THIRD CIRCUIT FINDS 18 U.S.C. § 48 UNCONSTITUTIONAL.

Robert J. Stevens was convicted of violating 18 U.S.C. § 48, a statute which prohibited the creation, possession or sale of depictions of animal cruelty with the intent to place the depiction in interstate commerce for profit. In United States v. Stevens, No. 05-2497, the Third Circuit, sitting en banc, ruled 18 U.S.C. § 48 unconstitutional under the First Amendment. Stevens had initially moved to have his indictment dismissed on the premise that 18 U.S.C. § 48 was an infringement on his right to free speech, but his motion was rejected and he was ultimately convicted by a jury and sentenced to 37 months imprisonment. On appeal, the circuit court overturned Stevens’ conviction. Stevens’ initial case was the first prosecution under this statute and similarly his appeal was the first constitutional review of the statute.

In ruling that 18 U.S.C. § 48 was unconstitutional, the Third Circuit found that depictions of animal cruelty did not fit into any of the existing categories of unprotected speech and declined to expand the types of speech not protected by the First Amendment. To reach this decision, the court looked closely at the Supreme Court’s decision in United States v Ferber, 458 U.S. 747 (1982), in which the Court ruled that child pornography, showing real children, was not protected speech. Specifically, the Third Circuit emphasized that the federal government did not have a compelling interest in prohibiting depictions of animal cruelty. Although the Government argued that the federal government had an interest in preventing animal cruelty, the Third Circuit found this argument problematic because 18 U.S.C. § 48 did not regulate or criminalize the act of animal cruelty, but only depictions of cruelty. The circuit court also noted that the Supreme Court had shown reluctance to find a compelling government interest in protecting animals when First Amendment rights were at stake. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). In short, a compelling interest that may justify a content-based restriction, such as the one contained in 18 U.S.C. § 48, has always been related to the protection of humans, such as the well-being of minors in Ferber, not animals.

Additionally, applying the other Ferber factors, the Third Circuit found no evidence that animals in videos or pictures continued to suffer because they appeared in images portraying cruelty, or any evidence to suggest that stopping depictions of animal cruelty would decrease actual incidents of cruelty such as illegal dog fights. Also, although the law contained exceptions for depictions that have religious, political, scientific, educational, journalistic, historical or artistic value, these exceptions were insufficient to make the statute and its broad prohibition constitutional.

Since the speech restricted in 18 U.S.C. § 48 was in fact protected speech, the statute was therefore required to survive review under strict scrutiny. Having already determined that the statute did not serve a compelling government interest, and finding that the law was not narrowly tailored to achieve such an interest, the Third Circuit ruled the statute was an unconstitutional infringement on Stevens’ right to free speech and accordingly vacated his conviction.

Three members of the circuit court dissented from the majority opinion.