United States v. Stevens

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. STEVENS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 08–769. Argued October 6, 2009—Decided April 20, 2010
Congress enacted 18 U. S. C. §48 to criminalize the commercial crea
tion, 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 liv
ing animal is intentionally maimed, mutilated, tortured, wounded, or
killed,” if that conduct violates federal or state law where “the crea
tion, sale, or possession takes place,” §48(c)(1). Another clause ex
empts depictions with “serious religious, political, scientific, educa
tional, 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 Ste
vens 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 Ste
vens was convicted. The Third Circuit vacated the conviction and de
clared §48 facially unconstitutional as a content-based regulation of
protected speech.
Held: Section §48 is substantially overbroad, and therefore invalid un
der the First Amendment. Pp. 5–20.
(a) Depictions of animal cruelty are not, as a class, categorically
unprotected by the First Amendment. Because §48 explicitly regu
lates 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 re
strictions on a few historic categories of speech—including obscenity,
defamation, fraud, incitement, and speech integral to criminal con
2 UNITED STATES v. STEVENS
Syllabus
duct—that “have never been thought to raise any Constitutional
problem,” Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Depic
tions 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 Amend
ment’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. New York v. Ferber, 458 U. S. 747, distinguished.
Pp. 5–9.
(b) Stevens’s facial challenge succeeds under existing doctrine.
Pp. 9–20.
(1) In the First Amendment context, a law may be invalidated as
overbroad if “a ‘substantial number’ of its applications are unconsti
tutional, ‘ “judged in relation to the statute’s plainly legitimate
sweep.” ’ ” Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449, n. 6. Stevens claims that common depic
tions of ordinary and lawful activities constitute the vast majority of
materials subject to §48. The Government does not defend such ap
plications, but contends that the statute is narrowly limited to spe
cific types of extreme material. Section 48’s constitutionality thus
turns on how broadly it is construed. Pp. 9–10.
(2) 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 con
cerning 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, “re
gardless 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
Cite as: 559 U. S. ____ (2010) 3
Syllabus
cruelty vary widely from place to place. Hunting is unlawful in the
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 ju
risdictions. Pp. 11–15.
(3) Limiting §48’s reach to crush videos and depictions of animal
fighting or other extreme cruelty, as the Government suggests, re
quires 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 Govern
ment would like to ban.
Although the language of §48(b) is drawn from the Court’s deci
sion in Miller v. California, 413 U. S. 15, the exceptions clause does
not answer every First Amendment objection. Under Miller, “seri
ous” value shields depictions of sex from regulation as obscenity. But
Miller did not determine that serious value could be used as a gen
eral precondition to protecting other types of speech in the first place.
Even “ ‘wholly neutral futilities . . . come under the protection of free
speech.’ ” Cohen v. California, 403 U. S. 15, 25. The First Amend
ment presumptively extends to many forms of speech that do not
qualify for §48(b)’s serious-value exception, but nonetheless fall
within §48(c)’s broad reach. Pp. 15–17.
(4) Despite the Government’s assurance that it will apply §48 to
reach only “extreme” cruelty, this Court will not uphold an unconsti
tutional 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 reinter
pretation. Pp. 18–19.
(5) This construction of §48 decides the constitutional question.
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
4 UNITED STATES v. STEVENS
Syllabus
ban on such speech would satisfy the proper level of scrutiny. But
the Government nowhere extends these arguments to other depic
tions, 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 substan
tially overbroad, and therefore invalid under the First Amendment.
Pp. 19–20.
533 F. 3d 218, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS,
SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined. ALITO, J., filed a dissenting opinion.
Cite as: 559 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–769
_________________
UNITED STATES, PETITIONER v. ROBERT J.
STEVENS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 20, 2010]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Congress enacted 18 U. S. C. §48 to criminalize the
commercial creation, sale, or possession of certain depic
tions of animal cruelty. The statute does not address
underlying acts harmful to animals, but only portrayals of
such conduct. The question presented is whether the
prohibition in the statute is consistent with the freedom of
speech guaranteed by the First Amendment.
I
Section 48 establishes a criminal penalty of up to five
years in prison for anyone who knowingly “creates, sells,
or possesses a depiction of animal cruelty,” if done “for
commercial gain” in interstate or foreign commerce.
§48(a).1 A depiction of “animal cruelty” is defined as one
——————
1 The statute reads in full:
Ҥ48. Depiction of animal cruelty
“(a) CREATION, SALE, OR POSSESSION.—Whoever knowingly creates,
sells, or possesses a depiction of animal cruelty with the intention of
placing that depiction in interstate or foreign commerce for commercial
gain, shall be fined under this title or imprisoned not more than 5
2 UNITED STATES v. STEVENS
Opinion of the Court
“in which a living animal is intentionally maimed, muti
lated, tortured, wounded, or killed,” if that conduct vio
lates federal or state law where “the creation, sale, or
possession takes place.” §48(c)(1). In what is referred to
as the “exceptions clause,” the law exempts from prohibi
tion any depiction “that has serious religious, political,
scientific, educational, journalistic, historical, or artistic
value.” §48(b).
The legislative background of §48 focused primarily on
the interstate market for “crush videos.” According to the
House Committee Report on the bill, such videos feature
the intentional torture and killing of helpless animals,
including cats, dogs, monkeys, mice, and hamsters. H. R.
Rep. No. 106–397, p. 2 (1999) (hereinafter H. R. Rep.).
Crush videos often depict women slowly crushing animals
to death “with their bare feet or while wearing high heeled
shoes,” sometimes while “talking to the animals in a kind
of dominatrix patter” over “[t]he cries and squeals of the
animals, obviously in great pain.” Ibid. Apparently these
depictions “appeal to persons with a very specific sexual
——————
years, or both.
“(b) EXCEPTION.—Subsection (a) does not apply to any depiction
that has serious religious, political, scientific, educational, journalistic,
historical, or artistic value.
“(c) DEFINITIONS.—In this section—
“(1) the term ‘depiction of animal cruelty’ means any visual or
auditory depiction, including any photograph, motion-picture film,
video recording, electronic image, or sound recording of conduct in
which a living animal is intentionally maimed, mutilated, tortured,
wounded, or killed, if such conduct is illegal under Federal law or the
law of the State in which the creation, sale, or possession takes place,
regardless of whether the maiming, mutilation, torture, wounding, or
killing took place in the State; and
“(2) the term ‘State’ means each of the several States, the Dis
trict of Columbia, the Commonwealth of Puerto Rico, the Virgin Is
lands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and any other commonwealth, territory, or possession
of the United States.”
Cite as: 559 U. S. ____ (2010) 3
Opinion of the Court
fetish who find them sexually arousing or otherwise excit
ing.” Id., at 2–3. The acts depicted in crush videos are
typically prohibited by the animal cruelty laws enacted by
all 50 States and the District of Columbia. See Brief for
United States 25, n. 7 (listing statutes). But crush videos
rarely disclose the participants’ identities, inhibiting
prosecution of the underlying conduct. See H. R. Rep., at
3; accord, Brief for State of Florida et al. as Amici Curiae
11.
This case, however, involves an application of §48 to
depictions of animal fighting. Dogfighting, for example, is
unlawful in all 50 States and the District of Columbia, see
Brief for United States 26, n. 8 (listing statutes), and has
been restricted by federal law since 1976. Animal Welfare
Act Amendments of 1976, §17, 90 Stat. 421, 7 U. S. C.
§2156. Respondent Robert J. Stevens ran a business,
“Dogs of Velvet and Steel,” and an associated Web site,
through which he sold videos of pit bulls engaging in
dogfights and attacking other animals. Among these
videos were Japan Pit Fights and Pick-A-Winna: A Pit
Bull Documentary, which include contemporary footage of
dogfights in Japan (where such conduct is allegedly legal)
as well as footage of American dogfights from the 1960’s
and 1970’s.2 A third video, Catch Dogs and Country Liv
ing, depicts the use of pit bulls to hunt wild boar, as well
as a “gruesome” scene of a pit bull attacking a domestic
farm pig. 533 F. 3d 218, 221 (CA3 2008) (en banc). On the
basis of these videos, Stevens was indicted on three counts
of violating §48.
Stevens moved to dismiss the indictment, arguing that
§48 is facially invalid under the First Amendment. The
——————
2 TheGovernment contends that these dogfights were unlawful at the
time they occurred, while Stevens disputes the assertion. Reply Brief
for United States 25, n. 14 (hereinafter Reply Brief); Brief for Respon
dent 44, n. 18.
4 UNITED STATES v. STEVENS
Opinion of the Court
District Court denied the motion. It held that the depic
tions subject to §48, like obscenity or child pornography,
are categorically unprotected by the First Amendment.
2:04–cr–00051–ANB (WD Pa., Nov. 10, 2004), App. to Pet.
for Cert. 65a–71a. It went on to hold that §48 is not sub
stantially overbroad, because the exceptions clause suffi
ciently narrows the statute to constitutional applications.
Id., at 71a–75a. The jury convicted Stevens on all counts,
and the District Court sentenced him to three concurrent
sentences of 37 months’ imprisonment, followed by three
years of supervised release. App. 37.
The en banc Third Circuit, over a three-judge dissent,
declared §48 facially unconstitutional and vacated Ste
vens’s conviction. 533 F. 3d 218. The Court of Appeals
first held that §48 regulates speech that is protected by
the First Amendment. The Court declined to recognize a
new category of unprotected speech for depictions of ani
mal cruelty, id., at 224, and n. 6, and rejected the Gov
ernment’s analogy between animal cruelty depictions and
child pornography, id., at 224–232.
The Court of Appeals then held that §48 could not sur
vive strict scrutiny as a content-based regulation of pro
tected speech. Id., at 232. It found that the statute lacked
a compelling government interest and was neither nar
rowly tailored to preventing animal cruelty nor the least
restrictive means of doing so. Id., at 232–235. It therefore
held §48 facially invalid.
In an extended footnote, the Third Circuit noted that
§48 “might also be unconstitutionally overbroad,” because
it “potentially covers a great deal of constitutionally pro
tected speech” and “sweeps [too] widely” to be limited only
by prosecutorial discretion. Id., at 235, n. 16. But the
Court of Appeals declined to rest its analysis on this
ground.
We granted certiorari. 556 U. S. ___ (2009).
Cite as: 559 U. S. ____ (2010)
5
Opinion of the Court
II
The Government’s primary submission is that §48 nec
essarily complies with the Constitution because the
banned depictions of animal cruelty, as a class, are
categorically unprotected by the First Amendment. We
disagree.
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” “[A]s a
general matter, the First Amendment means that gov
ernment has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.”
Ashcroft v. American Civil Liberties Union, 535 U. S. 564,
573 (2002) (internal quotation marks omitted). Section 48
explicitly regulates expression based on content: The
statute restricts “visual [and] auditory depiction[s],” such
as photographs, videos, or sound recordings, depending on
whether they depict conduct in which a living animal is
intentionally harmed. As such, §48 is “ ‘presumptively
invalid,’ and the Government bears the burden to rebut
that presumption.” United States v. Playboy Entertain
ment Group, Inc., 529 U. S. 803, 817 (2000) (quoting
R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation
omitted).
“From 1791 to the present,” however, the First Amend
ment has “permitted restrictions upon the content of
speech in a few limited areas,” and has never “include[d] a
freedom to disregard these traditional limitations.” Id., at
382–383. These “historic and traditional categories long
familiar to the bar,” Simon & Schuster, Inc. v. Members of
N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991)
(KENNEDY, J., concurring in judgment)—including obscen
ity, Roth v. United States, 354 U. S. 476, 483 (1957), defa
mation, Beauharnais v. Illinois, 343 U. S. 250, 254–255
(1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citi
zens Consumer Council, Inc., 425 U. S. 748, 771 (1976),
incitement, Brandenburg v. Ohio, 395 U. S. 444, 447–449
6 UNITED STATES v. STEVENS
Opinion of the Court
(1969) (per curiam), and speech integral to criminal con
duct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490,
498 (1949)—are “well-defined and narrowly limited classes
of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problem.”
Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572
(1942).
The Government argues that “depictions of animal
cruelty” should be added to the list. It contends that
depictions of “illegal acts of animal cruelty” that are
“made, sold, or possessed for commercial gain” necessarily
“lack expressive value,” and may accordingly “be regulated
as unprotected speech.” Brief for United States 10 (em
phasis added). The claim is not just that Congress may
regulate depictions of animal cruelty subject to the First
Amendment, but that these depictions are outside the
reach of that Amendment altogether—that they fall into a
“ ‘First Amendment Free Zone.’ ” Board of Airport
Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S.
569, 574 (1987).
As the Government notes, the prohibition of animal
cruelty itself has a long history in American law, starting
with the early settlement of the Colonies. Reply Brief 12,
n. 8; see, e.g., 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) (“No
man shall exercise any Tirranny or Crueltie towards any
bruite Creature which are usuallie kept for man’s use”).
But we are unaware of any similar tradition excluding
depictions of animal cruelty from “the freedom of speech”
codified in the First Amendment, and the Government
points us to none.
The Government contends that “historical evidence”
about the reach of the First Amendment is not “a neces
sary prerequisite for regulation today,” Reply Brief 12,
n. 8, and that categories of speech may be exempted from
Cite as: 559 U. S. ____ (2010) 7
Opinion of the Court
the First Amendment’s protection without any long-settled
tradition of subjecting that speech to regulation. Instead,
the Government points to Congress’s “ ‘legislative judg
ment that . . . depictions of animals being intentionally
tortured and killed [are] of such minimal redeeming value
as to render [them] unworthy of First Amendment protec
tion,’ ” Brief for United States 23 (quoting 533 F. 3d, at 243(Cowen, J., dissenting)), and asks the Court to uphold the
ban on the same basis. The Government thus proposes
that a claim of categorical exclusion should be considered
under a simple balancing test: “Whether a given category
of speech enjoys First Amendment protection depends
upon a categorical balancing of the value of the speech
against its societal costs.” Brief for United States 8; see
also id., at 12.
As a free-floating test for First Amendment coverage,
that sentence is startling and dangerous. The First
Amendment’s guarantee of free speech does not extend
only to categories of speech that survive an ad hoc balanc
ing 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 Govern
ment 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).
To be fair to the Government, its view did not emerge
from a vacuum. As the Government correctly notes, this
Court has often described historically unprotected catego
ries of speech as being “ ‘of such slight social value as a
step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality.’ ” R. A. V., supra, at 383 (quoting Chap
linsky, supra, at 572). In New York v. Ferber, 458 U. S.
8 UNITED STATES v. STEVENS
Opinion of the Court
747 (1982), we noted that within these categories of unpro
tected speech, “the evil to be restricted so overwhelmingly
outweighs the expressive interests, if any, at stake, that
no process of case-by-case adjudication is required,” be
cause “the balance of competing interests is clearly
struck,” id., at 763–764. The Government derives its
proposed test from these descriptions in our precedents.
See Brief for United States 12–13.
But such descriptions are just that—descriptive. They
do not set forth a test that may be applied as a general
matter to permit the Government to imprison any speaker
so long as his speech is deemed valueless or unnecessary,
or so long as an ad hoc calculus of costs and benefits tilts
in a statute’s favor.
When we have identified categories of speech as fully
outside the protection of the First Amendment, it has not
been on the basis of a simple cost-benefit analysis. In
Ferber, for example, we classified child pornography as
such a category, 458 U. S., at 763. We noted that the
State of New York had a compelling interest in protecting
children from abuse, and that the value of using children
in these works (as opposed to simulated conduct or adult
actors) was de minimis. Id., at 756–757, 762. But our
decision did not rest on this “balance of competing inter
ests” alone. Id., at 764. We made clear that Ferber pre
sented a special case: The market for child pornography
was “intrinsically related” to the underlying abuse, and
was therefore “an integral part of the production of such
materials, an activity illegal throughout the Nation.” Id.,
at 759, 761. As we noted, “ ‘[i]t rarely has been suggested
that the constitutional freedom for speech and press ex
tends its immunity to speech or writing used as an inte
gral part of conduct in violation of a valid criminal stat
ute.’ ” Id., at 761–762 (quoting Giboney, supra, at 498).
Ferber thus grounded its analysis in a previously recog
nized, long-established category of unprotected speech,
Cite as: 559 U. S. ____ (2010) 9
Opinion of the Court
and our subsequent decisions have shared this under
standing. See Osborne v. Ohio, 495 U. S. 103, 110 (1990)
(describing Ferber as finding “persuasive” the argument
that the advertising and sale of child pornography was “an
integral part” of its unlawful production (internal quota
tion marks omitted)); Ashcroft v. Free Speech Coalition,
535 U. S. 234, 249–250 (2002) (noting that distribution
and sale “were intrinsically related to the sexual abuse of
children,” giving the speech at issue “a proximate link to
the crime from which it came” (internal quotation marks
omitted)).
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 Amend
ment. 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.
III
Because we decline to carve out from the First Amend
ment any novel exception for §48, we review Stevens’s
First Amendment challenge under our existing doctrine.
A
Stevens challenged §48 on its face, arguing that any
conviction secured under the statute would be unconstitu
tional. The court below decided the case on that basis, 533
F. 3d, at 231, n. 13, and we granted the Solicitor General’s
petition for certiorari to determine “whether 18 U. S. C. 48
is facially invalid under the Free Speech Clause of the
First Amendment,” Pet. for Cert. i.
10 UNITED STATES v. STEVENS
Opinion of the Court
To succeed in a typical facial attack, Stevens would have
to establish “that no set of circumstances exists under
which [§48] would be valid,” United States v. Salerno, 481
U. S. 739, 745 (1987), or that the statute lacks any “plainly
legitimate sweep,” Washington v. Glucksberg, 521 U. S.
702, 740, n. 7 (1997) (STEVENS, J., concurring in judg
ments) (internal quotation marks omitted). Which stan
dard applies in a typical case is a matter of dispute that
we need not and do not address, and neither Salerno nor
Glucksberg is a speech case. Here the Government asserts
that Stevens cannot prevail because §48 is plainly legiti
mate as applied to crush videos and animal fighting depic
tions. Deciding this case through a traditional facial
analysis would require us to resolve whether these appli
cations of §48 are in fact consistent with the Constitution.
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.” Wash
ington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449, n. 6 (2008) (internal quotation
marks omitted). Stevens argues that §48 applies to com
mon depictions of ordinary and lawful activities, and that
these depictions constitute the vast majority of materials
subject to the statute. Brief for Respondent 22–25. The
Government makes no effort to defend such a broad ban as
constitutional. Instead, the Government’s entire defense
of §48 rests on interpreting the statute as narrowly lim
ited to specific types of “extreme” material. Brief for
United States 8. As the parties have presented the issue,
therefore, the constitutionality of §48 hinges on how
broadly it is construed. It is to that question that we now
turn.3
——————
3 The dissent contends that because there has not been a ruling on
Cite as: 559 U. S. ____ (2010)
11
Opinion of the Court
B
As we explained two Terms ago, “[t]he first step in
overbreadth analysis is to construe the challenged statute;
it is impossible to determine whether a statute reaches too
far without first knowing what the statute covers.” United
States v. Williams, 553 U. S. 285, 293 (2008). Because §48
is a federal statute, there is no need to defer to a state
court’s authority to interpret its own law.
We read §48 to create a criminal prohibition of alarming
breadth. To begin with, the text of the statute’s ban on a
“depiction of animal cruelty” nowhere requires that the
depicted conduct be cruel. That text applies to “any . . .
depiction” in which “a living animal is intentionally
maimed, mutilated, tortured, wounded, or killed.”
§48(c)(1). “[M]aimed, mutilated, [and] tortured” convey
cruelty, but “wounded” or “killed” do not suggest any such
limitation.
The Government contends that the terms in the defini
tion should be read to require the additional element of
“accompanying acts of cruelty.” Reply Brief 6; see also Tr.
of Oral Arg. 17–19. (The dissent hinges on the same
——————
the validity of the statute as applied to Stevens, our consideration of his
facial overbreadth claim is premature. Post, at 1, and n. 1, 2–3 (opinion
of ALITO, J.). Whether or not that conclusion follows, here no as-applied
claim has been preserved. Neither court below construed Stevens’s
briefs as adequately developing a separate attack on a defined subset of
the statute’s applications (say, dogfighting videos). See 533 F. 3d 218,
231, n. 13 (CA3 2008) (en banc) (“Stevens brings a facial challenge to
the statute”); App. to Pet. for Cert. 65a, 74a. Neither did the Govern
ment, see Brief for United States in No. 05–2497 (CA3), p. 28 (opposing
“the appellant’s facial challenge”); accord, Brief for United States 4.
The sentence in Stevens’s appellate brief mentioning his unrelated
sufficiency-of-the-evidence challenge hardly developed a First Amend
ment as-applied claim. See post, at 1, n. 1. Stevens’s constitutional
argument is a general one. And unlike the challengers in Washington
State Grange, Stevens does not “rest on factual assumptions . . . that
can be evaluated only in the context of an as-applied challenge.” 552
U. S., at 444.
12 UNITED STATES v. STEVENS
Opinion of the Court
assumption. See post, at 6, 9.) The Government bases
this argument on the definiendum, “depiction of animal
cruelty,” cf. Leocal v. Ashcroft, 543 U. S. 1, 11 (2004), and
on “ ‘the commonsense canon of noscitur a sociis.’ ” Reply
Brief 7 (quoting Williams, 553 U. S., at 294). As that
canon recognizes, an ambiguous term may be “given more
precise content by the neighboring words with which it is
associated.” Ibid. Likewise, an unclear definitional
phrase may take meaning from the term to be defined, see
Leocal, supra, at 11 (interpreting a “ ‘substantial risk’ ” of
the “us[e]” of “physical force” as part of the definition of
“ ‘crime of violence’ ”).
But the phrase “wounded . . . or killed” at issue here
contains little ambiguity. The Government’s opening brief
properly applies the ordinary meaning of these words,
stating for example that to “ ‘kill’ is ‘to deprive of life.’ ”
Brief for United States 14 (quoting Webster’s Third New
International Dictionary 1242 (1993)). We agree that
“wounded” and “killed” should be read according to their
ordinary meaning. Cf. Engine Mfrs. Assn. v. South Coast
Air Quality Management Dist., 541 U. S. 246, 252 (2004).
Nothing about that meaning requires cruelty.
While not requiring cruelty, §48 does require that the
depicted conduct be “illegal.” But this requirement does
not limit §48 along the lines the Government suggests.
There are myriad federal and state laws concerning the
proper treatment of animals, but many of them are not
designed to guard against animal cruelty. Protections of
endangered species, for example, restrict even the humane
“wound[ing] or kill[ing]” of “living animal[s].” §48(c)(1).
Livestock regulations are often designed to protect the
health of human beings, and hunting and fishing rules
(seasons, licensure, bag limits, weight requirements) can
be designed to raise revenue, preserve animal populations,
or prevent accidents. The text of §48(c) draws no distinc
tion based on the reason the intentional killing of an
Cite as: 559 U. S. ____ (2010) 13
Opinion of the Court
animal is made illegal, and includes, for example, the
humane slaughter of a stolen cow.4
What is more, the application of §48 to depictions of
illegal conduct extends to conduct that is illegal in only a
single jurisdiction. Under subsection (c)(1), the depicted
conduct need only be illegal in “the State in which the
creation, sale, or possession takes place, regardless of
whether the . . . wounding . . . or killing took place in
[that] State.” A depiction of entirely lawful conduct runs
afoul of the ban if that depiction later finds its way into
another State where the same conduct is unlawful. This
provision greatly expands the scope of §48, because al
though there may be “a broad societal consensus” against
cruelty to animals, Brief for United States 2, there is
substantial disagreement on what types of conduct are
properly regarded as cruel. Both views about cruelty to
animals and regulations having no connection to cruelty
vary widely from place to place.
In the District of Columbia, for example, all hunting is
unlawful. D. C. Munic. Regs., tit. 19, §1560 (2009). Other
jurisdictions permit or encourage hunting, and there is an
enormous national market for hunting-related depictions
in which a living animal is intentionally killed. Hunting
periodicals have circulations in the hundreds of thousands
or millions, see Mediaweek, Sept. 29, 2008, p. 28, and
hunting television programs, videos, and Web sites are
equally popular, see Brief for Professional Outdoor Media
——————
4 The citations in the dissent’s appendix are beside the point. The
cited statutes stand for the proposition that hunting is not covered by
animal cruelty laws. But the reach of §48 is, as we have explained, not
restricted to depictions of conduct that violates a law specifically
directed at animal cruelty. It simply requires that the depicted conduct
be “illegal.” §48(c)(1). The Government implicitly admits as much,
arguing that “instructional videos for hunting” are saved by the stat
ute’s exceptions clause, not that they fall outside the prohibition in the
first place. Reply Brief 6.
14 UNITED STATES v. STEVENS
Opinion of the Court
Association et al. as Amici Curiae 9–10. The demand for
hunting depictions exceeds the estimated demand for
crush videos or animal fighting depictions by several
orders of magnitude. Compare ibid. and Brief for National
Rifle Association of America, Inc., as Amicus Curiae 12
(hereinafter NRA Brief) (estimating that hunting maga
zines alone account for $135 million in annual retail sales)
with Brief for United States 43–44, 46 (suggesting $1
million in crush video sales per year, and noting that
Stevens earned $57,000 from his videos). Nonetheless,
because the statute allows each jurisdiction to export its
laws to the rest of the country, §48(a) extends to any
magazine or video depicting lawful hunting, so long as
that depiction is sold within the Nation’s Capital.
Those seeking to comply with the law thus face a bewil
dering maze of regulations from at least 56 separate juris
dictions. Some States permit hunting with crossbows, Ga.
Code Ann. §27–3–4(1) (2007); Va. Code Ann. §29.1–
519(A)(6) (Lexis 2008 Cum. Supp.), while others forbid it,
Ore. Admin. Reg. 635–065–0725 (2009), or restrict it only
to the disabled, N. Y. Envir. Conserv. Law Ann. §11–
0901(16) (West 2005). Missouri allows the “canned” hunt
ing of ungulates held in captivity, Mo. Code Regs. Ann.,
tit. 3, 10–9.560(1), but Montana restricts such hunting to
certain bird species, Mont. Admin. Rule 12.6.1202(1)
(2007). The sharp-tailed grouse may be hunted in Idaho,
but not in Washington. Compare Idaho Admin. Code
§13.01.09.606 (2009) with Wash. Admin. Code §232–28–
342 (2009).
The disagreements among the States—and the “com
monwealth[s], territor[ies], or possession[s] of the United
States,” 18 U. S. C. §48(c)(2)—extend well beyond hunting.
State agricultural regulations permit different methods of
livestock slaughter in different places or as applied to differ
ent animals. Compare, e.g., Fla. Stat. §828.23(5) (2007)
(excluding poultry from humane slaughter requirements)
Cite as: 559 U. S. ____ (2010) 15
Opinion of the Court
with Cal. Food & Agric. Code Ann. §19501(b) (West 2001)
(including some poultry). California has recently banned
cutting or “docking” the tails of dairy cattle, which other
States permit. 2009 Cal. Legis. Serv. Ch. 344 (S. B. 135)
(West). Even cockfighting, long considered immoral in
much of America, see Barnes v. Glen Theatre, Inc., 501
U. S. 560, 575 (1991) (SCALIA, J., concurring in judgment),
is legal in Puerto Rico, see 15 Laws P. R. Ann. §301 (Supp.
2008); Posadas de Puerto Rico Associates v. Tourism Co. of
P. R., 478 U. S. 328, 342 (1986), and was legal in Louisi
ana until 2008, see La. Stat. Ann. §14:102.23 (West) (effec
tive Aug. 15, 2008). An otherwise-lawful image of any of
these practices, if sold or possessed for commercial gain
within a State that happens to forbid the practice, falls
within the prohibition of §48(a).
C
The only thing standing between defendants who sell
such depictions and five years in federal prison—other
than the mercy of a prosecutor—is the statute’s exceptions
clause. Subsection (b) exempts from prohibition “any
depiction that has serious religious, political, scientific,
educational, journalistic, historical, or artistic value.” The
Government argues that this clause substantially narrows
the statute’s reach: News reports about animal cruelty
have “journalistic” value; pictures of bullfights in Spain
have “historical” value; and instructional hunting videos
have “educational” value. Reply Brief 6. Thus, the Gov
ernment argues, §48 reaches only crush videos, depictions
of animal fighting (other than Spanish bullfighting, see
Brief for United States 47–48), and perhaps other depic
tions of “extreme acts of animal cruelty.” Id., at 41.
The Government’s attempt to narrow the statutory ban,
however, requires an unrealistically broad reading of the
exceptions clause. As the Government reads the clause,
any material with “redeeming societal value,” id., at 9, 16,
16 UNITED STATES v. STEVENS
Opinion of the Court
23, “ ‘at least some minimal value,’ ” Reply Brief 6 (quoting
H. R. Rep., at 4), or anything more than “scant social
value,” Reply Brief 11, is excluded under §48(b). But the
text says “serious” value, and “serious” should be taken
seriously. We decline the Government’s invitation—
advanced for the first time in this Court—to regard as
“serious” anything that is not “scant.” (Or, as the dissent
puts it, “ ‘trifling.’ ” Post, at 6.) As the Government recog
nized below, “serious” ordinarily means a good bit more.
The District Court’s jury instructions required value that
is “significant and of great import,” App. 132, and the
Government defended these instructions as properly
relying on “a commonly accepted meaning of the word
‘serious,’ ” Brief for United States in No. 05–2497 (CA3), p.
50.
Quite apart from the requirement of “serious” value in
§48(b), the excepted speech must also fall within one of the
enumerated categories. Much speech does not. Most
hunting videos, for example, are not obviously instruc
tional in nature, except in the sense that all life is a les
son. According to Safari Club International and the Con
gressional Sportsmen’s Foundation, many popular videos
“have primarily entertainment value” and are designed to
“entertai[n] the viewer, marke[t] hunting equipment, or
increas[e] the hunting community.” Brief for Safari Club
International et al. as Amici Curiae 12. The National
Rifle Association agrees that “much of the content of hunt
ing media . . . is merely recreational in nature.” NRA Brief
28. The Government offers no principled explanation why
these depictions of hunting or depictions of Spanish bull
fights would be inherently valuable while those of Japa
nese dogfights are not. The dissent contends that hunting
depictions must have serious value because hunting has
serious value, in a way that dogfights presumably do not.
Post, at 6–8. But §48(b) addresses the value of the depic
tions, not of the underlying activity. There is simply no
Cite as: 559 U. S. ____ (2010) 17
Opinion of the Court
adequate reading of the exceptions clause that results in
the statute’s banning only the depictions the Government
would like to ban.
The Government explains that the language of §48(b)
was largely drawn from our opinion in Miller v. California,
413 U. S. 15 (1973), which excepted from its definition of
obscenity any material with “serious literary, artistic,
political, or scientific value,” id., at 24. See Reply Brief 8,
9, and n. 5. According to the Government, this incorpora
tion of the Miller standard into §48 is therefore surely
enough to answer any First Amendment objection. Reply
Brief 8–9.
In Miller we held that “serious” value shields depictions
of sex from regulation as obscenity. 413 U. S., at 24–25.
Limiting Miller’s exception to “serious” value ensured that
“ ‘[a] quotation from Voltaire in the flyleaf of a book
[would] not constitutionally redeem an otherwise obscene
publication.’ ” Id., at 25, n. 7 (quoting Kois v. Wisconsin,
408 U. S. 229, 231 (1972) (per curiam)). We did not, how
ever, determine that serious value could be used as a
general precondition to protecting other types of speech in
the first place. Most of what we say to one another lacks
“religious, political, scientific, educational, journalistic,
historical, or artistic value” (let alone serious value), but it
is still sheltered from government regulation. Even
“ ‘[w]holly neutral futilities . . . come under the protection
of free speech as fully as do Keats’ poems or Donne’s ser
mons.’ ” Cohen v. California, 403 U. S. 15, 25 (1971) (quot
ing Winters v. New York, 333 U. S. 507, 528 (1948) (Frank
furter, J., dissenting); alteration in original).
Thus, the protection of the First Amendment presump
tively extends to many forms of speech that do not qualify
for the serious-value exception of §48(b), but nonetheless
fall within the broad reach of §48(c).
18 UNITED STATES v. STEVENS
Opinion of the Court
D
Not to worry, the Government says: The Executive
Branch construes §48 to reach only “extreme” cruelty,
Brief for United States 8, and it “neither has brought nor
will bring a prosecution for anything less,” Reply Brief 6–
7. The Government hits this theme hard, invoking its
prosecutorial discretion several times. See id., at 6–7, 10,
and n. 6, 19, 22. But the First Amendment protects
against the Government; it does not leave us at the mercy
of noblesse oblige. We would not uphold an unconstitu
tional statute merely because the Government promised to
use it responsibly. Cf. Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 473 (2001).
This prosecution is itself evidence of the danger in put
ting faith in government representations of prosecutorial
restraint. When this legislation was enacted, the Execu
tive Branch announced that it would interpret §48 as
covering only depictions “of wanton cruelty to animals
designed to appeal to a prurient interest in sex.” See
Statement by President William J. Clinton upon Signing
H. R. 1887, 34 Weekly Comp. Pres. Doc. 2557 (Dec. 9,
1999). No one suggests that the videos in this case fit that
description. The Government’s assurance that it will
apply §48 far more restrictively than its language provides
is pertinent only as an implicit acknowledgment of the
potential constitutional problems with a more natural
reading.
Nor can we rely upon the canon of construction that
“ambiguous statutory language [should] be construed to
avoid serious constitutional doubts.” FCC v. Fox Televi
sion Stations, Inc., 556 U. S. ___, ___ (2009) (slip op., at
12). “[T]his Court may impose a limiting construction on a
statute only if it is ‘readily susceptible’ to such a construc
tion.” Reno v. American Civil Liberties Union, 521 U. S.
844, 884 (1997). We “ ‘will not rewrite a . . . law to conform
it to constitutional requirements,’ ” id., at 884–885 (quot
Cite as: 559 U. S. ____ (2010) 19
Opinion of the Court
ing Virginia v. American Booksellers Assn., Inc., 484 U. S.
383, 397 (1988); omission in original), for doing so would
constitute a “serious invasion of the legislative domain,”
United States v. Treasury Employees, 513 U. S. 454, 479,
n. 26 (1995), and sharply diminish Congress’s “incentive to
draft a narrowly tailored law in the first place,” Osborne,
495 U. S., at 121. To read §48 as the Government desires
requires rewriting, not just reinterpretation.
* * *
Our construction of §48 decides the constitutional ques
tion; the Government makes no effort to defend the consti
tutionality of §48 as applied beyond crush videos and
depictions of animal fighting. It argues that those particu
lar depictions are intrinsically related to criminal conduct
or are analogous to obscenity (if not themselves obscene),
and that the ban on such speech is narrowly tailored to
reinforce restrictions on the underlying conduct, prevent
additional crime arising from the depictions, or safeguard
public mores. But the Government nowhere attempts to
extend these arguments to depictions of any other activi
ties—depictions that are presumptively protected by the
First Amendment but that remain subject to the criminal
sanctions of §48.
Nor does the Government seriously contest that the
presumptively impermissible applications of §48 (properly
construed) far outnumber any permissible ones. However
“growing” and “lucrative” the markets for crush videos and
dogfighting depictions might be, see Brief for United
States 43, 46 (internal quotation marks omitted), they are
dwarfed by the market for other depictions, such as hunt
ing magazines and videos, that we have determined to be
within the scope of §48. See supra, at 13–14. We there
fore need not and do not decide whether a statute limited
to crush videos or other depictions of extreme animal
cruelty would be constitutional. We hold only that §48 is
20 UNITED STATES v. STEVENS
Opinion of the Court
not so limited but is instead substantially overbroad, and
therefore invalid under the First Amendment.
The judgment of the United States Court of Appeals for
the Third Circuit is affirmed.
It is so ordered.
Cite as: 559 U. S. ____ (2010) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–769
_________________
UNITED STATES, PETITIONER v. ROBERT J.
STEVENS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 20, 2010]
JUSTICE ALITO, dissenting.
The Court strikes down in its entirety a valuable stat
ute, 18 U. S. C. §48, that was enacted not to suppress
speech, but to prevent horrific acts of animal cruelty—in
particular, the creation and commercial exploitation of
“crush videos,” a form of depraved entertainment that has
no social value. The Court’s approach, which has the
practical effect of legalizing the sale of such videos and is
thus likely to spur a resumption of their production, is
unwarranted. Respondent was convicted under §48 for
selling videos depicting dogfights. On appeal, he argued,
among other things, that §48 is unconstitutional as ap
plied to the facts of this case, and he highlighted features
of those videos that might distinguish them from other
dogfight videos brought to our attention.1 The Court of
——————
1 Respondent argued at length that the evidence was insufficient to
prove that the particular videos he sold lacked any serious scientific,
educational, or historical value and thus fell outside the exception in
§48(b). See Brief for Appellant in No. 05–2497 (CA3), pp. 72–79. He
added that, if the evidence in this case was held to be sufficient to take
his videos outside the scope of the exception, then “this case presents
. . . a situation” in which “a constitutional violation occurs.” Id., at 71.
See also id., at 47 (“The applicability of 18 U. S. C. §48 to speech which
is not a crush video or an appeal to some prurient sexual interest
constitutes a restriction of protected speech, and an unwarranted
violation of the First Amendment’s free speech guarantee”); Brief for
2 UNITED STATES v. STEVENS
ALITO, J., dissenting
Appeals—incorrectly, in my view—declined to decide
whether §48 is unconstitutional as applied to respondent’s
videos and instead reached out to hold that the statute is
facially invalid. Today’s decision does not endorse the
Court of Appeals’ reasoning, but it nevertheless strikes
down §48 using what has been aptly termed the “strong
medicine” of the overbreadth doctrine, United States v.
Williams, 553 U. S. 285, 293 (2008) (internal quotation
marks omitted), a potion that generally should be admin
istered only as “a last resort.” Los Angeles Police Dept. v.
United Reporting Publishing Corp., 528 U. S. 32, 39 (1999)
(internal quotation marks omitted).
Instead of applying the doctrine of overbreadth, I would
vacate the decision below and instruct the Court of Ap
peals on remand to decide whether the videos that respon
dent sold are constitutionally protected. If the question of
overbreadth is to be decided, however, I do not think the
present record supports the Court’s conclusion that §48
bans a substantial quantity of protected speech.
I
A party seeking to challenge the constitutionality of a
statute generally must show that the statute violates the
party’s own rights. New York v. Ferber, 458 U. S. 747, 767
(1982). The First Amendment overbreadth doctrine carves
out a narrow exception to that general rule. See id., at
768; Broadrick v. Oklahoma, 413 U. S. 601, 611–612
(1973). Because an overly broad law may deter constitu
tionally protected speech, the overbreadth doctrine allows
——————
Respondent 55 (“Stevens’ speech does not fit within any existing
category of unprotected, prosecutable speech”); id., at 57 (“[T]he record
as a whole demonstrates that Stevens’ speech cannot constitutionally
be punished”). Contrary to the Court, ante, at 10–11, n. 3 (citing 533
F. 3d 218, 231, n. 13 (CA3 2008) (en banc)), I see no suggestion in the
opinion of the Court of Appeals that respondent did not preserve an as
applied challenge.
Cite as: 559 U. S. ____ (2010) 3
ALITO, J., dissenting
a party to whom the law may constitutionally be applied
to challenge the statute on the ground that it violates the
First Amendment rights of others. See, e.g., Board of
Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 483
(1989) (“Ordinarily, the principal advantage of the over
breadth doctrine for a litigant is that it enables him to
benefit from the statute’s unlawful application to someone
else”); see also Ohralik v. Ohio State Bar Assn., 436 U. S.
447, 462, n. 20 (1978) (describing the doctrine as one
“under which a person may challenge a statute that in
fringes protected speech even if the statute constitution
ally might be applied to him”).
The “strong medicine” of overbreadth invalidation need
not and generally should not be administered when the
statute under attack is unconstitutional as applied to the
challenger before the court. As we said in Fox, supra, at
484–485, “[i]t is not the usual judicial practice, . . . nor do
we consider it generally desirable, to proceed to an over
breadth issue unnecessarily—that is, before it is deter
mined that the statute would be valid as applied.” Accord,
New York State Club Assn., Inc. v. City of New York, 487
U. S. 1, 11 (1988); see also Broadrick, supra, at 613;
United Reporting Publishing Corp., supra, at 45 (STEVENS,
J., dissenting).
I see no reason to depart here from the generally pre
ferred procedure of considering the question of over
breadth only as a last resort.2 Because the Court has
addressed the overbreadth question, however, I will ex
plain why I do not think that the record supports the
conclusion that §48, when properly interpreted, is overly
broad.
——————
2 For the reasons set forth below, this is not a case in which the chal
lenged statute is unconstitutional in all or almost all of its applications.
4 UNITED STATES v. STEVENS
ALITO, J., dissenting
II
The overbreadth doctrine “strike[s] a balance between
competing social costs.” Williams, 553 U. S., at 292.
Specifically, the doctrine seeks to balance the “harmful
effects” of “invalidating a law that in some of its applica
tions is perfectly constitutional” against the possibility
that “the threat of enforcement of an overbroad law [will]
dete[r] people from engaging in constitutionally protected
speech.” Ibid. “In order to maintain an appropriate bal
ance, we have vigorously enforced the requirement that a
statute’s overbreadth be substantial, not only in an abso
lute sense, but also relative to the statute’s plainly legiti
mate sweep.” Ibid.In determining whether a statute’s overbreadth is sub
stantial, we consider a statute’s application to real-world
conduct, not fanciful hypotheticals. See, e.g., id., at 301–
302; see also Ferber, supra, at 773; Houston v. Hill, 482
U. S. 451, 466–467 (1987). Accordingly, we have repeat
edly emphasized that an overbreadth claimant bears the
burden of demonstrating, “from the text of [the law] and
from actual fact,” that substantial overbreadth exists.
Virginia v. Hicks, 539 U. S. 113, 122 (2003) (quoting New
York State Club Assn., supra, at 14; emphasis added;
internal quotation marks omitted; alteration in original).
Similarly, “there must be a realistic danger that the stat
ute itself will significantly compromise recognized First
Amendment protections of parties not before the Court for
it to be facially challenged on overbreadth grounds.”
Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789, 801 (1984) (emphasis added).
III
In holding that §48 violates the overbreadth rule, the
Court declines to decide whether, as the Government
maintains, §48 is constitutional as applied to two broad
categories of depictions that exist in the real world: crush
Cite as: 559 U. S. ____ (2010) 5
ALITO, J., dissenting
videos and depictions of deadly animal fights. See ante, at
10, 19. Instead, the Court tacitly assumes for the sake of
argument that §48 is valid as applied to these depictions,
but the Court concludes that §48 reaches too much pro
tected speech to survive. The Court relies primarily on
depictions of hunters killing or wounding game and depic
tions of animals being slaughtered for food. I address the
Court’s examples below.
A
I turn first to depictions of hunting. As the Court notes,
photographs and videos of hunters shooting game are
common. See ante, at 13–14. But hunting is legal in all
50 States, and §48 applies only to a depiction of conduct
that is illegal in the jurisdiction in which the depiction is
created, sold, or possessed. §§48(a), (c). Therefore, in all
50 States, the creation, sale, or possession for sale of the
vast majority of hunting depictions indisputably falls
outside §48’s reach.
Straining to find overbreadth, the Court suggests that
§48 prohibits the sale or possession in the District of Co
lumbia of any depiction of hunting because the District—
undoubtedly because of its urban character—does not
permit hunting within its boundaries. Ante, at 13. The
Court also suggests that, because some States prohibit a
particular type of hunting (e.g., hunting with a crossbow
or “canned” hunting) or the hunting of a particular animal
(e.g., the “sharp-tailed grouse”), §48 makes it illegal for
persons in such States to sell or possess for sale a depic
tion of hunting that was perfectly legal in the State in
which the hunting took place. See ante, at 12–14.
The Court’s interpretation is seriously flawed. “When a
federal court is dealing with a federal statute challenged
as overbroad, it should, of course, construe the statute to
avoid constitutional problems, if the statute is subject to
such a limiting construction.” Ferber, 458 U. S., at 769,
6 UNITED STATES v. STEVENS
ALITO, J., dissenting
n. 24. See also Williams, supra, at 307 (STEVENS, J.,
concurring) (“[T]o the extent the statutory text alone is
unclear, our duty to avoid constitutional objections makes
it especially appropriate to look beyond the text in order to
ascertain the intent of its drafters”).
Applying this canon, I would hold that §48 does not
apply to depictions of hunting. First, because §48 targets
depictions of “animal cruelty,” I would interpret that
term to apply only to depictions involving acts of animal
cruelty as defined by applicable state or federal law, not
to depictions of acts that happen to be illegal for reasons
having nothing to do with the prevention of animal cru
elty. See ante, at 12–13 (interpreting “[t]he text of §48(c)”
to ban a depiction of “the humane slaughter of a stolen
cow”). Virtually all state laws prohibiting animal cruelty
either expressly define the term “animal” to exclude
wildlife or else specifically exempt lawful hunting activi
ties,3 so the statutory prohibition set forth in §48(a) may
reasonably be interpreted not to reach most if not all
hunting depictions.
Second, even if the hunting of wild animals were other
wise covered by §48(a), I would hold that hunting depic
tions fall within the exception in §48(b) for depictions that
have “serious” (i.e., not “trifling”4) “scientific,” “educa
——————
3 See Appendix, infra (citing statutes); B. Wagman, S. Waisman, & P.
Frasch, Animal Law: Cases and Materials 92 (4th ed. 2010) (“Most anti
cruelty laws also include one or more exemptions,” which often “ex
clud[e] from coverage (1) whole classes of animals, such as wildlife or
farm animals, or (2) specific activities, such as hunting”); Note, Eco
nomics and Ethics in the Genetic Engineering of Animals, 19 Harv.
J. L. & Tech. 413, 432 (2006) (“Not surprisingly, state laws relating to
the humane treatment of wildlife, including deer, elk, and waterfowl,
are virtually non-existent”).
4 Webster’s Third New International Dictionary 2073 (1976); Random
House Dictionary of the English Language 1303 (1966). While the term
“serious” may also mean “weighty” or “important,” ibid., we should
adopt the former definition if necessary to avoid unconstitutionality.
Cite as: 559 U. S. ____ (2010) 7
ALITO, J., dissenting
tional,” or “historical” value. While there are certainly
those who find hunting objectionable, the predominant
view in this country has long been that hunting serves
many important values, and it is clear that Congress
shares that view. Since 1972, when Congress called upon
the President to designate a National Hunting and Fish
ing Day, see S. J. Res. 117, 92d Cong., 2d Sess. (1972), 86
Stat. 133, Presidents have regularly issued proclamations
extolling the values served by hunting. See Presidential
Proclamation No. 8421, 74 Fed. Reg. 49305 (Pres. Obama
2009) (hunting and fishing are “ageless pursuits” that
promote “the conservation and restoration of numerous
species and their natural habitats”); Presidential Procla
mation No. 8295, 73 Fed. Reg. 57233 (Pres. Bush 2008)
(hunters and anglers “add to our heritage and keep our
wildlife populations healthy and strong,” and “are among
our foremost conservationists”); Presidential Proclamation
No. 7822, 69 Fed. Reg. 59539 (Pres. Bush 2004) (hunting
and fishing are “an important part of our Nation’s heri
tage,” and “America’s hunters and anglers represent the
great spirit of our country”); Presidential Proclamation No.
4682, 44 Fed. Reg. 53149 (Pres. Carter 1979) (hunting
promotes conservation and an appreciation of “healthy
recreation, peaceful solitude and closeness to nature”);
Presidential Proclamation No. 4318, 39 Fed. Reg. 35315(Pres. Ford 1974) (hunting furthers “appreciation and
respect for nature” and preservation of the environment).
Thus, it is widely thought that hunting has “scientific”
value in that it promotes conservation, “historical” value
in that it provides a link to past times when hunting
played a critical role in daily life, and “educational” value
in that it furthers the understanding and appreciation of
nature and our country’s past and instills valuable charac
ter traits. And if hunting itself is widely thought to serve
these values, then it takes but a small additional step to
conclude that depictions of hunting make a non-trivial
8 UNITED STATES v. STEVENS
ALITO, J., dissenting
contribution to the exchange of ideas. Accordingly, I
would hold that hunting depictions fall comfortably within
the exception set out in §48(b).
I do not have the slightest doubt that Congress, in en
acting §48, had no intention of restricting the creation,
sale, or possession of depictions of hunting. Proponents of
the law made this point clearly. See H. R. Rep. No. 106–
397, p. 8 (1999) (hereinafter H. R. Rep.) (“[D]epictions of
ordinary hunting and fishing activities do not fall within
the scope of the statute”); 145 Cong. Rec. 25894 (Oct. 19,
1999) (Rep. McCollum) (“[T]he sale of depictions of legal
activities, such as hunting and fishing, would not be illegal
under this bill”); id., at 25895 (Rep. Smith) (“[L]et us be
clear as to what this legislation will not do. It will in no
way prohibit hunting, fishing, or wildlife videos”). Indeed,
even opponents acknowledged that §48 was not intended
to reach ordinary hunting depictions. See ibid. (Rep.
Scott); id., at 25897 (Rep. Paul).
For these reasons, I am convinced that §48 has no appli
cation to depictions of hunting. But even if §48 did imper
missibly reach the sale or possession of depictions of hunt
ing in a few unusual situations (for example, the sale in
Oregon of a depiction of hunting with a crossbow in Vir
ginia or the sale in Washington State of the hunting of a
sharp-tailed grouse in Idaho, see ante, at 14), those iso
lated applications would hardly show that §48 bans a
substantial amount of protected speech.
B
Although the Court’s overbreadth analysis rests primar
ily on the proposition that §48 substantially restricts the
sale and possession of hunting depictions, the Court cites
a few additional examples, including depictions of methods
of slaughter and the docking of the tails of dairy cows. See
ante, at 14–15.
Such examples do not show that the statute is substan
Cite as: 559 U. S. ____ (2010) 9
ALITO, J., dissenting
tially overbroad, for two reasons. First, as explained
above, §48 can reasonably be construed to apply only to
depictions involving acts of animal cruelty as defined by
applicable state or federal law, and anti-cruelty laws do
not ban the sorts of acts depicted in the Court’s hypotheti
cals. See, e.g., Idaho Code §25–3514 (Lexis 2000) (“No
part of this chapter [prohibiting cruelty to animals] shall
be construed as interfering with or allowing interference
with . . . [t]he humane slaughter of any animal normally
and commonly raised as food or for production of fiber . . .
[or] [n]ormal or accepted practices of . . . animal hus
bandry”); Kan. Stat. Ann. § 21–4310(b) (2007) (“The provi
sions of this section shall not apply to . . . with respect to
farm animals, normal or accepted practices of animal
husbandry, including the normal and accepted practices
for the slaughter of such animals”); Md. Crim. Law Code
Ann. §10–603 (Lexis 2002) (sections prohibiting animal
cruelty “do not apply to . . . customary and normal veteri
nary and agricultural husbandry practices, including
dehorning, castration, tail docking, and limit feeding”).
Second, nothing in the record suggests that any one has
ever created, sold, or possessed for sale a depiction of the
slaughter of food animals or of the docking of the tails of
dairy cows that would not easily qualify under the excep
tion set out in §48(b). Depictions created to show proper
methods of slaughter or tail-docking would presumably
have serious “educational” value, and depictions created to
focus attention on methods thought to be inhumane or
otherwise objectionable would presumably have either
serious “educational” or “journalistic” value or both. In
short, the Court’s examples of depictions involving the
docking of tails and humane slaughter do not show that
§48 suffers from any overbreadth, much less substantial
overbreadth.
The Court notes, finally, that cockfighting, which is
illegal in all States, is still legal in Puerto Rico, ante, at 15,
10 UNITED STATES v. STEVENS
ALITO, J., dissenting
and I take the Court’s point to be that it would be imper
missible to ban the creation, sale, or possession in Puerto
Rico of a depiction of a cockfight that was legally staged in
Puerto Rico.5 But assuming for the sake of argument that
this is correct, this veritable sliver of unconstitutionality
would not be enough to justify striking down §48 in toto.
In sum, we have a duty to interpret §48 so as to avoid
serious constitutional concerns, and §48 may reasonably
be construed not to reach almost all, if not all, of the depic
tions that the Court finds constitutionally protected.
Thus, §48 does not appear to have a large number of un
constitutional applications. Invalidation for overbreadth
is appropriate only if the challenged statute suffers from
substantial overbreadth—judged not just in absolute
terms, but in relation to the statute’s “plainly legitimate
sweep.” Williams, 553 U. S., at 292. As I explain in the
following Part, §48 has a substantial core of constitution
ally permissible applications.
IV
A
1
As the Court of Appeals recognized, “the primary con
duct that Congress sought to address through its passage
[of §48] was the creation, sale, or possession of ‘crush
videos.’ ” 533 F. 3d 218, 222 (CA3 2008) (en banc). A
sample crush video, which has been lodged with the Clerk,
records the following event:
——————
5 Since the Court has taken pains not to decide whether §48 would be
unconstitutional as applied to graphic dogfight videos, including those
depicting fights occurring in countries where dogfighting is legal, I take
it that the Court does not intend for its passing reference to cockfights
to mean either that all depictions of cockfights, whether legal or illegal
under local law, are protected by the First Amendment or that it is
impermissible to ban the sale or possession in the States of a depiction
of a legal cockfight in Puerto Rico.
Cite as: 559 U. S. ____ (2010) 11
ALITO, J., dissenting
“[A] kitten, secured to the ground, watches and
shrieks in pain as a woman thrusts her high-heeled
shoe into its body, slams her heel into the kitten’s eye
socket and mouth loudly fracturing its skull, and
stomps repeatedly on the animal’s head. The kitten
hemorrhages blood, screams blindly in pain, and is ul
timately left dead in a moist pile of blood-soaked hair
and bone.” Brief for Humane Society of United States
as Amicus Curiae 2 (hereinafter Humane Society
Brief).
It is undisputed that the conduct depicted in crush
videos may constitutionally be prohibited. All 50 States
and the District of Columbia have enacted statutes prohib
iting animal cruelty. See 533 F. 3d, at 223, and n. 4 (citing
statutes); H. R. Rep., at 3. But before the enactment of
§48, the underlying conduct depicted in crush videos was
nearly impossible to prosecute. These videos, which “ often
appeal to persons with a very specific sexual fetish,” id., at
2, were made in secret, generally without a live audience,
and “the faces of the women inflicting the torture in the
material often were not shown, nor could the location of
the place where the cruelty was being inflicted or the date
of the activity be ascertained from the depiction.” Id., at 3.
Thus, law enforcement authorities often were not able to
identify the parties responsible for the torture. See Pun
ishing Depictions of Animal Cruelty and the Federal
Prisoner Health Care Co-Payment Act of 1999: Hearing
before the Subcommittee on Crime of the House Commit
tee on the Judiciary, 106th Cong., 1st Sess., p. 1 (1999)
(hereinafter Hearing on Depictions of Animal Cruelty). In
the rare instances in which it was possible to identify and
find the perpetrators, they “often were able to successfully
assert as a defense that the State could not prove its
jurisdiction over the place where the act occurred or that
the actions depicted took place within the time specified in
12 UNITED STATES v. STEVENS
ALITO, J., dissenting
the State statute of limitations.” H. R. Rep., at 3; see also
145 Cong. Rec. 25896 (Rep. Gallegly) (“[I]t is the prosecu
tors from around this country, Federal prosecutors as well
as State prosecutors, that have made an appeal to us for
this”); Hearing on Depictions of Animal Cruelty 21 (“If the
production of the video is not discovered during the actual
filming, then prosecution for the offense is virtually im
possible without a cooperative eyewitness to the filming or
an undercover police operation”); id., at 34–35 (discussing
example of case in which state prosecutor “had the defen
dant telling us he produced these videos,” but where
prosecution was not possible because the State could not
prove where or when the tape was made).
In light of the practical problems thwarting the prosecu
tion of the creators of crush videos under state animal
cruelty laws, Congress concluded that the only effective
way of stopping the underlying criminal conduct was to
prohibit the commercial exploitation of the videos of that
conduct. And Congress’ strategy appears to have been
vindicated. We are told that “[b]y 2007, sponsors of §48
declared the crush video industry dead. Even overseas
Websites shut down in the wake of §48. Now, after the
Third Circuit’s decision [facially invalidating the statute],
crush videos are already back online.” Humane Society
Brief 5 (citations omitted).
2
The First Amendment protects freedom of speech, but it
most certainly does not protect violent criminal conduct,
even if engaged in for expressive purposes. Crush videos
present a highly unusual free speech issue because they
are so closely linked with violent criminal conduct. The
videos record the commission of violent criminal acts, and
it appears that these crimes are committed for the sole
purpose of creating the videos. In addition, as noted
above, Congress was presented with compelling evidence
Cite as: 559 U. S. ____ (2010) 13
ALITO, J., dissenting
that the only way of preventing these crimes was to target
the sale of the videos. Under these circumstances, I can
not believe that the First Amendment commands Con
gress to step aside and allow the underlying crimes to
continue.
The 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.
In Ferber, an important factor—I would say the most
important factor—was that child pornography involves the
commission of a crime that inflicts severe personal injury
to the “children who are made to engage in sexual conduct
for commercial purposes.’ ” Id., at 753 (internal quotation
marks omitted). The Ferber Court repeatedly described
the production of child pornography as child “abuse,”
“molestation,” or “exploitation.” See, e.g., id., at 749 (“In
recent years, the exploitive use of children in the produc
tion of pornography has become a serious national prob
lem”); id., at 758, n. 9 (“Sexual molestation by adults is
often involved in the production of child sexual perform
ances”). As later noted in Ashcroft v. Free Speech Coali
tion, 535 U. S. 234, 249 (2002), in Ferber “[t]he production
of the work, not its content, was the target of the statute.”
See also 535 U.S., at 250 (Ferber involved “speech that
itself is the record of sexual abuse”).
Second, Ferber emphasized the fact that these underly
ing crimes could not be effectively combated without tar
geting the distribution of child pornography. As the Court
put it, “the distribution network for child pornography
must be closed if the production of material which requires
the sexual exploitation of children is to be effectively
controlled.” 458 U. S., at 759. The Court added:
“[T]here is no serious contention that the legislature
14 UNITED STATES v. STEVENS
ALITO, J., dissenting
was unjustified in believing that it is difficult, if not
impossible, to halt the exploitation of children by pur
suing only those who produce the photographs and
movies. . . . The most expeditious if not the only prac
tical method of law enforcement may be to dry up the
market for this material by imposing severe criminal
penalties on persons selling, advertising, or otherwise
promoting the product.” Id., at 759–760.
See also id., at 761 (“The advertising and selling of child
pornography provide an economic motive for and are thus
an integral part of the production of such materials”).
Third, the Ferber Court noted that the value of child
pornography “is exceedingly modest, if not de minimis,”
and that any such value was “overwhelmingly out
weigh[ed]” by “the evil to be restricted.” Id., at 762–763.
All three of these characteristics are shared by §48, as
applied to crush videos. First, the conduct depicted in
crush videos is criminal in every State and the District of
Columbia. Thus, any crush video made in this country
records the actual commission of a criminal act that in
flicts severe physical injury and excruciating pain and
ultimately results in death. Those who record the under
lying criminal acts are likely to be criminally culpable,
either as aiders and abettors or conspirators. And in the
tight and secretive market for these videos, some who sell
the videos or possess them with the intent to make a profit
may be similarly culpable. (For example, in some cases,
crush videos were commissioned by purchasers who speci
fied the details of the acts that they wanted to see per
formed. See H. R. Rep., at 3; Hearing on Depictions of
Animal Cruelty 27). To the extent that §48 reaches such
persons, it surely does not violate the First Amendment.
Second, the criminal acts shown in crush videos cannot
be prevented without targeting the conduct prohibited by
§48—the creation, sale, and possession for sale of depic
Cite as: 559 U. S. ____ (2010) 15
ALITO, J., dissenting
tions of animal torture with the intention of realizing a
commercial profit. The evidence presented to Congress
posed a stark choice: Either ban the commercial exploita
tion of crush videos or tolerate a continuation of the crimi
nal acts that they record. Faced with this evidence, Con
gress reasonably chose to target the lucrative crush video
market.
Finally, the harm caused by the underlying crimes
vastly outweighs any minimal value that the depictions
might conceivably be thought to possess. Section 48
reaches only the actual recording of acts of animal torture;
the statute does not apply to verbal descriptions or to
simulations. And, unlike the child pornography statute in
Ferber or its federal counterpart, 18 U. S. C. §2252, §48(b)
provides an exception for depictions having any “serious
religious, political, scientific, educational, journalistic,
historical, or artistic value.”
It must be acknowledged that §48 differs from a child
pornography law in an important respect: preventing the
abuse of children is certainly much more important than
preventing the torture of the animals used in crush videos.
It was largely for this reason that the Court of Appeals
concluded that Ferber did not support the constitutionality
of §48. 533 F. 3d, at 228 (“Preventing cruelty to animals,
although an exceedingly worthy goal, simply does not
implicate interests of the same magnitude as protecting
children from physical and psychological harm”). But
while protecting children is unquestionably more impor
tant than protecting animals, the Government also has a
compelling interest in preventing the torture depicted in
crush videos.
The animals used in crush videos are living creatures
that experience excruciating pain. Our society has long
banned such cruelty, which is illegal throughout the coun
try. In Ferber, the Court noted that “virtually all of the
States and the United States have passed legislation
16 UNITED STATES v. STEVENS
ALITO, J., dissenting
proscribing the production of or otherwise combating ‘child
pornography,’ ” and the Court declined to “second-guess
[that] legislative judgment.”6 458 U. S., at 758. Here,
likewise, the Court of Appeals erred in second-guessing
the legislative judgment about the importance of prevent
ing cruelty to animals.
Section 48’s ban on trafficking in crush videos also helps
to enforce the criminal laws and to ensure that criminals
do not profit from their crimes. See 145 Cong. Rec. 25897
(Oct. 19, 1999) (Rep. Gallegly) (“The state has an interest
in enforcing its existing laws. Right now, the laws are not
only being violated, but people are making huge profits
from promoting the violations”); id., at 10685 (May 24,
1999) (Rep. Gallegly) (explaining that he introduced the
House version of the bill because “criminals should not
profit from [their] illegal acts”). We have already judged
that taking the profit out of crime is a compelling interest.
See Simon & Schuster, Inc. v. Members of N. Y. State
Crime Victims Bd., 502 U. S. 105, 119 (1991).
In short, Ferber is the case that sheds the most light on
the constitutionality of Congress’ effort to halt the produc
tion of crush videos. Applying the principles set forth in
Ferber, I would hold that crush videos are not protected by
the First Amendment.
B
Application of the Ferber framework also supports the
——————
6 In other cases, we have regarded evidence of a national consensus as
proof that a particular government interest is compelling. See Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S.
105, 118 (1991) (State’s compelling interest “in ensuring that victims of
crime are compensated by those who harm them” evidenced by fact that
“[e]very State has a body of tort law serving exactly this interest”);
Roberts v. United States Jaycees, 468 U. S. 609, 624–625 (1984) (citing
state laws prohibiting discrimination in public accommodations as
evidence of the compelling governmental interest in ensuring equal
access).
Cite as: 559 U. S. ____ (2010) 17
ALITO, J., dissenting
constitutionality of §48 as applied to depictions of brutal
animal fights. (For convenience, I will focus on videos of
dogfights, which appear to be the most common type of
animal fight videos.)
First, such depictions, like crush videos, record the
actual commission of a crime involving deadly violence.
Dogfights are illegal in every State and the District of
Columbia, Brief for United States 26–27, and n. 8 (citing
statutes), and under federal law constitute a felony pun
ishable by imprisonment for up to five years, 7 U. S. C.
§2156 et seq. (2006 ed. and Supp. II), 18 U. S. C. §49 (2006
ed., Supp. II).
Second, Congress had an ample basis for concluding
that the crimes depicted in these videos cannot be effec
tively controlled without targeting the videos. Like crush
videos and child pornography, dogfight videos are very
often produced as part of a “low-profile, clandestine indus
try,” and “the need to market the resulting products re
quires a visible apparatus of distribution.” Ferber, 458
U. S., at 760. In such circumstances, Congress had rea
sonable grounds for concluding that it would be “difficult,
if not impossible, to halt” the underlying exploitation of
dogs by pursuing only those who stage the fights. Id., at
759–760; see 533 F. 3d, at 246 (Cowen, J., dissenting)
(citing evidence establishing “the existence of a lucrative
market for depictions of animal cruelty,” including videos
of dogfights, “which in turn provides a powerful incentive
to individuals to create [such] videos”).
The commercial trade in videos of dogfights is “an inte
gral part of the production of such materials,” Ferber,
supra, at 761. As the Humane Society explains,
“[v]ideotapes memorializing dogfights are integral to the
success of this criminal industry” for a variety of reasons.
Humane Society Brief 5. For one thing, some dogfighting
videos are made “solely for the purpose of selling the video
(and not for a live audience).” Id., at 9. In addition, those
18 UNITED STATES v. STEVENS
ALITO, J., dissenting
who stage dogfights profit not just from the sale of the
videos themselves, but from the gambling revenue they
take in from the fights; the videos “encourage [such] gam
bling activity because they allow those reluctant to attend
actual fights for fear of prosecution to still bet on the
outcome.” Ibid.; accord, Brief for Center on the Admini
stration of Criminal Law as Amicus Curiae 12 (“Selling
videos of dogfights effectively abets the underlying crimes
by providing a market for dogfighting while allowing
actual dogfights to remain underground”); ibid. (“These
videos are part of a ‘lucrative market’ where videos are
produced by a ‘bare-boned, clandestine staff’ in order to
permit the actual location of dogfights and the perpetra
tors of these underlying criminal activities to go unde
tected” (citations omitted)). Moreover, “[v]ideo documen
tation is vital to the criminal enterprise because it
provides proof of a dog’s fighting prowess—proof de
manded by potential buyers and critical to the under
ground market.” Humane Society Brief 9. Such re
cordings may also serve as “ ‘training’ videos for other fight
organizers.” Ibid. In short, because videos depicting live
dogfights are essential to the success of the criminal dog
fighting subculture, the commercial sale of such videos
helps to fuel the market for, and thus to perpetuate the
perpetration of, the criminal conduct depicted in them.
Third, depictions of dogfights that fall within §48’s reach
have by definition no appreciable social value. As noted,
§48(b) exempts depictions having any appreciable social
value, and thus the mere inclusion of a depiction of a live
fight in a larger work that aims at communicating an idea
or a message with a modicum of social value would not run
afoul of the statute.
Finally, the harm caused by the underlying criminal
acts greatly outweighs any trifling value that the depic
tions might be thought to possess. As the Humane Society
explains:
Cite as: 559 U. S. ____ (2010) 19
ALITO, J., dissenting
“The abused dogs used in fights endure physical tor
ture and emotional manipulation throughout their
lives to predispose them to violence; common tactics
include feeding the animals hot peppers and gunpow
der, prodding them with sticks, and electrocution.
Dogs are conditioned never to give up a fight, even if
they will be gravely hurt or killed. As a result, dog
fights inflict horrific injuries on the participating
animals, including lacerations, ripped ears, puncture
wounds and broken bones. Losing dogs are routinely
refused treatment, beaten further as ‘punishment’ for
the loss, and executed by drowning, hanging, or incin
eration.” Id., at 5–6 (footnotes omitted).
For these dogs, unlike the animals killed in crush vid
eos, the suffering lasts for years rather than minutes. As
with crush videos, moreover, the statutory ban on com
merce in dogfighting videos is also supported by compel
ling governmental interests in effectively enforcing the
Nation’s criminal laws and preventing criminals from
profiting from their illegal activities. See Ferber, supra, at
757–758; Simon & Schuster, 502 U. S., at 119.
In sum, §48 may validly be applied to at least two broad
real-world categories of expression covered by the statute:
crush videos and dogfighting videos. Thus, the statute has
a substantial core of constitutionally permissible applica
tions. Moreover, for the reasons set forth above, the re
cord does not show that §48, properly interpreted, bans a
substantial amount of protected speech in absolute terms.
A fortiori, respondent has not met his burden of demon
strating that any impermissible applications of the statute
are “substantial” in relation to its “plainly legitimate
sweep.” Williams, 553 U. S., at 292. Accordingly, I would
reject respondent’s claim that §48 is facially unconstitu
tional under the overbreadth doctrine.
20 UNITED STATES v. STEVENS
ALITO, J., dissenting
* * *
For these reasons, I respectfully dissent.
Cite as: 559 U. S. ____ (2010) 21
Appendix to J., dissenting , J.
ALITO, opinion of ALITO
APPENDIX
As the following chart makes clear, virtually all state
laws prohibiting animal cruelty either expressly define
the term “animal” to exclude wildlife or else specifically
exempt lawful hunting activities.
Alaska Alaska Stat. §11.61.140(c)(4) (2008) (“It is a
defense to a prosecution under this section that
the conduct of the defendant . . . was necessarily
incidental to lawful fishing, hunting or trapping
activities”)
Arizona Ariz. Rev. Stat. Ann. §§13–2910(C)(1), (3) (West
Supp. 2009) (“This section does not prohibit or
restrict . . . [t]he taking of wildlife or other
activities permitted by or pursuant to title 17
. . . [or] [a]ctivities regulated by the Arizona
game and fish department or the Arizona de
partment of agriculture”)
Arkansas Ark. Code Ann. §5–62–105(a) (Supp. 2009)
(“This subchapter does not prohibit any of the
following activities: . . . (9) Engaging in the
taking of game or fish through hunting, trap
ping, or fishing, or engaging in any other activ
ity authorized by Arkansas Constitution,
Amendment 35, by §15–41–101 et seq., or by
any Arkansas State Game and Fish Commission
regulation promulgated under either Arkansas
Constitution, Amendment 35, or statute”)
California Cal. Penal Code Ann. §599c (West 1999) (“No
part of this title shall be construed as interfer
ing with any of the laws of this state known as
the ‘game laws,’ . . . or to interfere with the right
to kill all animals used for food”)
Colorado Colo. Rev. Stat. Ann. §18–9–201.5(2) (2009) (“In
case of any conflict between this part 2 [prohib
iting cruelty to animals] or section 35–43–126,
[Colo. Rev. Stat.], and the wildlife statutes of
22 UNITED STATES v. STEVENS
Appendix to J., dissenting , J.
ALITO, opinion of ALITO
the state, said wildlife statutes shall control”),
§18–9–202(3) (“Nothing in this part 2 shall be
construed to amend or in any manner change
the authority of the wildlife commission, as
established in title 33, [Colo. Rev. Stat.], or to
prohibit any conduct therein authorized or
permitted”)
Connecticut Conn. Gen. Stat. §53–247(b) (2009) (“Any person
who maliciously and intentionally maims,
mutilates, tortures, wounds or kills an animal
shall be fined not more than five thousand
dollars or imprisoned not more than five years
or both. The provisions of this subsection shall
not apply to . . . any person . . . while lawfully
engaged in the taking of wildlife”)
Delaware Del. Code Ann., Tit. 11, §1325(f) (2007) (“This
section shall not apply to the lawful hunting or
trapping of animals as provided by law”)
Florida Fla. Stat. §828.122(9)(b) (2007) (“This section
shall not apply to . . . [a]ny person using animals
to pursue or take wildlife or to participate in any
hunting regulated or subject to being regulated
by the rules and regulations of the Fish and
Wildlife Conservation Commission”)
Georgia Ga. Code Ann. §16–12–4(e) (2007) (“The provi
sions of this Code section shall not be construed
as prohibiting conduct which is otherwise per
mitted under the laws of this state or of the
United States, including, but not limited to . . .
hunting, trapping, fishing, [or] wildlife man
agement”)
Hawaii Haw. Rev. Stat. §711–1108.5(1) (2008 Cum.
Supp.) (“A person commits the offense of cruelty
to animals in the first degree if the person
intentionally or knowingly tortures, mutilates,
or poisons or causes the torture, mutilation, or
poisoning of any pet animal or equine animal
resulting in serious bodily injury or death of the
pet animal or equine animal”)
Cite as: 559 U. S. ____ (2010) 23
Appendix to J., dissenting , J.
ALITO, opinion of ALITO
Idaho Idaho Code §25–3515 (Lexis 2000) (“No part of
this chapter shall be construed as interfering
with, negating or preempting any of the laws or
rules of the department of fish and game of this
state . . . or to interfere with the right to kill,
slaughter, bag or take all animals used for food”)
Illinois Ill. Comp. Stat., ch. 510, §70/13 (West 2006) (“In
case of any alleged conflict between this Act . . .
and the ‘Wildlife Code of Illinois’ or ‘An Act to
define and require the use of humane methods
in the handling, preparation for slaughter, and
slaughter of livestock for meat or meat products
to be offered for sale’, . . . the provisions of those
Acts shall prevail”), §70/3.03(b)(1) (“For the
purposes of this Section, ‘animal torture’ does
not include any death, harm, or injury caused to
any animal by . . . any hunting, fishing, trap
ping, or other activity allowed under the Wild
life Code, the Wildlife Habitat Management
Areas Act, or the Fish and Aquatic Life Code”
(footnotes omitted))
Indiana Ind. Code §35–46–3–5(a) (West 2004) (subject to
certain exceptions not relevant here, “this
chapter [prohibiting “Offenses Relating to
Animals”] does not apply to . . . [f]ishing, hunt
ing, trapping, or other conduct authorized under
[Ind. Code §]14–22”)
Iowa Iowa Code §717B.2(5) (2009) (“This section
[banning “animal abuse”] shall not apply to . . .
[a] person taking, hunting, trapping, or fishing
for a wild animal as provided in chapter 481A”),
§717B.3A(2)(e) (“This section [banning “animal
torture”] shall not apply to . . . [a] person taking,
hunting, trapping, or fishing for a wild animal
as provided in chapter 481A”)
Kansas Kan. Stat. Ann. §21–4310(b)(3) (2007) (“The
provisions of this section shall not apply to . . .
killing, attempting to kill, trapping, catching or
taking of any animal in accordance with the
24 UNITED STATES v. STEVENS
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ALITO, opinion of ALITO
provisions of chapter 32 [Wildlife, Parks and
Recreation] or chapter 47 [Livestock and Do
mestic Animals] of the Kansas Statutes Anno
tated”)
Kentucky Ky. Rev. Stat. Ann. §§525.130(2)(a), (e) (Lexis
2008) (“Nothing in this section shall apply to the
killing of animals . . . [p]ursuant to a license to
hunt, fish, or trap . . . [or] [f]or purposes relating
to sporting activities”), §525.130(3) (“Activities
of animals engaged in hunting, field trials, dog
training other than training a dog to fight for
pleasure or profit, and other activities author
ized either by a hunting license or by the De
partment of Fish and Wildlife shall not consti
tute a violation of this section”)
Louisiana La. Rev. Stat. Ann. §14:102.1(C)(1) (West Supp.
2010) (“This Section shall not apply to . . . [t]he
lawful hunting or trapping of wildlife as pro
vided by law”)
Maine Me. Rev. Stat. Ann., Tit. 17, §1031(1)(G) (West
Supp. 2009) (providing that hunting and trap
ping an animal is not a form of prohibited
animal cruelty if “permitted pursuant to” parts
of state code regulating the shooting of large
game, inland fisheries, and wildlife)
Maryland Md. Crim. Law Code Ann. §10–603(3) (Lexis
2002) (“Sections 10–601 through 10–608 of this
subtitle do not apply to . . . an activity that may
cause unavoidable physical pain to an animal,
including . . . hunting, if the person performing
the activity uses the most humane method
reasonably available”)
Michigan Mich. Comp. Laws Ann. §§750.50(11)(a), (b)
(West Supp. 2009) (“This section does not pro
hibit the lawful killing or other use of an ani
mal, including . . . [f]ishing . . . [h]unting, [or]
trapping [as regulated by state law]”),
§750.50b(9)(a), (b) (“This section does not pro
hibit the lawful killing or other use of an ani
Cite as: 559 U. S. ____ (2010) 25
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ALITO, opinion of ALITO
mal, including . . . [f]ishing . . . [h]unting, [or]
trapping [as regulated by state law]”)
Missouri Mo. Rev. Stat. §578.007(3) (2000) (“The provi
sions of sections 578.005 to 578.023 shall not
apply to . . . [h]unting, fishing, or trapping as
allowed by” state law)
Montana Mont. Code Ann. §45–8–211(4)(d) (2009) (“This
section does not prohibit . . . lawful fishing,
hunting, and trapping activities”)
Nebraska Neb. Rev. Stat. §28–1013(4) (2008) (exempting
“[c]ommonly accepted practices of hunting,
fishing, or trapping”)
Nevada Nev. Rev. Stat. §§574.200(1), (3) (2007) (provi
sions of Nevada law banning animal cruelty “do
not . . . [i]nterfere with any of the fish and game
laws . . . [or] the right to kill all animals and
fowl used for food”)
New N. H. Rev. Stat. Ann. §644:8(II) (West Supp.
Hampshire 2009) (“In this section, ‘animal’ means a domes
tic animal, a household pet or a wild animal in
captivity”)
New Jersey N. J. Stat. Ann. §4:22–16(c) (West 1998) (“Noth
ing contained in this article shall be construed
to prohibit or interfere with . . . [t]he shooting or
taking of game or game fish in such manner and
at such times as is allowed or provided by the
laws of this State”)
New Mexico N. M. Stat. Ann. §30–18–1(I)(1) (Supp. 2009)
(“The provisions of this section do not apply to
. . . fishing, hunting, falconry, taking and trap
ping”)
New York N. Y. Agric. & Mkts. Law Ann. §353–a(2) (West
2004) (“Nothing contained in this section shall
be construed to prohibit or interfere in any way
with anyone lawfully engaged in hunting, trap
ping, or fishing”)
North N. C. Gen. Stat. Ann. §14–360(c)(1) (Lexis 2009)
Carolina (“[T]his section shall not apply to . . . [t]he
lawful taking of animals under the jurisdiction
26 UNITED STATES v. STEVENS
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ALITO, opinion of ALITO
and regulation of the Wildlife Resources Com
mission . . .”)
North Dakota N. D. Cent. Code Ann. §36–21.1–01(5)(a) (Lexis
Supp. 2009) (“ ‘Cruelty’ or ‘torture’ . . . does not
include . . . [a]ny activity that requires a license
or permit under chapter 20.1–03 [which governs
gaming and other licenses]”)
Oregon Ore. Rev. Stat. §167.335 (2007) (“Unless gross
negligence can be shown, the provisions of
[certain statutes prohibiting animal cruelty] do
not apply to . . . (7) [l]awful fishing, hunting and
trapping activities”)
Pennsylvania 18 Pa. Cons. Stat. §5511(a)(3)(ii) (2008) (“This
subsection [banning killing, maiming, or poison
ing of domestic animals or zoo animals] shall not
apply to . . . the killing of any animal or fowl
pursuant to . . . The Game Law”), §5511(c)(1) (“A
person commits an offense if he wantonly or
cruelly illtreats, overloads, beats, otherwise
abuses any animal, or neglects any animal as to
which he has a duty of care”)
Rhode Island R. I. Gen. Laws §4–1–3(a) (Lexis 1998) (prohibit
ing “[e]very owner, possessor, or person having
the charge or custody of any animal” from
engaging in certain acts of unnecessary cruelty),
§§4–1–5(a), (b) (prohibiting only “[m]alicious”
injury to or killing of animals and further pro
viding that “[t]his section shall not apply to
licensed hunters during hunting season or a
licensed business killing animals for human
consumption”)
South S. C. Code Ann. §47–1–40(C) (Supp. 2009) (“This
Carolina section does not apply to . . . activity authorized
by Title 50 [consisting of laws on Fish, Game,
and Watercraft]”)
South Dakota S. D. Codified Laws §40–1–17 (2004) (“The acts
and conduct of persons who are lawfully en
gaged in any of the activities authorized by Title
41 [Game, Fish, Parks and Forestry] . . . and
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ALITO, opinion of ALITO
persons who properly kill any animal used for
food and sport hunting, trapping, and fishing as
authorized by the South Dakota Department of
Game, Fish and Parks, are exempt from the
provisions of this chapter”)
Tennessee Tenn. Code Ann. §39–14–201(1) (2010 Supp.)
(“ ‘Animal’ means a domesticated living creature
or a wild creature previously captured”), §39–
14–201(4) (“[N]othing in this part shall be
construed as prohibiting the shooting of birds or
game for the purpose of human food or the use
of animate targets by incorporated gun clubs”)
Texas Tex. Penal Code Ann. §42.092(a)(2) (West Supp.
2009) (“ ‘Animal’ means a domesticated living
creature, including any stray or feral cat or dog,
and a wild living creature previously captured.
The term does not include an uncaptured wild
living creature or a livestock animal”),
§42.092(f)(1)(A) (“It is an exception to the appli
cation of this section that the conduct engaged
in by the actor is a generally accepted and
otherwise lawful . . . form of conduct occurring
solely for the purpose of or in support of . . .
fishing, hunting, or trapping”)
Utah Utah Code Ann. §76–9–301(1)(b)(ii)(D) (Lexis
2008) (“ ‘Animal’ does not include . . . wildlife, as
defined in Section 23–13–2, including protected
and unprotected wildlife, if the conduct toward
the wildlife is in accordance with lawful hunt
ing, fishing, or trapping practices or other lawful
practices”), §76–9–301(9)(C) (“This section does
not affect or prohibit . . . the lawful hunting of,
fishing for, or trapping of, wildlife”)
Vermont Vt. Stat. Ann., Tit. 13, §351b(1) (2009) (“This
subchapter shall not apply to . . . activities
regulated by the department of fish and wildlife
pursuant to Part 4 of Title 10”)
Virginia Va. Code Ann. §3.2–6570D (Lexis 2008) (“This
section shall not prohibit authorized wildlife
28 UNITED STATES v. STEVENS
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management activities or hunting, fishing or
trapping [as regulated by state law]”)
Washington Wash. Rev. Code §16.52.180 (2008) (“No part of
this chapter shall be deemed to interfere with
any of the laws of this state known as the ‘game
laws’ . . . or to interfere with the right to kill
animals to be used for food”)
West Virginia W. Va. Code Ann. §61–8–19(f) (Lexis Supp.
2009) (“The provisions of this section do not
apply to lawful acts of hunting, fishing, [or]
trapping”)
Wisconsin Wis. Stat. §951.015(1) (2007–2008) (“This chap
ter may not be interpreted as controverting any
law regulating wild animals that are subject to
regulation under ch. 169 [regulating, among
other things, hunting], [or] the taking of wild
animals”)
Wyoming Wyo. Stat. Ann. §6–3–203(m)(iv) (2009) (“Noth
ing in subsection (a), (b) or (n) of this section
shall be construed to prohibit . . . [t]he hunting,
capture or destruction of any predatory animal
or other wildlife in any manner not otherwise
prohibited by law”)