Blog by: Peyton Mills
Animal cruelty has long been an issue in American law.[1] Even before the colonies became “Free and Independent States[,]”[2] early laws prohibited the abuse of any “bruite [sic] Creature” usually kept for “man’s use.”[3] Today, such prohibitions have stretched even further. Federal law protects laboratory animals,[4] livestock,[5] pets,[6] and wildlife[7] to varying degrees. Federal prosecutorial bodies have increasingly been taking animal cruelty more seriously.[8] And state laws often protect animals to an even greater extent than their federal counterparts.[9] These animal welfare successes, however, routinely fall short due to reporting and enforcement issues[10]—issues made worse by the U.S. Supreme Court’s ruling in United States v. Stevens,[11] which struck down a federal statute criminalizing certain depictions of animal cruelty.[12]
The law challenged in Stevens was 18 U.S.C. §48.[13] The law established a criminal penalty for anyone “creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty…for commercial gain.”[14] The law provided an exception, however, for illegal depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value[.]”[15] Under this law, Robert J. Stevens, an entrepreneur, was indicted for selling dogfighting videos.[16] Arguing that §48 was facially invalid under the First Amendment to the U.S. Constitution, Stevens moved to dismiss the indictment.[17] The Court agreed with his reasoning.[18] It noted first that depictions of animal cruelty do not fall within the “First Amendment Free Zone”[19] of unprotected speech.[20] Though the Court admitted there may exist some unprotected categories of speech not yet identified in the case law, it declared unflinchingly that depictions of animal cruelty are not among them.[21]
Because such depictions are not beyond the reach of the First Amendment, the Court analyzed Stevens’s claim under a facial challenge unique to “the First Amendment context”:[22] “the doctrine of overbreadth.”[23] This doctrine may invalidate a law focusing on unprotected speech if the law also substantially infringes on protected speech.[24] The Court concluded that §48 criminalized everywhere in the U.S. the depictions of an array of conduct only actually illegal in select jurisdictions,[25] and was thus unconstitutionally overbroad.[26]
Justice Samuel Alito was the sole dissenter.[27] He questioned both the majority’s use of “fanciful hypotheticals”[28] and their characterization of the doctrine of overbreadth.[29] Justice Alito’s main point, however, was that the Court’s decision in New York v. Ferber warranted excluding depictions of animal cruelty from First Amendment protection.[30] Ferber focused on a statute criminalizing child pornography.[31] The Court upheld the statute on three grounds: (1) the depictions involved criminal conduct inflicting severe personal injury to those involved;[32] (2) the underlying crimes could not effectively be prohibited without also prohibiting the distribution of the depictions;[33] and (3) the value of the depiction was “exceedingly modest” compared to the “evil to be restricted.”[34] All three of these rationales, argued Justice Alito, applied with equal force to those acts targeted by §48—namely, animal crush[35] and animal fighting videos.[36] The abused animals depicted in such videos clearly suffer intense personal pain;[37] prosecution of the underlying crimes is difficult, and the sale of the videos is the primary criminal motivation;[38] and the value of the depictions is no greater than that of depictions of child abuse.[39] The only difference between the statutes, then, is whether the protected subject is a child or an animal—a matter of no import.[40]
After Stevens was decided, Congress acted quickly to constrain its effects. It amended §48 specifically to prohibit the distribution of animal crush videos.[41] In 2019, Congress went further and criminalized the actions underlying animal crush videos.[42] This legislative action, however, is cold comfort. The Court’s decision in Stevens pockmarks our First Amendment jurisprudence with inconsistencies[43] and blind-spots in protecting the meekest among us. The Court made a conscious decision that some living creatures capable of “experience[ing] excruciating pain”[44] are more deserving of protection from abuse than others.[45] This attitude is concerning, because it emboldens those who would commit such acts of abuse. Indeed, after the Third Circuit invalidated §48 on its way to the Supreme Court, there was a resurgence in animal crush videos for sale online.[46]
While Congress may have closed the door for animal crush videos, it has hardly done so for all depictions of animal cruelty. For example, depictions of animal fighting—the issue at the heart of Stevens—are still legal to distribute.[47] The fact that the underlying acts are criminalized[48] is not enough to effectively hinder animal fighting ventures. As with child pornography and animal crush videos, the commercial trade in the depictions of animal fighting is “an integral part of the production of such materials[.]”[49] To criminalize one without the other is to hand prosecutors the keys to a car with no gas and ask them to cross the country: they can do it, but it’s much more difficult.
The true tragedy is that the Constitution does not mandate such an outcome. Even if §48 was overbroad—and it is not entirely clear that it was[50]—the Court could’ve struck down the statute while also outlining the contours of a category of unprotected speech for depictions of extreme animal cruelty.[51] Such an outcome would have better balanced the free speech and prosecutorial interests involved. It also would have given prosecutors the tools they need to target the perpetrators of animal abuse, while ensuring that innocuous depictions of animal harm without connotations of cruelty, like the hunting videos that so concerned the Stevens majority,[52] are left untouched by Congress.
As it stands, Stevens is the unfortunate result of a society with a rocky ethical relationship to animals.[53] The Court may have felt it was upholding the Constitution, but it has made a grave miscalculation, for the Constitution has nothing to say here. A contrary conclusion would undoubtedly baffle the Framers. They simply would not have intended to stifle the voiceless by amplifying the voices of their abusers. If the greatness of our nation is to be judged by how we treat animals,[54] then Stevens cannot stand. Such a decision perverts our very sense of justice.
[1] See United States v. Stevens, 559 U.S. 460, 469 (2010) (“[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.”).
[2] The Declaration of Independence para. 5 (U.S. 1776).
[3] The Body of Liberties §92 (Mass. Bay Colony 1641), reprinted in American Historical Documents 1000-1904, 43 Harvard Classics 66, 79 (C. Eliot ed. 1910).
[4] See generally Animal Welfare Act, 7 U.S.C. §§2131-2156.
[5] See, e.g., Humane Methods of Slaughter Act, 7 U.S.C. §§1901-1907 (defining humane methods of slaughtering livestock); Swine Health Protection Act, 7 U.S.C. §§3801-3809 (regulating the food waste fed to swine).
[6] See generally Animal Welfare Act, 7 U.S.C. §§2131-2156.
[7] See, e.g., Endangered Species Act, 16 U.S.C. §§1531-1544 (providing protections for endangered species and their habitats); Lacey Act, 16 U.S.C. §§3371-3378 (primarily providing protections against illegal wildlife trafficking).
[8] See, e.g., Environmental Crimes Bulletin – October 2024, Dep’t of Just.: Blog (Nov. 21, 2024), https://www.justice.gov/archives/enrd/blog/environmental-crimes-bulletin-october-2024 [https://perma.cc/E7M9-YCWM] (detailing environmental crimes prosecutions, including animal cruelty prosecutions); Charlie Robinson & Victoria Clausen, The Link Between Animal Cruelty and Human Violence, U.S. FBI L. Enf’t Bull. (Aug. 10, 2021), https://leb.fbi.gov/articles/featured-articles/the-link-between-animal-cruelty-and-human-violence [https://perma.cc/UV7G-GJVL] (highlighting FBI efforts to increasingly investigate and charge animal cruelty offenses).
[9] See generally USA, World Animal Prot. (last visited Mar. 15, 2025), https://api.worldanimalprotection.org/country/usa [https://perma.cc/25LZ-52HG].
[10] See USDA Enforcement Fiscal Year 2023, Am. Soc’y for the Prevention of Cruelty to Animals (2024), https://www.aspca.org/sites/default/files/usda_enforcement_report_fy23_2.23.24_0.pdf [https://perma.cc/KW6D-CB8B] (describing various reporting and enforcement failures of Animal Welfare Act violations).
[11] See United States v. Stevens, 559 U.S. 460, 491-93 (2010) (Alito, J., dissenting) (describing the difficulties in prosecuting those creating animal crush videos and illustrating the need for the criminalization of depictions of animal cruelty).
[12] Stevens, 559 U.S. at 481-82.
[13] Id. at 464.
[14] Id. at 464-65 (quoting 18 U.S.C. §48(a)) (internal quotation marks omitted).
[15] Id. at 465, 475 (quoting 18 U.S.C. §48(b)) (internal quotation marks omitted).
[16] Id. at 466.
[17] Id. at 467.
[18] Id. at 481-82.
[19] Id. at 469 (quoting Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987)) (internal quotation marks omitted).
[20] Id. at 470. See also id. at 472; J. Matthew Barnwell, Taking a Bite Out of Speech Regulation: The Supreme Court Upholds First Amendment Protection for Depictions of Animal Cruelty in United States v. Stevens, 62(3) Mercer L. Rev. 1031 (2011) (arguing that United States v. Stevens reflects a broader view of strong free speech protections held generally by the Roberts Court).
[21] Stevens, 559 U.S. at 472.
[22] Id. at 473.
[23] Id. at 483 (Alito, J., dissenting).
[24] Id. at 473.
[25] See id. at 475 (“[T]he application of §48 to depictions of illegal conduct extends to conduct that is illegal in only a single jurisdiction.”).
[26] Id. at 481-82.
[27] See id. at 482 (Alito, J., dissenting).
[28] Id. at 485 (Alito, J., dissenting).
[29] Id. at 483-84 (Alito, J., dissenting).
[30] Id. at 493 (Alito, J., dissenting).
[31] New York v. Ferber, 458 U.S. 747, 749 (1982).
[32] Id. at 753.
[33] Id. at 759.
[34] Id. at 762-63.
[35] For a description of what animal crush videos often feature, see Stevens, 599 U.S. at 465-66 (“[Animal crush] videos feature the intentional torture and killing of helpless animals…Crush videos often depict women slowly crushing animals to death with their bare feet or while wearing high heeled shoes…over [t]he cries and squeals of the animals, obviously in great pain.…Apparently these depictions appeal to persons with a very specific sexual fetish[.]”) (quoting H.R. Rep. No. 106-397, p. 2 (1999)) (internal quotation marks omitted).
[36] Id. at 494-99 (Alito, J., dissenting).
[37] Id. at 496 (Alito, J., dissenting) (“The animals used in crush videos are living creatures that experience excruciating pain.”).
[38] Id. at 495 (Alito, J., dissenting) (“[T]he criminal acts shown in crush videos cannot be prevented without targeting the conduct prohibited by §48—the creation, sale, and possession for sale of depictions of animal torture with the intention of realizing a commercial profit.”).
[39] Id. at 495-96 (Alito, J., dissenting) (“[W]hile protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos.”); see also id. at 495 (“[T]he harm caused by the underlying crimes vastly outweighs any minimal value that the depictions might conceivably be thought to possess.”).
[40] Id. at 495-96 (Alito, J., dissenting).
[41] Meredith L. Shafer, Perplexing Precedent: United States v. Stevens Confounds a Century of Supreme Court Conventionalism and Redefines the Limits of “Entertainment,” 19 Vill. Sports & Ent. L.J. 281, 334-35 (2012).
[42] See generally Preventing Animal Cruelty and Torture Act, 18 U.S.C. §48.
[43] See Shafer, supra note 47, at 335-36 (“[The court’s] opinion in Stevens [sic] regarding First Amendment rights does not seem reliant on past case law.”).
[44] Stevens, 599 U.S. at 496 (Alito, J., dissenting).
[45] Compare id. at 471-72 (describing the classification as child pornography as a new category of unprotected speech but refusing to do so for animal cruelty), with id. at 495-96 (Alito, J., dissenting) (arguing that it should not matter for First Amendment purposes whether the abused individual is a child or an animal).
[46] Id. at 492-93 (Alito, J., dissenting).
[47] See, e.g., Leigh P. Rendé & Kate K. Smith, Combating Cockfighting: Case Considerations, 72 Dep’t Just. J. Fed. L. and Prac. 73, 74-81 (2024) (summarizing federal laws prohibiting cockfighting).
[48] Id.
[49] Stevens, 599 U.S. at 497 (Alito, J., dissenting) (quoting New York v. Ferber, 458 U.S. 747, 761 (1982)).
[50] See id. at 483-84 (Alito, J., dissenting).
[51] There is good reason to believe this was what Congress intended §48 to be: a bar on depictions of extreme animal cruelty. See, e.g., id. at 478 (“[T]he Government argues, §48 reaches only crush videos, depictions of animal fighting…and perhaps other depictions of extreme acts of animal cruelty.”) (internal quotation marks omitted).
[52] See generally id. at 475-78.
[53] Compare Katie Bohn, Are People More Willing to Empathize with Animals or with Other Humans?, Pa. State U. (Apr. 7, 2022), https://www.psu.edu/news/story/are-people-more-willing-empathize-animals-or-other-humans [https://perma.cc/2V75-9SGX] (describing people’s lack of empathy for animals when pitted against human interests), with Robin Wall Kimmerer, Learning the Grammar of Animacy, in Braiding Sweetgrass 48, 55-59 (2013) (arguing for speaking of animals as we do people, using pronouns over the term “it,” and what such a linguistic shift might mean for our relationship to animals).
[54] The quote, in its entirety, is, “The greatness of a nation and its moral progress can be judged by the way its animals are treated.” This quote is commonly attributed to Mohandas Gandhi, though there is scarcely a citation for the source of the quote anywhere on the Internet. See, e.g., PETA Honors Gandhi’s Lifelong Commitment to Animal Liberation, People for the Ethical Treatment of Animals (last visited Mar. 16, 2025), https://www.peta.org/features/gandhi/ [https://perma.cc/QAW9-W3B4] (attributing the quote to Gandhi without citation to a source).