• United States v. Stevens: A Proposal for Criminalizing Crush Videos Under Current Free Speech Doctrine
  • September 10, 2012 | Author: Andrew A. Beerworth
  • Law Firm: Paul Frank + Collins P.C. - Burlington Office
  • A leading First Amendment scholar recently remarked: “[D]uring the latter part of the twentieth century, the contours of the First Amendment have been defined not as much by politics as by smut.” If the Supreme Court’s recent decision in United States v. Stevens is any indication, the vilest, most offensive speech will continue to animate free speech jurisprudence throughout the twenty-first century as well. In Stevens, the Court invalidated a federal statute (18 U.S.C. § 48) that criminalized the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute, as written, was broad-sweeping in scope. It applied to any visual or auditory depiction “‘in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,’ if that conduct violates federal or state law where ‘the creation, sale, or possession takes place.”’ The statute did, however, purport to exempt any depictions of animal cruelty with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”