Analysis
Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed. Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal. Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.
The case of U.S. v. Stevens (08-769) tests the constitutionality of the 1999 law that made it a federal crime to make and sell commercially “any visual or auditory depiction” of killing or seriously abusing a living animal, if the conduct is illegal under either federal or a state’s law. [Disclosure: Akin Gump represents respondent Robert Stevens in the case, and blog contributor Patricia Millett argued on behalf of Mr. Stevens today. However, the author of this post operates independently of Akin Gump and is not involved in the firm’s litigation.] The Justices, loosing a series of hypotheticals on what kind of conduct could not be depicted legally under the law — from bull-fighting to using geese to make foie gras, suggested that the statute likely would reach far beyond what Congress was actually seeking to ban.
Deputy U.S. Solicitor General Neal K. Katyal, asking the Court to reinstate the law that had been nullified by the Third Circuit Court, said Congress intended to shut down “a robust market” for so-called “crush videos,” images of small animals being stomped to death. It was, he said, a “narrowly targeted restriction.”
But he was only a few words into his opening when Justice Sonia Sotomayor questioned whether Congress had any evidence that there was “such a robust market” for videos of dog-fighting or even of hunting. Katyal countered by stressing anew that the law was limited in scope, did not apply to hunting, and was a challenge only to the commercial market. That simply prompted Justice Antonin Scalia to say that applying it only to a “commercial market” was not to limit it, since that would embrace “anything sold.”
From then on, Scalia continued to assail the sweep of the law, and other Justices joined in the challenge. Scalia was so relentless that, when Patricia A. Millett, the lawyer speaking against the law, seemed to be leaving some opening for Congress to pass laws in this area, the Justice gave her a mini-lecture on “it is not up to the government to decide what our worst instincts are.” Millett had the most difficulty fending off questions from Justice Alito about whether Congress could write a law that would ban a TV channel devoted to “human sacrifice.”
In contrast to Katyal’s argument (seemingly one that made no discernible headway with the Court) that the law was a strictly limited one, Millett suggested that it would apply so widely that courts simply could not salvage it by trying to spell out what it did not cover. “You would have to excise so many things, I don’t know what you would have left,” she said.
Katyal had been challenged rigorously throughout his argument, but Millett did not encounter any serious pressure, until Justice Alito opted to join actively in the questioning.
Alito suggested that the law may have accomplished, over its decade on the books, just what Congress had in mind: it had dried up the market for “crush videos,” while not causing a decrease in videos or TV shows about hunting. He told Millett she should be addressing “what’s going on in the real world,” and not focus on hypotheticals like producing foie gras with geese.  She replied that, if Congress were to write laws in the First Amendment area, it had to “write with a scalpel and not with a buzz saw.”
But she seemed less sure of her argument when Alito moved on to questions about Congress’ authority, hypothetically, to try to stop human sacrifice by banning its depiction on videos and in other media. She at first said that such a law might be valid if it were “properly drawn” and “narrowly tailored.” As other members of the Court showed some interest in the human sacrifice hypothetical, Millett made further concessions even while not answering directly. First Justice Anthony M. Kennedy and then Chief Justice John G. Roberts, Jr., insisted on a direct response to Alito’s hypothetical. She answered that Congress could legislate in this area, unless it sought to ban the content of such depictions “just because it did not like it.”
A final decision in the case is not expected for at least several weeks.
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