This week, the Supreme Court held that 18 U.S.C. § 48, which criminalized the creation, sale, or possession of depictions of animals being harmed in illegal ways for commercial gain, is unconstitutionally overbroad. Although it had an exemption clause for portrayals with “serious religious, political, scientific, educational, journalistic, historical, or artistic value” the statute criminalized a significant amount of speech protected by the First Amendment.
The statute defines “depictions of animal cruelty” as including portrayals of animals being “wounded or killed,” among other actions with more cruel connotations. The Court held that, because “wound” and “kill” are not ambiguous, they may not be interpreted in light of neighboring words that imply cruelty. In addition, “depictions of animal cruelty” include any wounding or killing that is illegal where the depiction is sold or possessed, regardless of whether that action was legal where it occurred.
Thus, depictions of any animal being harmed legally could be criminalized if possessed or sold in a place where such actions were not legal. The prime example of criminalized protected speech was hunting magazines and television shows that are distributed or aired in Washington, D.C., where all hunting is illegal. It could also criminalize representations of the treatment of livestock where states have different agricultural regulations.