Criminalizing depictions of animal cruelty, 18 U.S.C. §48, held “substantially overbroad,” therefore violative of First Amendment.
First Amendment restrictions on speech are permitted “in a few limited areas” (obscenity, crime facilitation, et al.), and despite long-standing abhorrence of animal cruelty, depictions of same will not be added to that list.
… The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.
Facial challenge typically requires “‘that no set of circumstances exists under which [the statute] would be valid,’ … or that the statute lacks any ‘plainly legitimate sweep’ … In the First Amendment context, however, this Court recognizes ‘a second type of facial challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.'” Section 48, which “create(s) a criminal prohibition of alarming breadth,” fails this test.
A short summary won’t do justice to the opinion’s sweeping affirmation of protection of speech, as in this snippet:
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
Eugene Volokh outlines the Court’s reasoning, and thinks (albeit with much uncertainty) that a more narrowly crafted prohibition might be constitutional. Kent Scheidegger seemingly agrees (“this is a seriously incompetent bit of legislative drafting. Congress needs to reenact this statute and do it right this time.”). Mike Sacks has an unbeatable quick take, explaining why the opinion is unlikely to be very controversial: “this case pitted liberal value vs. liberal value: anti-restrictions on violent or obscene speech vs. animal rights protections.”