At issue in US v. Stevens was whether Congress overstepped its authority when it passed a 1999 law barring the creation, sale, or possession of any depiction of animal cruelty with the intent to distribute and sell it.
The law was initially aimed at blocking a small but growing market in underground sexual fetish videos that involve dominatrix women who step on and kill small animals. By one estimate in 1999 these so-called “crush videos” represented a million-dollar market.
But Congress did not stop there. Lawmakers decided to criminalize a wider range of conduct. The law was written to ban photographs and videos depicting “animal cruelty” in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.
The law applied if the underlying conduct violated federal or state law where the “creation, sale, or possession takes place.” Violators would face up to five years in prison.
Roberts said the statute created a criminal prohibition of “alarming breadth.”
“A depiction of entirely lawful conduct runs afoul of the ban if that depiction later finds its way into another state where the same conduct is unlawful,” he said.
He noted that since hunting is illegal in Washington, D.C., the law would extend to “any magazine or video depicting lawful hunting, so long as that depiction is sold within the nation’s capital.”
Roberts rejected pledges by the government that federal prosecutors would only enforce the statute against acts of what it viewed as “extreme cruelty.”
“The First Amendment protects against the government; it does not leave us at the mercy of noblesse oblige,” Roberts wrote. “We would not uphold an unconstitutional statute merely because the government promised to use it reasonably.”