Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls, compiled and sold videotapes showing dogfights. Though he did not participate in the dogfights, he received a 37-month sentence under a 1999 federal law that banned trafficking in "depictions of animal cruelty."
Public Law No: 106-152 was a federal criminal statute that prohibited the knowing creation, sale, or possession of depictions of cruelty to animals with the intention of placing the depiction in interstate or foreign commerce for commercial gain. The law had been enacted in 1999, primarily to target "crush videos," which depicted people crushing small animals to gratify a sexual fetish. It excluded from prosecution "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." The language tracked the "Miller test," used by the U.S. Supreme Court to determine whether speech could be prosecuted for obscenity or was protected by the First Amendment. In 2004, Stevens was indicted under 18 U.S.C. § 48 for creating and selling three video tapes, two of which depicted pit bulls engaged in dog fighting. The third tape depicted a pit bull attacking a domestic pig as part of the dog being trained to catch and kill wild hog and included "a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig." Although Stevens' criminal prosecution concerned only three tapes, he had made $20,000 in two and a half years from selling nearly 700 videos. Stevens was not accused of engaging in animal cruelty himself or of shooting the original footage from which the videos were created. However, the footage in each of the videos "is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author." Stevens filed a motion to dismiss the indictment by arguing that the federal statute abridged his right to freedom of speech under the First Amendment. The District Court denied his motion in November 2004. In January 2005, Stevens was convicted by a jury, after a deliberation of 45 minutes.
Stevens appealed, and the Third Circuit vacated his conviction, holding that 18 U.S.C. 48 violated the First Amendment. The court stated that dog fighting and the use of dogs to hunt hogs may be made illegal to protect animals from cruelty. However the court ruled that the law in question, prohibiting the depiction of animal cruelty, violates the First Amendment, as it would create a new category of speech that is not protected by the free speech provision of the Amendment.
Alito dissented, explaining "he most relevant of our prior decisions is Ferber, 458 U. S. 747, which concerned child pornography. The Court there held that child pornography is not protected speech, and I believe that Ferber's reasoning dictates a similar conclusion here."
Aftermath
On April 21, one day after the Supreme Court struck down the law, its original sponsor, Representative Elton Gallegly introduced a new bill with much more specific language, indicating it was intended only to apply to "crush videos." President Barack Obama signed the bill into law on December 9, 2010.
