Crush

Episode Notes

Transcript

Make No Law: The First Amendment Podcast

Crush

04/12/2018

[Music]

Ken White: When you aim at something, do you hit it? Most of us don’t; at least not all the time. Things don’t turn out quite the way we expected. The result doesn’t match our intentions. No plan survives contact with the enemy, said Field Marshal Helmuth von Moltke, whereas Robert Burns put it, The best laid schemes o’ mice an’ men / Gang aft a-gley.

Lawmakers are no different. A significant part of First Amendment law is about policing how laws intended to address one kind of speech might be used to punish another. That’s exactly what led to what may be the most important First Amendment case of the 21st Century so far, a case most people have never even heard of. It’s what happened when Congress aimed at videos showing women in high heels crushing small animals.

But instead hit Robert J. Stevens, who made videos about pit bulls. In the process the Supreme Court made a crucial ruling about how we decide what sort of speech is outside the protection of the First Amendment.

[Music]

Ken White: I am Ken White and this is Make No Law: The First Amendment Podcast from Popehat.com, brought to you on the Legal Talk Network.

This is Episode 5, Crush.

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Ken White: Members of Congress love a nice, clean, uncontroversial win. They are always looking for a vote that will make everybody happy. The proverbial We Love Kittens Act of 2018. In 1999, Representative Elton Gallegly, a Republican from California found it. Here’s how he described the problem facing America that he wanted to fix.

Elton Gallegly: Hi. Thanks for coming. People around the country are making crush videos. These videos feature women crushing small animals with their feet while wearing spiked heels. These videos are sold nationwide to people who enjoy this type of so-called foot fetish, and the sellers of these videos are making millions of dollars.

Ken White: Now who could be against a law banning that? I asked my friend Marc Randazza, a veteran First Amendment lawyer who has represented companies in the adult industry about crush videos.

Marc Randazza: No, I have never seen one of these videos until I will say after it became a thing in the press because of the passage of this law. And I am not just going to speak anecdotally, I have a squadron of experts, sex therapists, sexologists that we use in our cases and I have asked them, how many people do you think are even aroused by this enough to buy a video. And the only estimate I got is there may be a 1,000 people worldwide who are actually sexually aroused by anything of the sort.

If you can imagine like out of what, 7 billion people, there is actually — I mean you could probably come up with — there are more people who are into — actually sexually aroused by the squeaking of balloons and I am not making that up, that’s actually a thing than there are people aroused by this.

And as far as video production of this kind of movie, it was nonexistent before and it is still virtually nonexistent.

I have got so many questions that I barely know where to start, but I will go with this. I mean —

Ken White: Marc was also skeptical about Representative Gallegly’s claim that crush videos’ purveyors are making millions of dollars.

Is the notion that they were making millions of dollars like this representative said, does that have any basis in reality?

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Marc Randazza: That’s absolute madness. I would be surprised if you could even break — if you could breakeven on it. They are certainly not making millions of dollars. The mainstream productions, the mainstream porn productions are not making millions of dollars. So the thought that a video of a woman in high heels stomping on an animal would be making millions of dollars just defies reality.

Ken White: So what do crush videos have to do with Congress? Why should they be targeted by Federal Law? Representative Gallegly explained that the problem is, it’s hard to find the women crushing the poor animals to prosecute them, you only see their feet and it’s hard to find the people who film the movies. But the Feds could go after the people selling the videos in interstate commerce.

Elton Gallegly: Sick criminals are taking advantage of the loopholes in local law and the lack of Federal Law on animal cruelty videos. This is a serious problem. Thousands of these videos are being sold, thousands of dollars are being made by not closing these loopholes and allowing the sick behavior we are encouraging people to profit from violating the state animal cruelty laws, this must be stopped.

Female Speaker: Congressmen.

Ken White: Didn’t he say before it was millions of dollars? You know what, never mind, it’s clear why this was really happening. It’s part of a pattern.

Marc Randazza: Look, porn is a political issue and anything throughout the generations that anti-porn activists, going all the way back to Anthony Comstock, could spin up as a justification other than we simply don’t like this kind of thing, it’s like any argument that can be made will be made.

For a long time it was said that it would lead to masturbation, God forbid, I mean that’s the whole point of it or that it would lead to societal breakdown. Well, I don’t know that we could blame any of our current problems on porn, that it would lead to — that it caused sexual abuse, caused rape. Now we have found the science actually very inconveniently for that position says the exact opposite.

Then it was that porn would lead people to want to consume child porn, that regular porn was a gateway drug. That didn’t work. And even today we now have the goblin of sex trafficking, because both the overly moralistic elected officials or whoever else wants to stop us from enjoying our good red-blooded American porn expects us to believe that there is no way that anyone would take money to have sex with somebody else on camera unless they were slaves.

And every one of these arguments is just bizarre on its face, but if you get enough people that are going to scream and yell about it, especially people for whom getting rid of porn is the most important thing in their lives, it gives them just a little handhold on the cliff to hold on to.

Ken White: So Congress passed Representative Gallegly’s Bill H.R.1887, and in December 1999 President Clinton signed it.

The Bill doesn’t say anything about women in high heels or crush videos. The Bill says this, that 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 is guilty of a federal crime. And the Bill defines animal cruelty as any recording or picture of an animal being maimed, tortured, wounded or killed if the conduct is illegal in the state where you are creating or selling or possessing the video.

So in plainer language, if you have got a video of someone shooting an animal in say Nevada and you sell the video in California and shooting the animal is illegal in California, you have just committed a Federal felony.

Marc Randazza: It wasn’t obscenity, it was a whole new statute banning a certain kind of speech, and in doing so it was banning these particular videos saying that if you created, sold or possessed any depiction of animal cruelty with the intention of placing it in interstate or foreign commerce for commercial gain could be fined or imprisoned. You could spend five years in jail for broadcasting or making a video of something that could be perfectly legal.

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The example that I raised back then was you could go to Puerto Rico where cockfighting is as legal as tap water and you go to a cockfight and you videotape it in order to sell it, you would have faced prosecution under this statute.

Ken White: The Feds didn’t prosecute anyone for crush videos under this new law, but in 2002, the Feds came across Robert J. Stevens. Robert Stevens doesn’t make crush videos. He doesn’t stomp on small animals. So far as I know, nobody wants to see videos of him in high heels. But Robert Stevens is just crazy about pit bulls.

He had a website called  HYPERLINK “http://www.pitbulllife.com” pitbulllife.com. He wrote a book called ‘Dogs of Velvet and Steel’ and he sold videotapes and magazines and dog-handling equipment through his business. He advertised that business in an underground magazine called Sporting Dog Journal, which covers dog fighting.

Organized dog fighting is illegal in every state but it’s still widespread. Local law enforcement is always looking for ways to shut it down. In 2001, Pennsylvania State Police got together with Federal agents from the United States Department of Agriculture. They looked at this magazine, Sporting Dog Journal, and they saw Robert Stevens’ advertisement. They decided to pursue him.

Working from Pennsylvania and using pseudonyms, they ordered three videos from Stevens, who lives in Virginia. Those videos were Pick-A-Winna, Japan Pit Fights and Catch Dogs. It cost them about $100. Stevens sent the videos from Virginia into Pennsylvania.

The Feds get to do that when they are prosecuting cases like this. When they decide to order videos through the mail, whether it is crush videos or obscenity or child porn, they decide where to have it delivered and with that they choose where it will be prosecuted, the judges, and the jury pool.

But Marc Randazza doesn’t think that choice makes as much difference as it used to.

Marc Randazza: Where you go to bring a prosecution, an anti-porn prosecution, it’s no longer a matter of let’s make sure we do this in Bibleburg, Tennessee, because let’s face it, people who are going to wind up on this jury are going to be the only people ever forced to watch a porn video that’s being — that the distributor or creator is being prosecuted. And what a juror might think is okay in the privacy of their own home is going to be different than what they are going to think is okay around 12 other people.

Ken White: The Feds served a search warrant on Robert Stevens’ house and found plenty more videos and materials about his business, and in March 2004, the Feds charged him with three counts of violating the Federal Crush Video Law.

The government didn’t accuse Mr. Stevens of conducting dog fights or running a dog fighting ring or having anything to do with the dog fights depicted in the video, it just accused him of selling videos that included footage of dog fights.

Stevens didn’t dispute that he made the videos; instead, he had two arguments. First, he argued the case should be dismissed because the Crush Video Law violated the First Amendment because it punished not animal cruelty, but expression about animal cruelty.

Second, he argued that his videos fell into an exception within the statute. See, the Crush Video Law has an exception; it says that it doesn’t apply to any depiction that has, and I am quoting from the statute here, “serious religious, political, scientific, educational, journalistic, or artistic value.” If that formulation sounds familiar to you, it’s because it comes from obscenity law.

In 1973, in a case called United States v. Miller, which I will talk about in a future episode, the Supreme Court laid out a three-part test for when speech falls into the traditional obscenity exception to the First Amendment. One of those three factors is whether the material lacks serious literary, artistic, political, or scientific value; the value has to be serious. The Supreme Court says you can’t save your dirty magazine by putting a famous philosopher’s quote on the cover.

There’s a problem, though. Different communities in the United States might have different opinions on whether a work has that sort of serious value. So what makes a difference that the Feds can choose where you are charged and what jury pool hears your case.

(00:14:56)

So, Robert Stevens’ trial turned into a battle of experts over the nature and value of his three videos. The government called an animal services supervisor and a director of a veterinary hospital, who said that the videos had no serious educational or journalistic or scientific value. Stevens called an ecologist and a hunting guide and a pit bull breeder who said the videos did.

The government’s experts spent a lot of time dwelling on how cruel dog fighting is and how much the dogs can suffer. Stevens pointed out that his videos weren’t just long tapes of dog fights, but his own commentary on the history, the breed, and the culture. He pointed out that in the tapes he tells his audience that he is not condoning dog fighting and that it’s illegal in the United States.

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Ken White: Robert Stevens’ arguments failed. The jury convicted him and the judge sentenced him to 37 months in federal prison. But the United States Court of Appeals for the Third Circuit reversed his conviction, finding that the Crush Video Law which regulates speech depicting animal cruelty, not the animal cruelty itself, violated the First Amendment.

The government took the case to the Supreme Court. Many Supreme Court cases draw a lot of interest, but this time there was a huge volume of briefs from outside interest groups called amicus briefs or a friend of the court briefs. Amicus briefs tell the court what various interested groups and organizations think about the subject of the case and how it could affect them.

On the one side were groups concerned with animal welfare and animal rights, arguing that criminalizing the videos like this is essential to fighting animal cruelty.

On the other side were hunting enthusiasts concerned that the law could make it illegal to depict legal hunting. For instance, the Safari Club and the International and Congressional Sportsmen’s Foundation filed a brief arguing that the Crush Video Law put media at risk if it depicted what they called legitimate hunting activities. They cited, for instance, that it’s legal to shoot a black bear during Pennsylvania’s black bear season but illegal to shoot a black bear in New Jersey.

At oral argument, the Supreme Court was preoccupied with this question of whether or not the law could be applied to a wide variety of traditional American activities and whether it was possible to know whether or not you are violating the law because of how hard it is to tell whether or not your video has serious value.

Here is Justice Breyer.

Neal Kumar Katyal: My answer to Justice Sotomayor’s question.

Justice Breyer: Well, look what you have done, and this is what is bothering me. You take these words, which are a little vague, some of them, “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” and you say that’s a standard that a judge or prosecutor will apply. And people have to understand it because they have to know what to do to avoid the risk of being prosecuted.

Now, as I have gotten out of these briefs, you then require people to apply that standard, not simply to the crush videos or to the dog fighting, but also to, as Justice Scalia pointed out, bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pâté de foie gras.

All right, so there is a whole long — quail hunting. There’s a whole long list in here of things that people might want to do. They won’t know if it falls within this exemption.

Ken White: Beyond that, beyond the question of whether Congress had aimed one thing and hit another, the court was concerned about the method it should use to get its answer. It was concerned with the government’s argument that the court should treat animal cruelty videos as a new category, outside the protection of the First Amendment, because of their lack of social value.

The government’s answers were not precise. Justice Roberts asked the government to explain in one sentence its proposed test for determining what categories of speech are unprotected by the First Amendment. Here’s how the government’s lawyer responded.

Neal Kumar Katyal: In one sentence, if — if — if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can — they can regulate a depiction, so long as it leaves alternative mechanisms for that expression in — in place, and that is I think —

Justice Kennedy: Okay. And what case — what case do you have for that?

Neal Kumar Katyal: United States v. Ferber — New York v. Ferber.

Ken White: The government’s lawyer was referring there to a case called New York v. Ferber, a 1982 decision when the Supreme Court decided that the government could punish distribution of child pornography even if it didn’t meet the Miller test for obscenity.

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The government’s point to the court was this, in Ferber you recognized a new exception to the First Amendment for child pornography. Now you can recognize another new exception, for animal cruelty.

And that was the most important argument, the most momentous legal issue in Robert Stevens’ case. The big question wasn’t whether videos showing animal cruelty were protected by the First Amendment. The big question was, how would the court decide? Can the government come to the court again and again with new categories of speech and ask the court to find them, outside a First Amendment protection?

Marc Randazza: This case-by-case balancing test for free speech essentially would leave us at the whim of every single judge, in every single case, being a case-by-case basis. I have a real — that just terrifies me.

Ken White: The court said no. In April of 2010, the Supreme Court agreed that the Crush Video statute violated the First Amendment. They ruled overwhelmingly, 8:1, with only Justice Alito dissenting.

Justice Roberts, writing for the court, started by restating the core rule of the First Amendment.

Justice Roberts: “[A]s a general matter, the First Amendment means the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The court then noted that there are certain historical, traditional categories that have always been understood to be outside of First Amendment protection; obscenity, defamation, fraud, incitement and speech that is part of criminal conduct.

Ken White: The question before the court was whether that set of traditional categories, those traditional exceptions to the First Amendment could be expanded as the government wanted, on a case-by-case basis. The court firmly rejected that notion.

Here is what Justice Roberts wrote for the court.

Justice Roberts: 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.”

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 balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

Ken White: So, the Supreme Court refused to create a new exception to the First Amendment for animal cruelty and in fact refused to get into the business of creating new exceptions at all. Because it didn’t fall into a traditional exception to the First Amendment, the Crush Video Law had to be analyzed like any other law that punishes speech based on its content. It had to be subjected to what’s called strict scrutiny.

A law only survives strict scrutiny if it can pass a three-part test.

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Ken White: First, the law has to serve a compelling government interest.

Second, it has to be narrowly tailored to meet that interest.

And third, it has to be the least restrictive means possible to serve that interest.

Almost no law passes this test. The constitutional scholar Gerald Gunther called it “strict in theory, but fatal in fact”.

And the test was fatal here as well. The Supreme Court struck down the Crush Video statute. It didn’t say that no prohibition on animal cruelty videos could possibly survive strict scrutiny, it didn’t need to. Instead it applied a doctrine called substantial overbreadth. It said that even if hypothetically some prosecutions of animal cruelty videos under the statute could survive strict scrutiny, the statute also swept up a large amount of protected speech.

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The court pointed out that the statute doesn’t even require that the depiction of an animal’s death be cruel, that it could apply to depictions of hunting or food production. It could subject people to a federal crime for filming an activity that’s legal in one state and then selling it in another. And the court said you can’t save the statute by making an exception for serious value. That’s only a test for obscenity.

Justice Roberts: We did not, however, 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.

Ken White: Finally, the court rejected an argument from the government that amounted to saying, hey, trust us. The government said it would only use the Crush Video Law in extreme cases. Justice Roberts wasn’t convinced.

Justice Roberts: Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less.” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

Ken White: And the court pointed out that the prosecution of Robert Stevens showed the government had already changed its mind once about how to use the statute. When President Clinton signed the law, he added a signing statement that it would only be used to address depictions of wanton cruelty to animals designed to appeal to a prurient interest in sex; the crush videos in other words. But here the government was only a few years later applying it to dog fighting videos.

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Ken White: So why is United States v. Stevens so crucial? Why did I say that it may be the most important First Amendment decision of the 21st Century? Robert Stevens’ case doesn’t matter because of what it said about the First Amendment status of animal cruelty, it’s important because it establishes how we decide.

It clearly says, government, we are not going to make new exceptions to the First Amendment every time you come running to us with some new category of ugly, controversial or unpopular speech. We are going to keep applying the same rules and we are not going to uphold statutes just because the government says, trust us. We will only use it against the worst speech.

And United States v. Stevens does something else essential too. It lets us know with some confidence in advance what we are allowed to say instead of waiting for some judge to tell us.

Marc Randazza: People come to me or you and say, hey, can I engage in this kind of speech, forget about it being pornography, but just, can I engage in this kind of political speech? I may be — somebody may be against immigration and then somebody can be for immigration and those two statements can be said in two different judicial districts and in one case it would be illegal — maybe both of them could be illegal because — well, the harm of unfettered immigrations if so encouraged would destroy the republic. Or in the next decision they could say that America is a nation of immigrants and making immigrants feel unwelcome is beneath our balancing test.

You can’t have that. You have to have an absolute presumption of freedom of expression unless there is a clearly defined category that is an exception to that presumptive freedom.

Ken White: Congress didn’t hit what it aimed at when it passed the Crush Video Statute. It aimed at a minor hyped-up phenomenon, but instead inspired a Supreme Court decision that firmly limited Congress’ power to punish speech. But Congress will never let go of a popular issue.

In 2010, it passed a new law, once again proposed by Representative Elton Gallegly. The new Crush Video Statute describes the videos it is prohibiting in a lot more detail; and this time Congress required that the video meet the Supreme Court’s traditional obscenity test.

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Male Speaker: It is a rare brief that I write that does not at some point cite Stevens.

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(00:29:57)

Ken White: Since the start of this podcast I have invited you, the listeners, to write in with First Amendment questions you would like answered. Many of you have written in with questions. Thanks.

Today I am happy to answer our first reader mail. Justin wrote in with a question about the school walkouts of March 2018 that many students joined in reaction to the Marjory Stoneman Douglas High School shooting. Here is what he said:

A lot of schools allowed students to walk out in protest of gun violence. Some schools said they would suspend any students who walked out. My understanding is punishing students for walking out of school no matter the reason is completely consistent with the First Amendment, but for the schools that have allowed students to walk out, can they now stop students from participating in future protests that the administration may not agree with?

For example, could these schools punish students for walking out in protest of gay marriage? Wouldn’t punishing for one protest and not the other be a First Amendment violation since the policy wasn’t being administered in a content-neutral way?

Justin, you are exactly right. March of 2018 saw schools across America reacting to the planned protests in a variety of ways. Some schools strictly banned students from walking out and threatened to discipline them if they did. Other schools held scheduled assemblies or other programs, and yet other schools allowed and encouraged students to walk out and march.

Now, like Justin said, it’s clear that schools can constitutionally prohibit and punish walkouts.

In Episode 2, we talked about Tinker v. Des Moines School District, the high water mark at the Supreme Court for protecting student rights. Even under Tinker, a school can punish a student for something that substantially disrupts education and it’s pretty clear that a walkout is disruptive.

A school can decide to allow a walkout. In fact, allowing and organizing it may be a practically smart way to manage student dissent and preventing it from becoming too disruptive. But Justin has hit the problem on the head; subject matter and viewpoint neutrality.

A school can prohibit or allow walkouts consistent with the First Amendment. What it can’t do is pick and choose which walkouts it punishes based on its disagreement with a subject matter or message. In other words, a school can’t say walkouts are disruptive and we are going to punish them, except when they are for a cause we support. That would violate the First Amendment rights of the punished students.

I anticipate that the schools that allowed walkouts are going to see that argument brought up the next time their students want to march for some other cause. In fact, I think we will see organized efforts at those schools to get the students to march for conservative causes, to set up the legal issue of whether the schools will show the same leniency for those students who want to walk out for other reasons.

And, Justin, there is one more wrinkle. As I talked about in Episode 2, there is a pretty disturbing loophole in the school’s obligation to treat viewpoints equally. That’s the Heckler’s veto. The Heckler’s veto is when the government punishes speech, not for its content, but because of the reactions of people who hear it.

In the school context, courts have allowed administrators to punish speech based on a showing that other students had reacted violently or disruptively to the speech before.

So for instance, a court allowed a California school to punish students for wearing the American flag on Cinco de Mayo, based on a showing that doing so had resulted in violent reactions from other students in the past.

So regrettably, one way that schools may get around the viewpoint discrimination dilemma is to prove that classmates will be intolerant of less popular walkouts and will react disruptively when they don’t agree with them.

That is of course a terrible lesson to teach students; that the way to deal with speech you don’t like is to use violence or disruption to get it officially suppressed.

Justin, thanks for the email.

In this series of podcasts, I will be telling more stories behind important First Amendment decisions. If there’s a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line at  HYPERLINK “mailto:[email protected]”[email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast at  HYPERLINK “http://www.popehat.com/”popehat.com or  HYPERLINK “http://www.legaltalknetwork.com/”legaltalknetwork.com.

If you liked what you heard today, please remember to rate us in Apple Podcasts or follow us on Twitter or Facebook.

(00:34:53)

Lastly, I would like to thank our participants, voice actors, producers and audio engineers for their participation. My guest, Marc Randazza; our voice actors, Elie Mystal, Executive Editor from Above the Law as Representative Elton Gallegly; Joe Patrice, Senior Editor from Above the Law as Chief Justice John Roberts; Producer Kate Nutting; Executive Producer Laurence Colletti; Research Assistant Jordan Miller; and last but not least, music, sound design, editing, and mixing by Adam Lockwood and assisted by Kelly Kramarik.

Excerpts from the oral argument in United States v. Stevens provided by Oyez, a free law project by Justia and the Legal Information Institute of Cornell Law School.

See you next time for Episode 6, Street.

Male Speaker: James Meredith was quite possibly among Whites the most hated Black man in Mississippi. So if he could march 220 miles from Memphis to Jackson, then other Black people could register to vote and participate in the democratic process.

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Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Popehat, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.

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