Scott Ballenger [Partner, Latham & Watkins, LLP]: "The Supreme Court's decision [PDF file] in United States v. Stevens is remarkably narrow. The Court did not say that depictions of extreme animal cruelty are protected by the First Amendment. The Court's majority held only that the present federal depictions law was facially overbroad because it could be interpreted to ban hunting videos that had some redeeming social value. The majority did not even decide whether the statute was unconstitutional as applied to the dogfighting videos distributed by Mr. Stevens himself – merely that Stevens was entitled to benefit from the fact that the law would be unconstitutional as applied to hypothetical hunting videos. The Court carefully left open whether Congress could draft a narrower law that would not reach hunting videos but only depictions of extreme and illegal cruelty, such as "crush" and animal fighting videos.

There are at least two victories for the animal welfare movement embedded in the Court's opinion. First, the Third Circuit had resolved the case by holding that there is no compelling interest in protecting animals from cruel and inhumane treatment. As Justice Alito's dissent points out, "[t]oday's decision does not endorse the Court of Appeals' reasoning." To the contrary, the Court unanimously recognized the long history of animal cruelty laws dating back to the founding of our country, and assumed for purposes of decision that a law targeting depictions only of extreme animal cruelty may be constitutional. Justice Alito's dissent explains that "[t]he animals used in crush videos are living creatures that experience excruciating pain," and that "the Court of Appeals erred in second-guessing the legislative judgment about the importance of preventing cruelty to animals." Nothing in the majority opinion disagrees with those remarks in any way. From an animal welfare perspective, the Supreme Court's opinion is an enormous improvement over the reasoning adopted by the court of appeals.

Second, as Justice Alito points out in a footnote, "the Court has taken pains not to decide whether section 48 would be unconstitutional as applied to graphic dogfight videos, including those depicting fights occurring in countries where dogfighting is legal." Mr. Stevens and many of his amici took the position in the Supreme Court that the statute could constitutionally be applied only to "crush" videos – which, because they have prurient (sexual) appeal to certain individuals, may be classified as "obscene" under established First Amendment doctrine. The Humane Society had argued in its amicus brief that animal fighting videos should be considered just as "obscene" for constitutional purposes, even though they have no particularly sexual content, because they appeal only to base instincts and have no redeeming social value. The Supreme Court went out of its way not to reject that argument, and did not rely at all upon animal fighting videos when cataloguing the hypotheticals that it thought would be constitutionally protected. Since there were no concurring opinions, the Supreme Court apparently believes unanimously that Congress may have the power to ban trafficking in videos of animal fighting – even videos of fights that were legal where filmed, and even where traditional obscenity doctrine would not apply."

Scott Ballenger represented the Humane Society of the United States in filing its amicus curiae brief with the Supreme Court in United States v. Stevens.