The Third Circuit held that 18 U.S.C. § 48, the federal law that criminalizes depictions of animal cruelty, is an unconstitutional infringement on free speech rights guaranteed by the First Amendment. The defendant was convicted after investigators arranged to buy three dogfighting videos from defendant in sting operation. Because the statute addresses a content-based regulation on speech, the court considered whether the statute survived a strict scrutiny test. The majority found that the conduct at issue in § 48 does not give rise to a sufficient compelling interest. Cert. was granted in April of 2009 by the U.S. Supreme Court.
pbusfdstevens_amicus_HSUS_Third_ Circuit.pdf (1.54 MB)
pbusfdstevens_petitioner_brief.pdf (304.75 KB)
pbusfdstevens_petitioner_appendix.pdf (288.44 KB)
pbusfdstevens_amicus_Center_Administration_Criminal_Law.pdf (239.28 KB)
pbusfdusstevens_amicus_american_law_professors.pdf (166.09 KB)
pbusfdstevens_amicus_ASPCA.pdf (251.7 KB)
pbusfdstevens_amicus_ALDF.pdf (259.54 KB)
pbusfdstevens_amicus_HSUS.pdf (193.32 KB)
pbusfdusstevens_amicus_isar.pdf (220.28 KB)
pbusfdstevens_amicus_Northwest_Animal_Rights_Network.pdf (429.36 KB)
pbusfdstevens_amicus_state_AGs.pdf (247.66 KB)
pbusfdstevens_amicus_Wash_Legal_Foundation.pdf (145.63 KB)
Third Circuit Court of Appeals:
Summary of Third Circuit's opinion (533 F.3d 218 (C.A.3 (Pa.),2008)
The Third Circuit held that 18 U.S.C. § 48, the federal law that criminalizes depictions of animal cruelty, is an unconstitutional infringement on free speech rights guaranteed by the First Amendment. The defendant in this case was convicted after investigators arranged to buy three dogfighting videos from defendant in sting operation. Because the statute addresses a content-based regulation on speech, the court considered whether the statute survived a strict scrutiny test. The majority was unwilling to extend the rationale of Ferber outside of child pornography without direction from the Supreme Court. The majority found that the conduct at issue in § 48 does not give rise to a sufficient compelling interest. Relying on the Supreme Court case concerning religious animal sacrifice (Church of the Lukumi Babalu Aye) together with the fact that the Court has not expanded the unprotected speech categories in a generation, the court felt that a lower federal court should not extend those categories of unprotected speech. The court also stated that a compelling interest must relate to the well-being of humans, not animals. Further, the court found that in order to serve the purported compelling government interest of preventing animal cruelty, the regulation of these depictions must somehow aid in the prevention of cruelty to animals. The court found that the desensitization of individuals to act of cruelty does not rise to the level of supporting this compelling interest. Thus, said the court, § 48 is not narrowly tailored using the least restrictive means. The dissent found that the speech at issue in this case "possesses the essential attributes of unprotected speech identified generally in Chaplinsky and of child pornography as discussed in Ferber." The Government has a compelling interest in eradicating animal cruelty; the depictions of animal cruelty are intrinsically related to the underlying animal cruelty. Moreover, the dissent found the market for videos of animal cruelty "incentivizes the commission of acts of animal cruelty, and such depictions are of de minimis value." The dissent was careful to point out that this statute does not broadly ban all depictions of criminal activity, but rather "merely one prohibiting depictions of a narrow subclass of depraved acts committed against an uniquely vulnerable and helpless class of victims."