Congressional Hearing on Stevens and the Future of "Crush Video" Legislation

Tomorrow at 10:00 a.m., I'm scheduled to testify at a hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, on the implications of the Supreme Court's decision in last month in United States v. Stevens, in which the Court invalidated the federal law banning the sale of depictions of animal cruelty. 

My written testimony is available here. In short, though, my view is that the decision has three significant implications going forward:

1. In refusing to add depictions of animal cruelty to the previously identified categories of unprotected speech, the Stevens majority signaled that future legislation seeking to destroy the market for crush videos will have to survive ordinary First Amendment analysis. Since such legislation is almost certainly going to be content-based, it will have to survive strict scrutiny.
2. As importantly, Stevens is significant because of its implicit but undeniable reaffirmation of traditional First Amendment facial overbreadth analysis, even though such analysis had fallen somewhat out of vogue in the first few terms of the Roberts Court (in favor of narrower "as-applied" challenges).
3. Given that traditional First Amendment facial overbreadth analysis will govern, the absence of any kind of intent requirement, or at the very least, a required connection between the individual who distributes the image and the underlying act of animal cruelty, will likely prove fatal to any future attempt to ban the distribution of depictions of animal cruelty.

In addition to me, the Subcommittee will also hear from Nate Persily from Columbia Law, and J. Scott Ballenger, a partner at Latham & Watkins and counsel of record for the brief amicus curiae of the Humane Society in Stevens. Should be fun!