Official - Subject to Final Review - Home - Supreme Court ......greater sections of the film, and more explicit. In this film, the -- the Respondent didn't let the video show the actual

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

UNITED STATES, :

Petitioner :

v. : No. 08-769

ROBERT J. STEVENS. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Tuesday, October 6, 2009

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:03 a.m.

APPEARANCES:

NEAL K. KATYAL, ESQ., Deputy Solicitor General,

Department of Justice, Washington, D.C.; on behalf of

the Petitioner.

PATRICIA A. MILLETT, ESQ., Washington, D.C.; on behalf

of the Respondent.

1

Alderson Reporting Company

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C O N T E N T S

ORAL ARGUMENT OF PAGE

NEAL K. KATYAL, ESQ.

On behalf of the Petitioner 3

PATRICIA A. MILLETT, ESQ.

On behalf of the Respondent 27

REBUTTAL ARGUMENT OF

NEAL K. KATYAL, ESQ.

On behalf of the Petitioner 55

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P R O C E E D I N G S

(10:03 a.m.)

CHIEF JUSTICE ROBERTS: We will hear, first,

this morning, Case 08-769, United States v. Stevens.

Mr. Katyal.

ORAL ARGUMENT OF NEAL K. KATYAL

ON BEHALF OF THE PETITIONER

MR. KATYAL: Thank you, Mr. Chief Justice,

and may it please the Court:

Ten years ago, in Section 48 of Title 18,

Congress crafted a narrowly targeted restriction against

certain depictions of actual animal cruelty. Yet the

Third Circuit struck the statute down on its face

without even attempting to apply substantial overbreadth

analysis. The statute has four critical features and,

just as the Court last year in United States v. Williams

began with statutory construction, analysis should begin

there.

First, like the statute at issue in the

United States v. Ferber, this statute only reaches

depictions of cruelty to actual living beings --

animals, not simulated ones or the written word.

Second, the statute only applies to

commercial messages, ones that Congress found drove the

market for animal cruelty.

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Third, the statute examines the work as a

whole --

JUSTICE SOTOMAYOR: What record do you have

of that fact?

MR. KATYAL: Before Congress?

JUSTICE SOTOMAYOR: Yes.

MR. KATYAL: Before Congress -- Congress had

a bunch of testimony that showed that there were

extensive -- there was a robust market in animal cruelty

videos, largely focusing on crush videos -- 2 to 3,000

crush videos that were in -- that were -- that were

being sold at the time.

JUSTICE SOTOMAYOR: That I understand, but

crush videos is only one species of cruelty to animals.

What evidence was there that, for example, dog fighting

had as large and robust a market or that hunting videos

in those States in which hunting was illegal had a

robust market, et cetera?

MR. KATYAL: Well, hunting we think is

excluded, and I could talk about that in a moment, from

the reach of the act. Congress spoke in general terms,

and I don't think that Mr. Stevens's statement at page

13 of his merits brief, which is to the effect that

Congress repeatedly disavowed any attempt to regulate

animal fighting -- dog fighting -- I don't think that is

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correct and the record does not support that.

Congress spoke in general terms. They had a

for-profit commercial market about animal cruelty, and

the statute dealt with it in general terms. And they

reasoned that by -- by punishing the sale of these

videotapes, they would get at the underlying clandestine

market --

JUSTICE SCALIA: What do you mean by a

"for-profit commercial market"? You mean anything that

is sold, right?

MR. KATYAL: That is -- that is correct.

JUSTICE SCALIA: Okay.

MR. KATYAL: Yes.

And the Third Circuit's decision in this

case struck down the statute with respect to crush

videos, with respect to the sale of video -- the

creation of dog fighting videotapes, because, remember,

the statute, Section 48, doesn't just encompass the --

the sale of videotapes. It also encompasses the

creation of dog fighting videotapes. And, yet, the --

the Third Circuit struck that down as well. That, I

think, was a fundamental error under this Court's

principles, most particularly, United States v.

Williams, which says that the statute should only be

struck down if there is a substantial -- if there is

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substantial overbreadth and only if it is a last resort

of the Court, not the first.

CHIEF JUSTICE ROBERTS: What would you -- if

you could do it in one sentence, what is your test for

determining which categories of speech are unprotected

by the First Amendment?

MR. KATYAL: In one sentence, if -- if -- if

Congress sees a compelling interest in regulating the

means of production and does not target the underlying

content, they can -- they can regulate a depiction, so

long as it leaves alternative mechanisms for that

expression in -- in place, and that is I think what

Ferber --

JUSTICE KENNEDY: Okay. And what case --

what case do you have for that proposition?

MR. KATYAL: United States v. Ferber -- New

York v. Ferber. In Ferber, the Court -- the Court

dealt, as modified or as glossed by your decision in

Free Speech Coalition, because what Ferber and Free

Speech Coalition together say is that Congress was

not -- or the legislature, was not targeting the

contents of a depiction; rather, it was trying to get at

and dry up the underlying market, child exploitation in

that case.

JUSTICE GINSBURG: Mr. Katyal, the Court

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summarily dealt with a case some years ago, American

Booksellers v. Hudnut, where cities attempted to make

not even a criminal offense, but the subject of a civil

suit, a violent depiction -- depictions of women as

sexual objects enjoying pain and humiliation and

degradation.

The Seventh Circuit said that that was a

blatant violation of the First Amendment, to go after

purveyors who show these women in the shocking,

degrading photographs, and I believe we summarily

affirmed.

MR. KATYAL: And this case is fundamentally

different from all of those because here Congress is not

aiming at the underlying communicative impact. It's not

saying, as it was in the --

JUSTICE SCALIA: Well, of course it is. I

mean, you can't separate the means from the end and say,

since its end is simply to prevent the -- the activity,

the means, which is to prevent the communication, is

okay. It is targeting the communication of videos that

depict this conduct.

MR. KATYAL: Quite to the contrary, Justice

Scalia. The bona fides of this statute are evident

right on its face, because the very same depictions that

Mr. Stevens or anyone else swept up under the statute

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wants to portray, they can -- they can do it, so long as

they use simulated or images.

CHIEF JUSTICE ROBERTS: Well, but to say

that they are not concerned with the content, I -- I

think is contradicted by the exceptions. You have to

look at the content and make a decision, is this bona

fide scientific, journalistic, educational, historical?

So you have to look at the content to determine whether

or not the speech is prohibited.

MR. KATYAL: I don't think so, for two

reasons. I think what Congress is dealing with with the

exemptions clause in this statute was just reflecting

the underlying nature of the market that they saw in

1999, a for-profit commercial market in cruelty.

And so they exempted educational depictions,

religious, and so on, because that wasn't what was

driving the underlying market for crush videos --

CHIEF JUSTICE ROBERTS: How can you tell

these aren't political videos? You do have, with

organizations, PETA and others, depictions of the same

sort of animal cruelty that is used to generate support

for efforts to prohibit it. Why aren't these videos the

exact opposite, you know, efforts to legalize it, and,

in each case, it would fall under the political

exemption?

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MR. KATYAL: And often they will fall under

that exemption. My point is that Congress carved a

broad exemption in Section 48 precisely to make sure

that expressive messages aren't swept up.

JUSTICE SOTOMAYOR: Could you -- could you

tell me what the difference is between these video and

David Roma's documentary on pit bulls? I mean, David

Roma's documentary had much, much more footage on the

actual animal cruelty than the films at issue here,

greater sections of the film, and more explicit.

In this film, the -- the Respondent didn't

let the video show the actual tearing of the jaw. David

Roma's did much more than that, showed much more than

that. So isn't -- doesn't there have to be a judgment

inherent in this statute?

MR. KATYAL: The line will sometimes be

difficult to draw, just as its difficult to draw in

child pornography --

JUSTICE SOTOMAYOR: But it's not in child

pornography because, there, Congress says the very

act -- it doesn't matter how artistic it is. That very

act of child pornography is illegal.

MR. KATYAL: Quite to the contrary, Justice

Sotomayor. In this -- this Court approved, in Osborne

v. Ohio, a statute that's on child pornography, that had

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the following exemption: For a, quote, "bona fide

artistic, educational, religious, governmental,

judicial, or other purpose by or to a physician,

psychologist, sociologist, persons pursuing bona fide

research studies, a judge or other persons having a

proper interest in the material or performance."

And this Court pointed to that exemptions

clause to make the statute constitutional at two -- at

two pages in that opinion. And so this Court has

already gone down the path of saying these decisions are

tough to make on a case-by-case basis, but nonetheless

the legislature should have a freer hand to act when it

is regulating, not the expressive message, but targeting

the underlying content, the -- targeting the underlying

production, not the content.

JUSTICE SCALIA: Child -- child pornography

is obscenity as far as I am concerned, and it has been

treated as part of that same traditional classification

which there has always been permission for the

government to prohibit. This is something quite

different.

I mean, you know, what if -- what if I -- I

am an aficionado of bullfights and I think, contrary to

the animal cruelty people, I think it -- they enoble

both beast and man, and I want to persuade people that

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bullfights are terrific and we should have them.

I would -- I would not be able to -- to

market videos showing people how exciting a bullfight

is. Right? I would be able to talk and say, oh, you

should really allow bullfights, but I cannot make the

most significant point that I want to make, get people

to watch it.

MR. KATYAL: I want to answer your

hypothetical, but if I could just have 20 seconds or so

to -- to respond more generally to all of these

hypotheticals which I think are going to reoccur in the

course of our conversation.

We believe that Section 48 will have

as-applied constitutional challenges that will be

inferred from case to case. But what this Court has

said is that, in your decision, Justice Scalia, in

United States v. Williams, is that we should be careful

about that endless stream of fanciful hypotheticals

precisely because the test under substantial

overbreadth, which knocks an entire act of Congress out

on its face, is that there must be a realistic danger

that the statute will be applied in -- in the manner the

hypothetical suggests.

With respect to your bullfighting

hypothetical, there is no realistic danger.

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We have had ten years of experience under the statute.

Congress itself said -- the legislative history, which I

know will not be of relevance to you but may to others

on the Court -- they explicitly exempted Spanish

bullfighting and said that is the paradigmatic case of

what is educational and artistic and the like.

JUSTICE BREYER: What if I made --

JUSTICE SCALIA: Well, wait. Wait. I don't

understand that. Any depiction of bullfighting is

educational?

MR. KATYAL: Spanish depictions of

bullfighting --

JUSTICE SCALIA: And that is true because

Congress said so?

MR. KATYAL: Well, that is true because it

is educational, and -- and a prosecutor would bear the

burden of proof.

JUSTICE SCALIA: Well, I guess a dogfight is

educational, too.

MR. KATYAL: And some dogfights certainly

are, which is my answer to Justice Sotomayor's question.

JUSTICE BREYER: Well, look what you have

done, and this is what is bothering me. You take these

words, which are a little vague, some of them, "serious

religious, political, scientific, educational,

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journalistic, historical, or artistic value," and you

say that's a standard that a judge or prosecutor will

apply. And people have to understand it because they

have to know what to do to avoid the risk of being

prosecuted.

Now, as I have gotten out of these briefs,

you then require people to apply that standard, not

simply to the crush videos or to the dogfighting, but

also to, as Justice Scalia pointed out, bullfighting,

sheep hunting, bear hunting, deer hunting, fox hunting,

humane slaughter, and for, I think somewhere I found,

the stuffing geese for pate de fois gras.

All right, so there is a whole long -- quail

hunting. There's a whole long list in here of things

that people might want to do. They won't know if it

falls within this exemption. Nobody in every State

wants to forbid these things. Sometimes they are,

sometimes they are not. They won't know whether or not

they can make this particular film, picture, or other.

That's the overbreadth argument. And I would like to

hear your response.

MR. KATYAL: We have had ten years of

experience, Justice Breyer, under the statute, and we

haven't seen those things being chilled. Indeed,

Respondents --

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JUSTICE KENNEDY: Can you give me an example

of a case where we said a statute which might otherwise

be overbroad is not overbroad because prosecutors have

been restrained? Can you give me one case where we've

said that?

MR. KATYAL: Last year in United States v.

Williams, an opinion that virtually every member of this

Court joined, including you, Justice Kennedy, this Court

said that it would look to the experience, the

post-Ferber experience, in prosecuting cases to decide

whether or not a -- two terms in the statute, "promotes"

and "presents," were vague and would raise the --

JUSTICE KENNEDY: But that was a case where

we knew what the content was. The content was not

subject to an -- to an overbreadth challenge. The

content was not.

MR. KATYAL: Well, actually, Justice

Kennedy, the reason that came up in the case is because

there were hypotheticals being advanced such as

police -- a man who wants to call the police that says

that child pornography arrived in my -- in the mail and

so on. And what the Court said is that even though the

words in the statute, just as the words in this statute,

could be read broadly or narrowly --

JUSTICE KENNEDY: Well, but that -- that

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went to intent. It seems to me that -- let me tell you

what I think your framework is and if it is wrong, tell

me that it is wrong. This statute without the

exceptions clause would be wildly overbroad. So you say

it's not overly broad because of the exception or the

savings clause. I will call it the exceptions. But it

seems to me that the exceptions must be then tested as

to whether or not they are vague.

MR. KATYAL: We do think that the --

JUSTICE KENNEDY: And you have you to show

that they are not vague.

MR. KATYAL: We do think that the exceptions

clause does some of the constitutional work to exclude

some of the hypotheticals like bullfighting and the

like. We do think the statute itself has a number of

restrictions built into it on its face to --

JUSTICE GINSBURG: But what is a -- what is

"and the like"? How about cockfighting? What is the

difference between -- perhaps I missed something a few

moments ago -- between bullfighting, cockfighting,

dogfighting? You say dogfighting is included, but

bullfighting -- and I don't know where you put

cockfighting.

MR. KATYAL: Dogfighting and cockfighting

are illegal in all 50 States and therefore would be

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swept up. Some certain depictions of dogfighting and

cockfighting would be swept up, not all.

JUSTICE GINSBURG: But what about

bullfighting? Isn't that illegal in --

MR. KATYAL: It may or may not be. There

aren't, at least, specific statutes generally dealing

with it, but --

JUSTICE STEVENS: What about hunting with a

bow -- What about hunting with a bow and arrow out of

season?

MR. KATYAL: Okay. So --

(Laughter.)

MR. KATYAL: In hunting, as well as --

JUSTICE GINSBURG: Can we -- have we

finished with the category of fights?

MR. KATYAL: So let me just, to Justice

Ginsburg's question. Not all dogfighting videos are

swept up by Section 48. There may be educational

videos, along the lines that Justice Sotomayor said,

raised which are not swept up. Bullfighting is the same

basic thing. It's not that there is a categorical -- a

categorical exemption on bullfighting; it is rather that

there are certain ones that are educational and not,

just like in child pornography.

JUSTICE GINSBURG: What's the --

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JUSTICE SCALIA: So noneducational

bullfighting would be prohibited? If I market this just

because I think, boy, bullfighting is really exciting?

MR. KATYAL: If it meets the other terms in

the statute, right. So commercial and things like that.

JUSTICE SCALIA: Okay. It is covered.

MR. KATYAL: Now, with respect to hunting,

hunting is generally not considered animal cruelty. And

it doesn't --

JUSTICE STEVENS: No, but hunting with a bow

and arrow, and some depictions of hunting are pretty --

are pretty gruesome.

MR. KATYAL: That's correct. And to the

extent that it is something that resembles the terms of

the statute, the language of which is "maimed,

mutilated, tortured, wounded, or killed" --

JUSTICE SCALIA: "Or killed." How do you

limit "killed" to cruel -- you say in your brief that

it's noscitur ex sociis. But that's a doctrine that

says when you have a string of words, one of which has

various meanings, which meaning it has depends upon the

words with which it is associated. So if you speak of

staples, staples -- what, thumb tacks, nails, and other

fasteners, "nails" obviously doesn't mean toenails. It

means a nail that is a fastener, the word "nail" having

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various meanings.

"Kill" has one meaning, which is kill. And

you can -- you cannot limit that meaning just because in

addition to killing you also prohibit torturing and

other things. Do you have a single case where -- where

that doctrine is used not to give meaning to an

ambiguous word, but to limit the meaning of a word which

on its face is absolutely clear?

MR. KATYAL: Yes, sir, Your Honor. I do.

JUSTICE SCALIA: What is that?

MR. KATYAL: That is the decision you wrote

last year in United States v. Williams, which interprets

the words "promotes and presents," which you yourself in

the opinion said are capable of a wide variety of

meanings.

JUSTICE SCALIA: Exactly.

MR. KATYAL: And -- and here the word "kill"

in context is a term that the statute --

JUSTICE SCALIA: No, it's not susceptible to

a wide -- that's my whole point. It means kill.

MR. KATYAL: It means killed in the context

of a statute that is defining the words "animal

cruelty," and this Court has consistently said that the

definition that is being defined by the legislature --

JUSTICE SCALIA: Some people think eating an

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animal is animal cruelty. These people don't eat meat

because it is the product of killing animals.

MR. KATYAL: And the legislature under no

way, shape, or form was targeting that.

JUSTICE SCALIA: Well, it shouldn't have

said that, then.

MR. KATYAL: Well, I think that it basically

did say that by using the words "animal cruelty" in the

statute. Now, if there's a disagreement about that --

JUSTICE SCALIA: You don't have a single

case in which a -- an absolutely clear word like "kill"

is given a more narrow meaning because of other words

that are different from that word.

MR. KATYAL: Justice Scalia, in Leocal, this

Court defined the term "crime of violence," which the

INA had -- that the INA interpreted wrongly.

JUSTICE BREYER: So you want to say "cruelly

kill"?

MR. KATYAL: That's --

JUSTICE BREYER: Now, "cruelly kill" is not

exactly crystal clear. And therefore my question is

why, given the need for you to save this statute to read

so many words that are so general, those contained here

that I've read, cruelly kill, cruelly wound as opposed

to just wound or kill. You are doing that in order to

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prevent chilling people who are engaging in activities

that aren't intended to be covered by this statute.

Why not do a simpler thing? Rather than let

the public guess as to what these words mean, ask

Congress to write a statute that actually aims at those

frightful things that it was trying to prohibit. Now,

that can be done. I don't know why they couldn't do it.

MR. KATYAL: And it could have been done in

Williams. It could have been done in the child

pornography cases, which also have vague terms. But

what this Court has said is that using the substantial

overbreadth doctrine to do that leaves gaping holes in

place. If we followed your invitation, Justice Breyer,

we would leave crush videos unprotected.

JUSTICE BREYER: Why? Why? You say a crush

video, my description that I read of it, you would have

a strong case. I'm not saying you would win, I don't

have to decide that. But you have a very strong case.

So you say to Congress, write a statute that focuses on

that. You are worried about dog fighting, write a

statute that focuses on that, and moreover, talks about

something unlawful in every state. I am not giving

Congress advice, though I seem to be.

(Laughter.)

JUSTICE BREYER: I'm just saying why -- why

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can't you here write a statute that does not force the

courts into the work of interpreting these very vague

words to prevent the statute from being held

unconstitutional?

MR. KATYAL: Well, here I think we should

give Congress some credit, because what it actually did

in the exemption clause was borrow this Court's own

jurisprudence from the obscenity context on exceptions

like literary, artistic, political and scientific. It

had found that --

CHIEF JUSTICE ROBERTS: Counsel, would

this -- would a statute like this apply to humans be

constitutional? You can't depict videos of, say,

violent muggings or things of that sort?

MR. KATYAL: Well, I think it would be

complicated because Congress would have to find that by

targeting the underlying videos but leaving alternative

simulated mugging videos in place, somehow it would have

reduced the market for muggings or something like that.

I think that's very hard. And it goes to Justice

Ginsburg's question about whether this statute is aimed

at the communicative of impact, which we don't think it

is, or it is aimed at just reducing the first order

problem which is --

JUSTICE SCALIA: But the first order problem

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occurs in states where it is not illegal. These videos

are taken in states where bullfighting or dog fighting

or cock fighting is entirely legal. So, I don't know

how you distinguish a -- a movie which many people think

that violence in movie brutalizes people and causes

violence in people's action.

Why couldn't Congress, persuaded by these

people say, you know, you can't have -- cannot depict

torture? You know, these horror films that come out

around Halloween, you can't depict that anymore. What

is the difference between that and what you have done

here?

MR. KATYAL: So dog fighting is illegal in

all 50 states along with crush videos. I don't think

that -- there may be --

JUSTICE GINSBURG: But it isn't -- it

isn't -- illegal in Japan, and part of the video here

were dog fights in Japan; legal where it occurred, no

different from bull fighting.

MR. KATYAL: Right. This Court has dealt

with that in footnote 19 of Ferber in which it said that

just because something is legal somewhere else, it's

often very hard to figure out where the underlying

material is made. It doesn't have a GPS component.

JUSTICE GINSBURG: But that wasn't --

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JUSTICE ALITO: Justice Scalia spoke about

the aficionada of Spanish bullfighting. Suppose that I

am an aficionado of the sort gladiatorial contests that

used to take place in ancient Rome, and suppose that

some -- Rome or some other place decides that it wants

to make money by staging these things and selling videos

of them or broadcasting them live around the world. Do

you have any doubt that that could be prohibitive?

MR. KATYAL: This is -- I'm sorry if I'm not

following the hypothetical. This is historical --

JUSTICE ALITO: A gladiatorial contests

where the gladiators fight to the death.

MR. KATYAL: Right.

JUSTICE ALITO: Do you have any doubt that

that could be prohibited?

MR. KATYAL: Well, it sounds like it would

fall under the historical exemption, at least in the

hypothetical as you have raised it. So, it wouldn't be

prohibited by section 48 --

JUSTICE SCALIA: Who knows.

JUSTICE ALITO: No, no, not under this

statute, under a different statute.

MR. KATYAL: Well, I think that -- I think

that there again, it would raise some First Amendment

interest in suppressing historical -- historical

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information.

Now, Justice Scalia, you said who knows. I

think the answer to that is that this statute places the

burden of proof on the government in order to -- in

order to prove that there is no historical or

educational value.

JUSTICE SCALIA: If you dress up like an

ancient Roman, the whole thing is of historical

interest?

(Laughter.)

JUSTICE SCALIA: Is that it?

MR. KATYAL: Justice Scalia, I do think that

is the Court's own jurisprudence with respect to, for

example, obscenity and child pornography, both of which

this Court has accepted precisely those types of

exceptions.

JUSTICE SCALIA: A different category. That

is traditional First Amendment law that obscenity is not

protected. And child pornography, as far as I am

concerned, and I think as far as the Court is concerned

is obscenity.

MR. KATYAL: Well, I don't believe the Court

has actually read child pornography to be obscenity.

The rationale of Ferber --

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something quite different between Ferber, because the

abuse of a child is occurring at the very time. As I

understand it, Mr. Stevens was not a promoter of dog

fights. He was just filming them. And so the -- the --

the simultaneous abuse of the child, it occurs only

because the picture is being taken. The dog fight goes

on whether Mr. Stevens is there with his camera or not.

MR. KATYAL: Let me say two things about

that. First Mr. Stevens, of course, even in the Japan

videos you mentioned, he sent his dogs to Japan to -- to

fight. And this statute encompasses real time

transmissions of --

JUSTICE GINSBURG: Where it was legal for

him to do that.

MR. KATYAL: It was, just -- again, like

child pornography and the like. The second --

JUSTICE GINSBURG: It even -- what I would

like you to confront is that the very taking of the

picture is the offense. That's the abuse of the child.

The abuse of the dog and the promotion of the fight is

separate from the filming of it.

MR. KATYAL: I agree with that. And I don't

think that's what underlay either this Court's Ferber

decision or the free speech coalition. The move that

Ferber makes is to say that the legislature can target

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the underlying loaded production, so long as it leaves

alternative mechanisms for that same exact message to be

spoken. And this statute does that. Mr. Stevens can

produce the exact same message, just as long as he

doesn't involve the torture or mutilation to an actual

living animal. And to compare this --

JUSTICE SCALIA: His message is that getting

animals to fight is fun. That's his message.

MR. KATYAL: And Congress hasn't stamped

that out.

JUSTICE SCALIA: To say he -- you know, he

can convey that message in some other way, how else does

he do it?

MR. KATYAL: With simulated messages, the

written word. He has written an entire book about that.

He has a whole variety --

JUSTICE SCALIA: Simulated dog fights would

be okay under this statute?

MR. KATYAL: Simulate -- absolutely. This

statute leaves that in place, Justice Scalia. That's

the key to understanding why this statute is not like

the traditional statutes that come before this Court in

which the government asserts some paternalistic interest

and says viewers can't see this because of the offense

of the message.

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This statute has nothing to do with the

offense of the message. It has to do with trying to dry

up an underlying market for animal cruelty.

If the there are no questions, I would like

to reserve the balance of my time.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Ms. Millett.

ORAL ARGUMENT OF PATRICIA A. MILLETT

ON BEHALF OF THE RESPONDENT

MS. MILLETT: Mr. Chief Justice, and may it

please the Court:

It is not the exact same message, if you are

forced in a popular debate that is going around this

country now about the treatment of animals. To require

one side to engage -- to use simulated images, which is

exactly what the government's reply brief at page 3

insists upon, while those who want to ban conduct are

allowed to use real images. That puts the government's

censorial thumb on the scale of public debate.

JUSTICE ALITO: What about crush videos,

which apparently were the focus of Congress's attention

when it drafted these? Now, I suppose by an analogy to

what Justice Scalia just said about the message of dog

fighting videos, the people who produce crush videos

think they have a message, and the message is that this

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is -- this is sexually exciting or it's exciting in some

way to see a woman in high heeled shoes crushing a

little animal to death.

Do you think that is constitutionally

protected?

MS. MILLETT: I think -- I think there's

a -- that a properly drawn law could very well, at least

in my humble opinion, this Court would have to decide,

survive strict scrutiny.

There is also, I suppose, some argument

whether it would fit into -- you wouldn't need strict

scrutiny, you would fit it into an unprotected category

of speech like obscenity or it would be the production

issue that would -- like you have in Ferber.

But what -- beyond that I do think we need

to keep in mind a couple of things --

JUSTICE ALITO: You are not -- you are not

even willing to say that that could be prohibited?

MS. MILLETT: No, no. I think -- I'm saying

that there are three alternative ways in which to get to

it. My first if one is that not this statute, but under

a properly drawn statute --

JUSTICE ALITO: Under a properly drawn

statute --

MS. MILLETT: -- that might survive

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scrutiny. I'm not sure you would --

JUSTICE ALITO: Might. I would really like

you to tell me whether it would; whether you are willing

to concede. Because we are trying to determine whether

this is overly broad. And this is the category of

activity that Congress particularly targeted. So to me

at least it's important to know whether at least as

applied to what Congress principally had in mind, the

statute could -- could pass constitutional muster. If

it were, you know, as applied.

MS. MILLETT: I don't -- I don't want to,

say this statute, because I don't think this statute --

but if the statute said, this -- I think this Court

disagree -- it disagrees with me sometimes -- but I

think this could pass constitutional muster. A statute

that says the patently offensive intentional torture and

killing of an animal for -- designed to appeal to the

prurient interest for the purpose of producing the

image, I think that would satisfy -- I think it would

satisfy strict scrutiny. The Court might also decide

that it's close enough to obscenity or it's like the

Ferber production rationale. That's my position; there

are sort of three ways it could be analyzed, a statute

like that.

That's not this statute and I don't think we

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can say that this statute, because Congress has the

authority to reach something, that when it throws a

blanket net as wide as this one has that this means this

statute is the mechanism, a lawful mechanism for getting

JUSTICE KENNEDY: I have one more -- one

more question along the lines of Justice Alito. Forget

this statute. Under a properly drawn statute, suppose

that bull-fighting or pitbull-fighting is unlawful in

every State. Could a theater have a live broadcast of a

pitbull fight in Japan and charge ten dollars? And

let's add the hypothetical fact that a lot of the

revenue goes back to Japan and promotes more

bull-fighting. Could a properly drawn statute prohibit

that? And then perhaps Justice Scalia, Alito, has a

follow-up question on his own hypothetical. Could a

properly drawn statute prohibit that, that speech?

MS. MILLETT: A properly drawn statute with

the requisite congressional findings or record of a need

to attack -- it sound to me like this is a need to

attack production. As in child pornography, the fact

that the image taking is legal overseas does not mean

that it can't be prohibited here. And if you had the

type of record of a statute that says we want to stop

the production; it's not the content, it is the

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production, as this Court explained in Free Speech

Coalition for Child Pornography.

But that is a statute that then wouldn't

have -- either you would have to decide which things are

in and out -- if you started saying animal cruelty

production, but we we'll let the bullfights in but the

pitbull fights out and the cock fights, then you'd have

problems.

JUSTICE KENNEDY: We are asking whether or

not that specific instance could be prohibited under a

properly drawn statute, just like Justice Alito's

hypothetical was under a properly drawn statute you

could prohibit the conduct, the speech broadcast in that

conduct.

MS. MILLETT: The theory -- I mean,

ultimately this Court would have to decide whether

Ferber is limited to an obscenity that's historically

unprotected by the First Amendment.

JUSTICE KENNEDY: So your answer to my

hypothetical is yes it could be prohibited under a

properly drawn statute?

MS. MILLETT: If this Court -- two things.

It would have to be a very, very narrowly drawn statute,

I think going to the production theory like Ferber; and

the question I think before this Court would be, given

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the nature of the harm that presumably would be found,

the nature of the market, the synergistic effect, where

the -- I am assuming the findings here would be that the

crime and the image are one and the same, inextricably

intertwined -- then maybe, although I still think it

would be a bit harder because we are dealing with the

First Amendment here. We don't make it up as we go

along. At the time that the First Amendment was written

dog-fighting was legal in this country.

JUSTICE BREYER: But the point -- the point

I guess is when you say yes to this, what you are

thinking is that, just as real obscenity when depicted

does nothing communicative but rather appeals to the

instinct of lust, so Congress could find a category of

things that do not communicate, but appeal to the

instinct of sadism; and that is true when other

creatures are killed for the pleasure of the people who

want to see them killed.

Now, that's what you are saying. Now -- and

I think maybe that's true. We don't have to decide

that, perhaps. But the government says that is this

statute, that is this statute read in light of its basic

intent, and it is up to the Court to interpret it so as

it achieves that objective. And you say that's not

possible. Why not?

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MS. MILLETT: Two things. First of all,

there is interpreting and then there is alchemy, and I

think this statute requires alchemy. This is Reno

versus --

JUSTICE SCALIA: Requires?

MS. MILLETT: Alchemy, alchemy.

JUSTICE SCALIA: Oh.

MS. MILLETT: There's construction of --

JUSTICE SCALIA: It's such an unusual word.

I haven't heard it in a legal argument in a long time.

MS. MILLETT: We don't often get statutes

that are so far off base that we're going, I think in my

opinion, so far beyond construing ambiguity and doing

instead what was asked of this Court and the Court

declined in Reno v. ACLU, and that is to write the

statute for Congress.

The ambiguity, as, Justice Scalia, you

explained -- you would have to excise this statute in

and out, sever so many things. I don't know what you'd

have left unless it's the statute I posited to Justice

Alito, which might have a couple of words that overlap

with this statute. But that is not statutory

construction. This Court's job is not to write the

statute for Congress.

And also keep in mind, in the past this

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Court consistently under the First Amendment has

required, not just the right words, but a record from

Congress. In the First Amendment area we can't just

posit the problems; we have to really have confidence

that --

JUSTICE GINSBURG: Does this -- would this

record support any ban? I mean, there was a real

concentration on crush videos. So there is that. Is

there anything else in the current record other than the

crush videos?

MS. MILLETT: No, there is not. And in fact

they spent their time, as we said in our brief -- and

this is perfectly accurate. Members of Congress, to the

extent they discussed other things, kept saying in the

floor debates: That's not in; bull-fighting's not in;

dog-fighting's not in; hunting's not in; these things

are not in. So they mentioned them in the context of

saying these are not in.

CHIEF JUSTICE ROBERTS: Counsel, I think --

I think Ferber analytically is the hard case for you,

because the Court in Ferber did said -- and I am quoting

from page 763: "The evil to be restricted so

overwhelmingly outweighs the expressive interest at

stake." That was their articulation of the test. Now,

why shouldn't we apply that test to this statute?

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MS. MILLETT: I don't think that is a legal

test that is adopted under the First Amendment. I think

that is a description of the types of categories that by

history and tradition had been outside the First

Amendment and the rationale for why Ferber came in,

which was, yes, there's overlap, but I think it actually

bridges the world of obscenity and virtual incitement

because you have the crime and the image one and the

same wrapped up together.

There is in this instance -- there are about

five different ways that this is different from child

pornography. The first is that there has never been any

finding, any assertion, even by the government, that

creating the image is the primary or sole motive for

creating these images. It's not if you lock Mr. Stevens

up -- if you throw away every dog-fighting video in the

country tomorrow, dog-fighting will continue. It -- no

one thinks that it will go away.

JUSTICE GINSBURG: I think the government

does. It says that is how you dry up the market.

MS. MILLETT: But you don't dry up the

market by having a sweeping value exception like they

have here. If Congress wants to dry up the market, what

Ferber says is there's two things that have to happen:

One, you've got to prove causation. You can't simply

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say, we got a problem, let's go first to the speech and

cut that off as our first prosecutorial tool when we are

not even ready to make the crime itself a felony, but we

will make the speech a felony.

You've got to prove causation, that these

images cause the harm, they are one and the same with

the harm as they are with child pornography. You also

have got to prove that Congress is acting in an

evenhanded way. It is not leaving, as Justice Scalia

said, appreciable damage to the interests that its

asserting uncovered by its many, many exceptions.

JUSTICE STEVENS: May I ask you a question

about your view of the breadth of the statute. I didn't

yet really get an answer out of your opponent. Do you

think the statute would prohibited depictions of hunting

if it involved killing in the District of Columbia,

because hunting as I understand it is not allowed in the

District of Columbia, it's prohibited. Does that mean

that any depictions of hunting that show the killing and

cruelty are prohibited by this statute?

MS. MILLETT: Well, they are prohibited

subject to the value police and the value trial like we

had here, which I think is antithetical to the First

Amendment. It's a very different rule under the

obscenity statute. So it would all depend on whether a

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jury decided that that had serious value, which was

defined as significant and great import in this

particular case. That would decide whether --

JUSTICE SCALIA: It's just not significant

value; significant artistic, educational. What are the

others? Scientific?

MS. MILLETT: Scientific, social, artistic,

journalistic --

JUSTICE SCALIA: Strictly entertainment

value doesn't count, does it?

MS. MILLETT: No, it does not.

JUSTICE SCALIA: And most of the hunting

videos I have seen people watch for the entertainment.

They like to see a hunt.

MS. MILLETT: I think that's exactly right

and that's what the Safari Club and the NRA have told

us.

CHIEF JUSTICE ROBERTS: Well, I mean, but

this definition or these exceptions are not drawn out of

thin air. They are drawn from Miller, and the Court in

Miller recognized that they were significant in causing

the restriction of obscenity to pass constitutional

muster.

MS. MILLETT: First of all, this is about

-- this is Miller doubled -- there's a lot more here

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-- categories here. But it's a very different role

that value plays under Miller in obscenity. First of

all, this Court made quite clear again in Reno v. ACLU

that Miller only works if you have all three prongs.

You can't just use the serious value prong to take

care of your constitutional problem. Second, you were

dealing in an area that by history and tradition is

unprotected speech. Milller --

JUSTICE ALITO: But in determining whether

this is over -- overly broad, do we -- do we think of all

of the hypotheticals that we possibly can think of that

might fall within this statute: somebody hunting in the

District of Columbia, somebody producing fois gras with

a goose and say, "Well, we've thought of a lot of

hypothetical situations where this statute might apply

and therefore it's overly broad"? Or do we look at

what's going on in the real world?

MS. MILLETT: I think what you do is you

look at text of the statute, and then you ask yourself,

how much of a strain is it to come up with a factual

pattern that will fit into it? In Williams you had to

first of all read the --

JUSTICE ALITO: So we really think of all

the hypotheticals. That's how you think we determine

the constitutionality of this under the overbreadth

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doctrine?

MS. MILLETT: I think at some level Congress

has a job to write with a scalpel and not a buzz saw in

the First Amendment area, and the only way to ensure

that happens is to look at the text and say, does this

text fit the purpose, does it fit what the Constitution

will allow? And when the --

JUSTICE ALITO: If it's the fact that during

the ten years when this statute has been in effect there

has been no decrease in hunting videos and hunting shows

on TV, and all of the rest -- the only perceptible

change in the real world is that these -- is that the

market for crush videos dried up, at least until the

Third Circuit's decision, does that have any relevance?

MS. MILLETT: I don't -- I don't think it

does for this reason. People -- and this gets a little

bit to Justice Kennedy's vagueness concern. People have

a right to know how to -- outside the courtroom how to

conform their conduct to the law. If I got a call from

the general counsel of Outdoor Channel or someone making

hunting videos and they said, "Does this fall within

this statute," I wouldn't have to come up with a

strained factual scenario. I would say yeah, it falls

squarely in, subject to a prosecutor or jury anywhere

where you market in this country, deciding that it has

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serious -- one of the adjectives -- value. I would have

to say that to that person, and that would be accurate

legal advice.

JUSTICE SCALIA: It could be that the reason

hunting videos are still out there is that the producers

were quite confident that this Court would not allow

them to be prohibited on the base of a statute such as

this.

MS. MILLETT: One would hope, and I think

quite frankly the NRA has been quite honest when it

recently said you know, this -- this is not an actively

enforced statute. People were shocked to learn -- to

become aware of it.

Now maybe everyone's supposed to know the

existence of laws, but I think the reality is that once

people looked at what this said, they became very, very,

very concerned, and I think when you're talking about a

criminal prohibition here -- this is not a civil suit,

this is criminal prohibition with severe penalties. The

penalties for speech are higher than most animal cruelty

statutes. And the whole point of the criminal law is to

deter conduct and to make people stay wide of the

margins here, wide of the borders.

CHIEF JUSTICE ROBERTS: I --

MS. MILLETT: You can't do that in the First

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Amendment.

CHIEF JUSTICE ROBERTS: I understood your

answers to Justice Alito to acknowledge that there would

be situations where this statute could be

constitutionally applied, or as you put it, you could

draft a statute.

MS. MILLETT: Not this statute.

CHIEF JUSTICE ROBERTS: Not this statute.

But --

MS. MILLETT: That's different. I think

that's very different.

CHIEF JUSTICE ROBERTS: But if in fact there

were situations where we thought a narrowly drafted

statute could be applied to particular instances,

perhaps the crush videos, perhaps others, why isn't that

enough to say that this statute is valid on its face and

then we will consider as-applied challenges?

MS. MILLETT: I think in the First

Amendment -- I'm not talking -- if I heard you right we

were not talking about this statute. If you have

another statute --

CHIEF JUSTICE ROBERTS: I guess I am just

trying to get at what your understanding of what the

test is for overbreadth in this area. How much of an

area of constitutional application is necessary before

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you decide that a statute is not unconstitutional on its

face, but will consider as-applied challenges?

MS. MILLETT: Right. And this Court has

been clear that the overbreadth has to be both

quantitative and qualitative. It hasn't set a

particular ratio. I think this one is easy. We are

talking about 2,000 crush videos and tens if not

hundreds of thousands of other images that are captured

by this statute. I think normally when this Court says

it wants to -- to apply overbreadth, it has been dealing

with situations for the most part in two contexts. One

where Congress has already regulated in an area that is

unprotected under the First Amendment, unprotected in

the sense that they are allowed to ban, regulate

heavily. They are already there, and the question is

did they draw the margins too broad?

That is not this case. We are dealing in an

area that was never until December 1999 barred by

anybody, never considered to be outside the conception

of the First Amendment's freedom of speech. The other

scenario where we see substantial overbreadth is when

Congress is regulating conduct.

JUSTICE ALITO: Well, isn't that -- isn't

that due to changes in technology? Before people could

show -- could watch videos at home, this sort of thing

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would -- would be very difficult.

MS. MILLETT: This covers photographs, so

this would go back as far as photographs. I'm not sure

it wouldn't cover a sketch artist or a hieroglyphic, for

all I know. All it requires is that it be a depiction

in some form.

JUSTICE ALITO: And is there -- in the real

world is there a market for sketches of dog fights?

MS. MILLETT: I don't know if there's a

market --

JUSTICE ALITO: People get a thrill from

seeing that?

MS. MILLETT: With respect, I can't answer

that. I'm not -- I don't know if there is a market for

dog fighting videos. There is a few, but it depends on

what you mean by a market. Will somebody buy something?

I guess somebody in this world will buy anything.

JUSTICE GINSBURG: Is there any indication

that there has been any dry-up of the market for dog

fights as a result of this statute?

MS. MILLETT: There --

JUSTICE GINSBURG: Justice Alito suggested

that until the Third Circuit's decision, that there were

fewer crush videos produced. But with respect to dog

fights, animal fights, is there any indication that

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there has been -- there have been fewer animal fights as

a result of this statute?

MS. MILLETT: None whatsoever, and in fact

what we've seen is robust enforcement, and we cite the

article in our case, we have seen robust enforcement;

there was just an arrest a few weeks ago for I think a

couple hundred people involved in dog fighting rings.

So the dog fighting rings are going on unabated and they

are getting found and discovered and prosecuted

successfully, and in fact the images sometimes help with

the prosecution.

This is a place, when we start talking we

are going to take something outside the First Amendment,

one of the other things that unifies the categories of

speech outside the First Amendment is a judgment that

more speech doesn't work. This is an area where we know

speech works powerfully. Speech about these ugly images

produced this statute. It informed people. Unlike

children and child pornography, people need to see

images to understand what's going on with animals, and

to make these important decisions and engage in these

important debates that our society is having.

JUSTICE KENNEDY: Suppose an argument --

excuse me.

Suppose an argument had been made to the

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Court in Ferber, that, you know, it's really good for

people to see molestation of children because then they

will be outraged and they will enforce the statute more.

I just can't see the Court accepting that argument for a

single -- for a minute.

MS. MILLETT: I -- I agree. I --

JUSTICE KENNEDY: But that's the argument

you are making.

MS. MILLETT: No, no, I think it's -- I

think it's -- I'm trying to point out that this is in

fact a contrast.

First of all -- a contrast between the two

situations between dealing with the subject, a very

topical subject that --

JUSTICE KENNEDY: Well, it seems to me that

we ought -- if there is a significant chance that

Congress can affect an illegal market, an illegal

activity by a statutory regulation we ought to defer to

Congress on that ground. I think you still have speech

arguments.

MS. MILLETT: I --

JUSTICE KENNEDY: On this economic

causation, I think we have to defer to Congress largely.

JUSTICE SCALIA: I really think you should

focus, not on the educational value for -- to make

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people hate bull fighting and things, but on quite the

opposite, it seems to me. On the right under the First

Amendment of people who like bull fighting, who like dog

fighting, who like cock fighting, to present their side

of -- of the debate.

And unless it's a subject like obscenity,

which from the beginning has not been considered

protected speech, it seems to me that side of the debate

is entitled to make its point as -- as forcefully as

possible. That's it seems to me what the problem is

here. Not --

MS. MILLETT: I think that is 100 percent

right.

JUSTICE ALITO: Well, if that's 100 percent,

then what about people who --who like to see human

sacrifices? Suppose that is legally taking place

someplace in the world. I mean, people here would

probably love to see it. Live, pay per view, you know,

on the human sacrifice channel.

(Laughter. )

JUSTICE ALITO: They have a point of view

they want to express. That's okay?

MS. MILLETT: The problem with this statute

is that presumably that statute would be even-handed and

would it not say if the sacrifices were religious, or

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journalistic, or historic. Or --

JUSTICE SCALIA: You can create a lot of

First Amendment horribles. What about -- what about a

new Adolf Hitler? Can we censor any depiction of that

new Adolf Hitler and the horrible things that he is

proposing, including extermination of a race? Is that

proscribable under the First Amendment? Is that any

less horrible than the human sacrifice contemplation?

MS. MILLETT: No, Justice Scalia. Again, I

agree, because what the First Amendment says is we

allow --

CHIEF JUSTICE ROBERTS: I'm sorry; you agree

you can prohibit it, or not?

MS. MILLETT: I agree that, just because

something is repulsive, incredibly offensive or maybe

even involves some harm to people does not mean that --

depictions of it that do not cause that harm, that are

not integrally tied to it, that are not the purpose and

animating motivation for that harm cannot be proscribed.

JUSTICE KENNEDY: What was your answer to

Justice Alito's hypothetical about human sacrifice?

MS. MILLETT: The -- if -- at a minimum,

Congress has got to be evenhanded. The point there is

that you are trying to say we are concerned about the

creation for purposes of the image. We are concerned

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about what the government calls the "snuff video

situation."

This whole reason that this is created is

for purposes of creating the image. If you establish

the causation -- and I don't think we -- the Court does

just defer to Congress on these things.

It looks carefully at factual records in --

as it has in the child pornography are under the First

Amendment, Justice Kennedy. If Congress proves the

causation and shows that it is -- it's the least

restrictive means -- compelling and least restrictive

means, the strict scrutiny that Congress -- the

government never wanted this statute to march through.

JUSTICE ALITO: And what if there is no

chance of drawing up the activity? Suppose you have the

ethnic cleansing channel on cable TV, and there is no --

this is taking place in a country that's beyond our

power to influence. Congress couldn't prohibit that?

MS. MILLETT: The -- the fact that conduct

is repulsive or offensive does not mean we automatically

ban the speech. You would have to have -- it would have

to follow this Court's patterns, either it would be an

even-handed ban on production, under the Ferber theory,

or you would have to establish if those images were

never within the constraints.

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JUSTICE BREYER: I think what -- I think

what's going on is -- is not -- your conflating two

things. One is you are trying to produce education

about something that has no communicative value.

In so far as you are trying to make an

argument or educate, of course, it is protected, but the

government, here, is saying I think the statute is

intended to forbid a different thing entirely, and it's

hard to draw a line.

Maybe it's impossible; but promoting a thing

which communicates nothing, but appeals to people's

worst instinct, that is not to advocate it or not to

advocate it.

It is to try to make money out of it, and

that's what they think, I believe, the statute is aimed

at.

MS. MILLETT: Well --

JUSTICE BREYER: So that's why they have the

journalistic exception.

MS. MILLETT: The -- when it comes to

promoting illegal conduct, we have the Brandenburg Test,

and, if you are close enough to be inciting it, to be

causing it -- which I think is where Ferber, largely,

is. They are just intertwined. That's one thing. But

if it's not -- just because we have the really

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disgusting, despicable channel doesn't mean that we

automatically ban it. Maybe it will be educational.

Maybe we will learn from it.

I think Congress is going to have to show,

before it goes to speech as its first tool of repression

to attack conduct with, very specialized, narrow

circumstances.

JUSTICE BREYER: We are going to advertise a

drug that is known to kill people.

MS. MILLETT: That is commercial --

JUSTICE BREYER: We are advertising --

MS. MILLETT: That is commercial speech.

The fact that you want to get paid for speaking does not

make it commercial speech.

Samuel Johnson, himself, said that no one

but a blockhead ever wrote, except for money. I don't

necessarily agree with that, but it is -- it would be a

shock to him, to Thomas Payne, who sold his tracks of

"Common Sense," that the First Amendment would go all --

leap all the way from commercial speech and say, just

because you are doing it for money, you need to make a

buck.

Your Honor --

JUSTICE SCALIA: I would have thought that

your response to Justice Breyer's comment about catering

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to people's worst instincts in the area of the First

Amendment, at least, would have been that it's not up to

the government to decide what are people's worst

instincts.

If -- if the First Amendment means anything,

that's what it means.

MS. MILLETT: Well, it means --

JUSTICE SCALIA: It's not up to the

government to tell us what our worst instincts are --

MS. MILLETT: It means --

JUSTICE SCALIA: Except for those areas that

have traditionally been outside the area of -- of

protected speech, and -- and once you allow this one,

what other -- what other base instincts do people have,

besides this one?

One can contemplate a lot of other areas,

where government could say, You are appealing to

people's worst instincts, and, therefore, the -- the

movies cannot be made.

MS. MILLETT: I agree, Justice Scalia. The

answer to that instance is more speech under the First

Amendment. The answer --

CHIEF JUSTICE ROBERTS: So I'm sorry. I'm

still looking for your answer to Justice Alito's

hypotheticals.

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Can Congress ban the human sacrifice channel

or not?

MS. MILLETT: I -- the -- I think -- I -- I

will start by saying -- no. Let's start and see.

Maybe -- maybe it won't work, but I think --

CHIEF JUSTICE ROBERTS: You are unwilling --

you are unwilling to say that Congress can pass a law,

even-handed, straightforward, you cannot have a human

sacrifice channel.

MS. MILLETT: If it did, it would have to be

even-handed and have narrow tailoring, but the problem

is --

JUSTICE SOTOMAYOR: What do you mean by

"even-handed," please? I'm not -- you are using those

words. What do you mean about "even-handed and narrowly

tailored"?

MS. MILLETT: When -- when the attack --

Justice Sotomayor, when the attack is on the

production -- if it -- I don't mean to be -- I want to

be direct in answering.

It depends on two things. If the theory is

we don't like the content, we don't want people to see

the content, I don't think Congress can do it. I think

the answer is more --

JUSTICE GINSBURG: So that goes with snuff

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movies -- snuff movies. I don't know if they really

exist, but they have been described.

MS. MILLETT: No one has ever found one,

but the point I'm trying to get -- there are two

theories --

JUSTICE SCALIA: Adolf Hitler, can we keep

him off the screen, too?

MS. MILLETT: It's a dangerous proposition.

That's what the First Amendment says we won't do. There

is -- so if it's just that we don't like the content,

outside obscenity, we -- Congress doesn't get to ban it.

The answer is more speech.

If you have got --

CHIEF JUSTICE ROBERTS: So we don't like --

we don't like human sacrifice, and so Congress passes a

law saying you cannot have a channel that shows human

sacrifice -- real human sacrifice. You think that is

unconstitutional?

MS. MILLETT: I think, if the point is that

we don't like the could content, we don't -- we want to

protect people from these images, the First Amendment

says a lot about that.

If it's a different -- snuff video, because,

like child pornography, like I said, it's not the

content that we are concerned about, where obscenity is

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a pure content baseline.

It is -- we got to stop -- we can't stop the

conduct. The conduct and the speech are inextricably

intertwined. The only way we can stop human sacrifice

is to stop the image because the sacrifice is solely

for the image.

CHIEF JUSTICE ROBERTS: Well, right, but, I

mean, the hypothetical is we can't do anything about it.

It is beyond our reach to stop the human sacrifice

taking place wherever in the world, so that that

argument -- the Ferber argument is off the table.

In that situation, you think it's

unconstitutional for Congress to pass a law saying there

can be no human sacrifice channel.

MS. MILLETT: I -- I think the fact that --

I think it would be a lot harder under the First

Amendment to say why Congress is doing that.

If it's not something -- if it's not conduct

it has any authority to regulate, I don't -- then the

only compelling interest is -- I'm trying -- I mean, I

don't want to watch this channel, and people should

fight with their wallets and their votes and not support

these things, but -- I'm sorry.

May I finish?

CHIEF JUSTICE ROBERTS: No. Go ahead.

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MS. MILLETT: But, under the First

Amendment, if the only rationale Congress is giving is

we are here to shield your eyes for you, we will make

this censorial decision, it has got to find some basis

to think that was never freedom of the speech under the

First Amendment, in the way that obscenity was.

You don't get to make it up as you go along.

We are interpreting a constitution.

CHIEF JUSTICE ROBERTS: Thank you, Counsel.

Mr. Katyal, you have three minutes

remaining.

REBUTTAL ARGUMENT OF NEAL K. KATYAL

ON BEHALF OF THE PETITIONER

MR. KATYAL: There is one analytic move

Congress made in Section 48, which is simple and

obvious, and it explains why both the human sacrifice

channel is constitutional, as well as Section 48 itself.

That is the logic of Ferber. When Congress

tries to dry up a market for underlying cruelty by

targeting depictions and leaves alternative mechanisms

for that expression in place, the legislature has

latitude.

When the statute is not aimed at the

communicative impact of the message, like the Hitler

video, but, rather, is aimed at reducing underlying acts

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of exploitation, that is an area which Congress has

great leeway.

JUSTICE SCALIA: I don't understand. Are

you saying, since there is no human sacrifice in this

country and no market to be dried up, the videos would

be okay?

MR. KATYAL: I'm saying that, if Congress

identified a market and if a video -- if the snuff video

market was driving, somehow, people to get killed,

Congress would be fully within its power to regulate it.

JUSTICE SCALIA: Yeah; but we don't have any

human sacrifice. Nobody's doing that stuff. So you

could not proscribe the human sacrifice channel.

MR. KATYAL: That's precisely correct, but,

here, Congress did find an overwhelming market in animal

cruelty, and the State attorney's general that filed a

brief before you saying that Section 48 is a success

story, that it dried up 3,000 crush videos, that it has

reduced the market for animal --

JUSTICE GINSBURG: How many prosecutions

have there been for crush videos?

MR. KATYAL: There -- there haven't been any

prosecutions for crush videos, and I think the reason is

because the market dried up very quickly after the

enactment of Section 48.

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CHIEF JUSTICE ROBERTS: Did I just

understand you to agree with your colleague on the other

side, that Congress could not ban the human sacrifice

channel because there would be no connection between

drying up the underlying activity?

MR. KATYAL: Oh, no. If there is an

underlying argument --

CHIEF JUSTICE ROBERTS: No. I'm saying there

is no connection. We can't reach the activity where it

is taking place.

MR. KATYAL: I think that does start to

reach into questions about obscenity and expressive

impact on viewers, which is not before this Court.

Congress is not resting its judgment here on something

saying these images are repulsive and can't be seen.

Rather, it is saying --

CHIEF JUSTICE ROBERTS: So if Congress is --

and we will give you sufficient rebuttal time.

So, if Congress is saying, Look, we just

don't like what -- is being shown on the human sacrifice

channel, we don't want people to see it, they can't do

that?

MR. KATYAL: Again, that raises a whole

different set of questions under obscenity and

expressive impact that isn't before the Court here.

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Now, if I could return to, Justice Stevens,

you had he wasn't clear on the position on hunting. I

want to be very clear on this.

Hunting, like the other hypotheticals, is

not covered by section 48 for two reasons: First, the

statute -- the statute's term "animal cruelty" should be

defined to encompass torture, mutilation and the like,

and not simple acts of ordinary hunting, most of which,

by the way, are legal anyway under animal cruelty.

JUSTICE SCALIA: How about the statute's

term, "kill" --

MR. KATAYAL: And again --

JUSTICE SCALIA: -- what should that be

interpreted to mean?

MR. KATYAL: And again, Justice Scalia, as I

said before, I think that comes within a definition of

animal cruelty. That's the term being defined. And

just as this Court has defined, for example, crimes of

violence to exclude certain things that otherwise would

be within the statute, such as drunk driving offenses in

the context of the IMA, a similar result is possible

here, particularly because of the doctrine of

constitutional avoidance.

And, so, we are saying that if this Court

were to write an opinion that made clear that these

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things are outside of the purview of section 48, there

would be no chilling effect, and you wouldn't have to --

JUSTICE STEVENS: Wait, I want to just be

sure I understand you. Even if the hunting depiction is

very offensive and cruel and all the rest, and that the

cruelty to the animal using bow and arrows or knives or

something, you say it's not -- and even if it's illegal

in this particular jurisdiction, you say the statute

still does not apply at all?

MR. KATYAL: It would have to be for a

reason of animal cruelty or something like torture,

mutilation and the like. So there may be certain

hunting examples that fall within it --

JUSTICE STEVENS: But the hunting would

never qualify, because the hunter's motive is benign; is

that what you are saying?

MR. KATYAL: No, it has nothing to do with

the motive, it has to do with what happens to the

animal. And, so, there could be images of hunting which

are not really hunting, like the images in this case.

JUSTICE SCALIA: If you shoot a little low

and wound the animal, that is cruelty even though you

didn't intend that.

MR. KATYAL: Justice Scalia, with all due

respect, I think the images in this case and what

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Congress was getting at was not shooting a little low.

These are the most horrific images that you can imagine

of cruelty to living animals. And that's what

Congress --

JUSTICE SCALIA: But what about your

response to Justice Stevens on the hunting matter? I

understand Congress wasn't directed at --

MR. KATYAL: And my point if those -- if

there are those cases at the area -- at the gray areas,

that is perfect for as applied challenge, but it's not

what this Court -- this Court shouldn't be blessing the

Third Circuit's decision to in toto invalidate an entire

statute which has produced -- which has produced 3,000

crush videos and the like.

CHIEF JUSTICE ROBERTS: Thank you, counsel,

both counsel, for very able presentation. The case is

submitted.

(Whereupon, at 11:06 a.m., the case in the

above-entitled matter was submitted.)

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Official - Subject to Final Review - Home - Supreme Court ......greater sections of the film, and more explicit. In this film, the -- the Respondent didn't let the video show the actual