In Animal Cruelty, a Bizarre Reaffirmation of Separation of Powers Doctrine

The Roberts Court just can’t help but make ridiculously unpopular decisions — most recently, overturning the conviction of a man jailed for violating a federal statute banning the depiction of animal cruelty. U.S. v. Stevens, No. 08-769 (Apr. 20, 2010) (pdf). Tragically, the decision is probably right — the right to criminalize conduct needn’t always include the right to ban its depiction. Child pornography is a noted exception to the rule, because the wrong (exploitation) merges with the depiction and resale of the content, but absent such a compelling reason, the argument is hard to make. Too bad, in this case, but here we are.

Still, despite the loathsome result, there’s a silver lining here for which we should actually be grateful. Stevens stands as a fairly ringing reaffirmation of one of the most vital First Amendment doctrines, and one that rarely wins conservative support: “overbreadth.” The notion here is simple: if a statute fails to give notice of the conduct it prohibits (“vagueness”), or in the process of banning “bad speech,” bans “good speech” (“overbreadth”), regardless of whether an individual defendant could be convicted under a properly drawn statute, the statute is unconstitutional, and the defendant goes free. It’s harsh medicine, yes, but for a good cause: judicial overreactions to overbreadth, and its cousin vagueness, ensure that legislatures draw statutes narrowly when attempting to circumscribe speech rights.

The doctrines also validate the separation of powers. Courts generally cure a confusing statute by issuing an authoritative limiting construction — i.e., “we assume the legislature meant this; ergo, in this and all future cases, that’s what we’ll say they meant.” This type of decision avoids the need to invalidate a statute, thus promoting efficiency, but risks upsetting carefully drawn compromises, and, therefore, risks grabbing the legislature’s power. When core rights are affected, then — like speech rights –judicial reconstruction becomes inappropriate, leaving the judiciary no choice but to return the bill to the legislature.

And, in the case of criminal statutes voided for vagueness, the judiciary effectively penalizes the legislature for attempting to improperly delegate its authority to peace officers (the executive branch). After all, what is a vague criminal statute, but an invitation for the police to issue their own authoritative construction on a case-by-case basis? Such a possibility ought to be troubling.

In the short term, the Stevens case is a defeat for the animal rights community. But the law isn’t a short game. Congress can repass the bill in such a way as to cure the defect and, more importantly, the next time the Roberts Court strains to give Congress a pass when limiting speech rights, they’ll have to surmount their own words.

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