During its second full day of the new term, the Supreme Court heard arguments in United States v. Stevens. Jennifer Liebman first wrote about the case in May on the ACS Blog and I provided an update on October 5.

Stevens involves 18 U.S.C. § 48, which makes it a federal crime to possess or sell depictions of animal cruelty where the conduct depicted is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place. Mr. Stevens was convicted under the law for selling three videos of dog fights. His conviction was overturned when the Third Circuit found the law unconstitutional.

In the ACS Supreme Court Preview, Paul M. Smith, a Supreme Court litigator and member of the ACS Board of Directors, discussed the case and the reasons why the Court would grant certiorari (beginning approximately 14 minutes and 30 seconds into the video). His opinion was that the Supreme Court may have granted certiorari here principally because a federal court struck down a federal law and the government sought review. He noted that the lack of a circuit split regarding the constitutionality of the law does not necessarily indicate that the Court took the case to overturn the Third Circuit's decision. Judging from the argument, he may have been correct.

Neal Katyal, the Principal Deputy Solicitor General of the United States, had just begun his argument when he was interrupted with a question from Justice Sonia Sotomayor, who continued her pattern of active questioning from the first day's arguments. In fact, Justice Sotomayor and the other justices vigorously questioned Mr. Ketyal throughout his argument and several justices signaled their skepticism of the government's argument in favor of the law's constitutionality.

When Mr. Katyal attempted to analogize the legal ban on depictions of animal cruelty to the accepted ban on child pornography, Justice Antonin Scalia quickly corrected him. Justice Scalia pointed out that, in his opinion at least, the Ferber case which dealt with child pornography fell squarely within the Court's jurisprudence regarding obscenity. Justice Scalia continued to make no secret of his disagreement with the government's arguments throughout the remainder of Mr. Katyal's time and even during the questioning of Patricia Millett, who advocated on behalf of Mr. Stevens.

Mr. Katyal later cautioned the court to limit hypothetical questions to those that have a realistic danger of occurring. He claimed that because the government has not yet prosecuted anyone for the sale of hunting videos under the law, the Court should not be concerned with such a scenario. Justice Anthony Kennedy challenged Mr. Katyal on this point, however, asking if there were any cases in which the restraint of the government in bringing prosecutions could save the constitutionality of a statute. When Mr. Katyal struggled with the question, Justice Kennedy answered his own question by saying that he could not find any.

Mr. Katyal seemed to lose the Court, especially Justice Scalia, when he attempted to argue that the language of the statute could be construed to limit its scope. He argued that although the statute defines animal cruelty to include killing animals, the word "kill" should be read in the context of defining animal cruelty and should not be read to include depictions of hunting. He struggled under questioning, however, and admitted that some forms of hunting may violate the law depending on what is depicted. Justice Stephen Breyer challenged Mr. Katyal, saying, "You want the statute to say ‘cruelly kill' . . . but why not just write a clear law?" Justice Scalia was simply baffled that anyone could argue that there was ambiguity in the word "kill."

When Patricia Millett spoke for Mr. Stevens, she claimed that the type of judicial construction of the language that Mr. Katyal advocated would amount to "alchemy" rather than merely construction of ambiguous language. When several of the justices questioned what she meant by "alchemy" she clarified by saying that the law is "so off base" that the Court could not even attempt to save it from unconstitutionality.

Testing the limits of Ms. Millett's argument, Justice Samuel Alito asked whether the government could legislate against a hypothetical "Human Sacrifice Channel." Ms. Millett struggled for some time with the question and Chief Justice John Roberts had to ask again whether she had answered Justice Alito's question. She eventually answered that just because something is repulsive, the government may not regulate speech unless it falls under one of the other categories of speech that are already unprotected, such as obscenity.

When the argument was over, it seemed clear that the justices were leaning in favor of striking down the law, with Justice Scalia most clearly in favor of invalidating it. It remained unclear, however, whether some justices, particularly Justices Alito and Breyer, might try to save the law as applied to Mr. Stevens and allow as-applied challenges to the law if the government ever decides to widen the scope of prosecution beyond the subject of dog fights.