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Mayer Brown Files Amicus Brief In Major First Amendment Case

10 June 2010

On April 20, 2010, the U.S. Supreme Court issued its decision in United States v. Stevens (No. 08-769), holding 18 U.S.C. § 48 to be a facially unconstitutional content-based restriction of protected speech.  Section 48 had purported to make it a federal crime for anyone to “knowingly create, sell, or possess a depiction of animal cruelty” for commercial purposes.  The statute defined a depiction of animal cruelty as “any visual or auditory depiction . . . of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed” and such conduct violates a state or federal law where “the creation, sale, or possession takes place.”  According to the government, such depictions were categorically beyond First Amendment protection, in the same way obscenity, defamation, incitement, and child pornography have been held to be.  Specifically, the government argued that “[w]hether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs,” and that depictions of animal cruelty as defined by Section 48 failed that test. 

In an opinion authored by Chief Justice Roberts, an eight-Justice majority held that the “free-floating test for First Amendment coverage” proposed by the government was “startling and dangerous,” and made clear that the Court’s prior opinions defining categories of unprotected speech “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”  Rejecting the government’s categorical approach, the Court held that Section 48 should instead be analyzed using the traditional test for facial overbreadth, under which a law violates the First Amendment if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”  The Court found that Section 48 failed that test because its plain language encompassed any depiction of an animal being killed or wounded in violation of any state or federal law, including laws wholly unrelated to the prevention of cruelty to animals, thereby “creat[ing] a criminal prohibition of alarming breadth.”  The Court also concluded that Section 48 could not be saved by its “exceptions clause,” which exempted from prosecution “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”  The Court explained that “the protection of the First Amendment presumptively extends to many forms of speech that do not qualify for the serious-value exception” of Section 48, and rejected the government’s assurances that it would exercise its prosecutorial discretion to reach only acts of extreme cruelty.  As the Court emphasized, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.”  

Mayer Brown filed an amicus brief on behalf of the National Coalition Against Censorship and the College Art Association.  We provided practical examples demonstrating that Section 48 was unconstitutionally overbroad because its definition of a “depiction of animal cruelty” (a) encompassed any commercial depiction showing an animal being wounded or killed by a person acting in violation of any federal or state law, including laws intended to conserve natural resources, ensure public safety, or regulate the use of dangerous weapons, and (b) criminalized depictions of conduct that was legal where the depiction was made, provisions that would, for example, potentially criminalize a documentary showing bullfighting in Spain.  We also explained to the Court why the serious-value exemption could not save Section 48, arguing that (a) the history of modern art demonstrates the inability of prosecutors and jurors to assess a work’s value; (b) the inherent subjectivity of “serious value” would invite prosecutors and juries to engage in viewpoint discrimination; and (c) the vagueness of the exemption would chill protected expression.  Partner Andrew Tauber and associate Craig Canetti of the Washington, D.C. office, and academic affiliate Eugene Volokh, collaborated in drafting the brief.

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