks serious religious, political, scientific, edu cational, journalistic, historical, or artistic value.

The question presented is whether 18 U.S.C. 48 is facially invalid under the Free Speech Clause of the First Amendment.

In the Supreme Court of the United States

No. 08-769

UNITED STATES OF AMERICA, PETITIONER

v.

ROBERT J. STEVENS

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 63a) is reported at 533 F.3d 218. The decision of the district court denying respondent's motion to dismiss (App., infra, 64a-75a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 18, 2008. On October 4, 2008, Justice Souter ex tended the time within which to file a petition for a writ of certiorari to and including November 15, 2008. On November 6, 2008, Justice Souter further extended the time to and including December 15, 2008. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitu tion provides, in relevant part: "Congress shall make no law * * * abridging the freedom of speech." Section 48 of Title 18 of the United States Code is reproduced in the appendix to this petition. App., infra, 76a-77a.

STATEMENT

Following a jury trial in the United States District Court for the Western District of Pennsylvania, respon dent was convicted on three counts of knowingly selling depictions of animal cruelty, with the intention of plac ing them in interstate commerce for commercial gain, in violation of 18 U.S.C. 48. He was sentenced to 37 months of imprisonment, to be followed by three years of supervised release. The en banc court of appeals va cated his conviction on the ground that Section 48 is fa cially unconstitutional. App., infra, 1a-63a.

1. In 18 U.S.C. 48, Congress made it a criminal of fense to create, sell, or possess certain depictions of ani mal cruelty in interstate commerce. In particular, Sec tion 48 prohibits "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty," done "with the intention of placing that depiction in interstate or foreign commerce for commercial gain." 18 U.S.C. 48(a). The statute covers "any visual or auditory depiction * * * in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," if that conduct "is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place." 18 U.S.C. 48(c)(1). The statute specifically exempts any depiction that "has serious religious, political, scientific, educational, journalistic, historical, or artistic value." 18 U.S.C. 48(b).

Section 48 was designed to stop persons from profit ing from the unlawful torture and killing of animals. Congress recognized that, although animals "have long been used, and valued, for their utility," a broad societal consensus exists that animals are entitled to humane treatment. H.R. Rep. No. 397, 106th Cong., 1st Sess. 3-4 (1999) (1999 House Report). Laws in all 50 States and the District of Columbia prohibit persons from engaging in acts of animal cruelty, as do various federal laws. Id. at 3; App., infra, 8a n.4. Those laws are premised on the view that "animals, as living things, are entitled to cer tain minimal standards of treatment," as well as on the recognition that animal cruelty leads to violence against human victims and erodes public mores. 1999 House Report 4.

Congress enacted Section 48 after learning of a sub stantial and growing market for videotapes and photo graphs depicting the gruesome torture and killing of animals. See 1999 House Report 2-3. No laws prohib ited the production or sale of such depictions, and the States were unlikely to enact such laws because the de pictions were "almost exclusively distributed for sale through interstate or foreign commerce." Id. at 3. Con gress therefore enacted Section 48 to remove the com mercial incentives for depictions of animal cruelty and thereby deter the underlying acts. Id. at 3-4.

Congress carefully crafted Section 48 to reach only a narrow category of depictions that have no redeeming social value. As enacted, the statute covers only depic tions of acts of animal cruelty that are illegal, 18 U.S.C. 48(c)(1), that are created, sold, or possessed for commer cial gain, 18 U.S.C. 48(a), and that lack any "serious re ligious, political, scientific, educational, journalistic, historical, or artistic value," 18 U.S.C. 48(b). For those depictions, Congress concluded, "the harm from the con tinued commercial sale of the material so outweighs the value of the material that it is appropriate to prohibit the creation, sale, or possession of such material in [its] entirety." 1999 House Report 5.

2. Respondent operated a business called "Dogs of Velvet and Steel" and a website called Putbulllife.com, through which he sold videos of pit bulls participating in dog fights and attacking other animals. App., infra, 3a; C.A. App. 467. He advertised those videotapes and other pit bull-related merchandise in Sporting Dog Journal, an underground publication that carries the results of illegal dogfights. App., infra, 3a; C.A. App. 464.

State law enforcement agents purchased three videos from respondent through the mail. App., infra, 3a; C.A. App. 446-452, 458-459. Those videos include scenes of savage and bloody dog fights and of pit bulls viciously attacking other animals. App., infra, 3a; C.A. App. 120- 121. The videos are narrated by respondent. App., in fra, 3a. Agents searched respondent's residence pursu ant to a warrant and found other videos and dogfighting merchandise, as well as sales records establishing that respondent sold videos throughout the United States and to recipients in foreign countries. Id. at 4a; C.A. App. 464-465.

3. Respondent was indicted on three counts of know ingly selling depictions of animal cruelty, with the inten tion of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. 48. App., infra, 4a. He moved to dismiss the indictment on the ground that the statute is facially invalid under the Free Speech Clause of the First Amendment and is void for vagueness under the Due Process Clause of the Fifth Amendment. Id. at 4a, 64a.

The district court denied the motion. App., infra, 64a-75a. It first determined that Section 48 regulates a narrow category of speech that is not protected by the First Amendment. Id. at 65a-71a. The court explained that "[t]he speech prohibited by Section 48 has exceed ingly little, if any, social value" because the statute "ap plies only to the depictions of conduct that would itself be illegal in the state in which the creation, sale, or pos session takes place" and that "lack[] serious religious, political, scientific, educational, journalistic, historical, or artistic value." Id. at 66a. That minimal value, the court determined, is "greatly outweighed" by the govern ment's compelling interests in "insuring that animals, as living beings, be accorded certain minimal standards of treatment" and in "preventing a criminal from profiting from his or her crime." Id. at 67a, 69a, 71a.

In the district court's view, Section 48 is "akin to laws prohibiting possession and distribution of child por nography," because "all fifty states have enacted laws prohibiting animal cruelty"; "the distribution of depic tions of animal cruelty is intrinsically related to the un derlying conduct"; "the creation, sale, or possession of depictions of animal cruelty for profit provides an eco nomic incentive for such conduct"; and "the value of the depictions * * * is de minimis at best." App., infra, 70a-71a.

The court then rejected respondent's overbreadth and vagueness claims. App., infra, 71a-75a. As relevant here, it determined that Section 48 is not substantially overbroad because it applies only to depictions of cruelty to live animals that are illegal and lack societal value. Id. at 72a-73a.

A jury found respondent guilty on all counts, and the district court sentenced him to concurrent sentences of 37 months of imprisonment on each count, to be followed by three years of supervised release. App., infra, 4a; Judgment 1-4.

4. Respondent appealed. After the case was argued to a three-judge panel, the court of appeals sua sponte set the case for en banc argument.

a. The en banc court of appeals vacated respon dent's conviction. App., infra, 1a-63a. The court first rejected Congress's view that the depictions at issue are so valueless that they lack First Amendment protection. Id. at 7a. Although the court recognized that the exist ing categories of unprotected speech may be supple mented, id. at 10a, it was "unwilling" to do so based on the rationales offered in this case "without express di rection" from this Court, id. at 14a.

The court rejected a proposed analogy to child por nography. It acknowledged that, as with child pornogra phy, all 50 States have laws prohibiting animal cruelty, and animal cruelty offenses are often difficult to prose cute because of their clandestine nature. App., infra, 6a, 8a-9a & n.4. But it decided that the government's inter est in preventing animal cruelty is not compelling be cause it is not "of the same magnitude as protecting chil dren," id. at 18a-19a, and it rejected Congress's conclu sion that animal cruelty often leads to human violence, id. at 22a. The court also observed that, unlike with child pornography, there is no continuing harm to ani mals after a depiction of animal cruelty is captured on film. Id. at 22a-23a. Finally, the court stated that "[t]he exceptions clause cannot on its own constitutionalize § 48" by exempting speech with any serious social value. Id. at 25a-26a.

The court then applied strict scrutiny and invalidated the statute on its face. App., infra, 27a-32a. It pre sumed that the statute was invalid because it is a content-based restriction on speech. Id. at 27a. It then repeated its view that the government's interests are not compelling, id. at 28a, and stated that the statute does not further those interests because Section 48 merely "aid[s] in the enforcement of an already compre hensive state and federal anti-animal-cruelty regime," id. at 29a. The court also decided that the statute is underinclusive, because it does not criminalize depic tions of animal cruelty made for personal use, id. at 29a- 30a, and overinclusive, because it covers depictions sold in places where the underlying conduct is illegal but made in places where the underlying conduct is legal, id. at 30a. The court then observed, in a footnote, that the statute "might also be unconstitutionally overbroad," but it decided to "rest [its] analysis on strict scrutiny grounds alone" because "voiding a statute on overbeadth grounds is 'strong medicine.'" Id. at 32a-34a n.16 (quot ing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).

b. Three judges dissented. App., infra, 34a-63a (Cowen, J., dissenting). They observed that Section 48 regulates only a "narrow subclass" of depictions of "de praved acts committed against an uniquely vulnerable and helpless class of victims." Id. at 57a. In their view, the First Amendment does not protect those depictions, because the governmental interests in preventing ani mal cruelty are compelling, id. at 38a-47a, and the depic tions are "no essential part of any exposition of ideas," id. at 49a (internal quotation marks and citation omit ted).

The dissenting judges traced the long history of state and federal laws prohibiting animal cruelty, App., infra, 39a-40a (Cowen, J., dissenting), and observed that those laws are "powerful evidence of the importance of the governmental interest at stake," id. at 41a. They also noted the longstanding and widespread belief that "cru elty to animals is a form of antisocial behavior that erodes public mores and can have a deleterious effect on the individual inflicting the harm." Id. at 42a.

The dissenting judges determined that the depictions covered by Section 48 have "little or no social value," both because "depictions of animals being intentionally tortured and killed" generally appeal only to "those with a morbid fascination with suffering," and because the statute's exceptions clause "circumscribe[s] the scope of [the] regulation to only this category's plainly unpro tected portions." App., infra, 47a-49a (Cowen, J., dis senting). And they analogized the depictions at issue to child pornography, noting that the depictions are "in trinsically related" to the underlying criminal acts, id. at 51a; that the "harms suffered by abused animals * * * extend far beyond that directly resulting from the single abusive act depicted," id. at 52a; that the statute was designed to dry up the "lucrative market for depictions of animal cruelty," id. at 53a-55a; and that, because of the statute's exceptions clause, "there is simply no po tential that [it] will reach any work that plays an impor tant role in the world of ideas," id. at 56a.

Finally, the dissenting judges also concluded that the statute is neither substantially overbroad nor imper missibly vague. App., infra, 57a-63a (Cowen, J., dissent ing). They determined that respondent failed to demon strate substantial overbreadth "relative to the statute's plainly legitimate sweep," id. at 58a (citation omitted), and concluded that any depictions that might have re deeming value should be addressed "through case-by- case analysis," id. at 61a (citation omitted).

REASONS FOR GRANTING THE PETITION

The court of appeals, sitting en banc, ruled that 18 U.S.C. 48 is facially unconstitutional. That holding is both incorrect and warrants this Court's review. Con gress crafted Section 48 to apply only to a narrow and particularly harmful class of speech: depictions of un lawful acts of animal cruelty, done for commercial gain, that have no serious societal value. Like other forms of unprotected speech, such as child pornography, depic tions of the intentional infliction of suffering on vulnera ble creatures play no essential role in the expression of ideas. Indeed, Section 48 explicitly exempts any depic tions with serious societal value. And Congress has compelling reasons to regulate the depictions at issue, because, in addition to requiring harm to animals, the depictions debase the persons who seek to profit com mercially from them, lead to other crimes, and erode public mores. Congress therefore reasonably concluded that "the harm to be restricted so outweighs the expres sive interest, if any, at stake, that the materials may be prohibited as a class" consistent with the First Amend ment. 1999 House Report 5.

Even if the statute reached any protected speech, the court of appeals erred in striking down the statute on its face. That is because at least a significant class of depic tions covered by Section 48-including dogfighting vid eos and so-called "crush videos"-may be prohibited consistent with the First Amendment. And even if, de spite the exceptions clause, the statute reached some protected speech, that speech would be minimal in rela tion to the statute's plainly legitimate sweep and would not justify the most severe step of invalidating an Act of Congress on its face.

The question presented is important. Section 48 is a vital measure in the federal government's ongoing ef forts to prevent acts of animal cruelty. Laws prohibiting the wanton torture and killing of animals date back to the earliest days of this Nation, and all 50 States, the District of Columbia, and the federal government now have such laws. As the dissenting judges in the court of appeals explained, that "expansive regulatory frame work * * * developed by state and federal legislators" to address the problem of animal cruelty demonstrates the importance of the government's interests in regulat ing depictions of animal cruelty. App., infra, 38a (Cowen, J., dissenting). Section 48 fills a significant gap in state and federal law enforcement efforts by targeting the commercial production and distribution of depictions of animal cruelty in order to dry up the market for such depictions and deter the underlying acts. The court of appeals' nullification of those efforts and invalidation of the Act at issue on its face warrants this Court's review.

I. THE COURT OF APPEALS' INVALIDATION OF AN ACT OF CONGRESS WARRANTS THIS COURT'S REVIEW

Review by this Court is warranted because the en banc court of appeals has invalidated an Act of Congress on its face. App., infra, 25a n.13 (confirming that re spondent "brings a facial challenge to the statute"); id. at 33a ("[W]e will strike down 18 U.S.C. 48 as constitu tionally infirm."); id. at 60a (Cowen, J., dissenting) (agreeing that respondent brought a facial challenge).

Any decision invalidating an Act of Congress on con stitutional grounds is significant. See Rostker v. Gold berg, 453 U.S. 57, 64 (1981) (noting that judging the con stitutionality of an Act of Congress is "the gravest and most delicate duty that this Court is called upon to per form") (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)). This Court has often reviewed holdings that a federal law is invalid under the First Amendment. See, e.g., United States v. Williams, 128 S. Ct. 1830 (2008); Bartnicki v. Vopper, 532 U.S. 514 (2001). This case equally warrants review. Section 48 is an important part of the longstanding state and federal efforts to prevent brutal and depraved acts of animal cruelty. See pp. 23-24, infra. Section 48 supplements those efforts in an important respect by targeting the substantial interstate market for depictions of the tor ture and wanton killing of live animals. The court of ap peals' decision fundamentally undermines Congress's effort to assist the States in stopping a unique and rep rehensible type of criminal acts. A decision that strips Congress of that authority under the Constitution de serves this Court's immediate review.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT SECTION 48 IS FACIALLY UNCONSTITUTIONAL

A. Section 48 Captures No Protected Speech

This Court has long recognized that "certain well- defined and narrowly limited classes of speech" are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth" that they may be regulated based on their content consistent with the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942); see R.A.V. v. City of St. Paul, 505 U.S. 377, 383-384 (1992). Those categories include fighting words, Chaplinsky, 315 U.S. at 572; speech in citing imminent lawless activity, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam); certain types of defamation, Beauharnais v. Illinois, 343 U.S. 250, 266 (1952); obscenity, Roth v. United States, 354 U.S. 476, 485 (1957); child pornography, New York v. Ferber, 458 U.S. 747, 754-763 (1982); and offers or solicitations to engage in illegal activity, Williams, 128 S. Ct. at 1841- 1842. For each of those categories, "the evil to be re stricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by- case adjudication is required." Ferber, 458 U.S. at 763- 764.

Congress made that same judgment here. Citing this Court's unprotected-speech precedents, Congress indi cated that Section 48 was "narrowly drawn" to reach only those depictions for which "the harm to be re stricted so outweighs the expressive interest, if any, at stake, that the materials may be prohibited as a class." 1999 House Report 4-5.

The court of appeals erred in rejecting Congress's judgment. Graphic depictions of the torture and maim ing of animals, like each of the other types of speech this Court has deemed unprotected, have little or no expres sive content or other redeeming societal value, and Con gress has compelling reasons for prohibiting them.

1. The images of animal cruelty covered by Section 48 do not have any redeeming expressive content. Tell ingly, the court of appeals made no effort to explain what value they have.

Four features of the statute ensure that its reach is narrowly circumscribed to encompass only depictions that have profound social harms, while having little or no expressive value. First, the statute covers only those depictions in which "a living animal is intentionally maimed, mutilated, tortured, wounded, or killed." 18 U.S.C. 48(c)(1). Second, all of the depictions covered by the statute depict activity that is "illegal under Federal law or the law of the State in which the creation, sale, or possession takes place." 18 U.S.C. 48(c)(1). Third, Sec tion 48 encompasses only those images "create[d], s[old], or possesse[d]" for "commercial gain." 18 U.S.C. 48(a). Fourth, Congress expressly exempted depictions with "serious religious, political, scientific, educational, jour nalistic, historical, or artistic value." 18 U.S.C. 48(b).1

Among the types of depictions targeted by the stat ute are "crush videos," which are designed to "appeal to persons with a very specific sexual fetish." 1999 House Report 2; 145 Cong. Rec. 10,685 (1999) (statement of Rep. Gallegly). In those videos, "women inflict[] * * * torture [on small animals] with their bare feet or while wearing high heeled shoes," while "talking to the ani mals in a kind of dominatrix patter" and listening to the animals "cr[y] and squeal[] * * * in great pain." 1999 House Report 2. Although those videos typically utilize "mice, hamsters, and other small animals," Congress noted evidence of videos involving "dogs, cats, and even monkeys," as well as videos "ma[de] * * * to order, in whatever manner the customer wished to see the animal tortured and killed." Id. at 2-3.

The videos at issue here are also illustrative of the material encompassed within the statute. They include footage of pit bulls fighting in an enclosed pit with blood on the floor and the walls. The dogs are "bitten, ripped, and torn," noticeably fatigued, and "screaming in pain." C.A. App. 511-514 (testimony of expert witness in veteri nary medicine). In addition to illegal dogfighting, the videos depict "gruesome" images of a pit bull attacking a pig. App., infra, 3a. The pig is in "a great deal of pain and stress" and its "bottom jaw [i]s pretty much re moved." C.A. App. 546 (testimony of hog industry exec utive); see id. at 547 (noting that, despite his many years in the hog industry, he had never before seen a pig at tacked in such a manner).

Those examples illustrate that any speech reached by the statute is nowhere near the "free dissemination of ideas of social and political significance" that lies at the core of the First Amendment. Young v. American Mini Theatres, Inc., 427 U.S. 50, 61 (1976). Indeed, those im ages at issue do not evidence any "intent[] * * * to express an idea" at all. United States v. O'Brien, 391 U.S. 367, 376 (1968). Congress reasonably concluded that "no reasonable person would find any redeeming value in" those depictions. 1999 House Report 5.

2. The court of appeals erred in determining that the governmental interests furthered by Section 48 do not outweigh the minimal value of the depictions. As the court of appeals acknowledged, all 50 States and the District of Columbia have laws prohibiting animal cru elty. App., infra, 8a n.4 (citing statutes); see pp. 23-24, infra. Those laws confirm the importance of the govern ment's interests in eradicating animal cruelty. See Ferber, 458 U.S. at 757-758 (fact that "virtually all of the States and the United States have passed legislation" banning child pornography demonstrates "a government objective of surpassing importance"); see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Vic tims Bd., 502 U.S. 105, 118 (1991). And those laws re flect the societal consensus that animals, as living be ings, are entitled to certain minimal levels of treatment. 1999 House Report 4.

The court of appeals erred in discounting the govern ment's interest in eradicating animal cruelty as support ing the limited ban on depictions in Section 48. The court observed that animal cruelty "does not implicate interests of the same magnitude as protecting children from physical and psychological harm." App., infra, 19a. But society's understandably greater concern for chil dren than for animals in no way detracts from the fact that the abuse of both is "so antisocial that it has been made criminal." Williams, 128 S. Ct. at 1838.2

The court also erred in failing to acknowledge the numerous harms to humans that follow from illegal acts of animal cruelty, and the consequent interests in ban ning commercial sale of depictions of animal cruelty. It discounted the substantial body of research "which sug gests that humans who kill or abuse others often do so as the culmination of a long pattern of abuse, which of ten begins with the torture and killing of animals." 1999 House Report 4; see Humane Soc'y C.A. Amicus Br. 4 & n.10 (citing various studies). And it overlooked the fact that organized acts of animal cruelty, such as dogfights, encourage other crimes and pose serious risks to the public. Dogs bred and trained to kill pose an acute pub lic safety risk, and dogfighting is part of an underground criminal subculture that includes gang activity, drug- dealing, and illegal gambling. See Humane Soc'y C.A. Amicus Br. 5-11; H.R. Rep. No. 801, 94th Cong., 2d Sess. 9 (1976) (1976 House Report); Jamey Medlin, Comment, Pit Bull Bans and the Human Factors Affecting Canine Behavior, 56 DePaul L. Rev. 1285, 1304 (2007).

Section 48 also furthers the substantial interest in preventing the erosion of public mores. Cruelty to ani mals "is a form of antisocial behavior" that has no place in a civilized society. App., infra, 42a (Cowen, J., dis senting). Animal cruelty laws, in particular, have long been justified as prohibiting "offense[s] * * * against the public morals." Commonwealth v. Turner, 14 N.E. 130, 132 (Mass. 1887); see, e.g., Waters v. People, 46 P. 112, 113 (Colo. 1896); Johnson v. State, 36 Tenn. (4 Sneed) 614, 621-622 (1857); see Barnes v. Glen Thea tre, Inc., 501 U.S. 560, 575 (1991) (Scalia, J., concurring in the judgment) (noting that "[o]ur society prohibits, and all human societies have prohibited, certain activi ties not because they harm others but because they are considered * * * immoral," and providing "cockfight ing" as an example of such an activity).

3. The depictions of animal cruelty at issue here share several salient characteristics with other types of unprotected speech. Those similarities confirm that the depictions covered by Section 48 do not enjoy First Amendment protection.

Like obscenity, the depictions "offend[] the sensibili ties" of most citizens and have appeal only at the most base level. Miller v. California, 413 U.S. 15, 18-19 (1973). Like child pornography, there is a widespread consensus that the underlying acts are reprehensible, see Ferber, 458 U.S. at 757-758; depictions of animal cruelty are premised on the commission of a crime, id. at 759; the commercial market for depictions of animal cruelty "provide[s] an economic motive for" production of such materials, id. at 761; and the value of the depic tions is "exceedingly modest, if not de minimis," id. at 762. And like the offers to engage in illegal transactions at issue in Williams, depictions of illegal acts of animal cruelty may be prohibited because they "have no social value" and because they are premised on an illegal act. See 128 S. Ct. at 1841-1842; see also, e.g., Simon & Schuster, Inc., 502 U.S. at 119 ("The State * * * has an undisputed compelling interest in ensuring that crimi nals do not profit from their crimes.").

In short, the depictions of animal cruelty regulated in Section 48 are unworthy of First Amendment protec tion because of their overwhelming lack of value relative to the myriad harms associated with them.

B. Section 48 Is Not Substantially Overbroad

Even if this Court believes that Section 48 covers some protected speech, the court of appeals' facial inval idation of the statute would still be incorrect and would still warrant review. After rejecting the argument that the depictions covered by Section 48 are wholly unpro tected under the First Amendment, the court of appeals applied strict scrutiny and held the statute facially un constitutional. The court thus concluded that none of the depictions prohibited by Section 48 could be reached based on the government interests asserted. But that was error, because, at a minimum, a significant class of depictions prohibited by Section 48 can be constitution ally proscribed. Respondent's burden in that situation, in order to establish facial invalidity, is to show that the statute is substantially overbroad. That burden was not carried here.

1. Because Section 48 is a content-based regulation of speech, to the extent that it reaches speech that is not categorically unprotected, see pp. 11-17, supra, the law is subject to judicial scrutiny to ensure that it does not unduly restrict free expression. Normally, strict scru tiny applies to content-based regulations of speech, re quiring the government to justify the regulation. See, e.g., United States v. Playboy Enter. Group, Inc., 529 U.S. 803, 813, 816-817 (2000). Where a statute reaches both unprotected and arguably protected speech, how ever, and a challenger seeks to invalidate the law on its face, i.e., in all applications, the challenger must carry the burden of establishing real and substantial over breadth. See, e.g., Williams, 128 S. Ct. at 1838; Vir ginia v. Hicks, 539 U.S. 113, 118-119 (2003); Broadrick v. Oklahoma, 413 U.S. 601, 615-616 (1973). The over breadth doctrine balances a law's potential to chill pro tected speech with the "obvious harmful effects" of "in validating a law that in some of its applications is per fectly constitutional." Williams, 128 S. Ct. at 1838. To ensure that invalidation for overbreadth is not "casually employed," Los Angeles Police Dep't v. United Report ing Publ'g Corp., 528 U.S. 32, 39 (1999), this Court has "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," Williams, 128 S. Ct. at 1838.

2. In this case, respondent brought a facial chal lenge to Section 48, see, e.g., App., infra, 25a n.13, and the court of appeals, applying strict scrutiny, found it facially invalid. But even applying strict scrutiny, many of the applications of Section 48 are clearly valid.

As discussed above, see pp. 14-16, supra, the govern ment has three central interests that support Section 48. First, the law serves to reinforce the prohibitions against animal cruelty in all 50 States and in federal law by removing a financial incentive to engage in that egregious and illegal conduct. That interest in drying up the commercial market for the depraved depictions at issue is enhanced because of the difficulties of direct enforcement of animal cruelty laws. Second, the govern ment has an interest in preventing the additional crimi nal conduct that is associated with gruesome images of the torture and mutilation of animals. Third, the gov ernment has a moral interest in suppressing depictions that have no social value and that are created solely to depict suffering by animals. As the dissenters con cluded, those interests are compelling. App., infra, 38a- 45a (Cowen, J., dissenting). Section 48 is narrowly tai lored to further those interests in many, if not all, of its applications.3

For example, Section 48 is plainly constitutional as applied to respondent's videos and similar depictions of animal fighting. Congress has long prohibited ani mal-fighting ventures in interstate commerce, and it strengthened that prohibition in recent years in re sponse to growing societal concern about the specific problem of dogfighting. See pp. 23-24, infra. Dogfight ing is not only criminal in every State, see p. 24, infra, but it is a felony in all but two States, see Humane Soc'y C.A. Amicus Br. 7-8 & n.17 (citing state statutes); id. at 1 ("Dogfighting is one of the most violent and depraved acts that persists in our society.").

Those laws are powerful evidence of the importance of the government's interests in preventing dogfighting. See Ferber, 458 U.S. at 757-758. Those interests include preventing grotesque harms to the dogs before, during, and after fights; the interest in stopping the evils that often accompany live dogfights, such as gang activity, drug dealing, and gambling; avoiding the significant public safety risk posed by dogs that are trained to kill; and enforcing contemporary standards of decency. See pp. 14-16, supra; see also 1976 House Report 9 (conclud ing that "the practice of dog fighting, and the setting of one dog upon another or upon other animals as bait, etc, in the training of dogs for fighting [is] dehumanizing, abhorrent, and utterly without redeeming social value"); Humane Soc'y C.A. Amicus Br. 2-3 (explaining that "an imals forced to participate in dog fighting are tormented and brutalized for their entire lives" and "[d]ogs that don't show enough blood lust are routinely executed in sadistic ways such as drowning, hanging, or being set on fire"). Section 48's prohibition on the commercial trade in depictions of dogfights furthers those interests by deterring persons from participating in dogfighting en terprises.

Section 48 is narrowly tailored to serve the gov ernment's numerous compelling interests. Dogfighting rings are extremely difficult to detect and infiltrate; organizers typically keep the locations of fights secret until the last minute, screen potential spectators before admitting them to the event, and rarely use their real names. See James C. McKinley, Jr., Dogfighting Sub culture, Illegal and Secretive, Is Taking Hold in Texas, N.Y. Times, Dec. 7, 2008, at A29. As a result, it is diffi cult for law enforcement officials to prosecute directly those who train dogs for fights and participate in fights as handlers. See Humane Soc'y C.A. Amicus Br. 9-10. And drying up the market for videos of fights is an effec tive way to reach the underlying conduct, because dogfighting generates significant revenues from video tapes of fights. Dogfights are routinely videotaped to produce "training" videos for other handlers and to doc ument a dog's fights, because a dog that prevails in five fights generates greater revenues at live events. See id. at 10-11; see also App., infra, 55a n.26 (Cowen, J., dis senting). Targeting distributors of videos, rather than the persons portrayed in the videos, is necessary to stamp out animal cruelty, because it is often difficult to identify the persons or places depicted in the videos. See, e.g., App., infra, 54a (Cowen, J., dissenting) (noting that in the videos at issue here, respondent "purpose fully edited out the faces of the handlers involved in the fights occurring in the United States").

Section 48 is also plainly constitutional with respect to crush videos. The only appeal of such videos is to "persons with a very specific sexual fetish who find" the portrayal of pain and suffering "sexually arousing." 1999 House Report 2-3. As the dissenting judges in the court of appeals explained, such videos have little or no social value because their only possible appeal is "to those with a morbid fascination with suffering." App., infra, 48a (Cowen, J., dissenting). Moreover, the gov ernment has a surpassing interest in preventing the acts of animal cruelty necessary to create them. See pp. 14- 16, supra.

And Section 48 is narrowly tailored to further those compelling governmental interests. As the dissenting judges in the court of appeals explained, the "police struggle to prosecute those involved in crush videos be cause 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." App., infra, 53a (Cowen, J., dissenting); see 1999 House Report 3. A prohibition on the interstate trade in such videos is therefore a necessary supplement to the state and fed eral laws that prohibit the conduct depicted. 1999 House Report 3. And because crush videos are often "ma[d]e * * * to order, in whatever manner the cus tomer wished to see the animals tortured and killed," ibid., prohibiting the trade in such videos directly pre vents the underlying acts of animal cruelty.

3. In light of those examples of valid applications of Section 48, the statute could not be found invalid even if some hypothetical applications of the statute were con stitutionally vulnerable. See Hicks, 539 U.S. at 122 ("The overbreadth claimant bears the burden of demon strating, from the text of [the law] and from actual fact, that substantial overbreadth exists.") (internal quotation marks and citation omitted; alteration in original). Here, even if the court of appeals correctly identified some hypothetical situations that could be problematic, App., infra, 32a-33a n.16, that would not come close to satisfying respondent's burden to justify facial invalida tion. Because of the statute's exceptions clause for de pictions that have value, which requires the government to show an absence of value as an element of its proof, see note 1, supra, it is extremely unlikely that the stat ute reaches any materials where the interest in free ex pression outweighs the government's compelling inter ests furthered by Section 48, see App., infra. at 60a (Cowen, J., dissenting) (finding it difficult "to imagine the circumstances that would have to coalesce for such a video to come within the reaches of section 48, espe cially in light of its exceptions clause"). But even if there are any depictions that would raise constitutional concerns, the proper course is to assess those concerns "through case-by-case analysis of the fact situations" at issue. Broadrick, 413 U.S. at 615-616; see Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1621-1623 (2008); Ayotte v. Planned Parenthood, 546 U.S. 320, 328- 331 (2006). The court of appeals' decision to instead in validate Section 48 in all its applications was error.

III. THE QUESTION PRESENTED IS IMPORTANT

Section 48 is an important part of Congress's and the States' ongoing efforts to eradicate despicable acts of animal cruelty. All 50 States and the District of Colum bia have enacted prohibitions on animal cruelty. App., infra, 8a n.4 (citing statutes). Those prohibitions are deeply ingrained in our culture and laws: animal cruelty laws were first enacted in the United States during the colonial period, and every State had a law prohibiting animal cruelty by 1913. Id. at 39a (Cowen, J., dissent ing). The first federal animal cruelty law was enacted in 1873,4 and Congress has repeatedly acted to prohibit the mistreatment of animals.5 Dogfighting, the specific con duct at issue here, is illegal in all 50 States and the Dis trict of Columbia, see Humane Soc'y C.A. Amicus Br. 7-8 & n.17 (citing statutes), and has been prohibited by fed eral law since 1976.6 In 2007 and 2008, Congress twice strengthened the penalties for persons who engage in animal-fighting ventures such as dogfighting.7

Congress passed Section 48 in order to supplement the States' efforts to eradicate animal cruelty. See 1999 House Report 3. By barring trade in depictions of ani mal cruelty, Congress sought to deter the underlying crimes, which Congress and the States had already con cluded have no place in a civilized society. See id. at 3-4; Punishing Depictions of Animal Cruelty and the Fed eral Prisoner Health Care Co-Payment Act of 1999: Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 106th Cong., 1st Sess. 6 (1999) (statement of Rep. Scott).

Congress chose to prohibit trade in depictions of ani mal cruelty in order to overcome the barriers to enforce ment of state and federal anti-cruelty laws, such as diffi culties in identifying the perpetrators and locations of acts of animal cruelty. See 1999 House Report 3 ("The statute is intended to augment * * * State animal cru elty laws by addressing behavior that may be outside the jurisdiction of the States, as a matter of law, and ap pears often beyond the reach of their law enforcement officials, as a practical matter."); see also Ferber, 458 U.S. at 759-760 (Congress may target the "visible appa ratus of distribution" in order to stop abuse that is "dif ficult, if not impossible, to halt" solely through laws pro hibiting abuse). And, at a minimum, Congress's choice was reasonable in light of the growing demand for such depictions and the fact that the depictions are "almost exclusively distributed for sale through interstate or foreign commerce." 1999 House Report 3.

Because the court of appeals' decision nullifies an important Act of Congress designed to assist the States in addressing the serious nationwide problem of animal cruelty, review by this Court is warranted.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
MATTHEW E. FRIEDRICH
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
VICKI S. MARANI
Attorney

 

DECEMBER 2009

1 The exceptions clause designates an element of the Section 48 offense, rather than an affirmative defense, so that the statute does not "impose on the defendant the burden of proving his speech is not unlawful." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002). The government took that view at respondent's trial and established the videos' lack of serious value in its case in chief. See C.A. App. 131 n.4, 649-650. To the extent the exceptions clause is ambiguous, it should be interpreted as an element of a Section 48 offense in order to avoid the serious constitutional questions that might otherwise arise. See App., infra, 72a-73a; see, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (constitutional avoidance canon).

2 The court of appeals also incorrectly believed that Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), holds that preventing cruelty to animals is not a compelling interest. See App., infra, 15a-16a. The Lukumi Court did not hold that the city's interest in preventing animal cruelty can never be compelling; rather, it faulted the city for "restrict[ing] only conduct protected by the First Amendment" rather than enacting a generally applicable animal cruelty law. 508 U.S. at 546-547; see id. at 580 (Blackmun, J., concurring in the judgment).

3 In Free Speech Coalition, this Court stated that "[t]he prospect of crime * * * does not justify laws suppressing protected speech," 535 U.S. at 245, but that principle is not applicable here because Section 48 does not cover depictions that raise the mere "prospect" of a future crime; an illegal act of animal abuse is an essential prerequisite under the statute. 18 U.S.C. 48(c)(1); see pp. 13, 17, supra. The Court's state ment that "speech may not be prohibited because it concerns subjects offending our sensibilities," 535 U.S. at 245, likewise does not call Sec tion 48 into question, because the statute does not regulate the depic tions simply because they are offensive. Instead, the statute regulates the depictions because of deep-seated values of our culture and the additional harms to animals and harms to humans that follow from them.

4 See Act of Mar. 3, 1873, ch. 252, 17 Stat. 584 (codified as amended at 49 U.S.C. 80502) (animals being transported may not be confined formore than 28 consecutive hours without unloading for feeding, water, and rest).

5 See, e.g., 7 U.S.C. 1901, 1902 (ensuring humane methods for slaugh tering of livestock); 7 U.S.C. 2131 (ensuring humane handling of ani mals for sale in interstate commerce and for use at government research facilities); 7 U.S.C. 2142 (ensuring humane treatment of ani mals for purchase and sale at auction); 7 U.S.C. 2156 (prohibiting animal-fighting ventures); 7 U.S.C. 2158 (protecting pets in pounds and shelters); 15 U.S.C. 1821 et seq. (preventing cruel and inhumane practice of "soring" horses); 16 U.S.C. 1331 et seq. (protecting free- roaming horses and burros from capture, branding, mistreatment, and death).

6 See Animal Welfare Act Amendments of 1976, Pub. L. No. 94-279, § 17, 90 Stat. 421 (codified at 7 U.S.C. 2156) (prohibiting animal- fighting ventures in interstate commerce).

7 See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, § 14207, 122 Stat. 2223; Animal Fighting Prohibition Enforce ment Act of 2007, Pub. L. No. 110-22, 121 Stat. 88.

APPENDIX A UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 05-2497 UNITED STATES OF AMERICA v. ROBERT J. STEVENS, APPELLANT Argued: Oct. 25, 2006 Argued En Banc: Nov. 13, 2007 Filed: July 18, 2008 Before: SCIRICA, Chief Judge, SLOVITER, MCKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN and COWEN, Circuit Judges. OPINION SMITH, Circuit Judge. The Supreme Court has not recognized a new cate gory of speech that is unprotected by the First Amend ment in over 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' conviction.2 For the reasons that follow, we decline the Govern ment's invitation. Moreover, because we agree with Stevens that 18 U.S.C. § 48 is an unconstitutional in fringement 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. The indictment arose out of an investigation by fed eral 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 Jour nal, 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 in volved 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 per form 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 introduc tions, 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 exe cuted 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 indictment charging Stev ens with three counts of knowingly selling depictions of animal cruelty with the intention of placing those de pictions 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 repre sents 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 know ingly 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. (b) Exception.-Subsection (a) does not apply to any depiction that has serious religious, political, scien tific, 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 posses sion takes place, regardless of whether the maim ing, 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 Common wealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Nor thern Mariana Islands, and any other common wealth, 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 stat ute, but rather to demonstrate the statute's breadth as written compared to what may originally have been in tended. 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 "wom en 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, indi cates 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 ma terial 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." 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 with in the time specified in the State statute of limita tions. Id. The sponsor of the Bill in the House of Representa tives, Rep. Elton Gallegly, emphasized that the purpose of the legislation was to target crush videos. These vid eos 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 becom ing desensitized to animal violence generally, because that may serve to deter future antisocial behavior to ward 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 stat ute." Id. at 4. III. The Government does not allege that Stevens partici pated in the interstate transport of "crush videos." Nor does the Government allege that the videos Stevens sold contained prurient material. The Government also con cedes 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 speech. We proceed in two parts. First, we show how § 48 regu lates 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 condem nation 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 the ac- tual conduct that offends the sensibilities of most citi zens. 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 cru elty. That regulating a depiction has First Amendment implications is obvious. We begin, then, with the Govern ment's contention that the depictions of animal cruelty restricted by 18 U.S.C. § 48 qualify as categorically un protected 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 unpro tected. See New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) (holding that child por nography depicting actual children is not protected speech); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (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, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), threats, Watts v. Uni ted States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), speech that imminently incites illegal activity, Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), and obscenity, Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (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 in this case does not fall under one of the tradition ally unprotected classes. The Government argues, how ever, 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 Gov ernment attempts to analogize between the depiction of animal cruelty and the depiction of child pornography.6 That 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 chil dren under the age of 16 by distributing material that depicted such performances. Ferber, 458 U.S. at 747, 102 S. Ct. 3348. The case arose when Paul Ferber, the owner of a Manhattan bookstore specializing in sexual ly oriented products, sold to undercover officers two films that were "devoted almost exclusively to depicting young boys masturbating." Id. at 751-52, 102 S. Ct. 3348. A jury convicted Ferber of disseminating child pornography, in violation of a statute that did not re quire proof that such materials were obscene. Id. at 752, 102 S. Ct. 3348. The New York Court of Appeals re versed, holding that the statute at issue violated the First Amendment because it "could not be construed to include an obscenity standard, and therefore would pro hibit the promotion of materials traditionally entitled to protection under the First Amendment." Id. at 747, 102 S. Ct. 3348. The Supreme Court in turn reversed the New York Court of Appeals, holding that the statute was constitu tional because child pornography, whether obscene or not, is unprotected by the First Amendment. Id. at 756, 102 S. Ct. 3348. 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 "safe guarding the physical and psychological well- being of a minor." Id. at 756-57, 102 S. Ct. 3348 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (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 circula tion. Second, the distribution network for child pornography must be closed" in order to control the production of child pornography. Id. at 759, 102 S. Ct. 3348 (citations omitted). The Court ex plained that the production of child pornography is a "low-profile, clandestine industry" and that the "most expeditious if not the only practical method of law enforcement may be to dry up the market for this material" by punishing its use. Id. at 760, 102 S. Ct. 3348. 3. "The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production" of child pornog raphy. Id. at 761, 102 S. Ct. 3348. 4. The possibility that there would be any material of value that would be prohibited under the cate gory of child pornography is "exceedingly mod est, if not de minimis." Id. at 762, 102 S. Ct. 3348. 5. Banning full categories of speech is an accepted approach in First Amendment law and is there fore appropriate in this instance. Id. at 763-64, 102 S. Ct. 3348. 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, 122 S. Ct. 1389 (fo cusing on factor number two in striking down part of an anti-child pornography federal statute that criminalized pornographic images made with virtual (computer-gen erated) children or adults dressed to look like children). 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 legisla tive enactments"). Part of what locates child pornogra phy 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 pornogra phy 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 Su preme Court has accepted the idea that we can constitu tionally criminalize the depiction of a crime." Id. at 970, 984; see Osborne v. Ohio, 495 U.S. 103, 144 n.18, 110 S. Ct. 1691, 109 L. Ed. 2d 98 (1990) (Brennan, J., dis senting). Child pornography contrasts with other cate gories of unprotected speech that share a much closer nexus between speech and an unlawful action that proxi mately results from the unprotected speech. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (addressing speech that imminently incites illegal activity). For these reasons, we are unwil ling to extend the rationale of Ferber beyond the regula tion of child pornography without express direction from the Supreme Court. Even assuming that Ferber may, in limited circum stances 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 impor tant 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 "pre venting cruelty to animals" rises to a compelling govern ment 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 com pelling. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (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 government interest. Id. at 546-47, 113 S. Ct. 2217. The Government contends that Lukumi is inapplicable to a compelling government in terest 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 or dinances 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 pro tect 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 Luk umi 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 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 in terest 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 un protected speech categories, it is difficult to see how § 48 serves a compelling interest that represents "a govern ment objective of surpassing importance." Ferber, 458 U.S. at 757, 102 S. Ct. 3348. The Supreme Court has suggested that a state inter est 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, 115 S. Ct. 2440, 132 L. Ed. 2d 650 (1995) ("compliance with the Establish ment 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, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001) ("We have said that a state interest in avoiding an Establish ment Clause violation 'may be characterized as compel ling,' and therefore may justify content-based discrimi nation. However, it is not clear whether a State's inter est in avoiding an Establishment Clause violation would justify viewpoint discrimination.") (citations omitted). The Government also "has a compelling interest in en suring that 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, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991). But see McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 348-49, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995); Boos v. Barry, 485 U.S. 312, 322-25, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988); Ark. Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230-32, 107 S. Ct. 1722, 95 L. Ed. 2d 209 (1987). Similarly important human interests are at issue in con stitutionally 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 safeguard ing 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, 102 S. Ct. 3348 (quotations and cita tions omitted); see also Ashcroft v. Free Speech Coali tion, 535 U.S. at 244, 122 S. Ct. 1389 ("The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people."); Eugene Vol okh, 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 position, because the statute does not regulate the un derlying 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 un der the age of 16, 458 U.S. at 749, 102 S. Ct. 3348, the Supreme Court went to great lengths to cabin its discus sion of the depiction/act conflation because of the special role that children play in our society.7 Preventing cru- elty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magni tude as protecting children from physical and psycholog ical harm. 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 Govern ment states that "all fifty states have enacted laws which criminalize the infliction of cruelty on animals. This in cludes 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 un derlying conduct that is already illegal under state laws. Rather, it regulates only the depiction of the conduct. In order to serve the purported compelling govern ment interest of preventing animal cruelty, the regula tion of these depictions must somehow aid in the preven tion of cruelty to animals. With this depiction/act dis tinction in mind, it seems appropriate to recast the com pelling government interest as "preventing cruelty to animals that state and federal statutes directly regulat ing animal cruelty under-enforce." See Ashcroft v. ACLU, 542 U.S. 656, 683, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004) (Breyer, J., dissenting) (noting that "the question here is whether the Act, given its restrictions . . . , significantly advances that [compelling] inter est"). 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 Report approvingly cited witnesses who testified to this effect.8 Consistent with these findings, the Government states that "as a practi cal 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 evalu ating § 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 antiso cial behavior by discouraging individuals from becoming desensitized to animal violence. As support for its posi tion, the Government approvingly cited the House Com mittee 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 re search which suggests that humans who kill or abuse others often do so as the culmination of a long pat tern of abuse, which often begins with the 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 engag ing 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 de sensitization. This reasoning is insufficient to override First Amendment protections for content-based speech re strictions. 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 up on some unquantified potential for subsequent criminal acts." Ashcroft v. Free Speech Coalition, 535 U.S. at 250, 122 S. Ct. 1389 (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, 122 S. Ct. 1389. The Supreme Court cannot speak more clearly than it has on this issue: "The prospect of crime . . . by itself does not justify laws suppressing protected speech." Id. at 245, 122 S. Ct. 1389. 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, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (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, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989)); United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 826, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (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, 102 S. Ct. 3348, 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 chil dren 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 chil dren can be harmed simply by knowing that their im ages are available or by seeing the images themselves, animals are not capable of such awareness. Put differ ently, 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, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001); see also Ashcroft v. Free Speech Coalition, 535 U.S. at 250- 51, 122 S. Ct. 1389 (apparently questioning the inde pendent value of Ferber's drying-up-the-market ratio nale); Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situa tion-Altering Utterances," and the Uncharged Zones, 90 Cornell L. Rev. 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 pro tections. Restriction of the depiction of almost any ac tivity can work to dry up, or at least restrain, the activ ity's market. 4. Fourth Ferber Factor The fourth Ferber factor is that the value of the pro hibited speech is "exceedingly modest, if not de mini mis."11 458 U.S. at 762, 102 S. Ct. 3348; see also Chap linsky, 315 U.S. at 572, 62 S. Ct. 766. The Government finds support for the low value of the speech restricted by the Act by pointing to the exceptions clause of 18 U.S.C. § 48(b). Section (b) states that the Act "does not apply to any depiction that has serious religious, politi cal, scientific, educational, journalistic, historical, or ar tistic 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 ani mal cruelty for prurient purposes in so-called crush vid eos.13 The exceptions clause cannot on its own constitution alize § 48. The exceptions clause in this case is a varia tion 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, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); see also Ashcroft v. Free Speech Coalition, 535 U.S. at 246-47, 122 S. Ct. 1389. 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 of fensiveness 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 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 or der for it to fall under the First Amendment umbrella. What this view overlooks is the great spectrum be tween 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 an alogy to Ferber fails because of the inherent differences between children and animals. Those profound differ ences 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 height ened form of scrutiny.14 A content-based restriction on speech is "presumed invalid," and the Government bears the burden of showing its constitutionality. Ashcroft v. ACLU, 542 U.S. 656, 660, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (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, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) ("It is axiomatic that the government may not regulate speech based on its sub stantive content or the message it conveys."); Adam Winkler, Fatal in Theory and Strict in Fact: An Em pirical 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 gov ernment interest, is not narrowly tailored to achieve such an interest, and does not provide the least restric tive means to achieve that interest. See Sable Commc'ns of Calif., Inc. v. F.C.C., 492 U.S. 115, 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989). We have already shown why § 48 does not serve a compelling government interest, thus failing strict scru tiny. 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 restric tions 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 pre viously, 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 govern ment interest when Congress does not have the constitu tional power to regulate an area that has traditionally been governed by state statutes. When federalism con cerns arise, the "least restrictive means" analysis neces sarily informs the "compelling government interest" analysis. The stated governmental interest in 18 U.S.C. § 48 is to "prevent cruelty to animals." Taking federal ism concerns into account, the interest stated in this manner is too broad. Absent demonstration of the req uisite impact on commerce which is absent on this re cord, Congress does not have the constitutional author ity 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 com pelling government interest should be redefined as "pre venting cruelty to animals that state and federal stat utes 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 en forcement 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, 124 S. Ct. 2783, 159 L. Ed. 2d 690 (2004); Playboy Entm't Group, 529 U.S. at 816, 120 S. Ct. 1878; Sable Commc'ns of Calif., Inc., 492 U.S. at 126-31, 109 S. Ct. 2829; R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 395-96, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); Volokh, Freedom of Speech, supra, at 2421-23. Accepting for a moment that the Govern ment's interest is "preventing cruelty to animals," then § 48 is not narrowly tailored. First, with respect to the reach of the Commerce Clause, § 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 Vir ginia 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 govern ment interest served by § 48 is to prevent animal cru elty, 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 possess ing a depiction in Virginia made in the Northern Mari ana 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 pre vent 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, 112 S. Ct. 501. Third, the second Ferber factor implicitly addressed the fit between regulating the depiction of a behavior with preventing that behavior. Specifically, the Su preme Court stated that "the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of chil dren is to be effectively controlled." Ferber, 458 U.S. at 759, 102 S. Ct. 3348. 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 less er degree, and the arguments by the Government in sup port of this analogy fall flat.15 The Government first as serts 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 un derlying 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 on screen is the "actress," and only her legs or feet are typ ically 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. As to dog fighting, the Government argues that the camera typically focuses on the dogs, with their "han dlers" 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 in dividuals 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 ban ning depictions of animal cruelty is a necessary or even particularly effective means of prosecuting the underly ing acts of animal cruelty. Much less is it the "most ex peditious" or the "only practical method" of prosecuting such acts, as is the case within the realm of child pornog raphy and child sexual abuse. Ferber, 458 U.S. at 760, 102 S. Ct. 3348. For these reasons, § 48 is not narrowly tailored using the least restrictive means. IV. "When the Government restricts speech, the Govern ment bears the burden of proving the constitutionality of its actions." Playboy Entm't Group, 529 U.S. at 816, 120 S. Ct. 1878. The Government has not met this bur den. Therefore, we will strike down 18 U.S.C. § 48 as constitutionally infirm because it constitutes an imper missible infringement on free speech. In light of this conclusion, we will vacate Robert Stevens' conviction.16 COWEN, Circuit Judge, dissenting with whom FUENTES and FISHER, Circuit Judges join. 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 stat ute targeting the distribution and trafficking of depic tions 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 prohib ited by 18 U.S.C. § 48 to be of such minimal socially re deeming value that its restriction may be affected con sistent with the First Amendment, we respectfully dis sent. I. In the seminal case Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), the Su preme 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 in clude the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well ob served 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, 62 S. Ct. 766 (footnotes omitted) (emphasis added). It is undisputed that the speech at issue in this case does not fit within one of the traditionally unpro tected17 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, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) did just this, when it recognized child por nography as an additional category of unprotected speech. The Supreme Court has provided us with two bea cons to guide our inquiry into whether depictions of ani mal cruelty should be recognized as beyond the reach of the First Amendment. First, the Supreme Court has consistently reaffirmed that the Government may, con sistent 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 com pelling interest in its regulation. See, e.g., Virginia v. Black, 538 U.S. 343, 358-59, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (citing Chaplinsky, 315 U.S. at 571-72, 62 S. Ct. 766); R.A.V. v. City of St. Paul, 505 U.S. 377, 382- 83, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (quoting Chaplinsky, 315 U.S. at 572, 62 S. Ct. 766).18 Second, in Ferber, the Court articulated four critical considerations demonstrating the inextricable connection necessary be tween 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 prece dents, 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, 62 S. Ct. 766. 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 con fines 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 adjudica tion is required." 458 U.S. at 763-64, 102 S. Ct. 3348; R.A.V., 505 U.S. at 382-83, 112 S. Ct. 2538 ("From 1791 to the present, [] our society, like other free but civilized societies, has permitted 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, 102 S. Ct. 3348 (Brennan, J., concurring). These state ments establish the constitutional floor: for speech to be unprotected, at a bare minimum, its value must be plainly outweighed by the Government's asserted inter est. 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 impor tance of this interest is readily apparent from the expan sive 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 ex isted 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 exer cise any Tirranny or Crueltie towards any bruite Crea ture 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 1970). In 1828, the first modern ani mal 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 evi dences of the justice and benevolence of men." Stephens v. State, 65 Miss. 329, 3 So. 458, 458 (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 hu mane societies to directly enforce anti-cruelty laws fur ther 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 preven tion 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."). Congress has also regularly enacted laws that pro tect 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" sor ing20 of horses, 15 U.S.C. §§ 1821-1831; protect free- roaming horses and burros from capture, branding, ha rassment, and death, 16 U.S.C. §§ 1331-1340; help con serve 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 solici tude for animal welfare. This interest is now so interwo ven 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 aspirant abuser, and the public in general. It cannot be insignificant, as even the majority acknowledges, see Majority Op., supra at 223 n.4, that the conduct underly ing the depictions at hand is subject to criminal penal ties 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 stan dards 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 Su preme 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, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) ("There can be little doubt . . . that the State has a compelling in terest 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, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) (discussing various state laws pro hibiting public accommodation discrimination as evi dence of government's compelling interest in ensuring equal access); Ferber, 458 U.S. at 758, 102 S. Ct. 3348 ("We shall not second-guess [the] legislative judgment [that preventing child exploitation and abuse is a com pelling 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, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) (concluding obscenity is "utterly without redeeming social importance" based on "the universal judgment that obscenity should be re strained, [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 Con gress from 1842 to 1956") (internal footnotes omitted). Less obvious, but no less important, cruelty to ani mals 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 conten tion implicitly. See Broadway v. Am. Soc'y for the Pre vention 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 fre quent exhibitions of cruelty to dumb creatures, commit ted to the care and which were created for the beneficial use of man."); Commonwealth v. Turner, 145 Mass. 296, 14 N.E. 130, 132 (1887) ("The offense is against the pub lic morals, which the commission of cruel and barbarous acts tends to corrupt."); Waters v. People, 23 Colo. 33, 46 P. 112, 113 (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 cul mination of a long pattern of abuse, which often begins 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 psy chological 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 Su preme Court in no way suggested to the contrary in Church of the Lukumi Babalu Aye, Incorporated v. City of Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). In Lukumi, a church practicing the Santeria faith challenged city ordinances that prohibited its ritual slaughter of animals. Id. at 525-28, 113 S. Ct. 2217. Al though 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 sufficiently paramount interest to be deemed compelling; rather, the Court found that the ordinances were so riddled with exceptions exempting all other kill ings except those practiced by Santeria adherents be trayed that the real rationale behind the prohibitions was an unconstitutional suppression of religion. See, e.g., id. at 536, 113 S. Ct. 2217 (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, 113 S. Ct. 2217 (legislative his tory "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 characteriza tion 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 re flect this Court's views of the strength of a State's in terest 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. Id. at 580, 113 S. Ct. 2217 (Blackmun, J., concurring) (emphasis added). Thus, Lukumi does not contradict our conclusion that preventing animal cruelty is a com pelling interest.21 Furthermore, insofar as we understand the majority to suggest that Congress cannot have a compelling in terest to advance a goal when the subject of the regula tion is not directly within its constitutional sphere of legislative authority, we must disagree with this novel proposition. A congressional act may certainly signifi cantly advance a governmental interest of paramount significance, whether or not it does so directly. For ex ample, Congress has sought to protect children from physical 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 crim inalized child abuse and drug distribution in no way rele gates 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, pur suant 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 Uni ted States v. Salerno, 481 U.S. 739, 748-50, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987) (upholding the Bail Reform Act based on the federal government's compelling inter est in public safety, citing to cases establishing the indi vidual 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 sec tion 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 pos ited goals. Nor do we find that section 48 is sufficiently under- inclusive as to undercut the Government's claim of the significance of its interest. Cf. The Florida Star v. B.J.F., 491 U.S. 524, 541-42, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989) (Scalia, J., concurring) ("a law cannot be regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable damage to that suppos edly vital interest unprohibited"). Where the allegedly ignored evils are at the fringes of Congress's legislative authority, that section 48 does not criminalize the per sonal 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 at tention 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 ex clusively distributed for sale through interstate or for eign commerce." H.R. Rep. No. 106-397, at 3 (summar izing witness testimony on nature of commercial market for depictions of animal cruelty). We thus find no under- inclusion in section 48 sufficient to cast doubt on the Gov ernment's asserted interest here. Cf. Lukumi, 508 U.S. at 543, 113 S. Ct. 2217 (invalidating ordinances upon finding "[t]he underinclusion [] substantial, not inconse quential" 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 occa sioned by religious sacrifice").23 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 guar anteed 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, 102 S. Ct. 3348. Nor do we see any rea son why, if some serious work were to demand a depic tion of animal cruelty, either the cruelty or the animal could not be simulated. See id. at 763, 102 S. Ct. 3348. Here, we have little trouble concluding that the depic tions outlawed by section 48, by and large, can only have value to those with a 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 rea sonable 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 pro tected speech merely by limiting its regulation to a sub set 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, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). Like in the case of obscenity, the relevant analytical starting point here is with the legislative judg ment 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, journalis tic, 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. California frame work, 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 restric tion of protected speech; rather, it merely establishes the outer bounds for the permissible regulation of a cat egory 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 bene fit that may be derived from them is clearly outweighed by the social interest in order and morality." Chap linsky, 315 U.S. at 572, 62 S. Ct. 766. The speech out lawed by the statute at issue shares the salient charac teristics of the other recognized categories of unpro tected 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. We read Ferber, at its core, to stand for the narrow proposition that a category of speech may be consti tutionally restricted where it depicts-and thus neces sarily requires-the intentional infliction of physical harm on a class of especially vulnerable victims in viola tion of law, where the distribution of such depictions spurs their production but laws prohibiting the under lying acts are woefully under-enforced, and where the speech's social value is so de minimus as to be out weighed by the important governmental goal of protect ing the victims. We find that the depictions of animal cruelty proscribed by section 48 possesses these essen tial attributes.24 In Ferber, the Supreme Court justified the prohibi tion of child pornography based on four grounds: (1) "a State's interest in safeguarding the physical and psycho logical well-being of a minor is compelling," Ferber, 458 U.S. at 756-57, 102 S. Ct. 3348 (internal quotation marks omitted); (2) "[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically re lated to the sexual abuse of children," id. at 759, 102 S. Ct. 3348; (3) "[t]he advertising and selling of child por nography provide an economic motive for and are thus an integral part of the production of [child pornogra phy]," id. at 761, 102 S. Ct. 3348; and (4) "[t]he value of permitting live performances and photographic repro ductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis," id. at 762, 102 S. Ct. 3348. 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 in terest in protecting minors as compelling. Id. at 756-57, 102 S. Ct. 3348. As discussed at length above, we find preventing animal cruelty to also be a governmental in terest of the most paramount importance. See supra section I.a.1. Second, the Supreme Court explained that child por nography 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, 102 S. Ct. 3348. First, child pornography materials create a lasting record of the child abuse, and as the materials are distributed, the harm to the child is exacerbated, id., and second, because of the daunting obstacles in prosecuting the "low-profile, clandestine industry" responsible for the production of child pornog raphy, targeting the more-visible distribution network was "the most expeditious if not the only practical method" of ensuring enforcement, id. at 760, 102 S. Ct. 3348. 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 pro scription premised on society's disapproval of the views underlying the depictions. Cf. Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (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 sub sequent criminal acts" purportedly flowing from the prohibited depictions, 535 U.S. 234, 250, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), but arises directly and neces sarily from the creation of the depictions itself. In Ferber, the Supreme Court found an inextricable connection between child pornography and the underly ing abuse based in part on its observation that the por nography's deleterious and stigmatizing effects tran scend the single instance of abuse depicted. 458 U.S. at 759 n.10, 102 S. Ct. 3348. 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 exe cuted. See generally Brief for the Humane Society of the United States as Amicus Curiae, at 2-3 (citing vari ous 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 ani mals involved. See H.R. Rep. No. 106-397, at 2 (describ ing 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 specifi cally for the purpose or maddened by drugs and abuse are set upon one another and required to fight, usually to the death of at least one and frequently both ani mals."). Thus, while animals may not suffer psychologi cal 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 intrinsi cally 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 en forcement. See App. at 476-77 (expert witness describ ing 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, 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 in volved in the fights occurring in the United States.25 Therefore, we must disagree with the majority's charac terization 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 neces sitated a focus on the more-visible distribution network in Ferber are present in this case. Accordingly, we con clude 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 tar geted since they "provide an economic motive for and are thus an integral part of the production of such mate rials." 458 U.S. at 761, 102 S. Ct. 3348. 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 pro hibiting the production of child pornography, the Ferber Court concluded that these considerations counseled towards permitting regulation of the pornographic ma terials. Id. at 762, 102 S. Ct. 3348. These factors are self-evidently present in the in stant case. As discussed, substantial obstacles exist in effectively detecting and prosecuting those directly in volved in the creation of animal cruelty depictions. Fur thermore, 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) (not ing that there are over 2,000 crush-video titles available in the marketplace, priced from $15 to $300); App. at 447-49 (witness explaining that the Sporting Dog Jour nal reports results of illegal dogfights and runs adver tisements 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 driv ing the production of depictions of animals being tor tured or killed is perhaps the critical consideration that distinguishes the speech at issue here from ordinary depictions of criminal activities. A decision here allow ing prohibition of the distribution of depictions of animal abuse will no more threaten the examples of speech pos ited by Stevens-crime scene photographs and surveil lance 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 photo graphs, for instance, are eminently useful to police offi cers. Furthermore, most critically, no commercial mar ket exists for depictions of run-of-the-mill criminal activ ities so as to incentivize the commission of the underly ing illegal acts; there thus is little danger that individu als will be directly motivated to physically harm others in order to create depictions of the same solely in hopes of commercial 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, 102 S. Ct. 3348. 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, 102 S. Ct. 3348. While we have already articulated our reasons for concluding that depictions of animal cru elty 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 essen tial 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 ani mal cruelty are intrinsically related to the underlying animal cruelty, the market for videos of animal cruelty incentivizes the commission of acts of animal cruelty, and such depictions are of de minimis value. In reach ing 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 com mitted 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 "pos sibility 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, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Overbreadth is fundamen tally 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 regulated. United States v. Williams, ___ U.S. ___, 128 S. Ct. 1830, 1838, 170 L. Ed. 2d 650 (2008). Resort to this doctrine is "strong medicine that is not to be casually employed." Id. (quoting Los Angeles Police Dep't. v. United Report ing Publishing Corp., 528 U.S. 32, 39, 120 S. Ct. 483, 145 L. Ed. 2d 451 (1999)) (internal quotations omitted). As the Supreme Court recently emphasized: "In or der to maintain an appropriate balance, we have vigor ously enforced the requirement that a statute's over breadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Id. (emphasis in original). Courts should inval idate a statute on overbreadth grounds only when the law "reaches a substantial number of impermissible ap plications," Ferber, 458 U.S. at 772, 102 S. Ct. 3348 (em phasis added). Thus, "[t]he mere fact that one can con ceive 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 Mem bers of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)). Rather, "there must be a realistic danger that the statute itself will significantly compromise recog nized 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, 104 S. Ct. 2118. There is no such substantial overbreadth here. 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 vid eos that were produced in the United States before dog fighting 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 materi als produced outside the State," 458 U.S. at 765-66, 102 S. Ct. 3348, because "the maintenance of the market it self 'leaves open the financial conduit by which the pro duction of such material is funded and materially in creases the risk that [local] children will be injured,'" id. at 766 n.19, 102 S. Ct. 3348 (quoting People v. Ferber, 52 N.Y. 2d 674, 439 N.Y.S. 2d 863, 422 N.E. 2d 523, 531 (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 cru elty 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 Govern ment may legitimately endeavor to quash the entire in dustry in all its manifestations. Furthermore, because the difficulty in determining where or when the underly ing acts of animal cruelty occurred was part of Con gress's motivation for enacting section 48 in the first place, see H.R. Rep. No. 106-397, at 2, excepting depic tions that occurred at a time or in a place where the con duct was not illegal would essentially gut 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 fore closed by Ferber, where the Court ruled that it was per missible for the government to annihilate the child por nography market at all levels, which included penalizing distributors. 458 U.S. at 759-60, 102 S. Ct. 3348. Simi larly, 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 over broad 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 por nography-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 enforce ment, the Court nevertheless stated that as it was un aware of any prosecutions for such conduct under analo gous state statutes, there was simply no real threat that such activity would be deterred by the federal prohibi tion. 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 Amend ment, "the existence of that exception would not estab lish 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 de pictions. Id. at 1844 (quoting New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 11, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988)). Moreover, even if techni cal violations were to slip through the section 48(b) bul wark, 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, 102 S. Ct. 3348 (quoting Broadrick, 413 U.S. at 615-616, 93 S. Ct. 2908). Accordingly, section 48 is not substantially overbroad. III. Finally, Stevens contends that the statute is uncon stitutionally vague. A statute is void on vagueness grounds if it: (1) "fails to provide people of ordinary in telligence a reasonable opportunity to understand what conduct it prohibits"; or (2) "authorizes or even encour ages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). Section 48 is not unconstitutionally vague under either standard. Stevens's primary argument, that the statute is nec essarily 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 fre quently 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 chal lenges premised on incorporation grounds. See, e.g., United States v. Iverson, 162 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 con stitutional objection to a criminal statute that incorpo rates 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 dif ferently 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 re sult is that conduct that is lawful under the federal stat ute 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 Amend ment even though there is a lack of uniformity among the state laws upon which it depends"). Notwithstand ing Stevens's claims to the contrary, section 48 is not unconstitutionally vague. IV. To be sure, we are not insensitive to the concerns implicated when a federal court declares an entire cate gory of speech outside the purview of the First Amend ment. 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 devel oping 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 permis sion to do so. In the absence of a Supreme Court pro nouncement 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 ad vance 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 ani mals from 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 congressio nal act, and would therefore affirm Stevens's conviction. 6. APPENDIX B UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CRIMINAL ACTION NO. 04-51 UNITED STATES OF AMERICA, PLAINTIFF v. ROBERT J. STEVENS, DEFENDANT PROCEEDINGS Transcript of Suppression Hearing commencing on Wednesday, November 10, 2004, United States District Court, Pittsburgh, Pennsylvania, before Honorable Alan N. Bloch, District Judge. * * * * * The first motion deals with-the defendant moves to dismiss the indictment under the freedom of speech clause of the First Amendment and the due process clause of the Fifth Amendment of the United States Constitution. For the following reasons this motion is denied: Defendant has been charged on three counts of vio lating 18 USC Section 48. Each count charges the de fendant with knowingly selling a depiction of animal cru elty with the intention of placing said depiction in inter state commerce for commercial gain. Count 1 charges that he did so in regard to a video tape showing dog fights entitled "Pick-A-Winner." Count 2 charges that he did so in regard to a video tape showing dog fights entitled "Japan Pit Fights". Count 3 charges that he did so in regard to a video tape showing dog fighting and dogs attacking hogs enti tled "Catch Dogs". Defendant argues that the indictment should be dis missed based on various constitutional grounds. He first argues that the indictment should be dismissed on the basis that 18 USC Section 48 is invalid under the free dom of speech clause of the First Amendment. The court disagrees. The free speech clause of the First Amendment pro vides that, quote, "Congress shall make no law abridging the freedom of speech," unquote. However, the rights guaranteed by the free speech clause are not absolute. The United States Supreme Court has long recognized that certain categories of speech are not protected by the First Amendment. For instance, the Court has held that obscenity, child pornography, speech inciting imminent lawless activity, and fighting words are categories of speech not covered by the First Amendment. This Court finds that the speech regulated by Section 48 likewise falls under a category of speech not protected by the First Amend ment. In Chaplinsky versus State of New Hampshire at 315 U.S. 568, the Supreme Court indicated that speech not protected by the First Amendment is that speech that is, quote, "no essential part of any exposition of ideas, and that is 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." As Justice Brennan noted in his concurrence in New York versus Ferber, 458 U.S. 747, quote, "The limited classes of speech, the suppression of which does not raise serious First Amendment concerns, have two at tributes. They are exceedingly, quote, 'slight social val ue,' unquote, and the state has a compelling interest in their regulation." End of quote. Section 48 prohibits the creation, sale or possession of a depiction of animal cruelty. Section 48(c)(1) defines depiction of animal cruelty as: Any visual or auditory depiction, including any pho tograph, 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 fed eral 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. Section 48(b) provides that the statute does not apply to any depiction that has serious religious, political, sci entific, educational, journalistic, historical or artistic value. The speech prohibited by Section 48 has exceedingly little, if any, social value. It applies only to the depic tions of conduct that would itself be illegal in the state in which the creation, sale, or possession takes place. Moreover, it expressly applies only to depictions lacking serious religious, political, scientific, educational, journalistic, historical, or artistic value. It, therefore, only proscribes a limited range of speech depicting ille gal activity in a manner lacking virtually any social mer it. Indeed, the House Judiciary Committee stated that the statute has been narrowly drawn to proscribe only a limited class of material having little or no social util ity. See the House Report at page 106 through 397. Although Section 48 does not deal with obscenity, the Supreme Court's decision regarding obscenity demon strate the lack of value in the depictions of animal cru elty regulated by Section 48. The Supreme Court has held that obscenity is limited to works that do not have serious literary, artistic, political or scientific value. See Miller versus California, 413 U.S. 15. Section 48 similarly applies only to speech lacking serious religious, political, scientific, educational, jour nalistic, historical, or artistic value. In fact, Section 48 actually creates an even more exacting standard than the one in Miller. Therefore, Section 48, like obscenity laws found to be constitutional, applies only to a very narrow category of speech possessing exceedingly little, if any, social value. Moreover, if the government has a sufficiently com pelling interest in prohibiting the sale of depictions of sexual activity between consenting adults, it has an eq ual, if not greater interest in preventing the torture, maiming, mutilation and wanton killing of animals who have no ability to consent to such treatment. In contrast to the minimal social value of the prohib ited depictions, the government's interests in preventing the creation, sale, or possession of a depiction of animal cruelty are compelling. The government has a compel ling interest in insuring that animals, as living beings, be accorded certain minimal standards of treatment. This includes preventing conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed in violation of federal or state law. The government, likewise, has a compelling interest in preventing the disregard for living animals. This is evident in the fact that all fifty states have enacted stat utes outlawing criminal cruelty. See the House Report, pages 106 through 397. The government's interest includes prohibiting the depiction of illegal acts of animal cruelty lacking serious religious, political, scientific, educational, journalistic, historical, or artistic value. First, such depictions, which lack virtually any other redeeming social value, promote and perpetuate the acts of animal cruelty depicted. Since these depictions have no useful social value, they can reasonably be seen only as promoting the acts depicted in which living animals are tortured or treated cruelly. Second, as the House Judiciary Committee found, although all fifty states have laws prohibiting cruelty to animals, it can be difficult, as a practical matter, for states to enforce these laws. It is often difficult for states to establish the place and time of the conduct, making it difficult to establish jurisdiction. Moreover, it is often difficult to identify those in volved in the acts of cruelty. Section 48 was intended to augment state animal cruelty laws by regulating behav ior that may be beyond the jurisdiction of the states and to provide avenues for prosecuting animal cruelty opera tions by making it possible to prosecute those responsi ble for the distribution of depictions of animal cruelty. As in the Ferber case, it is in many cases necessary to close the distribution network for depictions of animal cruelty to control the underlying conduct itself. Third, it is well established that the government has a compelling interest in preventing a criminal from prof iting from his or her crime. See Simon & Schuster ver sus Members of the New York State Crime Victims Board, 502 U.S. 105. Likewise, the government has a compelling interest in preventing the profiting from the abuse of a living animal where the underlying conduct violates federal or state law and where the depiction has little or no redeeming social value. The defendant misperceives the nature of the govern ment's interests in this case. He argues that the govern ment does not have a compelling interest in prohibiting depictions or images of violence. However, the interest served by Section 48 is broader than that. Unlike cases in which the government's interest is merely to prevent the dissemination of violent images, here the government's interest is to prevent the under lying conduct. Contrary to the defendant's assertions that Section 48 applies to simulated or virtual depictions of animal cruelty, Section 48(c)(1) provides that the term, quote, "depiction of animal cruelty," unquote, in cludes only depictions in which a living animal is inten tionally maimed, mutilated, tortured, wounded, or killed. Therefore, only depictions involving cruelty to an actual living animal are covered by the statute. Indeed, the House Judiciary Committee made it clear that Section 48 was restricted to quote, "commer cial pandering of graphic depictions of the actual torture of a real animal." See the House Report, pages 106 through 397. Therefore, the government's interest is not the re striction of references to violence involving animals, but rather the prevention of the torture of actual animals. Violent depictions of animal cruelty are not proscribed by Section 48 if they have serious religious, political, scientific, educational, journalistic, historical, or artistic value. It is only those depictions with little or no value that can reasonably only be viewed as promoting or per petuating the actual torture being depicted that are cov ered by the statute. Likewise, the defendant's reliance on Church of the Lukumi Babalu Aye, Inc., versus the City of Hialeah, 508 U.S. 520, is misplaced. In that case, the Court held that ordinances prohibit ing animal sacrifice practices of the Santeria religion were invalid under the free exercise clause of the First Amendment. While, in that case, the Court found that the government had not established that its interest in enacting those ordinances, including its interest in pre venting animal cruelty, were compelling, the Court so found based on the context of the case. The ordinances, which addressed only a limited range of conduct towards animals, were so underinclusive as to preclude a finding of a compelling interest. The Court did not hold that the interests of preventing animal cruelty could not be com pelling interests in another context. Here, Section 48 attempts to broadly protect against the torture of living animals while narrowly affecting the right of free speech. Unlike the ordinances in Lukumi, it is not limited to a specific, narrow form of conduct towards animals. Section 48 is more akin to laws prohibiting the pos session and distribution of depictions of child pornogra phy, depictions which the Supreme Court held in Ferber to be without First Amendment protection. First, as in Ferber, the compelling interest at issue here, the prevention of the torture of animals, is evi denced by the fact that all fifty states have enacted laws prohibiting animal cruelty. Second, as in Ferber, the distribution of depictions of animal cruelty is intrinsically related to the underlying conduct. As discussed earlier, it is difficult to halt the torture of animals by pursuing only those involved in the torture itself. The most expeditious method of law en forcement may often be to prohibit the creation, sale, or possession of depictions of such conduct for profit. Third, the creation, sale, or possession of depictions of animal cruelty for profit provides an economic incen tive for such conduct. As the Court stated in Ferber, it rarely has been suggested that the constitutional free dom for speech and press extends its immunity to speech or writing used as an intrical [sic] part of conduct in violation of a valid criminal statute. Finally, as discussed earlier, as in Ferber, the value of the depictions proscribed by Section 48 is de minimis at best. Therefore, the Court finds that the social value of such depictions is so greatly outweighed by the gov ernment's interests as to place the depictions within the categories of speech which are not accorded First Amendment protection. Further, the Court disagrees with the defendant's argument that Section 48 is overbroad. A statute may be invalidated on its face as overbroad only if the overbreadth is real and substantial. See the Ferber case at page 770. The defendant argues that the statute is overbroad in a number of ways. First, he argues that Section 48 bans depictions in which no law was violated in its creation. However, Con gress determined that it is the law of the state in which the depiction is created, sold, or possessed that governs. The statute therefore covers only depictions that would be illegal in that state. Defendant next argues that Section 48 bans any de pictions of animal cruelty, including virtual or simulated performances of such conduct. As explained earlier, this is not a proper reading of the statute. It provides, on its face, that it applies only to depictions of torture of living animals, and this is further confirmed in the legislative history. Defendant further argues that any documentary, journalistic, scientific, educational, or entertainment work examining firsthand illegal acts of animal cruelty falls within the elements of the statute. Defendant's argument is based on his position that the limitation in Section 48(b) does not constitute an element of the of fense, but rather, constitutes an affirmative defense. The Court disagrees. Although there is some support in the legislative his tory for the argument that Section 48(b) is to be read to provide an affirmative defense, Section 48(b), on its face, does not indicate that it constitutes an affirmative de fense or that it is the defendant's burden to establish the depictions at issue have serious religious, political, sci entific, educational, journalistic, historical, or artistic value. The Court must, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a construction. See Ferber at page 769, note 24. Since Section 48(b) can be construed as providing that the burden of proving that depictions are without seri ous religious, political, scientific, educational journalis tic, historical, or artistic value is an element of the of fense that the government must prove, the Court will so construe the statute. Construing the limitation in Sec tion 48(b) as an element of the offense renders the defen dant's argument that Section 48 would criminalize docu mentary, journalistic, scientific, educational, or enter tainment work examining firsthand illegal acts of animal cruelty meritless. The defendant also argues that Section 48 is over broad because it is not limited to obscene material. As discussed, Section 48 does not purport to prohibit ob scenity. Moreover, the defendant argues that the depictions covered by the statute need not have anything to do with animal cruelty. He argues that the statute would cover illegal conduct under regulations of fishing and hunting, scientific study, euthanasia, agriculture production, branding and marking, authorized responses to danger ous animals, pest control, slaughtering, possessing and sanitation, and the use of animals in gaming and sport. However, defendant's argument ignores the fact that, to be covered, the depiction must show the inten tional maiming, mutilating, wounding, or killing of a liv ing animal. Moreover, it does not cover depictions with serious religious, political, scientific, educational, jour nalistic, historical, or artistic value. Further, the statute only covers depictions of con duct that itself is unlawful, whether it is unlawful under a statute specifically called an animal cruelty statute or other statute pertaining to the humane treatment of animals. In sum, there is no basis for finding that Section 48 is overbroad, let alone substantially overbroad. More over, to the extent that there is any overbreadth, this can be cured through case-by-case analysis of the fact situations to which the statute would apply. See Ferber at pages 773 and 774, as well as Broadrick versus Okla homa, 413 U.S. 601. Finally, the Court finds, contrary to the defendant's arguments, that Section 48 is not void for vagueness. To avoid a vagueness challenge, a statute must define the criminal offense with sufficient definiteness that ordi nary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. See Kolender versus Law son, 461 U.S. 352. Section 48 meets this standard. The defendant asserts that Section 48 is unconstitu tionally vague in three respects. First, he argues that the statute fails to specify whe ther depictions include only recordings or recorded im ages of actual deeds of cruelty to real animals or also virtual and simulated versions of the same conduct. For the reasons discussed earlier, the statute clearly applies only to depictions involving real, living animals. The defendant next argues that the statute is vague because it relies on other federal and state laws pertain ing to the killing, wounding, torture, or maiming of ani mals to define the conduct prohibited. Contrary to the defendant's argument, by expressly limiting the cover age of the statute to depictions of acts of cruelty already illegal under existing law, Section 48 makes it very clear what conduct is prohibited. Finally, the defendant argues that Section 48 is vague because it fails to define the term animal. While the defendant is correct that the term animal is defined in different ways in different statutes, there is no confu sion as to the term's meaning in this statute because Section 48 is limited to conduct already illegal under other laws. The term animal, therefore, is limited by its application in those other laws. The Court, therefore, finds that Section 48 defines the criminal offense with sufficient definiteness that or dinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Accordingly, the defendant's motion to dismiss the indictment is denied. APPENDIX C Section 48 of Title 18 of the United States Code pro vides: § 48. Depiction of animal cruelty (a) Creation, sale, or possession.-Whoever know ingly 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. (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 posses sion takes place, regardless of whether the maim ing, 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 Common wealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other com monwealth, territory, or possession of the United States. 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. ___, 128 S. Ct. 1830, 1841, 170 L. Ed. 2d 650 (2008) (citing Pittsburgh Press Co. v. Pittsburgh Comm'n on Hu man Relations, 413 U.S. 376, 388, 93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973); Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949)). The Court's application of that proposi tion 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. ___, 128 S. Ct. 1830, 1841, 170 L. Ed. 2d 650 (2008). For ex ample, the law has long recognized that the inclusion of a verbal or writ ten component as part of the commission of an inchoate crime, like con spiracy or attempt, does not immunize a defendant from prosecution. Giboney, 336 U.S. at 498, 69 S. Ct. 684 ("It rarely has been suggested that the constitutional freedom for speech and press extends its immu nity 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 Gov ernment seeks to exclude a new category of speech from First Amend ment protections, rather than target the offer or solicitation of mater ials already proscribable. 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 re view 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 suf ficiency of the evidence, the propriety of the jury instructions, and pos sible errors in the jury selection process. He also challenges the appro priateness 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 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 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). 5 We do not address the constitutionality of a hypothetical statute that would only regulate crush videos. While such a hypothetical sta tute 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, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). The Government reads Chap linsky to establish a simple balancing test to determine whether to recognize a class of speech as unworthy of First Amendment protec tion. The test weighs the government interest in restricting the speech against the value of the speech. See id. at 572, 62 S. Ct. 766. 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 catego ries recognized 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"). 7 See Ferber, 458 U.S. at 756-57, 102 S. Ct. 3348; id. at 758, 102 S. Ct. 3348 (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, 102 S. Ct. 3348 (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 ex posure to such material."); id. at 777-78, 102 S. Ct. 3348 (Stevens, J., concurring in the judgment) ("The character of the State's interest in protecting children from sexual abuse justifies the imposition of crim inal sanctions against those who profit, directly or indirectly, from the promotion of such films."). 8 As the House Committee Report stated: The witnesses testified that the faces of the women inflicting the tor ture 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 ac tivity be ascertained from the depiction. As a result, defendants ar rested 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 depic tions 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 implica tions of § 48, the House Committee Report made sure to state that "[t]he statute is intended to augment, not supplant, 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. 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, 102 S. Ct. 3348. 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 dog- fighting. The money generated by admission fees and gambling helps keep this 'sport' alive." The Humane Society of the United States Dog- fighting Fact Sheet, http://www.hsus.org/hsus_field/animal_fighting_the_final_round/dogfighting_fact_sheet/ (last visited May 9, 2008).ÉDocument1zzSDUNumber6åã As to the fifth Ferber factor, it is discussed throughout this opinion.åãÉÄåÉ 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 opportu nity 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 not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony convic tion, that his conduct falls within the affirmative defense." Ashcroft v. Free Speech Coalition, 535 U.S. at 255, 122 S. Ct. 1389. Viewing the ex ceptions 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.åã@ä Throughout this opinion we refer to speech as "unprotected" as a form of shorthand. We mean that "these areas of speech can, consis tently with the First Amendment, be regulated because of their consti tutionally proscribable content." R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (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, 112 S. Ct. 2538, using such shorthand does not raise constitutional concerns.åã 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 Chap linsky 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) (suggest ing 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 princi ple articulated there-that certain speech may be categorically unpro tected 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 prin ciple continues to be cited by the Supreme Court. See, e.g., Virginia v. Black, 538 U.S. 343, 358-59, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) 11 As to the fifth Ferber factor, it is discussed throughout this opinion. 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 Gov ernment must prove, beyond a reasonable doubt, that the speech con tains 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 opportu nity 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 not unlawful. An affirmative defense applies only after prosecution has begun, and the speaker must himself prove, on pain of a felony convic tion, that his conduct falls within the affirmative defense." Ashcroft v. Free Speech Coalition, 535 U.S. at 255, 122 S. Ct. 1389. Viewing the ex ceptions 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. 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 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, 120 S. Ct. 1878 ("It is rare that a regulation restricting speech be cause 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."). 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. 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 Coa lition, 535 U.S. at 255, 122 S. Ct. 1389. Even if we incorrectly as sume 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, 122 S. Ct. 1389 (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 Constitution gives sig nificant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere." Id. at 244, 122 S. Ct. 1389. The statute potentially covers a great deal of constitutionally pro tected 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, in cluding any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is in tentionally maimed, mutilated, tortured, wounded, or killed, if such con duct is illegal under Federal law or the law of the State in which the cre ation, sale, or possession takes place, regardless of whether the maim ing, 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 bull fighting 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 prosecu torial discretion for a statute that sweeps this widely. See Alan K. Chen, Statutory Speech 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 target ing 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 ori ginally narrow focus, the law [§ 48] was used in 2005 to successfully pro secute a Virginia man charged with selling and mailing videotapes of fighting pit bulls." Animal Cruelty Prosecution: Opportunities for Ear ly 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 prosecu tions. However, because voiding a statute on overbreadth grounds is "strong medicine" and should be used "sparingly and only as a last re sort," we are satisfied to rest our analysis on strict scrutiny grounds alone. See Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). 17 Throughout this opinion we refer to speech as "unprotected" as a form of shorthand. We mean that "these areas of speech can, consis tently with the First Amendment, be regulated because of their consti tutionally proscribable content." R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (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, 112 S. Ct. 2538, using such shorthand does not raise constitutional concerns. 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 Chap linsky 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) (suggest ing 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 princi ple articulated there-that certain speech may be categorically unpro tected 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 prin ciple continues to be cited by the Supreme Court. See, e.g., Virginia v. Black, 538 U.S. 343, 358-59, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)). 19 While the Supreme Court has not established a precise test to de termine when a particular interest is sufficiently important 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, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) ("attaining a diverse student body"); Simon & Schuster, Inc. v. Members of N.Y. State Crime Vic tims Bd., 502 U.S. 105, 118, 119, 112 S. Ct. 501, 116 L. Ed. 2d 476 (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, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989) ("[m]aintaining a stable political sys tem"); Federal Election Comm'n v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 496-97, 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985) (preventing governmental corruption). 20 The statute defines "sore" to cover any situation where a horse suf fers because "an irritating or blistering agent has been applied, inter nally 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. 21 We further reject Stevens's assertion that the fact that society ac cepts the subjugation of animals for certain utilitarian purposes under cuts this conclusion. While sometimes the line between cruelty to ani mals 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 com pelling 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, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), with Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). 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. Ro dia, 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 unconstitu tional), cert. granted and vacated, 545 U.S. 1125, 125 S. Ct. 2938, 162 L. Ed. 2d 863 (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, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005)). 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 233-34, pertaining to Party Z is, in our opin ion, somewhat incomplete. Under our reading of section 48, Party Z may be prosecuted for possessing a depiction of animal cruelty in Vir ginia 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 ap paratus" 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, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); 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). 24 In analogizing to Ferber, we do not mean to suggest that the con duct 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 war rant recognition, we find its discussion highly instructive to our reso lution of the question at hand-the proper place that depictions of ani mal cruelty should have in our First Amendment jurisprudence. 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. 26 Caselaw demonstrates that it is not unusual for dog fights to be filmed. See Ash v. State, 290 Ark. 278, 718 S.W. 2d 930, 931 (1986) (de scribing police raid of dogfight where fight was being videotaped); Peo ple 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).