United States v. Stevens - Reply (Merits)

Docket number: 
No. 08-769
Supreme Court Term: 
2009 Term
Court Level: 
Supreme Court

No. 08-769


In the Supreme Court of the United States






Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


In the Supreme Court of the United States


No. 08-769







Respondent portrays a dire threat to free speech from Congress's decade-old prohibition of commercially traf ficked depictions of illegal acts of cruelty to animals. In respondent's view, images of the intentional killing of ani mals "pervade" our culture (Br. 22); Section 48 suppresses such images based on viewpoint; and the interests advanced by Congress do not support the asserted major incursion on free speech. The statute that respondent attacks bears little resemblance to the statute that Congress enacted; and respondent's absolutist view of the First Amendment finds scant support in this Court's cases.

Section 48 does not favor particular viewpoints or speakers (Resp. Br. 54); it is not an indiscriminate "blun derbuss" (id. at 50); and it poses no threat to the arts, to educational objectives, or even to the views of dogfighting aficionados (of whom respondent is unquestionably one). The legislation merely requires individuals to refrain from trafficking in depictions of illegal cruelty perpetrated against live animals in order to prevent the injury inflicted in the manufacture of those depictions.

In tailoring Section 48, Congress drew on this Court's precedents to ensure that it did not squelch ideas or view points, but instead reached a limited class of depictions because they are inherently connected to illegal acts against animals. The First Amendment's broad protection does not forbid Congress's carefully calibrated effort.


A. Section 48 Regulates A Very Narrow Category Of Speech Because Its Mode Of Production Is Uniquely Harmful

1. Section 48 does not target a speaker's viewpoint. It is simply aimed at prohibiting a gruesome means of produc ing horrific images. A speaker can have whatever view point he wishes, and can distribute videos that look identi cal to the ones respondent made, so long as the videos were not produced through cruelty to an actual living animal.1 That key fact (and not respondent's attempt to foist upon Congress any belief in the equivalence of children and ani mals) explains why New York v. Ferber, 458 U.S. 747, 763- 764 (1982), and Ashcroft v. Free Speech Coalition, 535 U.S. 234, 248 (2002), control this case.

This Court upheld the New York statute in Ferber "be cause of the State's interest in protecting the children ex ploited by the production process." Free Speech Coal., 535 U.S. at 240. "The production of the work, not its content, was the target of the statute." Id. at 249. To the extent there was any doubt about that statute's intent, the absence of any prohibition on simulated images resolved it. Id. at 251; Ferber, 458 U.S. at 763. The statute at issue in Free Speech Coalition, by contrast, "proscribe[d] the visual de piction of an idea" and therefore could be supported only by a very different rationale, that "harm flows from the con tent of the images, not from the means of their production." 535 U.S. at 242, 246.

Respondent treats Section 48 as if it were like the stat ute in Free Speech Coalition, suggesting that Section 48 somehow targets a speaker's views. That suggestion in turn underlies his misunderstanding of Congress's ratio nale for the statute as revolving around harm to viewers. But the rationale for this statute in fact does not relate to viewers-either to harms they might suffer from observing the depictions or to harms they themselves might cause as a result. Congress instead was concerned about the harms these depictions would cause even if they had no viewers at all-the harm to living animals occurring in the creation of the depictions, as well as associated harms arising from these acts of violence. To affirm this statute, the Court need only recognize that Congress targeted a uniquely harmful means of production, and as it has in the past, up hold Congress's ability to do so.

Congress's interest in this case therefore is wholly unre lated to respondent's message or viewpoint. Respondent is free to extol the virtues of pit bull fighting all he wants, and he may even use simulated depictions of such killings in his videos. The only thing he cannot do is use certain depic tions of actual cruelty to actual animals in his footage.

2. Respondent overreads the government's argument, stating that it advances "the notion that Congress can sud denly strip a broad swath of never-before-regulated speech of First Amendment protection" "based on nothing more than a legislative weighing of the speech's pros and cons." Br. 11. The government has not advanced that argument, and it would have had no reason to do so, given that Section 48's restriction is anything but "broad." Once the statute's narrow contours are understood, it becomes clear that the government's legal argument does not rest upon the sim plistic balancing respondent attacks, as described pp. 11-13, infra.

Respondent attempts to define (Br. 12, 19) the category of speech at issue as any "images of animals being inten tionally wounded or killed." That description ignores sev eral key limitations in the statute's text. The depiction not only must show a living animal "intentionally" being "maimed, mutilated, tortured, wounded, or killed," 18 U.S.C. 48(c)(1); it also must depict conduct that is illegal where the image is made, sold, or possessed, ibid., and must be "create[d], s[old], or possesse[d]" with the specific intention of "placing that depiction in interstate or foreign commerce for commercial gain," 18 U.S.C. 48(a). See U.S. Br. 14-16 (analyzing each of these textual limitations). The statute, moreover, requires "knowing[]" conduct, which means that the defendant must know that the depictions are images of real animals being maimed, tortured, and the like. Id. at 15. The resulting narrow category of illegal and violent acts of animal cruelty depicted for commercial gain is further limited by the statute's exceptions clause. 18 U.S.C. 48(b).

Many, if not all, of respondent's hypothetical applica tions of Section 48 do not fall within its plain text. For ex ample, because of the statute's "commercial gain" require ment, 18 U.S.C. 48(a), Section 48 would not reach images of animal cruelty displayed on the website of non-profit animal welfare organizations, Resp. Br. 18-22 & n.4-or indeed of a counterpart non-profit that sought to promote vicious dogfighting. The statute is not directed at persons who use images of animal cruelty to "inform, educate, lobby, debate, and persuade." Id. at 19. It targets and reaches only those who profit from illegal animal cruelty, on the rationale that drying up the commercial market for certain, carefully cir cumscribed images will deter the underlying acts of cruelty. See Ferber, 458 U.S. at 761 (eliminating the "economic mo tive" for illegal acts will prevent those acts from occurring).

Further, the conduct depicted must be illegal where the depiction is made, sold, or possessed, 18 U.S.C. 48(a), which exempts images of animals being used for legal purposes, such as scientific testing, participation in circuses, and slaughtering for food, see Resp. Br. 12, 19-20 & n.5. Al though the statute does not require the act depicted to have been illegal when the filming took place (id. at 22), that omission is unlikely to affect materially the statute's reach, because all States prohibit animal cruelty in general and certain specific types of cruelty (such as dogfighting) in particular, U.S. Br. 26-28 (citing statutes), and the excep tions clause further protects material with social value.2

And, of course, Section 48 exempts any material with "serious religious, political, scientific, educational, journalis tic, historical, or artistic value." 18 U.S.C. 48(b). That pro vision was designed to ensure that "any material depicting animal cruelty which society would find to be of at least some minimal value" would be protected. H.R. Rep. No. 397, 106th Cong., 1st Sess. 4 (1999) (1999 House Report). It exempts news reports about animal cruelty (Resp. Br. 19-20) because of their "journalistic" value; pictures of bullfighting in Spain (id. at 23-24) because of their "histori cal" and "educational" value; instructional videos for hunt ing (id. at 24-25, 31), because of their "educational" value; and many books and movies (id. at 23-24) because of their "historical," "educational," or "artistic" value. Indeed, Con gress cited precisely these hypotheticals when explaining the statutory exceptions. See, e.g., 1999 House Report 8 (Spanish bullfights; hunting and fishing; television docu mentaries; materials from animal welfare organizations).

Moreover, this Court's precedents make clear that the value of a depiction is determined by examining the work as a whole. See, e.g., Free Speech Coal., 535 U.S. at 248; see also J.A. 132 (jury instructions). As a result, the statute would not reach materials with serious educational, histori cal, or artistic value when viewed in their totality, despite brief scenes of animal cruelty.3

The government's sparing use of the statute over the past decade is consistent with the statute's text, which the government reads to exclude depictions in which animals are killed without accompanying acts of cruelty. The gov ernment neither has brought nor will bring a prosecution for anything less. The meaning of the word "killed" is "narrowed by the commonsense canon of noscitur a sociis-which counsels that a word is given more precise content by the neighboring words with which it is associ ated," United States v. Williams, 128 S. Ct. 1830, 1839 (2008)-so that the statute requires the type of grotesque behavior that its various terms contemplate. That conclu sion is buttressed here because the term being defined is "depiction of animal cruelty." 18 U.S.C. 48(c)(1) (emphasis added); see, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) ("In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term 'crime of violence.'"). There is, in short, no risk-given the narrow terms of Section 48 and its exceptions clause-that the hy pothetical prosecutions or chilling effect conjured up by respondent would materialize.

Section 48 therefore reaches a tightly circumscribed category of materials, including "crush videos" in which animals are tortured and killed solely to gratify a specific sexual fetish, U.S. Br. 17-18, and animal-fighting videos in which animals literally tear each other apart, id. at 18- 19.4 Notably, respondent's own amici characterize the ma terial covered by Section 48 as "far more disturbing than any that has ever come before this Court under the obscen ity laws." First Amend. Lawyers Amicus Br. 8-9 (emphasis added). Especially in light of the statute's exceptions clause, it is difficult "to imagine the circumstances that would have to coalesce for [material with redeeming value] to come within the reaches of section 48." Pet. App. 60a (Cowen, J., dissenting).

3. Respondent's objections to Section 48's exceptions clause lack merit.

Respondent contends (Br. 26) that the First Amend ment does not permit the exceptions clause to "do all the constitutional work." It does not. Subsection (a) of the sta tute and the associated definitions focus on illegal acts of cruelty involving live animals-itself a substantial limitation on the regulation of depictions of animal cruelty. See 18 U.S.C. 48(a) and (c)(1). That subsection further restricts the ban to depictions used for commercial gain, placing per sons who profit from the illegal torture and killing of ani mals "on notice" in exactly the way respondent wishes, Resp. Br. 32. Only then does subsection (b) kick in to pro tect any depictions of the illegal torture and killing of real animals for commercial gain that contribute in some way to the marketplace of ideas.

In adopting that structure, Congress laced this Court's speech-protective jurisprudence into Section 48 itself. 1999 House Report 4-5; see Punishing Depictions of Animal Cruelty and the Federal 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. 37 (1999) (Hearing) (statement of Rep. Scott). Congress de fined the speech that would be exempt from regulation (even assuming the speech was not excluded by the various and sundry other restrictions in Section 48) by following this Court's decision in Miller-borrowing and indeed add ing to its list of exceptions employed for obscenity. Com pare 18 U.S.C. 48(b), with Miller v. California, 413 U.S. 15, 24-26 (1973). Like the exception for works with redeeming value in the obscenity context, Miller, 413 U.S. at 34-35, Section 48(b) "critically limits" the statute's sweep, Reno v. ACLU, 521 U.S. 844, 873 (1997). Congress can hardly be faulted for including "essentially the same constitutionally approved" exceptions clause as in Miller, Williams, 128 S. Ct. at 1839-1840, especially when the Reno Court had re minded Congress just two years earlier of the need for such a provision, see 521 U.S. at 865, 873-874.5

Respondent is wrong to suggest (Br. 30-31) that the exceptions clause is unconstitutionally vague. Persons "of common intelligence" need not "guess" (Connally v. Gen eral Constr. Co., 269 U.S. 385, 391 (1926)) at the meaning of terms like "educational," "political," and "historical" value, 18 U.S.C. 48(b); if these terms were too vague, the Court's own standard in Miller would be constitutionally deficient. And assuming "marginal cases" may arise, that is not "suf ficient reason to hold the language" unconstitutional. Roth v. United States, 354 U.S. 476, 491-492 (1957) (internal quo tation marks omitted). Close cases are addressed "not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt." Williams, 128 S. Ct. at 1846. That mechanism is suitable here because, as the govern ment explained (U.S. Br. 16 & n.2) and respondent earlier agreed (C.A. Br. 73), the burden of proof is on the govern ment, not the speaker, to demonstrate that the depiction at issue lacks societal value.6

Respondent also is mistaken in contending (Br. 32-33) that uncertainty about the scope of the exceptions clause will chill valuable speech. His dire predictions are amply rebutted by experience under the statute; respondent points to no evidence of a cooler climate for speech in the ten years since Section 48 was enacted. Cf. Miller, 413 U.S. at 35-36. And the government's sparing use of Section 48 (Resp. Br. 43) confirms that the exceptions clause affords ample breathing room for any valuable speech otherwise covered.

Finally, the exceptions clause answers respondent's claim that Section 48 "allows the Nation's most-animal-pro tective jurisdictions to" define its reach. Resp. Br. 35. Al though the illegality of the depicted act turns on state and federal laws, the exception for material with redeeming societal value does not. Instead, that exception applies when "a reasonable person would find such value in the material, taken as a whole." Pope v. Illinois, 481 U.S. 497, 500-501 (1987); see J.A. 131-132 (jury instructions). The exceptions clause therefore erects "a national floor for so cially redeeming value" which alleviates any concern about variations among the 50 States' laws. Reno, 521 U.S. at 873; see Ashcroft v. ACLU, 535 U.S. 564, 584-585 (2002).

4. Once Section 48's extremely narrow scope is recog nized, it becomes clear why Congress may regulate the material it covers without running afoul of the First Amendment. Whether the Court calls this limited body of depictions not within the area of protected speech (under Chaplinsky v. New Hampshire, 315 U.S. 568, 571 & n.2 (1942)), or says that it may be "regulated because of [its] constitutionally proscribable content" (under this Court's more recent formulation in R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (emphasis omitted)), or chooses some different formulation entirely, makes little difference. The critical point is that this legislation is permissible because (1) it covers a highly restricted set of materials (2) that, by virtue of the statute's limitations, definitions, and exclu sions, has scant social value, and (3) that causes significant harm through the manufacture of the materials themselves and not through their communicative effect, and (4) does so in a way that steers clear of targeting viewpoints or sup pressing any ideas.7

This Court has in the past ruled entire categories of speech unprotected by asking whether "the evil to be re stricted * * * overwhelmingly outweighs the expressive interests, if any, at stake," Ferber, 458 U.S. at 763-764. That analysis reflects that some limited kinds of expressive materials both have little value and cause great harm. The Court has employed that analysis repeatedly, U.S. Br. 11- 13 (citing, e.g., Chaplinsky, 315 U.S. at 572; Roth, 354 U.S. at 484, 487; Miller, 413 U.S. at 20-21, 34-35; Ferber, 458 U.S. at 763-764, and Williams, 128 S. Ct. at 1841-1842), and it "has remained an important part of [the Court's] First Amendment jurisprudence," R.A.V., 505 U.S. at 383.8

In certain respects, the nature and extent of the regula tion on speech here is less troubling than in these historic examples. Contrary to respondent's claim (Br. 12), Con gress did not make the judgment that all depictions of ani mal cruelty are "categorically valueless and harmful." Con gress expressly found to the contrary, because it recognized in its exceptions clause that such depictions may have edu cational and other value. And even more tellingly, Con gress limited the scope of the statute in the first place to only materials whose creation involves harm to living ani mals. Section 48 therefore regulates certain depictions of animal cruelty not because they embody a societally unac ceptable message, but because "their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey." R.A.V., 505 U.S. at 393. Congress prohibited only a particu larly violent method of producing certain images-knowing that speakers might convey the same messages through other means (without torturing and mutilating animals) and accepting that result. See 1999 House Report 5. By way of analogy, Congress surely could prohibit the sale of "snuff" videos containing actual, rather than simulated, killings of human beings.9 Nothing in the First Amendment disables Congress from doing the same thing with respect to ani mals.10

B. Section 48 Is Justified By Congress's Desire To Avoid Com pelling, And Devastating, Harm

1. Respondent misunderstands (Br. 37, 42) the con gressional judgment underlying Section 48. It is not that exposure to the depictions at issue leads viewers to commit acts of animal cruelty; it is that the very production of the depictions requires animal cruelty. U.S. Br. 29-30. Al though respondent may argue about the legal status of the act at the precise place and time committed (Br. 43), he cannot deny that the act depicted is the intentional maim ing, mutilation, torture, wounding, or killing of an animal. He also cannot deny that those acts of animal cruelty cause harms to humans-wholly apart from the communicative effect of the depictions on their viewers. U.S. Br. 32-34. Section 48 restricts the commercialization of depictions of those acts to stop the harms that necessarily and unavoid ably occur with their creation.

2. The governmental interests supporting Section 48 are compelling. All 50 States, the District of Columbia, and the federal government have long prohibited needless acts of animal cruelty. See U.S. Br. 25-28 (citing statutes). Those bans are deeply ingrained in our national culture, dating back to well before America's first colonists. See Pet. App. 39a (Cowen, J., dissenting). This longstanding consensus in state and federal law demonstrates "a govern ment objective of surpassing importance." Ferber, 458 U.S. at 757.

As the government has explained, animal cruelty is pro hibited both because it results in serious harm to animals and because it is often accompanied by harms to humans. The harms suffered by animals in the making of these de pictions are horrific. Crush videos show animals being pul verized to death by women in high-heeled shoes. U.S. Br. 16-17; Humane Soc'y Amicus Br. 2-5. Dogs featured in dogfighting videos are tormented their entire lives before being torn apart in the ring. U.S. Br. 18-19; Humane Soc'y Amicus Br. 5-6. And the harms to humans accompanying these acts are substantial. Dogfighting takes place in a criminal underworld rife with gambling, drug dealing, and gang activity. U.S. Br. 33; States' Amicus Br. 12-18; Hu mane Soc'y Amicus Br. 8. Dogs bred and conditioned to this activity pose a serious threat to public safety. U.S. Br. 33; Humane Soc'y Amicus Br. 6-8. And evidence indicates that persons who engage in cruel acts towards animals also engage in violence toward human beings. U.S. Br. 32-33; Am. Law Professors Amicus Br. 18-34; H.R. Con. Res. 338, 106th Cong., 2d Sess. (2000).

Respondent unsuccessfully downplays these harms. Minor variations among state animal cruelty laws (Resp. Br. 43) do not diminish the broad societal consensus that gratuitously torturing and killing defenseless animals is wrong. See 1999 House Report 3-4; U.S. Br. 2-3, 26-28; Am. Law Professors Amicus Br. 11-18. And society's long use of animals for utilitarian purposes (Resp. Br. 49-50) does not countenance their wanton and cruel mistreatment. As members of Congress stated when considering Section 48, the statute was motivated by avoiding the infliction of "ex cessive physical pain or suffering" upon animals. 1999 House Report 4.

3. Unable to demonstrate that the government's inter ests are less than compelling, respondent argues (Br. 40-48) that regulating depictions of animal cruelty will not curtail the underlying acts. But Congress's judgment to the con trary, similar to the conclusion upheld in Ferber, makes eminent sense. Closing the commercial market for the de pictions at issue will help eliminate the financial incentives to make them and thus will reduce the acts of animal cru elty inherent in their manufacture. U.S. Br. 28-30; see 145 Cong. Rec. 31,217 (1999) (statement of Sen. Kyl) (Section 48 "[e]liminat[es] the videos' commercial incentive" to "stem [their] creation"). Experience over the past decade bears out Congress's reasoning. Crush videos were not generally available for a decade, but once the decision below was an nounced, the images reemerged. Humane Society Amicus Br. 4-5; States' Amicus Br. 1-2. Respondent argues (Br. 44) that animal-fighting ventures may generate income even without a market in videos. That is true, but it is no less true that curtailing this market will make the activity less profitable and thereby reduce it. That is a permissible leg islative judgment, see Ferber, 458 U.S. at 759-761, espe cially when the conduct in question is so difficult to prose cute directly, see U.S. Br. 44-46; States' Amicus Br. 8-12.

Respondent contends (Br. 43) that Congress was re quired to provide empirical evidence demonstrating that Section 48 prevents animal cruelty. He is mistaken, both because it would be difficult, if not impossible to document crimes that do not occur because of Section 48, and because logic amply supports the view that removing an incentive for an illegal act will make that act less likely. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1813 (2009) (challenger cannot "demand a multiyear controlled study" to support commonsense conclusion).

Finally, respondent contends (Br. 41, 43-44) that Section 48 will not "reinforc[e] laws against animal cruelty" because it punishes depictions of animal cruelty more severely than some States punish the underlying acts. But Congress's judgment to punish harshly commercial trafficking in de pictions of illegal conduct demonstrates its partnership with the States in eradicating an intractable problem. Congress need not adopt, for its part in this joint effort, the most le nient punishment that any State imposes.

4. This Court's approval of the regulation of child por nography in Ferber provides strong support for Congress's regulation of depictions of illegal acts of animal cruelty. Here, as in Ferber, the government has a compelling inter est in preventing depraved acts against a "uniquely vulner able and helpless class of victims." Pet. App. 57a (Cowen, J., dissenting). Here too, the act is "intrinsically related" to the depiction, Ferber, 458 U.S. at 759, because each time a depiction is produced, a terrible act is committed, and in deed, the harm associated with that act may radiate beyond the precise moment in which it occurs, see U.S. Br. 36. Congress determined that it is necessary to attack the "vis ible apparatus of distribution" for these depictions because "it is difficult, if not impossible" to prosecute the underlying acts directly, and because "[t]he advertising and selling" of the depictions "provide[s] an economic motive for" their creation. Ferber, 458 U.S. at 759-761; see, e.g., Hearing 1-2 (statement of Rep. McCollum); id. at 6 (statement of Rep. Scott); id. at 18-19 (statement of Tom Connors); id. at 64 (prepared statement of William Paul LeBaron). Finally, Congress added the exceptions clause to ensure that the only depictions reached would be those whose value is "ex ceedingly modest, if not de minimus." Ferber, 458 U.S. at 762.

Respondent points out (Br. 48-49) that harms to animals are not of the same order as sexual abuse of children. That is, of course, true-but also irrelevant. The compelling in terest standard does not require all harms to reach the level involved in Ferber. Animal cruelty surely qualifies as a compelling societal problem when compared to the many other governmental interests that this Court has placed in that category. U.S. Br. 31-32.

In short, Section 48 reaches a limited set of materials whose manufacture causes great harm to animals and hu mans and which contribute in no meaningful way to the marketplace of ideas. See Pet. App. 48a (Cowen, J., dis senting). The prohibition suppresses no viewpoints or mes sages, but only a particular means of production. Insisting that this speech lies at the heart of the First Amendment, as respondent does, misunderstands the essential purpose of that constitutional protection.


Even if this Court determines that Section 48 reaches some protected speech, the statute remains facially consti tutional. To justify invalidating the statute in all of its ap plications, respondent must show that Section 48 is sub stantially overbroad. He has not made that showing. Worse yet, the court of appeals did not even consider this question. Instead, it invalidated the statute on its face based merely on a few isolated hypotheticals, and without considering whether it could resolve the case on the basis of an as-applied challenge.

A. Section 48 Is Not Facially Unconstitutional Unless It Is Substantially Overbroad

Respondent suggests (Br. 52-53) that if this Court de cides that Section 48 reaches some protected speech, then the statute is facially invalid. That is incorrect. A conclu sion that the depictions covered by Section 48 are not en tirely outside the First Amendment's protection is nearer to the beginning than to the end of analysis. Even if Sec tion 48 reaches some protected speech, that would not "jus tify prohibiting all enforcement" of the law. McConnell v. FEC, 540 U.S. 93, 207 (2003) (internal quotation marks omitted). As this Court recently made clear in Williams, when a statute reaches both protected and unprotected speech, and the challenger seeks to invalidate the law in all of its applications, the question becomes whether the stat ute suffers from real and substantial overbreadth. See 128 S. Ct. at 1838; see also, e.g., City of Houston v. Hill, 482 U.S. 451, 458 (1987); Broadrick v. Oklahoma, 413 U.S. 601, 615-616 (1973).11

This court has warned against the "disfavored" remedy of facial invalidation because "facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution." Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1191 (2008). That is precisely what the court of appeals did here by nullifying Section 48 in all of its appli cations. Pet. App. 25a n.13, 32a; Br. in Opp. 5, 15, 16. Nota bly, even respondent does not contend that all of the speech reached by Section 48 is barred from regulation under the First Amendment. See Resp. Br. 38-39 (crush videos). Ra ther, he argues only that the statute reaches too much speech. Accordingly, he must demonstrate substantial overbreadth. See, e.g., Virginia v. Hicks, 539 U.S. 113, 122 (2003) ("The overbreadth claimant bears the burden of demonstrating * * * that substantial overbreadth ex ists."). If he fails to do so, then the statute is facially valid. He still may argue that the statute is unconstitutional as applied to him, but he can obtain through that argument only a case-specific remedy.

The court of appeals erred in declining to apply over breadth analysis to this case. It invalidated Section 48 on the basis of a mere handful of hypotheticals, without com paring those potentially unconstitutional applications to the large number of legitimate uses of the statute. Neither did the court review the way Section 48 actually has operated over the last decade, which belies any notion of over breadth. See Center on Admin. Crim. Law Amicus Br. 18- 22. And the court did not consider whether it could decide the case on narrower grounds, such as by invalidating Sec tion 48 as applied to respondent. See, e.g., Board of Trs. of the State Univ. v. Fox, 492 U.S. 469, 481-486 (1989). For all of those reasons, reversal is warranted.

B. Section 48 Is Not Substantially Overbroad

Section 48 contains no substantial overbreadth and has plainly constitutional applications, such as to crush videos and animal-fighting videos.

To determine whether Section 48 is substantially overbroad, a court must "construe the challenged statute" and determine whether it "criminalizes a substantial amount of protected expressive activity." Williams, 128 S. Ct. at 1838, 1841. When comparing the permissible and impermissible applications of the statute, respondent's bur den is to show, "from the text of [the law] and from actual fact, that substantial overbreadth exists." Hicks, 539 U.S. at 122 (internal quotation marks omitted; brackets in origi nal).

At a minimum, Section 48 has numerous constitutional applications. As an initial matter, the crush videos covered by the statute may be regulated as obscenity. U.S. Br. 42- 43. They meet each element set out in Miller: they appeal to the prurient interest according to contemporary commu nity standards; they depict conduct that is sexual in nature in a patently offensive way; and they lack serious redeem ing societal value when taken as a whole. See Miller, 413 U.S. at 24. Respondent's suggestion that crush videos do not appeal to a prurient interest is amply refuted by evi dence in the legislative record. See, e.g., 1999 House Re port 2-3. And respondent has no basis for suggesting (Br. 39) that Congress cannot regulate obscene materials-by definition, wholly unprotected speech-except by virtue of a general obscenity statute. See R.A.V., 505 U.S. at 388 ("When the basis for the content discrimination consists entirely of the very reason the entire class of speech at is sue is proscribable, no significant danger of idea or view point discrimination exists.").

Still more significantly, Section 48 would satisfy even a strict scrutiny standard with respect to much of the ma terial it covers-particularly, crush videos and animal-fight ing videos.12 As argued earlier, compelling reasons support regulating these materials. See pp. 14-15, supra. The strength of these interests is amply demonstrated by the broad societal consensus against animal cruelty, reflected in the laws of every State and the federal government. See U.S. Br. 26-28.

Section 48 directly furthers those compelling interests in its application to crush videos. These materials depict the illegal torture and killing of animals done solely in order to produce the video. See 1999 House Report 2-3. Respon dent does not dispute that without the commercial demand for crush videos, the acts of animal cruelty depicted in them would never occur. And inherent difficulties frustrate di rect prosecution of the illegal acts; the acts themselves elude detection because the victims do not talk and the vid eos do not show the faces of the women crushing the ani mals or the locations of those acts. See id. at 3; U.S. Br. 28- 29; States' Amicus Br. 8-12. And because crush videos are "almost exclusively distributed for sale through interstate or foreign commerce," usually over the Internet, 1999 House Report 3, Congress is uniquely able to attack the "visible apparatus" of their distribution network to stop the videos' production, Ferber, 458 U.S. at 759-760.

Section 48 also directly furthers Congress's compelling interests in its application to animal-fighting videos. Dog fighting has long been illegal everywhere in the United States. See U.S. Br. 26-28. It results not only in the hor rific mistreatment of dogs, but in a variety of other harms, including gang activity, gambling, and violence. Respon dent makes no attempt to minimize these serious problems. And underground dogfights are inordinately difficult to prosecute directly. Id. at 45-46. Even though States have made prosecution of animal cruelty a "top priority" (States' Amicus Br. 6-7), they continue to face "exceptional[] dif ficult[ies]" (id. at 2, 8-12) in prosecuting animal-fighting ventures. Because a significant and visible market for vid eos of dogfights flourishes, U.S. Br. 46, targeting the depic tions is a critically effective way to target the underlying crimes, see Ferber, 458 U.S. at 759, 760 n.11, 766 n.19.

Respondent makes no attempt to compare the statute's permissible and impermissible applications, instead simply asserting (Br. 54) that the statute has no "plainly legitimate sweep." But that assertion blinks reality; it overlooks both the constitutional applications described above (such as crush videos) and the minimization of unconstitutional ap plications that is a function of the exceptions clause. It is indeed difficult to imagine how Section 48 could sweep in many unconstitutional applications given its exclusion of material with "serious religious, political, scientific, educa tional, journalistic, historical, or artistic value." 18 U.S.C. 48(b). But even if some such applications exist, they are properly addressed through "case-by-case analysis of the fact situations" at issue. Broadrick, 413 U.S. at 615- 616. Facial invalidation is too extreme a solution for the purely hypothetical problems that respondent envisions- problems that have never manifested themselves in ten years of nationwide experience under the statute.

C. Section 48 Is Constitutional As Applied To Respondent

If the Court reverses the court of appeals' facial invali dation of Section 48, it should remand to permit the lower courts to adjudicate any remaining preserved as-applied challenge. In any event, an as-applied challenge would lack merit.

1. Respondent's videos depict vicious and bloody dog fights targeted toward those in the underground dogfight ing subculture. In Pick-A-Winna, respondent offers play- by-play commentary during seven different fights. Video: Pick-A-Winna 3:16-3:38 (Robert Stevens date unknown) (PAW). He expresses his approval when the fighting is "fast and furious," PAW 14:25-14:29; 24:25-24:27; 28:36- 28:39; 53:46-53:47, and praises pit bulls as "real preda tor[s]" that have long "reigned supreme as the gladiator[s] of the pit," PAW 2:06-2:12; 56:48-56:55. He advises viewers how to condition a pit bull for fighting (PAW 10:48-10:59; 24:00-24:11; 1:03:17-1:03:26); design an effective pit (PAW 28:21-28:34); and handle a pit bull during a fight (PAW 10:12-10:20; 14:55-15:17; 32:15-32:20; 36:42-37:04; 53:00- 53:08).

Japan Pit Fights features three dogs that respondent sent to Japan for the purpose of dogfighting. Video: Japan Pit Fights 1:03-1:11 (Robert Stevens date unknown) (JPF); J.A. 143. Respondent invites viewers to "sit back with [him] and enjoy some good [fights]" showing the "best fighting dog breed in the world." JPF 1:25-1:34. There is no com mentary during the fights. At the end of the video, respon dent brags that he and his partners are breeding pit bulls to create the ultimate fighting dog, with "the gamest blood in the world" and "the most destructive, the hardest biting mouth in the world." JPF 1:46:17-1:46:44.

In Catch Dogs, respondent highlights his pit bulls' de structiveness through footage of a savage dog fight and gruesome scenes of pit bulls attacking pigs. Although re spondent asserts (Br. 3) that this is merely a hunting video, the video focuses on the suitability of his dogs for fighting. See Video: Catch Dogs 6:19-6:22 (Robert Stevens date un known) (CD) ("I don't breed for catch work. I breed pit dogs."). He shows pit bulls attacking pigs, as typically oc curs in organized hog-dog fights (see U.S. Br. 19-20), praises "[f]ighting [that] is fast and furious," CD 8:25-8:26, and notes his pit bull's ability to "fight[] th[e] farm hog like it was a dog," CD 47:39-47:48.

Respondent's repeated assertions (Br. 4, 11, 21, 57) that he does not support dogfighting ring hollow-just as they did at trial. His videos glorify and promote dogfighting. He advertised these videos in Sporting Dog Journal, an underground publication that fuels the dogfighting subcul ture. J.A. 48-50, 53, 71-72. And in addition to selling vid eos, respondent sold merchandise commonly used to condi tion dogs for fighting, such as break sticks, J.A. 50, 65-66, and directly facilitated dogfighting by supplying the dogs featured in Japan Pit Fights, JPF 1:05-1:11; J.A. 143. Re spondent also claims to be trying to breed the ultimate fighting dog. JPF 1:46:17-1:46:44. Respondent cannot credibly claim that he is opposed to dogfighting.

2. Respondent suggests a variety of reasons why his prosecution was infirm, none of which has merit. For exam ple, respondent contends that Section 48 does not apply because his videos have redeeming societal value. The jury in this case disagreed after watching the videos and hearing testimony from a number of experts. C.A. App. 675. That conclusion is amply supported by the evidence, e.g., J.A. 73- 74, 87-88, 95-96, 98, 103-104, and there is no reason for this Court to revisit it, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319 (1979) (jury's verdict ordinarily upheld unless no rational juror could reach that verdict). Respondent's vid eos are not educational materials about the pit bull breed; they are simply depictions of dogfights.13

3. The government has explained (pp. 21-2, supra) why dogfighting videos may be regulated consistently with the First Amendment. Respondent's videos are exactly the kind the government described: they depict dogs being forced to fight other dogs and hogs as pure bloodsport. And this case highlights the reasonableness of Congress's judgment about the connection between such videos and the underlying illegal conduct. Respondent admits that he created the videos in order to "satisfy[] a public demand to view what made our breed the courageous and intelligent breed that it is"-i.e., dogfighting. J.A. 135. The raison d'être of respondent's conduct is thus the market for dogfighting videos. Further, respondent's videos highlight the steps dogfighters take to conceal their illicit conduct. Rather than fight his dogs in the United States, respondent shipped three dogs to Japan for fighting, see JPF 1:05-1:11; J.A. 143, and then sold the videos of that fight in the United States, see J.A. 50-55. And in order to hamper prosecution of dogfighters in the United States, respondent "purpose fully edited out the[ir] faces." Pet. App. 54a (Cowen, J., dissenting); see PAW 13:44-13:56; 22:09-22:16.14 This case therefore demonstrates the compelling basis for Congress's decision to attack the "visible apparatus of distribution" so as to target a "low-profile, clandestine industry" that spawns a variety of significant societal harms. Ferber, 458 U.S. at 760.

* * * * *

For the foregoing reasons and those stated in our open ing brief, the judgment of the court of appeals should be reversed.

Respectfully submitted.

Solicitor General


1 "The committee has drafted this statute carefully so that it restricts content, but not viewpoint. Persons holding the view that [animal cruelty] is acceptable are still free to use any means of interstate com merce to express that view. * * * What is restricted is the commercial pandering of graphic depictions of the actual torture of a real animal." H.R. Rep. No. 397, 106th Cong., 1st Sess. 5 (1999).

2 Moreover, it was reasonable for Congress to regulate depictions of animal cruelty that are illegal where made, sold, or possessed, because "[i]t is often impossible to determine where such material is produced," and it is necessary to prohibit all materials-even those produced elsewhere-to remove the incentives for committing acts that are illegal here. Ferber, 458 U.S. at 766 n.19.

3 Respondent is therefore wrong to argue that the exceptions clause "forecloses consideration of the speakers' work 'as a whole.'" Br. 33. Congress prohibited the creation, sale, or possession of a "depiction," a word which is most naturally read to refer to the entire work at issue, rather than a particular scene in the work. Any doubt about the mean ing of the statute should be construed in favor of its constitutionality. E.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994).

4 Members of Congress did not "expressly disavow[]" (Resp. Br. 13, 40) Section 48's application to animal-fighting videos. Only one person who testified at a hearing-not a Member of Congress-suggested that the statute's reference to animal cruelty would not reach animal fighting. See Punishing Depictions of Animal Cruelty and the Federal 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. 20, 31-32 (1999) (statement of Tom Connors). In any event, the terms of the statute plainly reach animal-fighting videos, which show animals intentionally "maimed, mutilated, tortured, wound ed, or killed" for commercial gain. 18 U.S.C. 48(a) and (c)(1).

5 Requiring "serious" value is not a "stark departure from Miller[]," as respondent appears to contend. Resp. Br. 33. That is the exact language adopted in Miller to guard against pretextual additions to otherwise-unprotected material. See 413 U.S. at 25 n.7 ("A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication.") (internal quotation marks omitted). The "serious value" standard functions similarly-neither more nor less restrictively-under Section 48.

Respondent also contends (Br. 33) that the jury instructions at his trial defined the term "serious" incorrectly. Even if the district court's definition of "serious" were wrong, however, that would not provide a basis for invalidating Section 48 on its face. See Virginia v. Black, 538 U.S. 343, 376 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part) (the Court has never "facially invalidated an ambiguous statute on the basis of a constitutionally troubling jury instruction").

6 Contrary to respondent's contention (Br. 32), a jury is constitution ally competent to decide whether a depiction has serious societal value. See Miller, 413 U.S. at 25-26 & n.9. And under Section 48, of course, a jury can decide such a question only after the Executive Branch has taken the rare and significant step of seeking an indictment.

7 Had Congress prohibited simulated images of animal cruelty, for example, it would bear a far heavier burden because such a prohibition would correspond to a very different set of harms, which are communi cative in nature, and would raise the suspicion that the government was acting to suppress ideas.

8 Respondent contends (Br. 15-16) that speech is unprotected only if there exists a "history and tradition" of excluding it from the First Amendment's reach. Although historical evidence certainly is relevant in determining whether certain categories of speech lack First Amend ment protection, see U.S. Br. 11, the Court has never deemed historical evidence a necessary prerequisite for regulation today. For example, the Court did not rely upon evidence about the proliferation of child pornography at the time of the Founding in Ferber; instead, it deter mined that the relatively recent "proliferation of exploitation of children as subjects in sexual performances," 458 U.S. at 757 (internal quotation marks omitted), justified prohibiting child pornography as a class, id. at 764. In any event, had the Framers been confronted with this case, nothing suggests that they would have offered the producers of crush videos or videos of brutal dogfights a First Amendment shield, especial ly because animal cruelty was illegal even then. See Pet. App. 39a (Cowen, J., dissenting) (laws prohibiting animal cruelty date back to 1641).

9 Such videos, unfortunately, are not hypothetical. See, e.g., United States v. DePew, 932 F.2d 324, 326 (4th Cir.), cert. denied, 502 U.S. 873 (1991).

10 This argument does not equate harm to humans with harm to ani mals. The snuff video analogy simply makes clear that when Congress targets certain inherently harmful modes of production (as opposed to regulating particular viewpoints), the First Amendment does not stand in the way, particularly if Congress includes the failsafe mechanism of a "serious value" exception.

11 This Court has facially invalidated statutes on First Amendment grounds without a finding of substantial overbreadth in some cases, such as United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813-814, 816-817 (2000). But in Playboy, as in other similar cases, there was no argument that the statute reached both protected and un protected speech. See id. at 814 ("The speech here, all agree, is protec ted speech.").

12 The Court could well determine that strict scrutiny is inappropriate for Section 48. Because Section 48 is aimed at the "secondary effects" of the covered depictions (here, the acts of cruelty involved in their manufacture and the various harms associated with those acts), rather than at the viewpoint or message conveyed by these depictions, the provision is akin to a time, place, and manner regulation. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-50 (1986); see also R.A.V., 505 U.S. at 388-390. In that event, Section 48 would be upheld so long as it "is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication." City of Renton, 475 U.S. at 50.

13 Respondent has waived the argument (Br. 56) that the value of his videos should be reviewed de novo. See Resp. C.A. Br. 72-79 (arguing

only that "no reasonable juror could have concluded" that his videos lacked serious value).

14 Respondent is wrong to suggest (Br. 17, 44 n.18) that the persons shown in Pick-A-Winna faced no legal liability because dogfighting was legal in the United States in the 1960s. "[M]ost states outlawed it by the 1860s," Nancy R. Hoffman & Robin C. McGinnis, 2007-2008 Leg islative Review, 15 Animal L. 265, 276 (2009), and respondent admits (J.A. 135) that dogfighting was a crime at the time of the fights in Pick- A-Winna.

Merits Stage Reply Brief
Brief Topic: 
Criminal (including Habeas/2255)
Updated February 4, 2016