United States v Stevens...Near v Minnesota Redux?

*NOTE* Whenever I have used the term Miller Test in this blog, I am referring to only the third clause that in used in the actual text of the statute in question in this case

Last Tuesday, the Supreme Court ruled in favor of not placing a sensitive subject of speech outside the protection of the First Amendment. In the tradition of Near v Minnesota, Chief Justice Roberts and seven other Justices struck down a law that many would consider beneficial—the Federal law preventing the creation and distribution of dog fighting videos or any other video that depicts animal cruelty. In this law animal cruelty is defined as when “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.”

Ever since 1931, when the Hughes Court ruled in Near v. Minnesota that “as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance.” It is these “narrow exceptions” that are always highlighted. Whether it is obscenity, defamation, fraud, incitement and speech integral to criminal conduct, these exceptions have moved farther and farther away from Near. This ruling in United States v. Stevens shows a renewed commitment to protecting the First Amendment and a libertarian interpretation of it.

This case found its way to the Supreme Court through the Pennsylvania Federal District Court. Robert Stevens was prosecuted under 18 U.S.C. Section 48. This statute placed up to five years in prison and fines on the creation, distribution or possession of a depiction of animal cruelty with intent to place the depiction in interstate or foreign commerce for monetary gain. While this law was originally thought to be used stop “crush videos” most of the prosecution under this law has come in the realm of dog fighting videos.

It was under the prosecution of dog fighting videos that Stevens was charged. Stevens was tried for three counts of violating the statue for three separate videos: one depicting modern pit bull fights in Japan, a video showing fights from the ‘60s and ‘70s in the United States, and the third, a film showing pit bulls being used to hunt wild boar and attack pigs. While he was convicted in the District Court, the Third Circuit vacated his conviction and the Supreme Court agreed with this decision.

I agree with the ruling of the Supreme Court, that said 18 U.S.C. Section 48 is “substantially overbroad.” Many videos that would generally be considered harmless, fishing and hunting videos, could be considered illegal. This is the point that truly pushes the statute to overbroad. It is not only animal cruelty videos that are illegal, but any activity that is illegal pertaining to the death or injury of an animal cannot be filmed. As all hunting is illegal in the District of Columbia, most programming on the Outdoor Network is in violation of this law.

 Even though the third clause of the Miller test is cited in the text of the law, the production and sale of these videos may often be judged on their content, not any “serious literary, artistic, political, or scientific value”. An example of this is the Stevens case itself. The second film Stevens was convicted for selling was called “Pick-A-Winna: A Pit Bull Documentary.” A documentary video could prove to be of serious educational value. I recently completed a project on poor healthcare in undeveloped regions. While the pictures of diseased and malnourished children bothered me, these depictions made me more dedicated to my cause. If it were illegal to see the cruelties of dog fighting (especially done in an appropriate manner) many people may not become aware of the horrors of the activity. While this is a somewhat backwards thought—viewing these videos could help to stop the poor treatment— in my opinion, it is a valid point.

This is why the third clause of the Miller test is so important in obscenity cases. With the LAPS clause, some of these videos may receive protection. The jury that decided against Stevens returned the conviction in 45 minutes. I do not think that this is sufficient time to apply all of the intricacies of the different tests that can be used to decide these cases. While I am in no way advocating that every jury be filled with legal scholars but the application of the law that is being used to convicting someone—especially when the exception is clearly presented in the law—should be done correctly. I have not seen the videos for which Stevens was convicted. It is very possible that all three videos have no redeemable characteristics. Also, I do not know if the jurors watched the videos. But when the title of a film has “Documentary” in the name, I immediately think there may be some educational or scientific value in the movie and would take pause to see if this is the case.

The hunting videos also rear their heads in respect to the third clause of the Miller Test. Hunting videos do not have any overriding scientific or educational value. While a hunter will generally say what type of gun and ammunition he is using, this is not the primary focus of the show. I do not feel that watching a hunting program should be illegal. In my opinion, this law was not drawing the line between illegal and cruel. This distinction had to be made in obscenity cases: all pornography is not obscene. A similar distinction needs to be made here.

Alito’s dissent is not that Stevens should be found guilty, but that the entire law should not be struck down. Alito asserts that the overbreadth doctrine need not be applied in this case. He also addresses the illegality of the hunting videos. “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 cruelty.” However, this is not consistent with the definition of animal cruelty provided by law, and would turn the District of Columbia into a libel tourism hotspot for this type of prosecution. Just because the target of the law is animal cruelty does not mean that the careless wording of the statute should be overlooked. If the law says illegal, the justice system should enforce what is illegal.

As much as I agree with the unconstitutionality of 18 U.S.C. Section 48, I see the need for such legislation. As mentioned earlier, one target of this law was “crush videos.” This law effectively dealt with that issue-- Wayne Pacelle, the president of the Humane Society of America said it “almost immediately dried up the crush video industry.” However, these are legal once again. Clearly, a new legislation needs to be introduced in its place. Whether this means rewording the definition of animal cruelty to allow for videos such as hunting and fishing films, bull fighting, and even documentaries showing the horrors of dog fighting to be legal, or other legal tactics, this gaping hole laws concerning animal cruelty needs to be filled.

References

United States v. Stevens, 559 U.S. ___ (2010)

Liptak, Adam. "Supreme Court Rejects Ban on Animal Cruelty Videos - NYTimes.com." The New York Times - Breaking News, World News & Multimedia. N.p., n.d. Web. 26 Apr. 2010. < http://www.nytimes.com/2010/04/21/us/21scotus.html?pagewanted=1&sq=united%20states%20v%20stevens&st=cse&scp=1>

            The Oyez Project, United States v. Stevens U.S. ___

available at: (http://oyez.org/cases/2000-2009/2009/2009_08_769)

(last visited Monday, April 26, 2010).

Near v. Minnesota, 283 U.S. 697 (1931)

Miller v. California, 413 U.S. 15 (1973)

Press, The Associated. "Justices strike down animal-cruelty video ban." First Amendment Center. N.p., n.d. Web. 26 Apr. 2010. .

Overview of United States v. Stevens ." The Humane Society of the United States. N.p., n.d. Web. 26 Apr. 2010. <http://www.hsus.org/acf/news/united_states_v_stevens.html>.

"§ 48. Depiction of animal cruelty." United States Code. N.p., n.d. Web. 26 Apr. 2010. .

But You Just Said...

While this blog focuses on two cases involving religion, it no way indorses, supports, advocates, or represents any regions over another, or attempts any form of viewpoint discrimination.

On June 27, 2005 two Supreme Court cases were decided. This is not uncommon as many cases are decided on the same day. However, these cases were also argued on the same day, and in many ways are very similar to each other. Curiously, they were decided with opposing opinions.

Van Orden v Perry and McCreary County v. ACLU focuses on displaying the Ten Commandments in public places. Van Orden was a suit brought against the state of Texas for a statue that displayed the Ten Commandments on the grounds of the Texas State Capitol Building. The plaintiff claimed that it was unconstitutional because it was an endorsement of religion.  McCreary was brought on the grounds that it is illegal for the Ten Commandments to be framed and posted in public school and courthouses in three Kentucky counties. The statue was decided to be legal in Texas, but the wall hangings were illegal in Kentucky.  Why on issues so similar were the verdicts opposite?

Justice Breyer served as the swing vote between the two cases. Therefore, it is most appropriate to look at his special concurrence in the Van Orden case as a starting point to see how his views are slightly different. The majority of his concurrence focuses on how this case is “borderline” and finds that “[he] see[s] no test-related substitute for the exercise of legal judgment.” Breyer concludes with disagreeing with the majority opinion in this case, and agreeing with O’Connor’s opinion in the McCreary County case. Breyer voted for this because he recognized “we must ‘distinguish between real threat and mere shadow.’ [Schempp 374 U.S.].”  The plurality argued that the Ten Commandments were such an integral historical part of our nation that, while they have religious meaning, that’s superseded by the historical meaning. Breyer seems to agree with this but not to the extent that majority does. He uses a common sense argument: tests cannot readily be applied to this case, the statue has a secular meaning as well (encouraging civil obedience), and there hasn’t been a problem over the 40 year life of the statue until now.  Breyer voted with the majority because he did not think it was causing harm of the Establishment Clause.

The question then is what qualities does McCreary have that sets it apart from Van Orden. The county legislature passed a resolution requiring the Ten Commandments to be displayed in courthouses and public schools in places of high traffic. The majority agrees that the Establishment clause is being violated under the Lemon test:

1.     The government's action must have a secular legislative purpose;

2.     The government's action must not have the primary effect of either advancing or inhibiting religion;

3.     The government's action must not result in an "excessive government entanglement" with religion.

The majority concludes that the Lemon test applies and McCreary violates the first, if not the second, conditions of the Lemon Test.

The dissent argues this ruling by listing many instances where the Government uses “God” or an allusion to God—the Presidential Oath, Opening of the Supreme Court, and God Bless America used in many situations. It then makes a statement that I still cannot believe I read: “With all of this reality (and much more) staring it in the face, how can the Court possibly assert that 'the First Amendment mandates governmental neutrality between ... religion and nonreligion,' [ante, 11]."  The dissent continues of speaking of how the society wants religion supported and another unbelievable quote: “Nothing stands behind the Court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the Court's own say-so[…].” I submit the First Amendment to the argument.

At first I was confused at how two seemingly paired issues would be decided so differently—both focused on the Ten Commandments, both argued on the same day to the same Court. But after reading the opinions I find myself agreeing with Justice Breyer. In some boarderline cases, the historical basis, and secular meaning behind some seemingly religious phrases can be innocuous. However, other times there are no redeemable secular qualities, and it is clear the government is attempting to promote religious views. I am still shocked at the language used by the dissent (Roberts, Scalia, Thomas, and Kennedy). The quotes above seem to show that these Justices seem not to remember the Establishment Clause of the First Amendment. Breyer’s special concurrence in the Van Orden  case had one other interesting quote. “[My] judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes.” This is very interesting. It is the most basic tenant of Law that Judges do not use personal opinions but rely on the Law. So why include this? Is Breyer calling out Roberts, Scalia, Thomas, and Kennedy?

References:

Van Orden v. Perry, 545 U. S. 677 (2005)

McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844 (2005)

School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963)

Introduction to the Establishment Clause of the First Amendment. (n.d.). UMKC School of Law.     Retrieved April 15, 2010, from http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/estabinto.htm

  

McCreary County v. ACLU. (n.d.). Duke University School of Law. Retrieved April 15, 2010, from http://www.law.duke.edu/publiclaw/supremecourtonline/certgrants/2004/mccvacl.html

Dancing the Night Away... In Your Living Room

The City of Wendell, Idaho might be infringing on two principles of the First Amendment: Assembly and Speech. A city ordinance in Wendell establishes a curfew that prohibits anyone under the age of 18 from being out from 11 p.m. to 5 a.m.  The case against this ordinance was brought by a teen that was given a ticket during a routine traffic stop of a car he was not driving.

The case focuses on the fact that teens are now not permitted to attend midnight religious services, late night protests, or any other activity that a teen would want to express themselves at. There are some stipulations on the ordinance. If emergency errands have to be run, a teen is permitted to be out.  Also, they can be with a parent or guardian, or have a note from a parent or guardian.

This third exception is where my problems with the text of the law beings. The fact that any note from a parent excuses any activities out past the curfew makes this law a moot point. Faking a note from a parent would be insignificant to anything that this law is attempting to prevent. It is logical that a town would want to cut back on underage drinking, illegal drugs amongst high schoolers, and any other teen disobedience. But when a spiral notebook and a pen easily sidestep the law, it is not effective.

The legal precedence of this case also causes concern. In Tinker, the First Amendment rights of teens are confirmed. In every following case, these rights are upheld. In Fraser, Kuhlmeier, Broussard, and any other school speech case, the First Amendment rights of students are limited, but reaffirmed they exist. In each of these cases, the Supreme Court preaches that school is special circumstance that requires infringements on certain rights. Therefore, outside of schools these infringements should not exisit.

On a state level where curfew laws are generally debated, courts are breaking in different directs. While states like Idaho and Alaska are supporting these laws, New York recently struck down a law that required minors to return home at 11 p.m. or midnight depending on the night of the week. The main principles this ruling upheld were the parental rights of the parents and rights of the minors. The 5-2 majority opinion noted that “it is enough that from 2000 to 2005, a number of juveniles were victimized at night, then the same statistics would justify, perhaps even more strongly, imposing a juvenile curfew during all hours outside of school since far more victimization occur during those hours.”

The New York case and the Wendell case are very similar but are being argued on slightly different grounds. The main legal argument against the Wendell law is just how broad it is. The District Judge related, “There is a real and substantial risk that the ordinance will inhibit the speech of parties not before the court, therefore the Wendell curfew ordinance is void on its face.” This is by no means a narrowed and well-tailored initiative to solving the Government’s issues.

However it is seen that curfews do work. New Orleans enacted a dusk to dawn curfew and within one year of its institution, the incidence of youth crime arrests by 27 percent the year after its adoption. Reports of similar numbers are common: Long Beach California reported a 14 percent drop in crime rates after its curfew was enacted, along with Dallas and the District of Columbia. While these numbers may seem show the widespread success of curfews, I feel this is not the only reason numbers declined. With a new initiative such as a curfew, other policy changes may play a role—more police may be on duty to catch these offenders. 

I feel that there may be a place for a curfew, but the law as written in Wendell oversteps its bounds. This law effectively makes it illegal for two teens to go on a date to the movies if it starts after 9pm. This restriction would also limit many at school activities—at my highschool, we had multiple events that would leave me driving home at 11 o’clock. While I understand that limiting the chances for teens to cause trouble is a legitimate concern for cities, it needs to be done in a way that is more direct and doesn’t violate the natural rights of teens. Hosting events on weekend nights (similar to the Illinights program here) would keep teens out of trouble. There are alternatives to simply locking teens in their houses—alternatives that do not violate the First Amendment.

References

"Curfew." Wikipedia, the free encyclopedia. N.p., n.d. Web. 10 Apr. 2010. .

Jahn, Rich. " National Youth Rights Association  - Analysis of U.S. Curfew Laws."  National Youth Rights Association . N.p., n.d. Web. 10 Apr. 2010. .

Press, The Associated. "Idaho Supreme Court upholds town's curfew  ." The First Amendment Center. N.p., n.d. Web. 10 Apr. 2010. .

Press, The Associated. "Idaho appeals court throws out city's curfew law." The First Amendment Center. N.p., n.d. Web. 10 Apr. 2010. .

Press, The Associated. "Alaska High Court Upholds Anchorage Curfew." The First Amendment Center. N.p., n.d. Web. 10 Apr. 2010. .

Press, The Associated. "N.Y. high court strikes down city's youth curfew." The First Amendment Center. N.p., n.d. Web. 10 Apr. 2010. .

State of Idaho v John Doe, Idaho 21 5^th d.  (2009).

Ruefle, and  Reynolds. "Curfew." Office of Juvenile Justice and Delinquency Prevention. N.p., n.d. Web. 10 Apr. 2010. .