United States v. Stevens

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

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, or

killed,” 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 said

to 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 of

protected 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, categorically

unprotected 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

2 UNITED STATES v. STEVENS

Syllabus

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 balance

the value of the speech against its societal costs to determine

whether 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 and

benefits. The Amendment itself reflects a judgment by the American

people 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 as

overbroad if “a ‘substantial number’ of its applications are unconsti

tutional, ‘ “judged in relation to the statute’s plainly legitimate

sweep.” ’ ” 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 thus

turns 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 read

according 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 illegal

in 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

Cite as: 559 U. S. ____ (2010) 3

Syllabus

cruelty vary widely from place to place. Hunting is unlawful in the

District of Columbia, for example, but there is an enormous national

market for hunting-related depictions, greatly exceeding the demand

for 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 that

is sold in the Nation’s Capital. Those seeking to comply with the law

face 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 animal

fighting or other extreme cruelty, as the Government suggests, re

quires an unrealistically broad reading of the statute’s exceptions

clause. The statute only exempts material with “serious” value, and

“serious” must be taken seriously. The excepted speech must also fall

within 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 reading

that 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 does

not 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 free

speech.’ ” 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 to

reach only “extreme” cruelty, this Court will not uphold an unconsti

tutional statute merely because the Government promises to use it

responsibly. Nor can the Court construe this statutory language to

avoid constitutional doubt. A limiting construction can be imposed

only 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 beyond

crush videos and depictions of animal fighting. It argues that those

particular depictions are intrinsically related to criminal conduct or

are analogous to obscenity (if not themselves obscene), and that the

4 UNITED STATES v. STEVENS

Syllabus

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 presumptively

protected by the First Amendment but that remain subject to §48.

Nor does the Government seriously contest that these presumptively

impermissible 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.

Cite as: 559 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that 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 the

Court.

Congress enacted 18 U. S. C. §48 to criminalize the

commercial 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 of

speech guaranteed by the First Amendment.

I

Section 48 establishes a criminal penalty of up to five

years in prison for anyone who knowingly “creates, sells,

or possesses a depiction of animal cruelty,” if done “for

commercial gain” in interstate or foreign commerce.

§48(a).1 A depiction of “animal cruelty” is defined as one

——————

1 The statute reads in full:

Ҥ48. 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 commercial

gain, shall be fined under this title or imprisoned not more than 5

2 UNITED STATES v. STEVENS

Opinion of the Court

“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 artistic

value.” §48(b).

The legislative background of §48 focused primarily on

the interstate market for “crush videos.” According to the

House 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 animals

to 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 the

animals, 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 depiction

that 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 or

auditory depiction, including any photograph, motion-picture film,

video recording, electronic image, or sound recording of conduct in

which a living animal is intentionally maimed, mutilated, tortured,

wounded, or killed, if such conduct is illegal under Federal law or the

law of the State in which the creation, sale, or possession takes place,

regardless of whether the maiming, mutilation, torture, wounding, or

killing took place in the State; 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 possession

of the United States.”

Cite as: 559 U. S. ____ (2010) 3

Opinion of the Court

fetish who find them sexually arousing or otherwise excit

ing.” Id., at 2–3. The acts depicted in crush videos are

typically prohibited by the animal cruelty laws enacted by

all 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 has

been 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 in

dogfights 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’s

and 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

——————

2 TheGovernment 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.

4 UNITED STATES v. STEVENS

Opinion of the Court

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 Appeals

first held that §48 regulates speech that is protected by

the First Amendment. The Court declined to recognize a

new 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 and

child 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 this

ground.

We granted certiorari. 556 U. S. ___ (2009).

Cite as: 559 U. S. ____ (2010)

5

Opinion of the Court

II

The Government’s primary submission is that §48 nec

essarily complies with the Constitution because the

banned 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 a

general 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],” such

as photographs, videos, or sound recordings, depending on

whether they depict conduct in which a living animal is

intentionally 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 of

speech 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 long

familiar 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

6 UNITED STATES v. STEVENS

Opinion of the Court

(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 classes

of speech, the prevention and punishment of which have

never been thought to raise any Constitutional problem.”

Chaplinsky v. New Hampshire, 315 U. S. 568, 571–572

(1942).

The Government argues that “depictions of animal

cruelty” 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 First

Amendment, but that these depictions are outside the

reach 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, starting

with 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

Cite as: 559 U. S. ____ (2010) 7

Opinion of the Court

the First Amendment’s protection without any long-settled

tradition 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 value

as 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 the

ban on the same basis. The Government thus proposes

that a claim of categorical exclusion should be considered

under a simple balancing test: “Whether a given category

of speech enjoys First Amendment protection depends

upon 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 American

people that the benefits of its restrictions on the Govern

ment outweigh the costs. Our Constitution forecloses any

attempt to revise that judgment simply on the basis that

some 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 emerge

from 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 from

them is clearly outweighed by the social interest in order

and morality.’ ” R. A. V., supra, at 383 (quoting Chap

linsky, supra, at 572). In New York v. Ferber, 458 U. S.

8 UNITED STATES v. STEVENS

Opinion of the Court

747 (1982), we noted that within these categories of unpro

tected speech, “the evil to be restricted so overwhelmingly

outweighs the expressive interests, if any, at stake, that

no process of case-by-case adjudication is required,” be

cause “the balance of competing interests is clearly

struck,” 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. They

do 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 as

such 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 children

in 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 pornography

was “intrinsically related” to the underlying abuse, and

was therefore “an integral part of the production of such

materials, an activity illegal throughout the Nation.” Id.,

at 759, 761. As we noted, “ ‘[i]t rarely has been suggested

that 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,

Cite as: 559 U. S. ____ (2010) 9

Opinion of the Court

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 “an

integral part” of its unlawful production (internal quota

tion marks omitted)); Ashcroft v. Free Speech Coalition,

535 U. S. 234, 249–250 (2002) (noting that distribution

and sale “were intrinsically related to the sexual abuse of

children,” 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 been

specifically 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 the

Government’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’s

petition for certiorari to determine “whether 18 U. S. C. 48

is facially invalid under the Free Speech Clause of the

First Amendment,” Pet. for Cert. i.

10 UNITED STATES v. STEVENS

Opinion of the Court

To succeed in a typical facial attack, Stevens would have

to 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 that

we 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 substantial

number of its applications are unconstitutional, judged in

relation 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 quotation

marks omitted). Stevens argues that §48 applies to com

mon depictions of ordinary and lawful activities, and that

these depictions constitute the vast majority of materials

subject 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

——————

3 The dissent contends that because there has not been a ruling on

Cite as: 559 U. S. ____ (2010)

11

Opinion of the Court

B

As we explained two Terms ago, “[t]he first step in

overbreadth analysis is to construe the challenged statute;

it is impossible to determine whether a statute reaches too

far without first knowing what the statute covers.” United

States v. Williams, 553 U. S. 285, 293 (2008). Because §48

is 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 the

depicted 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 of

the 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 . . . that

can be evaluated only in the context of an as-applied challenge.” 552

U. S., at 444.

12 UNITED STATES v. STEVENS

Opinion of the Court

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.’ ” Reply

Brief 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 is

associated.” Ibid. Likewise, an unclear definitional

phrase may take meaning from the term to be defined, see

Leocal, supra, at 11 (interpreting a “ ‘substantial risk’ ” of

the “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 the

depicted conduct be “illegal.” But this requirement does

not limit §48 along the lines the Government suggests.

There are myriad federal and state laws concerning the

proper 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 the

health 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

Cite as: 559 U. S. ____ (2010) 13

Opinion of the Court

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 depicted

conduct need only be illegal in “the State in which the

creation, sale, or possession takes place, regardless of

whether the . . . wounding . . . or killing took place in

[that] State.” 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. 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 is

substantial disagreement on what types of conduct are

properly regarded as cruel. Both views about cruelty to

animals and regulations having no connection to cruelty

vary widely from place to place.

In the District of Columbia, for example, all hunting is

unlawful. D. C. Munic. Regs., tit. 19, §1560 (2009). Other

jurisdictions permit or encourage hunting, and there is an

enormous national market for hunting-related depictions

in which a living animal is intentionally killed. Hunting

periodicals have circulations in the hundreds of thousands

or 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

——————

4 The citations in the dissent’s appendix are beside the point. The

cited statutes stand for the proposition that hunting is not covered by

animal 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 the

first place. Reply Brief 6.

14 UNITED STATES v. STEVENS

Opinion of the Court

Association et al. as Amici Curiae 9–10. The demand for

hunting depictions exceeds the estimated demand for

crush videos or animal fighting depictions by several

orders 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 any

magazine 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 to

certain 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)

Cite as: 559 U. S. ____ (2010) 15

Opinion of the Court

with Cal. Food & Agric. Code Ann. §19501(b) (West 2001)

(including some poultry). California has recently banned

cutting or “docking” the tails of dairy cattle, which other

States permit. 2009 Cal. Legis. Serv. Ch. 344 (S. B. 135)

(West). Even cockfighting, long considered immoral in

much 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 of

these practices, if sold or possessed for commercial gain

within a State that happens to forbid the practice, falls

within the prohibition of §48(a).

C

The only thing standing between defendants who sell

such depictions and five years in federal prison—other

than the mercy of a prosecutor—is the statute’s exceptions

clause. 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 narrows

the statute’s reach: News reports about animal cruelty

have “journalistic” value; pictures of bullfights in Spain

have “historical” value; and instructional hunting videos

have “educational” value. Reply Brief 6. Thus, the Gov

ernment argues, §48 reaches only crush videos, depictions

of animal fighting (other than Spanish bullfighting, see

Brief 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 the

exceptions clause. As the Government reads the clause,

any material with “redeeming societal value,” id., at 9, 16,

16 UNITED STATES v. STEVENS

Opinion of the Court

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 taken

seriously. 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 that

is “significant and of great import,” App. 132, and the

Government defended these instructions as properly

relying 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 why

these 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 has

serious 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

Cite as: 559 U. S. ____ (2010) 17

Opinion of the Court

adequate reading of the exceptions clause that results in

the statute’s banning only the depictions the Government

would 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 surely

enough to answer any First Amendment objection. Reply

Brief 8–9.

In Miller we held that “serious” value shields depictions

of 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).

18 UNITED STATES v. STEVENS

Opinion of the Court

D

Not to worry, the Government says: The Executive

Branch 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 its

prosecutorial 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 to

use 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 prosecutorial

restraint. When this legislation was enacted, the Execu

tive Branch announced that it would interpret §48 as

covering only depictions “of wanton cruelty to animals

designed 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 provides

is pertinent only as an implicit acknowledgment of the

potential constitutional problems with a more natural

reading.

Nor can we rely upon the canon of construction that

“ambiguous statutory language [should] be construed to

avoid 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

Cite as: 559 U. S. ____ (2010) 19

Opinion of the Court

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 conduct

or are analogous to obscenity (if not themselves obscene),

and that the ban on such speech is narrowly tailored to

reinforce restrictions on the underlying conduct, prevent

additional crime arising from the depictions, or safeguard

public mores. But the Government nowhere attempts to

extend these arguments to depictions of any other activi

ties—depictions that are presumptively protected by the

First Amendment but that remain subject to the criminal

sanctions of §48.

Nor does the Government seriously contest that the

presumptively impermissible applications of §48 (properly

construed) far outnumber any permissible ones. However

“growing” and “lucrative” the markets for crush videos and

dogfighting depictions might be, see Brief for United

States 43, 46 (internal quotation marks omitted), they are

dwarfed by the market for other depictions, such as hunt

ing magazines and videos, that we have determined to be

within 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

20 UNITED STATES v. STEVENS

Opinion of the Court

not so limited but is instead substantially overbroad, and

therefore invalid under the First Amendment.

The judgment of the United States Court of Appeals for

the Third Circuit is affirmed.

It is so ordered.

Cite as: 559 U. S. ____ (2010) 1

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 the

practical 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 other

dogfight videos brought to our attention.1 The Court of

——————

1 Respondent 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 which

is not a crush video or an appeal to some prurient sexual interest

constitutes a restriction of protected speech, and an unwarranted

violation of the First Amendment’s free speech guarantee”); Brief for

2 UNITED STATES v. STEVENS

ALITO, J., dissenting

Appeals—incorrectly, in my view—declined to decide

whether §48 is unconstitutional as applied to respondent’s

videos and instead reached out to hold that the statute is

facially invalid. Today’s decision does not endorse the

Court of Appeals’ reasoning, but it nevertheless strikes

down §48 using what has been aptly termed the “strong

medicine” of the overbreadth doctrine, United States v.

Williams, 553 U. S. 285, 293 (2008) (internal quotation

marks 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 §48

bans a substantial quantity of protected speech.

I

A party seeking to challenge the constitutionality of a

statute 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 constitutionally

be 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 the

opinion of the Court of Appeals that respondent did not preserve an as

applied challenge.

Cite as: 559 U. S. ____ (2010) 3

ALITO, J., dissenting

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 need

not 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.

4 UNITED STATES v. STEVENS

ALITO, J., dissenting

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 “harmful

effects” 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, the

Court 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

Cite as: 559 U. S. ____ (2010) 5

ALITO, J., dissenting

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 on

depictions 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 all

50 States, and §48 applies only to a depiction of conduct

that is illegal in the jurisdiction in which the depiction is

created, 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 falls

outside §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 crossbow

or “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 in

which 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 to

such a limiting construction.” Ferber, 458 U. S., at 769,

6 UNITED STATES v. STEVENS

ALITO, J., dissenting

n. 24. See also Williams, supra, at 307 (STEVENS, J.,

concurring) (“[T]o the extent the statutory text alone is

unclear, our duty to avoid constitutional objections makes

it especially appropriate to look beyond the text in order to

ascertain 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 that

term to apply only to depictions involving acts of animal

cruelty as defined by applicable state or federal law, not

to depictions of acts that happen to be illegal for reasons

having nothing to do with the prevention of animal 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

——————

3 See 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 or

farm 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 to

the humane treatment of wildlife, including deer, elk, and waterfowl,

are virtually non-existent”).

4 Webster’s Third New International Dictionary 2073 (1976); Random

House 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.

Cite as: 559 U. S. ____ (2010) 7

ALITO, J., dissenting

tional,” or “historical” value. While there are certainly

those who find hunting objectionable, the predominant

view in this country has long been that hunting serves

many important values, and it is clear that Congress

shares that view. Since 1972, when Congress called upon

the President to designate a National Hunting and Fish

ing Day, see S. J. Res. 117, 92d Cong., 2d Sess. (1972), 86

Stat. 133, Presidents have regularly issued proclamations

extolling the values served by hunting. See Presidential

Proclamation No. 8421, 74 Fed. Reg. 49305 (Pres. Obama

2009) (hunting and fishing are “ageless pursuits” that

promote “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 among

our 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 “healthy

recreation, 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 serve

these values, then it takes but a small additional step to

conclude that depictions of hunting make a non-trivial

8 UNITED STATES v. STEVENS

ALITO, J., dissenting

contribution to the exchange of ideas. Accordingly, I

would hold that hunting depictions fall comfortably within

the 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 within

the scope of the statute”); 145 Cong. Rec. 25894 (Oct. 19,

1999) (Rep. McCollum) (“[T]he sale of depictions of legal

activities, such as hunting and fishing, would not be illegal

under this bill”); id., at 25895 (Rep. Smith) (“[L]et us be

clear 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 in

Oregon 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 the

sale and possession of hunting depictions, the Court cites

a few additional examples, including depictions of methods

of 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

Cite as: 559 U. S. ____ (2010) 9

ALITO, J., dissenting

tially overbroad, for two reasons. First, as explained

above, §48 can reasonably be construed to apply only to

depictions involving acts of animal cruelty as defined by

applicable 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) (“No

part of this chapter [prohibiting cruelty to animals] shall

be construed as interfering with or allowing interference

with . . . [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 to

farm animals, normal or accepted practices of animal

husbandry, including the normal and accepted practices

for the slaughter of such animals”); Md. Crim. Law Code

Ann. §10–603 (Lexis 2002) (sections prohibiting animal

cruelty “do not apply to . . . customary and normal veteri

nary and agricultural husbandry practices, including

dehorning, 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 of

dairy cows that would not easily qualify under the excep

tion set out in §48(b). Depictions created to show proper

methods 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 either

serious “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 is

illegal in all States, is still legal in Puerto Rico, ante, at 15,

10 UNITED STATES v. STEVENS

ALITO, J., dissenting

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 in

Puerto Rico.5 But assuming for the sake of argument that

this 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 absolute

terms, 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 ‘crush

videos.’ ” 533 F. 3d 218, 222 (CA3 2008) (en banc). A

sample crush video, which has been lodged with the Clerk,

records the following event:

——————

5 Since the Court has taken pains not to decide whether §48 would be

unconstitutional 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 depiction

of a legal cockfight in Puerto Rico.

Cite as: 559 U. S. ____ (2010) 11

ALITO, J., dissenting

“[A] kitten, secured to the ground, watches and

shrieks in pain as a woman thrusts her high-heeled

shoe 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 the

material 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 its

jurisdiction over the place where the act occurred or that

the actions depicted took place within the time specified in

12 UNITED STATES v. STEVENS

ALITO, J., dissenting

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 the

production 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 or

an undercover police operation”); id., at 34–35 (discussing

example 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 effective

way of stopping the underlying criminal conduct was to

prohibit the commercial exploitation of the videos of that

conduct. And Congress’ strategy appears to have been

vindicated. We are told that “[b]y 2007, sponsors of §48

declared 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 Society

Brief 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

Cite as: 559 U. S. ____ (2010) 13

ALITO, J., dissenting

that the only way of preventing these crimes was to target

the 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 to

continue.

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 most

important factor—was that child pornography involves the

commission of a crime that inflicts severe personal injury

to the “children who are made to engage in sexual conduct

for commercial purposes.’ ” Id., at 753 (internal quotation

marks omitted). The Ferber Court repeatedly described

the production of child pornography as child “abuse,”

“molestation,” or “exploitation.” See, e.g., id., at 749 (“In

recent 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 is

often 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 that

itself 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 pornography

must be closed if the production of material which requires

the sexual exploitation of children is to be effectively

controlled.” 458 U. S., at 759. The Court added:

“[T]here is no serious contention that the legislature

14 UNITED STATES v. STEVENS

ALITO, J., dissenting

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 the

market for this material by imposing severe criminal

penalties on persons selling, advertising, or otherwise

promoting 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 thus

an 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 in

crush videos is criminal in every State and the District of

Columbia. Thus, any crush video made in this country

records 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 profit

may 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 such

persons, 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

Cite as: 559 U. S. ____ (2010) 15

ALITO, J., dissenting

tions of animal torture with the intention of realizing a

commercial 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 video

market.

Finally, the harm caused by the underlying crimes

vastly outweighs any minimal value that the depictions

might 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 the

abuse of children is certainly much more important than

preventing the torture of the animals used in crush videos.

It was largely for this reason that the Court of Appeals

concluded that Ferber did not support the constitutionality

of §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 in

crush videos.

The animals used in crush videos are living creatures

that experience excruciating pain. Our society has long

banned such cruelty, which is illegal throughout the coun

try. In Ferber, the Court noted that “virtually all of the

States and the United States have passed legislation

16 UNITED STATES v. STEVENS

ALITO, J., dissenting

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-guessing

the 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 profits

from 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 judged

that 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 by

the First Amendment.

B

Application of the Ferber framework also supports the

——————

6 In 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 of

crime 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) (citing

state laws prohibiting discrimination in public accommodations as

evidence of the compelling governmental interest in ensuring equal

access).

Cite as: 559 U. S. ____ (2010) 17

ALITO, J., dissenting

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 the

actual 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 (2006

ed., Supp. II).

Second, Congress had an ample basis for concluding

that the crimes depicted in these videos cannot be effec

tively controlled without targeting the videos. Like crush

videos and child pornography, dogfight videos are very

often 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 lucrative

market for depictions of animal cruelty,” including videos

of 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 the

success 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

18 UNITED STATES v. STEVENS

ALITO, J., dissenting

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 attend

actual 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 (“Selling

videos of dogfights effectively abets the underlying crimes

by providing a market for dogfighting while allowing

actual dogfights to remain underground”); ibid. (“These

videos are part of a ‘lucrative market’ where videos are

produced by a ‘bare-boned, clandestine staff’ in order to

permit 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 it

provides 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 fight

organizers.” Ibid. In short, because videos depicting live

dogfights are essential to the success of the criminal dog

fighting subculture, the commercial sale of such videos

helps to fuel the market for, and thus to perpetuate the

perpetration of, the criminal conduct depicted in them.

Third, depictions of dogfights that fall within §48’s reach

have 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 live

fight in a larger work that aims at communicating an idea

or a message with a modicum of social value would not run

afoul of the statute.

Finally, the harm caused by the underlying criminal

acts greatly outweighs any trifling value that the depic

tions might be thought to possess. As the Humane Society

explains:

Cite as: 559 U. S. ____ (2010) 19

ALITO, J., dissenting

“The abused dogs used in fights endure physical tor

ture and emotional manipulation throughout their

lives to predispose them to violence; common tactics

include feeding the animals hot peppers and gunpow

der, prodding them with sticks, and electrocution.

Dogs are conditioned never to give up a fight, even if

they will be gravely hurt or killed. As a result, dog

fights inflict horrific injuries on the participating

animals, including lacerations, ripped ears, puncture

wounds 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 statute

are “substantial” in relation to its “plainly legitimate

sweep.” Williams, 553 U. S., at 292. Accordingly, I would

reject 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.

Cite as: 559 U. S. ____ (2010) 21

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

APPENDIX

As the following chart makes clear, virtually all state

laws prohibiting animal cruelty either expressly define

the 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 trapping

activities”)

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 the

taking 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) (“No

part 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

22 UNITED STATES v. STEVENS

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

the state, said wildlife statutes shall control”),

§18–9–202(3) (“Nothing in this part 2 shall be

construed to amend or in any manner change

the 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 cruelty

to 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 animal

resulting in serious bodily injury or death of the

pet animal or equine animal”)

Cite as: 559 U. S. ____ (2010) 23

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

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 to

any 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 or

taking of any animal in accordance with the

24 UNITED STATES v. STEVENS

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

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 to

hunt, 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

Cite as: 559 U. S. ____ (2010) 25

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

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 game

laws . . . [or] the right to kill all animals and

fowl used for food”)

New N. H. Rev. Stat. Ann. §644:8(II) (West Supp.

Hampshire 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 N. C. Gen. Stat. Ann. §14–360(c)(1) (Lexis 2009)

Carolina (“[T]his section shall not apply to . . . [t]he

lawful taking of animals under the jurisdiction

26 UNITED STATES v. STEVENS

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

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 license

or 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 fowl

pursuant 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” from

engaging 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 to

licensed hunters during hunting season or a

licensed business killing animals for human

consumption”)

South S. C. Code Ann. §47–1–40(C) (Supp. 2009) (“This

Carolina 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

Cite as: 559 U. S. ____ (2010) 27

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

persons who properly kill any animal used for

food and sport hunting, trapping, and fishing as

authorized by the South Dakota Department of

Game, 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 living

creature, 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 toward

the wildlife is in accordance with lawful hunt

ing, fishing, or trapping practices or other lawful

practices”), §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 . . . activities

regulated 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

28 UNITED STATES v. STEVENS

Appendix to J., dissenting , J.

ALITO, opinion of ALITO

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 to

regulation under ch. 169 [regulating, among

other things, hunting], [or] the taking of wild

animals”)

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 animal

or other wildlife in any manner not otherwise

prohibited by law”)