It's All About The Law™

Sometimes it’s hard to understand why the Supreme Court of the United States (SCOTUS) makes the rulings it makes. In this post I’m going to give you a thumbnail overview of how SCOTUS views the law in the U.S.

Note: I’m not writing this as a law school text or brief, so I have taken some liberties for purposes of clarity and simplification.

Let’s go back to the most significant case pertaining to the courts in the United States – Marbury v. Madison (1803). In Marbury v. Madison, Chief Justice John Marshall said “It is emphatically the province and duty of the judicial department to say what the law is.”

Notice that Marshall said “the judicial department.” He didn’t say the Supreme Court. What this means for you and me is that any judge, in any court, on any day, can “say what the law is.” It is the province of every judge to say what the law is. And every judge has the duty to say what the law is.

Sometimes SCOTUS (and state court judges) have to deal with cases they would prefer to avoid. For example, in Bush v. Gore (dealing with the 2000 election of former president George W. Bush), the Supreme Court said

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

To understand U.S. Supreme Court opinions, always ask yourself “What Constitutional question is involved?”

In Marbury v. Madison, the question was whether the Judiciary Act of 1789 (a federal law) increased the jurisdiction of the Supreme Court beyond its limits in the Constitution [Yes]. The law was struck down and Marbury lost the case.

In Bush v. Gore, the question was whether the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution [Yes]. George W. Bush won Florida’s electoral votes under the previous vote certification of the Florida Secretary of State (Katherine Harris). That’s why he became president.

Keep in mind that the Constitution (and the law made in accordance with it) is for you and me.

In 1905, Justice Holmes wrote a dissent in Lochner v. New York, and said, “[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

This leads up to today’s SCOTUS opinion in United States v. Stevens.

Before reading further, please note that I am not in favor of animal cruelty (in reality or by depiction).

In United States v. Stevens, SCOTUS said

Congress enacted 18 U. S. C. §48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addresses only portrayals of harmful acts, not the underlying conduct. It applies to any visual or auditory depiction “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place,” §48(c)(1). Another clause exempts depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” §48(b). The legislative background of §48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under §48 for selling videos depicting dogfighting. He moved to dismiss, arguing that §48 is facially invalid under the First Amendment. The District Court denied his motion, and Stevens was convicted. The Third Circuit vacated the conviction and declared §48 facially unconstitutional as a content-based regulation of protected speech.

The Court held that Section §48 is substantially overbroad, and therefore invalid under the First Amendment. Take note of the words they used – substantially overbroad. They didn’t say no law can be passed. They said the law (as written and passed) was overbroad.

This is a good thing for you and me.

SCOTUS explained what it means:

Depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment. Because §48 explicitly regulates expression based on content, it is “ ‘presumptively invalid,’ . . . and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817.

Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech – including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct – that “have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U. S. 568, 572.

Depictions of animal cruelty should not be added to that list. While the prohibition of animal cruelty has a long history in American law, there is no evidence of a similar tradition prohibiting depictions of such cruelty.

The Government’s proposed test would broadly balance the value of the speech against its societal costs to determine whether the First Amendment even applies. But the First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government out-weigh the costs.

Section 48 creates a criminal prohibition of alarming breadth. The statute’s definition of a “depiction of animal cruelty” does not even require that the depicted conduct be cruel. While the words “maimed, mutilated, [and] tortured” convey cruelty, “wounded” and “killed” do not.

Those words have little ambiguity and should be read according to their ordinary meaning. Section 48 does require that the depicted conduct be “illegal,” but many federal and state laws concerning the proper treatment of animals are not designed to guard against animal cruelty. For example, endangered species protections restrict even the humane wounding or killing of animals. The statute draws no distinction based on the reason the conduct is made illegal. Moreover, §48 applies to any depiction of conduct that is illegal in the State in which the depiction is created, sold, or possessed, “regardless of whether the . . . wounding . . . or killing took place” there, §48(c)(1).

Depictions of entirely lawful conduct may run afoul of the ban if those depictions later find their way into States where the same conduct is unlawful. This greatly expands §48’s scope, because views about animal cruelty and regulations having no connection to District of Columbia, for example, but there is an enormous national market for hunting-related depictions, greatly exceeding the demand for crush videos or animal fighting depictions.

Because the statute allows each jurisdiction to export its laws to the rest of the country, §48(a) applies to any magazine or video depicting lawful hunting that is sold in the Nation’s Capital. Those seeking to comply with the law face a bewildering maze of regulations from at least 56 separate jurisdictions.

Limiting §48’s reach to crush videos and depictions of animal fighting or other extreme cruelty, as the Government suggests, requires an unrealistically broad reading of the statute’s exceptions clause. The statute only exempts material with “serious” value, and “serious” must be taken seriously. The excepted speech must also fall within one of §48(b)’s enumerated categories. Much speech does not. For example, most hunting depictions are not obviously instructional in nature. The exceptions clause simply has no adequate reading that results in the statute’s banning only the depictions the Government would like to ban.

Despite the Government’s assurance that it will apply §48 to reach only “extreme” cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly. Nor can the Court construe this statutory language to avoid constitutional doubt. A limiting construction can be imposed only if the statute “is ‘readily susceptible’ to such a construction,” Reno v. American Civil Liberties Union, 521 U. S. 844, 884. To read §48 as the Government desires requires rewriting, not just reinterpretation.

I underlined those two words. As I mentioned above, SCOTUS didn’t say no law can be passed. They said the law (as written and passed) was overbroad.

And note what SCOTUS said to protect you and me. They are not going to rely on “the Government’s assurance that it will apply §48 to reach only ‘extreme’ cruelty, this Court will not uphold an unconstitutional statute merely because the Government promises to use it responsibly.”

They finished by saying,

The Government makes no effort to defend §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene), and that the ban on such speech would satisfy the proper level of scrutiny. But the Government nowhere extends these arguments to other depictions, such as hunting magazines and videos, that are presumptively protected by the First Amendment but that remain subject to §48. Nor does the Government seriously contest that these presumptively impermissible applications of §48 far outnumber any permissible ones.

The Court therefore does not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. Section 48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

Remember, under our Constitution, the legislative branch (Congress) makes the law, the judicial branch (SCOTUS) interprets the law, and the executive branch (the President) enforces the law.

I hope this post helps you understand U.S. Supreme Court opinions.

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry