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(Slip Opinion) OCTOBER TERM, 2009

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, orkilled,‘ 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 saidto 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 ofprotected 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, categoricallyunprotected 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-
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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 balancethe value of the speech against its societal costs to determinewhether 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 andbenefits. The Amendment itself reflects a judgment by the Americanpeople 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 asoverbroad if ‘a ‘˜substantial number’ of its applications are unconsti-tutional, ‘˜ ‘judged in relation to the statute’s plainly legitimatesweep.‘ ’ ‘ 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 thusturns 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 readaccording 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 illegalin 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
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cruelty vary widely from place to place. Hunting is unlawful in the District of Columbia, for example, but there is an enormous nationalmarket for hunting-related depictions, greatly exceeding the demandfor 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 thatis sold in the Nation’s Capital. Those seeking to comply with the lawface 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 animalfighting or other extreme cruelty, as the Government suggests, re-quires an unrealistically broad reading of the statute’s exceptionsclause. The statute only exempts material with ‘serious‘ value, and‘serious‘ must be taken seriously. The excepted speech must also fallwithin 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 readingthat 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 doesnot 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 freespeech.’ ‘ 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 toreach only ‘extreme‘ cruelty, this Court will not uphold an unconsti-tutional statute merely because the Government promises to use itresponsibly. Nor can the Court construe this statutory language to avoid constitutional doubt. A limiting construction can be imposedonly 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 beyondcrush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conduct orare analogous to obscenity (if not themselves obscene), and that the
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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 presumptivelyprotected by the First Amendment but that remain subject to §48.Nor does the Government seriously contest that these presumptivelyimpermissible 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.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat 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 theCourt.
Congress enacted 18 U. S. C. §48 to criminalize thecommercial 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 ofspeech guaranteed by the First Amendment.
I Section 48 establishes a criminal penalty of up to fiveyears in prison for anyone who knowingly ‘creates, sells,or possesses a depiction of animal cruelty,‘ if done ‘forcommercial gain‘ in interstate or foreign commerce. §48(a).1 A depiction of ‘animal cruelty‘ is defined as one
’’’’’’
1The statute reads in full:
Ԥ48. 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 commercialgain, shall be fined under this title or imprisoned not more than 5
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‘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 artisticvalue.‘ §48(b).
The legislative background of §48 focused primarily onthe interstate market for ‘crush videos.‘ According to theHouse 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 animalsto 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 theanimals, 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 depictionthat 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 orauditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct inwhich 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, orkilling 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 possessionof the United States.‘
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fetish who find them sexually arousing or otherwise excit-ing.‘ Id., at 2‘“3. The acts depicted in crush videos aretypically prohibited by the animal cruelty laws enacted byall 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 hasbeen 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 indogfights 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’sand 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
’’’’’’ 2The Government 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.
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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 Appealsfirst held that §48 regulates speech that is protected bythe First Amendment. The Court declined to recognize anew 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 andchild 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 thisground.
We granted certiorari. 556 U. S. ___ (2009).
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II
The Government’s primary submission is that §48 nec-essarily complies with the Constitution because thebanned 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 ageneral 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],‘ suchas photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal isintentionally 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 ofspeech 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 longfamiliar 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
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(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 classesof speech, the prevention and punishment of which havenever been thought to raise any Constitutional problem.‘ Chaplinsky v. New Hampshire, 315 U. S. 568, 571‘“572 (1942).
The Government argues that ‘depictions of animalcruelty‘ 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 FirstAmendment, but that these depictions are outside thereach 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, startingwith 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
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the First Amendment’s protection without any long-settledtradition 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 valueas 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 theban on the same basis. The Government thus proposesthat a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection dependsupon 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 Americanpeople that the benefits of its restrictions on the Govern-ment outweigh the costs. Our Constitution forecloses anyattempt to revise that judgment simply on the basis thatsome 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 emergefrom 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 fromthem is clearly outweighed by the social interest in orderand morality.’‘ R. A. V., supra, at 383 (quoting Chap-linsky, supra, at 572). In New York v. Ferber, 458 U. S.
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747 (1982), we noted that within these categories of unpro-tected speech, ‘the evil to be restricted so overwhelminglyoutweighs the expressive interests, if any, at stake, thatno process of case-by-case adjudication is required,‘ be-cause ‘the balance of competing interests is clearlystruck,‘ 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. Theydo 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 assuch 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 childrenin 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 pornographywas ‘intrinsically related‘ to the underlying abuse, and was therefore ‘an integral part of the production of suchmaterials, an activity illegal throughout the Nation.‘ Id., at 759, 761. As we noted, ‘‘˜[i]t rarely has been suggestedthat 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,
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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 ‘anintegral part‘ of its unlawful production (internal quota-tion marks omitted)); Ashcroft v. Free Speech Coalition, 535 U. S. 234, 249‘“250 (2002) (noting that distributionand sale ‘were intrinsically related to the sexual abuse ofchildren,‘ 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 beenspecifically 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 theGovernment’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’spetition for certiorari to determine ‘whether 18 U. S. C. 48 is facially invalid under the Free Speech Clause of theFirst Amendment,‘ Pet. for Cert. i.
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To succeed in a typical facial attack, Stevens would haveto 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 thatwe 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 substantialnumber of its applications are unconstitutional, judged inrelation 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 quotationmarks omitted). Stevens argues that §48 applies to com-mon depictions of ordinary and lawful activities, and that these depictions constitute the vast majority of materialssubject 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
’’’’’’ 3The dissent contends that because there has not been a ruling on
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B
As we explained two Terms ago, ‘[t]he first step inoverbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches toofar without first knowing what the statute covers.‘ United States v. Williams, 553 U. S. 285, 293 (2008). Because §48is 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 thedepicted 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 ofthe 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 . . . thatcan be evaluated only in the context of an as-applied challenge.‘ 552
U. S., at 444.
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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.’‘ ReplyBrief 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 isassociated.‘ Ibid. Likewise, an unclear definitional phrase may take meaning from the term to be defined, see Leocal, supra, at 11 (interpreting a ‘‘˜substantial risk’‘ ofthe ‘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 thedepicted conduct be ‘illegal.‘ But this requirement doesnot limit §48 along the lines the Government suggests.There are myriad federal and state laws concerning theproper 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 thehealth 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
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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 depictedconduct need only be illegal in ‘the State in which the creation, sale, or possession takes place, regardless ofwhether the . . . wounding . . . or killing took place in [that] State.‘ A depiction of entirely lawful conduct runsafoul of the ban if that depiction later finds its way intoanother 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 issubstantial disagreement on what types of conduct areproperly regarded as cruel. Both views about cruelty to animals and regulations having no connection to crueltyvary widely from place to place.
In the District of Columbia, for example, all hunting isunlawful. D. C. Munic. Regs., tit. 19, §1560 (2009). Other jurisdictions permit or encourage hunting, and there is anenormous national market for hunting-related depictions in which a living animal is intentionally killed. Huntingperiodicals have circulations in the hundreds of thousandsor 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
’’’’’’ 4The citations in the dissent’s appendix are beside the point. The cited statutes stand for the proposition that hunting is not covered byanimal 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 thefirst place. Reply Brief 6.
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Association et al. as Amici Curiae 9‘“10. The demand for hunting depictions exceeds the estimated demand forcrush videos or animal fighting depictions by severalorders 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 anymagazine 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 tocertain 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)
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with Cal. Food & Agric. Code Ann. §19501(b) (West 2001)(including some poultry). California has recently bannedcutting or ‘docking‘ the tails of dairy cattle, which otherStates permit. 2009 Cal. Legis. Serv. Ch. 344 (S. B. 135) (West). Even cockfighting, long considered immoral inmuch 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 ofthese practices, if sold or possessed for commercial gainwithin a State that happens to forbid the practice, falls within the prohibition of §48(a).
C The only thing standing between defendants who sellsuch depictions and five years in federal prison’otherthan the mercy of a prosecutor’is the statute’s exceptionsclause. 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 narrowsthe statute’s reach: News reports about animal cruelty have ‘journalistic‘ value; pictures of bullfights in Spain have ‘historical‘ value; and instructional hunting videoshave ‘educational‘ value. Reply Brief 6. Thus, the Gov-ernment argues, §48 reaches only crush videos, depictions of animal fighting (other than Spanish bullfighting, seeBrief 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 theexceptions clause. As the Government reads the clause, any material with ‘redeeming societal value,‘ id., at 9, 16,
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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 takenseriously. 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 thatis ‘significant and of great import,‘ App. 132, and the Government defended these instructions as properlyrelying 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 whythese 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 hasserious 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
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adequate reading of the exceptions clause that results in the statute’s banning only the depictions the Governmentwould 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 surelyenough to answer any First Amendment objection. ReplyBrief 8‘“9.
In Miller we held that ‘serious‘ value shields depictionsof 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).
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D Not to worry, the Government says: The ExecutiveBranch 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 itsprosecutorial 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 touse 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 prosecutorialrestraint. When this legislation was enacted, the Execu-tive Branch announced that it would interpret §48 as covering only depictions ‘of wanton cruelty to animalsdesigned 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 providesis pertinent only as an implicit acknowledgment of thepotential constitutional problems with a more natural reading.
Nor can we rely upon the canon of construction that‘ambiguous statutory language [should] be construed toavoid 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-
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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 conductor are analogous to obscenity (if not themselves obscene),and that the ban on such speech is narrowly tailored toreinforce restrictions on the underlying conduct, preventadditional crime arising from the depictions, or safeguardpublic mores. But the Government nowhere attempts toextend these arguments to depictions of any other activi-ties’depictions that are presumptively protected by theFirst Amendment but that remain subject to the criminalsanctions of §48. Nor does the Government seriously contest that thepresumptively impermissible applications of §48 (properly construed) far outnumber any permissible ones. However ‘growing‘ and ‘lucrative‘ the markets for crush videos anddogfighting depictions might be, see Brief for United States 43, 46 (internal quotation marks omitted), they aredwarfed by the market for other depictions, such as hunt-ing magazines and videos, that we have determined to bewithin 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
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not so limited but is instead substantially overbroad, andtherefore invalid under the First Amendment.
The judgment of the United States Court of Appeals for the Third Circuit is affirmed.
It is so ordered.
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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 thepractical 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 otherdogfight videos brought to our attention.1 The Court of ’’’’’’
1Respondent 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 whichis not a crush video or an appeal to some prurient sexual interestconstitutes a restriction of protected speech, and an unwarranted violation of the First Amendment’s free speech guarantee‘); Brief for
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Appeals’incorrectly, in my view’declined to decidewhether §48 is unconstitutional as applied to respondent’svideos and instead reached out to hold that the statute is facially invalid. Today’s decision does not endorse theCourt of Appeals’ reasoning, but it nevertheless strikes down §48 using what has been aptly termed the ‘strongmedicine‘ of the overbreadth doctrine, United States v. Williams, 553 U. S. 285, 293 (2008) (internal quotationmarks 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 §48bans a substantial quantity of protected speech.
I A party seeking to challenge the constitutionality of astatute 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 constitutionallybe 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 theopinion of the Court of Appeals that respondent did not preserve an as-applied challenge.
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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 neednot 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.
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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 ‘harmfuleffects‘ 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, theCourt 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
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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 ondepictions 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 all50 States, and §48 applies only to a depiction of conduct that is illegal in the jurisdiction in which the depiction iscreated, 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 fallsoutside §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 crossbowor ‘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 inwhich 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 tosuch a limiting construction.‘ Ferber, 458 U. S., at 769,
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n. 24. See also Williams, supra, at 307 (STEVENS, J., concurring) (‘[T]o the extent the statutory text alone isunclear, our duty to avoid constitutional objections makes it especially appropriate to look beyond the text in order toascertain 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 thatterm to apply only to depictions involving acts of animalcruelty as defined by applicable state or federal law, not to depictions of acts that happen to be illegal for reasonshaving 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-
’’’’’’ 3See 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 orfarm 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 tothe humane treatment of wildlife, including deer, elk, and waterfowl, are virtually non-existent‘).
4Webster’s Third New International Dictionary 2073 (1976); RandomHouse 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.
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tional,‘ or ‘historical‘ value. While there are certainlythose who find hunting objectionable, the predominant view in this country has long been that hunting serves many important values, and it is clear that Congressshares that view. Since 1972, when Congress called uponthe President to designate a National Hunting and Fish-ing Day, see S. J. Res. 117, 92d Cong., 2d Sess. (1972), 86Stat. 133, Presidents have regularly issued proclamationsextolling the values served by hunting. See Presidential Proclamation No. 8421, 74 Fed. Reg. 49305 (Pres. Obama2009) (hunting and fishing are ‘ageless pursuits‘ thatpromote ‘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 amongour 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 ‘healthyrecreation, 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 servethese values, then it takes but a small additional step toconclude that depictions of hunting make a non-trivial
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contribution to the exchange of ideas. Accordingly, Iwould hold that hunting depictions fall comfortably withinthe 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 withinthe scope of the statute‘); 145 Cong. Rec. 25894 (Oct. 19,1999) (Rep. McCollum) (‘[T]he sale of depictions of legalactivities, such as hunting and fishing, would not be illegalunder this bill‘); id., at 25895 (Rep. Smith) (‘[L]et us beclear 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 inOregon 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 thesale and possession of hunting depictions, the Court cites a few additional examples, including depictions of methodsof 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-
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tially overbroad, for two reasons. First, as explainedabove, §48 can reasonably be construed to apply only todepictions involving acts of animal cruelty as defined byapplicable 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) (‘Nopart of this chapter [prohibiting cruelty to animals] shall be construed as interfering with or allowing interferencewith . . . [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 tofarm animals, normal or accepted practices of animal husbandry, including the normal and accepted practices for the slaughter of such animals‘); Md. Crim. Law CodeAnn. §10‘“603 (Lexis 2002) (sections prohibiting animalcruelty ‘do not apply to . . . customary and normal veteri-nary and agricultural husbandry practices, includingdehorning, 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 ofdairy cows that would not easily qualify under the excep-tion set out in §48(b). Depictions created to show propermethods 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 eitherserious ‘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 isillegal in all States, is still legal in Puerto Rico, ante, at 15,
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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 inPuerto Rico.5 But assuming for the sake of argument thatthis 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 absoluteterms, 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 ‘˜crushvideos.’‘ 533 F. 3d 218, 222 (CA3 2008) (en banc). A sample crush video, which has been lodged with the Clerk, records the following event:
’’’’’’ 5Since the Court has taken pains not to decide whether §48 would beunconstitutional 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 depictionof a legal cockfight in Puerto Rico.
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‘[A] kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeledshoe 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 thematerial 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 itsjurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in
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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 theproduction 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 oran undercover police operation‘); id., at 34‘“35 (discussingexample 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 effectiveway of stopping the underlying criminal conduct was toprohibit the commercial exploitation of the videos of thatconduct. And Congress’ strategy appears to have been vindicated. We are told that ‘[b]y 2007, sponsors of §48declared 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 SocietyBrief 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
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that the only way of preventing these crimes was to targetthe 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 tocontinue.
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 mostimportant factor’was that child pornography involves thecommission of a crime that inflicts severe personal injuryto the ‘children who are made to engage in sexual conductfor commercial purposes.’‘ Id., at 753 (internal quotationmarks omitted). The Ferber Court repeatedly describedthe production of child pornography as child ‘abuse,‘‘molestation,‘ or ‘exploitation.‘ See, e.g., id., at 749 (‘Inrecent 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 isoften 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 thatitself 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 pornographymust be closed if the production of material which requires the sexual exploitation of children is to be effectivelycontrolled.‘ 458 U. S., at 759. The Court added:
‘[T]here is no serious contention that the legislature
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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 themarket for this material by imposing severe criminal penalties on persons selling, advertising, or otherwisepromoting 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 thusan 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 incrush videos is criminal in every State and the District ofColumbia. Thus, any crush video made in this countryrecords 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 profitmay 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 suchpersons, 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-
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tions of animal torture with the intention of realizing acommercial 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 videomarket.
Finally, the harm caused by the underlying crimesvastly outweighs any minimal value that the depictionsmight 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 theabuse of children is certainly much more important thanpreventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appealsconcluded that Ferber did not support the constitutionalityof §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 incrush videos.
The animals used in crush videos are living creaturesthat experience excruciating pain. Our society has longbanned such cruelty, which is illegal throughout the coun-try. In Ferber, the Court noted that ‘virtually all of theStates and the United States have passed legislation
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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-guessingthe 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 profitsfrom 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 judgedthat 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 bythe First Amendment.
B Application of the Ferber framework also supports the ’’’’’’ 6In 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 ofcrime 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) (citingstate laws prohibiting discrimination in public accommodations as evidence of the compelling governmental interest in ensuring equalaccess).
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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 theactual 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 (2006ed., Supp. II).
Second, Congress had an ample basis for concludingthat the crimes depicted in these videos cannot be effec-tively controlled without targeting the videos. Like crush videos and child pornography, dogfight videos are veryoften 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 lucrativemarket for depictions of animal cruelty,‘ including videosof 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 thesuccess 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
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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 attendactual 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 (‘Sellingvideos of dogfights effectively abets the underlying crimes by providing a market for dogfighting while allowing actual dogfights to remain underground‘); ibid. (‘Thesevideos are part of a ‘˜lucrative market’ where videos are produced by a ‘˜bare-boned, clandestine staff’ in order topermit 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 itprovides 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 fightorganizers.‘ Ibid. In short, because videos depicting live dogfights are essential to the success of the criminal dog-fighting subculture, the commercial sale of such videoshelps to fuel the market for, and thus to perpetuate theperpetration of, the criminal conduct depicted in them.
Third, depictions of dogfights that fall within §48’s reachhave 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 livefight in a larger work that aims at communicating an ideaor a message with a modicum of social value would not runafoul of the statute.
Finally, the harm caused by the underlying criminalacts greatly outweighs any trifling value that the depic-tions might be thought to possess. As the Humane Society explains:
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‘The abused dogs used in fights endure physical tor-ture and emotional manipulation throughout theirlives to predispose them to violence; common tacticsinclude feeding the animals hot peppers and gunpow-der, prodding them with sticks, and electrocution. Dogs are conditioned never to give up a fight, even ifthey will be gravely hurt or killed. As a result, dog-fights inflict horrific injuries on the participatinganimals, including lacerations, ripped ears, puncturewounds 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 statuteare ‘substantial‘ in relation to its ‘plainly legitimatesweep.‘ Williams, 553 U. S., at 292. Accordingly, I wouldreject 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.
ALITO, J., dissenting
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APPENDIX
As the following chart makes clear, virtually all state laws prohibiting animal cruelty either expressly definethe 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 trappingactivities‘)
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 thetaking 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) (‘Nopart 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
ALITO, J., dissenting
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the state, said wildlife statutes shall control‘), §18‘“9‘“202(3) (‘Nothing in this part 2 shall beconstrued to amend or in any manner changethe 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 crueltyto 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 animalresulting in serious bodily injury or death of the pet animal or equine animal‘)
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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 toany 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 ortaking of any animal in accordance with the
ALITO, J., dissenting
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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 tohunt, 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-
ALITO, J., dissenting
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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 gamelaws . . . [or] the right to kill all animals and fowl used for food‘)
New Hampshire
N. H. Rev. Stat. Ann. §644:8(II) (West Supp. 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 Carolina
N. C. Gen. Stat. Ann. §14‘“360(c)(1) (Lexis 2009) (‘[T]his section shall not apply to . . . [t]helawful taking of animals under the jurisdiction
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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 licenseor 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 fowlpursuant 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‘ fromengaging 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 tolicensed hunters during hunting season or a licensed business killing animals for human consumption‘)
South Carolina
S. C. Code Ann. §47‘“1‘“40(C) (Supp. 2009) (‘This 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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persons who properly kill any animal used for food and sport hunting, trapping, and fishing as authorized by the South Dakota Department ofGame, 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 livingcreature, 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 towardthe wildlife is in accordance with lawful hunt-ing, fishing, or trapping practices or other lawfulpractices‘), §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 . . . activitiesregulated 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
ALITO, J., dissenting
28 UNITED STATES v. STEVENS
Appendix to opinion of ALITO, J.
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 toregulation under ch. 169 [regulating, among other things, hunting], [or] the taking of wildanimals‘)
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 animalor other wildlife in any manner not otherwise prohibited by law‘)

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