United States v. Stevens

OPINION

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years.1 Nonetheless, in this case the Government invites this Court to take just such a step in order to uphold the constitutionality of 18 U.S.C. § 48 and to affirm Robert Stevens’ conviction.2 For the reasons that follow, we decline the Government’s invitation. Moreover, because we agree with Stevens that 18 U.S.C. § 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.3

I.

In March of 2004, a federal grand jury sitting in the Western District of Pennsylvania returned a three-count indictment against Stevens, a resident of Virginia. All three counts charged Stevens with knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48.

The indictment arose out of an investigation by federal and Pennsylvania law enforcement agents who had discovered that Stevens had been advertising pit bull related videos and .merchandise through *221his business. Stevens advertised these videos in Sporting Dog Journal, an underground publication featuring articles on illegal dogfighting. Law enforcement officers arranged to buy three videotapes from Stevens, which form the basis for each of the counts in the indictment. The first two tapes, entitled “Pick-A-Winna” and “Japan Pit Fights,” show circa 1960s and 70s footage of organized dog fights that occurred in the United States and involved pit bulls, as well as footage of more recent dog fights, also involving pit bulls, from Japan. The third video, entitled “Catch Dogs,” shows footage of hunting excursions in which pit bulls were used to “catch” wild boar, as well as footage of pit bulls being trained to perform the function of catching and subduing hogs or boars. This video includes a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig. The footage in all three videos is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author.

As a result of their investigation, law enforcement officers obtained a search warrant for Stevens’ Virginia residence. One day later, on April 23, 2003, officers executed the search warrant and found several copies of the three videos, as well as other dogfighting merchandise. On March 2, 2004, a grand jury in the Western District of Pennsylvania returned an indictment charging Stevens with three counts of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. § 48. In November of 2004, the District Court denied Stevens’ motion to dismiss the indictment based on his assertion that § 48 abridged his First Amendment right to freedom of speech. The case proceeded to trial, and on January 13, 2005, the jury returned a verdict of guilty on each of the three counts. The District Court sentenced Stevens to 37 months of imprisonment and three years of supervised release. This appeal followed.

II.

Stevens’ case is the first prosecution in the nation under § 48 to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court. 18 U.S.C. § 48 states:

(a) Creation, sale, or possession. — Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) Exception. — Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

(c) Definitions. — In this section—

(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, ■ mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and

(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Eico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the *222Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

Resort here to some legislative history is instructive, not as a device to help us construe or interpret the statute, but rather to demonstrate the statute’s breadth as written compared to what may originally have been intended. The legislative history for § 48 indicates that the primary conduct that Congress sought to address through its passage was the creation, sale, or possession of “crush videos.” A crush video is a depiction of “women inflicting ... torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.” H.R.Rep. No. 106-397, at 2 (1999). Testimony presented at a hearing on the Bill, and referenced in the House Committee Report, indicates that “these depictions often appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.” Id. at 2-3.

One of the distinctive features of crush videos is that “the faces of the women inflicting the torture in the material often were not shown, nor could the location of the place where the cruelty was being inflicted or the date of the activity be ascertained from the depiction.” H.R.Rep. No. 106-397, at 3. Consequently:

defendants arrested for violating a State cruelty to animals statute in connection with the production and sale of these materials ... often were able to successfully assert as a defense that the State could not prove its jurisdiction over the place where the act occurred or that the actions depicted took place within the time specified in the State statute of limitations.

Id The sponsor of the Bill in the House of Representatives, Rep. Elton Gallegly, emphasized that the purpose of the legislation was to target crush videos. These videos evidently turn a brisk business, particularly over the Internet. See 145 Cong. Reo. E1067-01 (May 24, 1999) (extension of remarks by Rep. Elton Gallegly); 145 Cong. Rec. HI0267-01 (Oct. 19, 1999). The discussion of the Bill in the Senate similarly focused on § 48 as a tool to aid in the elimination of crush videos. See 145 Cong. ReC. S15220-03 (Nov. 19,1999).

Yet, the government interests identified in the House Committee Report in support of § 48 do not focus on crush videos. The primary interest identified there is the federal government’s interest in “regulating the treatment of animals.” H.R.Rep. No. 106-397, at 3. Similarly, the House Report states that the Government has an interest in discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings. Id. at 4.

This broader focus on animal cruelty is consistent with the text of § 48 and it is also reflected in the House Report’s discussion of why the speech that § 48 targets should be deemed outside the protection of the First Amendment. Id. at 4-5. The Report concedes that § 48 is a content-based restriction, but states that the harm it would address, by reducing cruelty to animals, “so outweighs the expressive interest, if any, at stake, that the materials [prohibited by § 48] may be prohibited as a class.” Id. at 5. The Report minimizes the expressive interest of any speech prohibited by the statute because “[b]y the very terms of the statute, material depicting cruelty to animals that has serious utility — whether it be religious, political, scientific, educational, journalistic, historic, *223or artistic — falls outside the reach of the statute.” Id. at 4.

III.

The Government does not allege that Stevens participated in the interstate transport of “crush videos.” Nor does the Government allege that the videos Stevens sold contained prurient material. The Government also concedes that § 48 constitutes a content-based restriction on speech. Nonetheless, the Government argues that the type of speech regulated by § 48 falls outside First Amendment protection. By doing so, the Government asks us to create a new category of unprotected speech. We proceed in two parts. First, we show how § 48 regulates protected speech. Second, because § 48 regulates protected speech, we must subject the statute to strict scrutiny. As shown below, the statute cannot withstand that heightened level of scrutiny.

The acts of animal cruelty that form the predicate for § 48 are reprehensible, and indeed warrant strong legal sanctions. The Government is correct in arguing that animal cruelty should be the subject of not only condemnation but also prosecution. To this end, anti-animal cruelty statutes have been enacted in all fifty states and the District of Columbia.4 These statutes target the actual conduct that offends the sensibilities of most citizens. The fundamental difference between these state statutes and § 48 is that the latter does not federally criminalize the conduct itself. Rather, § 48 prohibits the creation, sale, or possession of a depiction of animal cruelty. That regulating a depiction has First Amendment implications is obvious. We begin, then, with thé Government’s contention that the depictions of animal cruelty *224restricted by 18 U.S.C. § 48 qualify as categorically unprotected speech.

A. § 48 Regulates Protected Speech

It has been two and a half decades since the Supreme Court last declared an entire category of speech unprotected. See New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (holding that child pornography depicting actual children is not protected speech); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 256, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (refusing to recognize virtual child pornography as a category of unprotected speech). Other types of speech that are categorically unprotected include: fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), threats, Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), speech that imminently incites illegal activity, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), and obscenity, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The common theme among these cases is that the speech at issue constitutes a grave threat to human beings or, in the case of obscenity, appeals to the prurient interest.

The Government acknowledges that the speech at issue in this case does not fall under one of the traditionally unprotected classes. The Government argues, however, that these categories may be supplemented. That, in itself, is an unassailable proposition. But, we disagree with the suggestion that the speech at issue here can appropriately be added to the extremely narrow class of speech that is unprotected. Out of these categories, only Ferber is even remotely similar to the type of speech regulated by § 48.5 Recognizing this difficulty, the Government attempts to analogize between the depiction of animal cruelty and the depiction of child pornography.6 That attempt simply cannot carry the day.

In Ferber, the Court considered the constitutionality of a New York criminal statute that prohibited persons from knowingly promoting sexual performances by children under the age of 16 by distributing material that depicted such performances. Ferber, 458 U.S. at 747, 102 S.Ct. 3348. The case arose when Paul Ferber, the owner of a Manhattan bookstore specializing in sexually oriented products, sold *225to undercover officers two films that were “devoted almost exclusively to depicting young boys masturbating.” Id. at 751-52, 102 S.Ct. 3348. A jury convicted Ferber of disseminating child pornography, in violation of a statute that did not require proof that such materials were obscene. Id. at 752, 102 S.Ct. 3348. The New York Court of Appeals reversed, holding that the statute at issue violated the First Amendment because it “could not be construed to include an obscenity standard, and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment.” Id. at 747, 102 S.Ct. 3348.

The Supreme Court in turn reversed the New York Court of Appeals, holding that the statute was constitutional because child pornography, whether obscene or not, is unprotected by the First Amendment. Id. at 756, 102 S.Ct. 3348. In reaching that conclusion, the Court cited five factors favoring the creation of a new category of unprotected speech:

1. The State has a “compelling” interest in “safeguarding the physical and psychological well-being of a minor.” Id. at 756-57, 102 S.Ct. 3348 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)).

2. Child pornography is “intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed” in order to control the production of child pornography. Id. at 759, 102 S.Ct. 3348 (citations omitted). The Court explained that the production of child pornography is a “low-profile, clandestine industry” and that the “most expeditious if not the only practical method of law enforcement may be to dry up the market for this material” by punishing its use. Id. at 760,102 S.Ct. 3348.

3. “The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production” of child pornography. Id. at 761, 102 S.Ct. 3348.

4. The possibility that there would be any material of value that would be prohibited under the category of child pornography is “exceedingly modest, if not de minimis.” Id. at 762, 102 S.Ct. 3348.

5. Banning full categories of speech is an accepted approach in First Amendment law and is therefore appropriate in this instance. Id. at 763-64, 102 S.Ct. 3348.

Amy Adler, Inverting the First Amendment, 149 U. Pa. L. Rev. 921, 938 n. 77 (2001); see also Ashcroft v. Free Speech Coalition, 535 U.S. at 249-50, 122 S.Ct. 1389 (focusing on factor number two in striking down part of an anti-child pornography federal statute that criminalized pornographic images made with virtual (computer-generated) children or adults dressed to look like children).

Without guidance from the Supreme Court, a lower federal court should hesitate before extending the logic of Ferber to other types of speech. The reasoning that supports Ferber has never been used to create whole categories of unprotected speech outside of the child pornography context. Furthermore, Ferber appears to be on the margin of the Supreme Court’s unprotected speech jurisprudence. Adler, supra, at 936 (noting that, aside from child pornography, “when the Court eliminates a category of expression from constitution*226al protection, it carefully defines the speech that can be banned; the definition then serves as a limit on legislative enactments”). Part of what locates child pornography on the margin as an unprotected speech category is the conflation of the underlying act with its depiction. By criminalizing the depiction itself, “[c]hild pornography law has collapsed the ‘speech/action’ distinction that occupies a central role in First Amendment law[,]” and “is the only place in First Amendment law where the Supreme Court has accepted the idea that we can constitutionally criminalize the depiction of a crime.” Id. at 970, 984; see Osborne v. Ohio, 495 U.S. 103, 144 n. 18, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (Brennan, J., dissenting). Child pornography contrasts with other categories of unprotected speech that share a much closer nexus between speech and an unlawful action that proximately results from the unprotected speech. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (addressing speech that imminently incites illegal activity). For these reasons, we are unwilling to extend the rationale of Ferber beyond the regulation of child pornography without express direction from the Supreme Court.

Even assuming that Ferber may, in limited circumstances and without Supreme Court guidance, be applied to other categories of speech, 18 U.S.C. § 48 does not qualify for such treatment. The Court cited five bases in Ferber for upholding the anti-child pornography law. That reasoning does not translate well to the animal cruelty realm. We address the five-factor rationale in its entirety, although the first factor is the most important because, under Ferber, if the Government’s interest is not compelling, then this type of statute necessarily violates the First Amendment.

1. First Ferber Factor

The compelling government interest inquiry at issue here overlaps with the strict scrutiny analysis discussed presently. No matter how appealing the cause of animal protection is to our sensibilities, we hesitate — in the First Amendment context — -to elevate it to the status of a compelling interest.

Three reasons give us pause to conclude that “preventing cruelty to animals” rises to a compelling government interest that trumps an individual’s free speech rights. First, the Supreme Court has suggested that the kind of government interest at issue in § 48 is not compelling. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). The Supreme Court in Lukumi held that city ordinances that outlawed animal sacrifices could not be upheld based on the city’s assertion that protecting animals was a compelling government interest. Id. at 546-47, 113 S.Ct. 2217. The Government contends that Lukumi is inapplicable to a compelling government interest analysis.

Although that case dealt with the Free Exercise Clause rather than the Free Speech Clause, and was limited by the Court to the context of the particular ordinances at issue, it remains instructive. The possible relevance of Lukumi was noted under the “Dissenting Views” section of the House Report of § 48:

Although the Supreme court [sic] recognized the governmental interest in protecting animals from cruelty, as against the constitutional right of free exercise of religion[,] the governmental interest did not prevail. Therefore, it seems that, on balance, animal rights do not supersede fundamental human rights. Here, while Government can and does protect animals from acts of cruelty, to make possession of films of such acts *227illegal would infringe upon the free speech rights of those possessing the films.

ELR.Rep. No. 106-397, at 11. When we consider Lukumi along with the fact that the Supreme Court has not expanded the extremely limited number of unprotected speech categories in a generation, the only conclusion we are left with is that we — as a lower federal court — should not create a new category when the Supreme Court has hinted at its hesitancy to do so on this same topic.

Second, while the Supreme Court has not always been crystal clear as to what constitutes a compelling interest in free speech cases, it rarely finds such an interest for content-based restrictions. When it has done so, the interest has — without exception — related to the well-being of human beings, not animals. When looking at these cases, as well as the interests at issue in the unprotected speech categories, it is difficult to see how § 48 serves a compelling interest that represents “a government objective of surpassing importance.” Ferber, 458 U.S. at 757, 102 S.Ct. 3348.

The Supreme Court has suggested that a state interest in avoiding an Establishment clause violation may be compelling, although that remains an unsettled question of law. Compare Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (“compliance with the Establishment Clause is a state interest sufficiently compelling to justify content-based restrictions on speech”) with Good News Club v. Milford Central School, 533 U.S. 98, 112-13, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (“We have said that a state interest in avoiding an Establishment Clause violation ‘may be characterized as compelling,’ and therefore may justify content-based discrimination. However, it is not clear whether a State’s interest in avoiding an Establishment Clause violation would justify viewpoint discrimination.”) (citations omitted). The Government also “has a compelling interest in ensuring that victims of crime are compensated by those who harm them” and “ensuring that criminals do not profit from their crimes.” Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118-19, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). But see McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348-49, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995); Boos v. Barry, 485 U.S. 312, 322-25, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230-32, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). Similarly important human interests are at issue in constitutionally valid statutes regulating fighting words, threats, speech that imminently incites illegal activity, and obscenity. In Ferber, the Court illustrated the type of interest that must be at stake in order for it to be compelling. The Court stated, “[i]t is evident beyond the need for elaboration that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling” because “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.” Ferber, 458 U.S. at 756-57, 102 S.Ct. 3348 (quotations and citations omitted); see also Ashcroft v. Free Speech Coalition, 535 U.S. at 244, 122 S.Ct. 1389 (“The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.”); Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L.Rev. 2417, 2420-21 (1996) (discussing other legitimate compelling government interests). Nothing in these cases suggests that a statute that restricts an individual’s free speech *228rights in favor of protecting an animal is compelling.

Similarly, and even more fatal to the Government’s position, because the statute does not regulate the underlying act of animal cruelty — which must be a crime under state or federal law in order to trigger § 48 — we can see no persuasive argument that such a statute serves a compelling government interest. While the statute at issue in Ferber also prohibited the distribution of the depiction of sexual performances by children under the age of 16, 458 U.S. at 749, 102 S.Ct. 3348, the Supreme Court went to great lengths to cabin its discussion of the depiction/act conflation because of the special role that children play in our society.7 Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.

Third, there is not a sufficient link between § 48 and the interest in “preventing cruelty to animals.” As the Government recognizes, Congress and the states already have in place comprehensive statutory schemes to protect animals from mistreatment. The Government states that “all fifty states have enacted laws which criminalize the infliction of cruelty on animals. This includes laws which outlaw dog fighting in all 50 states.” Gov’t Br. 32. These statutes are materially different from § 48. Section 48 does nothing to regulate the underlying conduct that is already illegal under state laws. Rather, it regulates only the depiction of the conduct.

In order to serve the purported compelling government interest of preventing animal cruelty, the regulation of these depictions must somehow aid in the prevention of cruelty to animals. With this depiction/act distinction in mind, it seems appropriate to recast the compelling government interest as “preventing cruelty to animals that state and federal statutes directly regulating animal cruelty under-en-foree.” See Ashcroft v. ACLU, 542 U.S. 656, 683, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (Breyer, J., dissenting) (noting that “the question here is whether the Act, given its restrictions ..., significantly advances that [compelling] interest”). The House Committee Report for § 48 stated that the statute targeted the depiction rather than the act because under-enforcement of state animal cruelty laws is a particular problem in the crush video industry. H.R.Rep. No. 106-397, at 3. The Report approvingly cited witnesses who testified to this effect.8 Consistent with *229these findings, the Government states that “as a practical matter, it is nearly impossible to identify the persons involved in the acts of cruelty or the place where the acts occurred.” Gov’t Br. 32. While this justification is plausible for crush videos, it is meaningless when evaluating' § 48 as written. By its terms, the statute applies without regard to whether the identities of individuals in a depiction, or the location of a depiction’s production, are obscured.

The Government also argues that § 48 indirectly serves to deter future animal cruelty and other antisocial behavior by discouraging individuals from becoming desensitized to animal violence. As support for its position, the Government approvingly cited the House Committee Report, which cited research that “suggested] that violent acts committed by humans may be the result of a long pattern of perpetrating abuse, which ‘often begins with the torture and killing of animals.’ ” Gov’t Br. 31-32 (citing H.R.Rep. No. 106-397, at 4[sic]). The full quote is as follows:

The committee also notes the increasing body of research which suggests that humans who kill or abuse others often do so as the culmination of a long pattern of abuse, which often begins with the torture and killing of animals. When society fails to prevent these persons from inflicting harm upon animals as children, they may fail to learn respect for any living being. If society fails to prevent adults from engaging in this behavior, they may become so desensitized to the suffering of these beings that they lose the ability to empathize with the suffering of humans.

H.R.Rep. No. 106-397, at 4. We read this passage to mean that, by broadly prohibiting these depictions of animal cruelty, the drafters of the House Committee Report believed that fewer individuals will see and make such depictions and therefore not be subject to this desensitization.

This reasoning is insufficient to override First Amendment protections for content-based speech restrictions. The Supreme Court has rejected a similar argument in the context of virtual child pornography, stating that “[w]hile the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts.” Ashcroft v. Free Speech Coalition, 535 U.S. at 250, 122 S.Ct. 1389 (internal citation omitted). When balanced against First Amendment rights, the “mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” Id. at 253, 122 S.Ct. 1389. The Supreme *230Court cannot speak more clearly than it has on this issue: “The prospect of crime ... by itself does not justify laws suppressing protected speech.” Id. at 245, 122 S.Ct. 1389. Similarly, general references to speech repugnant to public mores cannot serve as a compelling government interest sufficient to override constitutional protections of speech. See, e.g., United States v. Eichman, 496 U.S. 310, 319, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990) (“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”) (citing Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)); United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 826, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)).

For these reasons, we fail to see how 18 U.S.C. § 48 serves a compelling government interest.

2. Second Ferber Factor

The second factor in the Ferber rationale, that child pornography is “intrinsically related to the sexual abuse of children,” Ferber, 458 U.S. at 759, 102 S.Ct. 3348, is a similarly weak position for the Government to rely upon in this case. In Ferber, the Court reasoned that child pornography should be banned, in part, because the pornographic material continues to harm the children involved even after the abuse has taken place. While animals are sentient creatures worthy of human kindness and human care, one cannot seriously contend that the animals themselves suffer continuing harm by having their images out in the marketplace. Where children can be harmed simply by knowing that their images are available or by seeing the images themselves, animals are not capable of such awareness. Put differently, when an animal suffers an act of cruelty that is captured on film (or by some other medium of depiction or communication), the fact that the act of cruelty was captured on film in no way exacerbates or prolongs the harm suffered by that animal.

3. Third Ferber Factor

Both the second and third Ferber factors assert that the distribution network for child pornography must be closed so that the production of child pornography will decrease.9 This drying-up-the-market theory, based on decreasing production, is potentially apt in the animal cruelty context. However, there is no empirical evidence in the record to confirm that the theory is valid in this circumstance. See Bartnicki v. Vopper, 532 U.S. 514, 531 n. 17, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001); see also Ashcroft v. Free Speech Coalition, 535 U.S. at 250-51, 122 S.Ct. 1389 (apparently questioning the independent value of FerbePs drying-up-the-market rationale); Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharged Zones, 90 Coenell L.Rev. 1277, 1324-25 (2005). Indeed, the fact that most dog fights are conducted at live venues and produce significant gambling revenue suggests that the production of tapes such as those at issue in this case does not serve as the primary economic motive for the underlying animal cruelty the Government purports to target.10 *231Moreover, standing alone this factor sweeps so broadly it should not be deployed to justify extracting an entire category of speech from First Amendment protections. Restriction of the depiction of almost any activity can work to dry up, or at least restrain, the activity’s market.

4. Fourth Ferber Factor

The fourth Ferber factor is that the value of the prohibited speech is “exceedingly modest, if not de minimis.” 11 458 U.S. at 762, 102 S.Ct. 3348; see also Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766. The Government finds support for the low value of the speech restricted by the Act by pointing to the exceptions clause of 18 U.S.C. § 48(b). Section (b) states that the Act “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The House Committee Report viewed these categories as broad.12 Still, just how broad these categories actually are is subject to debate because most of the legislative history focuses on the depiction of animal cruelty for prurient purposes in so-called crush videos.13

The exceptions clause cannot on its own constitutionalize § 48. The exceptions clause in this case is a variation of the third prong of the Miller obscenity test. This prong asks “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); see also Ashcroft v. Free Speech Coalition, 535 U.S. at 246-47, 122 S.Ct. 1389. As one scholar has stated, “tQt has long been a principle of adult obscenity law that no matter how shocking or how offensive a sexually explicit work might otherwise be, it should be protected speech if it demonstrates serious artistic value.” Adler, supra, at 967. The role of the clause in Miller cannot be divorced from the first two parts of the obscenity test, which emphasize patent of*232fensiveness and an appeal to the prurient interest.

This type of exceptions clause has not been applied in non-prurient unprotected speech cases, and taking it out of this context ignores the essential framework of the Miller test. Congress and the Government would have the statute operate in such a way as to permit the restriction of otherwise constitutional speech so long as part of the statute allows for an exception for speech that has “serious value.” The problem with this view is twofold. First, outside of patently offensive speech that appeals to the prurient interest, the First Amendment does not require speech to have serious value in order for it to fall under the First Amendment umbrella. What this view overlooks is the great spectrum between speech utterly without social value and high value speech. Second, if the mere appendage of an exceptions clause serves to constitutionalize § 48, it is difficult to imagine what category of speech the Government could not regulate through similar statutory engineering. That is not a road down which this Court is willing to proceed.

In sum, the speech restricted by 18 U.S.C. § 48 is protected by the First Amendment. The attempted analogy to Ferber fails because of the inherent differences between children and animals. Those profound differences require no further explication here.

B. § 48 Cannot Survive Heightened Scrutiny

Because the speech encompassed by § 48 does not qualify as unprotected speech, it must survive a heightened form of scrutiny.14 A content-based restriction on speech is “presumed invalid,” and the Government bears the burden of showing its constitutionality. Ashcroft v. ACLU, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004) (citations omitted). One scholar notes that “a majority of the Court has never sustained a regulation that was strictly scrutinized for content discrimination reasons.” Barry P. McDonald, Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression, 81 Notre Dame L.Rev. 1347, 1365 n. 63 (2006); see also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 828, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”); Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VaND. L.Rev. 793, 844-57 (2006) (discussing the results of applying strict scrutiny in a variety of free speech contexts at all federal court levels). Section 48 fails strict scrutiny because it serves no compelling government interest, is not narrowly tailored to achieve such an interest, and does not provide the least restrictive means to achieve that interest. See Sable Commc’ns of Calif., Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989).

We have already shown why § 48 does not serve a compelling government *233interest, thus failing strict scrutiny. Because of the peculiarities of this statute, though, we briefly discuss the relationship between § 48 and the strict scrutiny analysis. The Supreme Court’s free speech jurisprudence regarding content-based restrictions on speech in the first instance appears simple to apply. First, is the speech protected or unprotected? If the speech is unprotected, then Congress can regulate fairly easily. If the speech is protected, does the statute survive strict scrutiny? In practice, as pointed out previously, this heightened level of scrutiny nearly always results in the statute being invalidated. At the risk of complicating this parsimonious two-tiered structure, we note that federalism concerns illustrate the difficulties with the strict scrutiny analysis.

The problem lies in defining the compelling government interest when Congress does not have the constitutional power to regulate an area that has traditionally been governed by state statutes. When federalism concerns arise, the “least restrictive means” analysis necessarily informs the “compelling government interest” analysis. The stated governmental interest in 18 U.S.C. § 48 is to “prevent cruelty to animals.” Taking federalism concerns into account, the interest stated in this manner is too broad. Absent demonstration of the requisite impact on commerce which is absent on this record, Congress does not have the constitutional authority to pass the types of animal cruelty statutes that are seen in the fifty states and the District of Columbia. It is for this reason that we have suggested that the compelling government interest should be redefined as “preventing cruelty to animals that state and federal statutes directly regulating animal cruelty under-enforce.” And once this reformulation of the interest targeted by § 48 is accepted, we do not see how a sound argument can be made that the Free Speech Clause is outweighed by a statute whose primary purpose is to aid in the enforcement of an already comprehensive state and federal anti-animal-cruelty regime. Conversely, if we agree with the Government that the compelling government interest is “preventing cruelty to animals,” then we do not see how a sound argument can be made that § 48 is narrowly tailored and uses the least restrictive means.

The Supreme Court routinely strikes down content-based restrictions on speech on the narrow tailoring/least restrictive means prong of strict scrutiny. See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004); Playboy Entm’t Group, 529 U.S. at 816, 120 S.Ct. 1878; Sable Commc’ns of Calif., Inc., 492 U.S. at 126-31, 109 S.Ct. 2829; R.A. V. v. City of St. Paul, Minn., 505 U.S. 377, 395-96, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); Volokh, Freedom of Speech, supra, at 2421-23. Accepting for a moment that the Government’s interest is “preventing cruelty to animals,” then § 48 is not narrowly tailored.

First, with respect to the reach of the Commerce Clause, § 48 does not prohibit any depictions — including crush videos — ■ that are made solely for personal rather than interstate commercial use. Party X may create a depiction of animal cruelty in Virginia and sell it in Virginia without violating § 48, so long as Party X does not intend to place that depiction in interstate or foreign commerce. Accordingly, if we accept that the government interest served by § 48 is to prevent animal cruelty, the statute is — by its very terms — underinclu-sive.

Second, § 48 is overinclusive. Although the statute would fail to reach depictions made solely for personal use, Party Y may, however, be prosecuted for selling a depiction in Pennsylvania made in Virginia *234even if the underlying activity is legal in Virginia but illegal in Pennsylvania. Party Z may be prosecuted for possessing a depiction in Virginia made in the Northern Mariana Islands even if the underlying activity is legal in the Northern Mariana Islands so long as Party Z intends to sell the depiction. See H.R.Rep. No. 106-397, at 11-12 (dissenting view). If the government interest is to prevent acts of animal cruelty, the statute’s criminalization of depictions that were legal in the geographic region where they were produced makes § 48 overinclusive. See Simon & Schuster, 502 U.S. at 121-22, 112 S.Ct. 501.

Third, the second Ferber factor implicitly addressed the fit between regulating the depiction of a behavior with preventing that behavior. Specifically, the Supreme Court stated that “the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.” Ferber, 458 U.S. at 759, 102 S.Ct. 3348. To the extent that this aspect of the intrinsic relationship between banned speech and the harm to be prevented applies to § 48, it applies to a lesser degree, and the arguments by the Government in support of this analogy fall flat.15 The Government first asserts that, as is true in the case of child pornography, the actors and producers of crush videos and other speech banned by § 48 — -i.e., the perpetrators of the underlying acts of animal cruelty — are very difficult to find and prosecute for those underlying acts. This is true as to crush videos because the only person typically onscreen is the “actress,” and only her legs or feet are typically shown. However, as demonstrated by Stevens’ prosecution, crush videos constitute only a portion of the speech banned by the terms of § 48. Prosecution of this sliver of the speech covered by § 48 could not, by itself, justify banning all of the speech covered by the statute.

As to dog fighting, the Government argues that the camera typically focuses on the dogs, with their “handlers” being shown mostly from the waist or elbows down, and it is often difficult to determine when and where such fights occur for purposes of the statute of limitations and other enforcement matters. At least with respect to the videos at issue in this case, we find the Government’s argument empirically inaccurate. It is true that in the first video, “Pick-A-Winna,” much of the footage is old, but the faces of the individuals involved are sometimes quite clear. In the second video, “Japan Pit Fights,” the fights take place in Japan, where dog fighting is apparently legal and prosecution of those individuals for those particular acts of animal cruelty could not be pursued. The third video, “Catch Dogs,” primarily features footage of dogs hunting and subduing wild hogs and being trained to do so. This video gives the name and address of a catch dog supplier, and also takes the viewer on several hunting trips with these dogs. There is no effort to conceal any of the faces of the people in the video, and Stevens at several points mentions their names and the location of the hunts. In short, the research and empirical evidence in the record before us simply does not support the notion that banning depictions of animal cruelty is a necessary or even particularly effective means of prosecuting the underlying acts of animal cruelty. Much less is it the *235“most expeditious” or the “only practical method” of prosecuting such acts, as is the case within the realm of child pornography and child sexual abuse. Ferber, 458 U.S. at 760, 102 S.Ct. 3348.

For these reasons, § 48 is not narrowly tailored using the least restrictive means.

IV.

“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” Playboy Entm’t Group, 529 U.S. at 816, 120 S.Ct. 1878. The Government has not met this burden. Therefore, we will strike down 18 U.S.C. § 48 as constitutionally infirm because it constitutes an impermissible infringement on free speech. In light of this conclusion, we will vacate Robert Stevens’ conviction.16