Write a legal “Opinion” of the Court. Essentially, how the Court will hold in this case. Opinion should be 3 – 4 pages in length, double spaced. There is no right or wrong side. Make sure the argument is backed with legitimate reasoning. Feel free to use any legitimate source you deem necessary in your argument. You must cite all of your sources. Provide a separate works cited page (in addition to your 3 – 4 page Opinion, any format is acceptable as long as it is standardized).
If you need further assistance than what is provided below, try researching past rulings on the case and past precedent from those rulings (in LexisNexis or http://www.supremecourtus.gov/). Also, I have embedded a couple of links in this document that you may find very helpful when conducting your research. You can further use Thomas (http://thomas.loc.gov) and US Codes (http://bit.ly/7C7hHU) to assist you in obtaining any legislative information that you feel is pertinent.
The Supreme Court must balance both the legal and social demands of the country. Keep this perspective in mind when writing your argument.
Deliver your Opinion similar to an actual opinion of the Court. Set up your arguments in an organized fashion. Support your argument with LEGAL precedent, similar to an actual Opinion. Grading will be based on critical reasoning skills, your paper’s organizational structure, and your ability to back up your Opinion with relevant points.
Citations must be cited. Back those points up with references and holdings in previous cases.
Synopsis (compiled by Lori Odessa with some direct excerpts from case; amended by Bill McGeeney):
• Radio Times audio debate over case provides a nice overview of the issues revolving around this case: http://tinyurl.com/yz7mbh6 (roughly 1 hour, skip through the commercials).
• FACTS (pulled together from various sources by Lori)
“The indictment arose out of an investigation by federal and Pennsylvania law enforcement agents who had discovered that Stevens had been advertising pit bull related videos and merchandise through his business. Stevens advertised these videos in Sporting Dog Journal, an underground publication featuring articles on illegal dog fighting. Law enforcement officers arranged to buy three videotapes from Stevens, which form the basis for each of the counts in the indictment. The first two tapes, entitled, “Pick-A-Winna” and “Japan Pit Fights,” show circa 1960s and 70s footage of organized dog fights that occurred in the United States and involved pit bulls, as well as footage of more recent dog fights, also involving pit bulls, from Japan. The third video, entitled “Catch Dogs,” shows footage of hunting excursions in which pit bulls were used to “catch” wild boar, as well as footage of pit bulls being trained to perform the function of catching and subduing hogs or boars. This video includes a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig. The footage in all three videos was accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature, of which, Stevens is the author.
As a result of their investigation, law enforcement officers obtained a search warrant for Stevens’ Virginia residence, executed the search warrant and found several copies of the three videos, as well as other dog fighting merchandise.
On March 24, 2004, a federal grand jury sitting in the Western District of Pennsylvania returned an indictment charging Stevens with three counts of knowingly selling depictions of animal cruelty
with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48. In November of 2004, the District Court denied Stevens’ motion to dismiss the indictment based on his assertion that § 48 abridged his First Amendment right to freedom of speech. The case proceeded to trial, and on January 13, 2005, the jury returned a verdict of guilty on each of the three counts. The District Court sentenced Stevens to 37 months of imprisonment and three years of supervised release.”
Stevens’ case is the first prosecution in the nation under § 48 to proceed to trial, and thus, the first substantive constitutional evaluation of the statue by a federal appellate court. 18 U.S.C. § 48 states:
(a) Creation, sale, or possession. — Whoever knowingly creates, sells, or possesses a depiction of animal cruelty
with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception. — Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions. — In this section—
(1) the term “depiction of animal cruelty
” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal
is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.
• LEGAL ISSUE(s) (info below is from the 3rd Circuit Court of Appeals decision)
Government contends that depictions of animal cruelty
restricted by 18 USC § 48 qualify as categorically unprotected speech.
Government analogizes between the depiction of animal cruelty
and the depiction of child pornography – New York v. Ferber (1982) holding that child pornography depicting actual children is not protected speech. The government suggests that its position is supported by the Supreme Court’s decision in Chaplinsky v. New Hampshire
(1942) which establishes a balancing test to determine whether to recognize a class of speech as unworthy of First Amendment protection. The test weighs the government interest in restricting the speech against the value of the speech.
In reaching the NY v. Ferber conclusion, the Supreme Court cited four factors favoring the creations of a new category of unprotected speech:
1) the State has a “compelling” interest in “safeguarding the physical and psychological well-being of a minor.”
2) the distribution of photographs and films depicting sexual activity by juveniles is “intrinsically related to the sexual abuse of children.
3) The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of child pornography.
4) The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is “exceedingly modest, if not de minimis.
Ferber stands for the narrow proposition that a category of speech may be constitutionally restricted where it depicts the intentional infliction of physical harm on a class of especially vulnerable victims in violation of law, where the distribution of such depictions spurs their production but laws prohibition the underlying acts are woefully under-enforced, and where the speech’s social value is so de minimus as to be outweighed by the important governmental goal of protecting the victims. The depiction of animal cruelty
proscribed by § 48 possess these essential attributes. The Government applied the Stevens facts to the Ferber factors as follows:
1) Preventing animal cruelty
is also a governmental interest of the most paramount importance. The Govt argues that government interest is compelling because the law serves to protect not only the animals
, but also the individuals who commit the cruelty
, and more generally, the morals of society. Our nation’s aversion to animal cruelty
is deep-seated. Today dog-fighting is prohibited in all the fifty states. And empirical evidence now bears out that understanding—the increasing body of research which suggest that humans who kill or abuse others often do so as the culmination of a long pattern of abuse, which often begins with the torture and killing of animals
. Because the interest protects the animals
themselves, human, and public mores, that it warrants being labeled compelling.
2) The speech/depictions at issue here is intrinsically related to the underlying crime of animal cruelty
, most clearly because its creation is also predicated on a violation of criminal law, so as to weigh in favor of its prohibition. Moreover, the animal
abuse, such as dog fighting, counsels toward the conclusion that the harms suffered by abused animals
also extend far beyond that directly resulting from the single abusive act depicted. In addition, Congress has reasonable concluded that targeting the distributors would be the most effective way of drying up the animal
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. Similarly, individuals involved in dogfights are also elaborately insulated from law enforcement.
3) The presence of an economic motive driving the production of depictions of animals
being tortured or killed is perhaps the critical consideration that distinguishes the speech at issue here from ordinary depictions of criminal activities.
4) The depictions of animal cruelty
are of de minimis value because the statute excludes depictions that have any serious value.
Banning depiction of animal cruelty
as prohibited by § 48 also satisfy the second part of the fundamental First Amendment balancing inquiry because they have little or no social value. This is guaranteed by the terms of the statue which excepts speech that has “serious religious, political, scientific, education, journalistic, historical, or artistic value from its reach. And if some serious work were to demand a depiction of animal cruelty
, a simulated depiction is permitted under the statute. (the exceptions are from the Miller v. California (1973) Supreme Court opinion which banned obscenity from Free Speech protection.) Section 48 (b) exceptions are nothing more than an analogous codification of the Miller v. Ca framework, tailored to the animal cruelty
Section 48 outlaws depictions that “are [of] 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.
In sum, the speech at issue possesses the essential attributes of unprotected speech identified generally in Chaplinsky and of child pornography as discussed in Ferber. The Government has a compelling interest in eradicating animal cruelty
, depictions of animal cruelty
are intrinsically related to the underlying animal cruelty
, the market for videos of animal cruelty
incentivizes the commission of acts of animal cruelty
, and such depictions are of de minimis value. The statute is merely one prohibiting depictions of a narrow subclass of depraved acts committed against an uniquely vulnerable and helpless class of victims.
Stevens contends that Section 48 is unconstitutionally overbroad because it criminalizes depictions of conduct that was not illegal when or where it occurred, such as videos of dogfights in Japan, where dog fighting is legal, or videos that were produced in the United States before dog fighting was outlawed.
1. The statute is overbroad because it reaches individuals who took no part in the underlying conduct.
2. The statue is overbroad because it could extend to technical violations of hunting and fishing statutes.
3. The statute is unconstitutionally vague because the definition of “depiction of animal cruelty
” is predicated on state law and federal law cannot incorporate state law.
4. Section 48 is void-for-vagueness because the word “animal
” is defined differently in different states.
Based on the series of questions and hypotheticals the Government’s attorney was peppered with during oral arguments (http://tinyurl.com/y9oazuk), it is more probable than not that the majority of Justices will find that the federal law violates the First Amendment because it is too vague/overbroad. The majority of Justices seemed to indicate that the test of what depictions fall under the exceptions, i.e., serious educational, scientific, artistic, etc., is difficult to distinguish and should not turn into a subjective test for the government, judges and juries to determine.
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