John G. Roberts, Jr.: We will hear, first, this morning, Case 08-769, United States v. Stevens. Mr. Katyal.
Neal Kumar Katyal: Thank you, Mr. Chief Justice, and may it please the Court: Ten years ago, in Section 48 of Title 18, Congress crafted a narrowly targeted restriction against certain depictions of actual animal cruelty. Yet the Third Circuit struck the statute down on its face without even attempting to apply substantial overbreadth analysis. The statute has four critical features and, just as the Court last year in United States v. Williams began with statutory construction, analysis should begin there. First, like the statute at issue in the United States v. Ferber, this statute only reaches depictions of cruelty to actual living beings -- animals, not simulated ones or the written word. Second, the statute only applies to commercial messages, ones that Congress found drove the market for animal cruelty. Third, the statute examines the work as a whole--
Sonia Sotomayor: What record do you have of that fact?
Neal Kumar Katyal: --Before Congress?
Sonia Sotomayor: Yes.
Neal Kumar Katyal: Before Congress -- Congress had a bunch of testimony that showed that there were extensive -- there was a robust market in animal cruelty videos, largely focusing on crush videos -- 2 to 3,000 crush videos that were in -- that were -- that were being sold at the time.
Sonia Sotomayor: That I understand, but crush videos is only one species of cruelty to animals. What evidence was there that, for example, dog fighting had as large and robust a market or that hunting videos in those States in which hunting was illegal had a robust market, et cetera?
Neal Kumar Katyal: Well, hunting we think is excluded, and I could talk about that in a moment, from the reach of the act. Congress spoke in general terms, and I don't think that Mr. Stevens's statement at page 13 of his merits brief, which is to the effect that Congress repeatedly disavowed any attempt to regulate animal fighting -- dog fighting -- I don't think that is correct and the record does not support that. Congress spoke in general terms. They had a for-profit commercial market about animal cruelty, and the statute dealt with it in general terms. And they reasoned that by -- by punishing the sale of these videotapes, they would get at the underlying clandestine market--
Antonin Scalia: What do you mean by a "for-profit commercial market"? You mean anything that is sold, right?
Neal Kumar Katyal: --That is -- that is correct.
Antonin Scalia: Okay.
Neal Kumar Katyal: Yes. And the Third Circuit's decision in this case struck down the statute with respect to crush videos, with respect to the sale of video -- the creation of dog fighting videotapes, because, remember, the statute, Section 48, doesn't just encompass the -- the sale of videotapes. It also encompasses the creation of dog fighting videotapes. And, yet, the -- the Third Circuit struck that down as well. That, I think, was a fundamental error under this Court's principles, most particularly, United States v. Williams, which says that the statute should only be struck down if there is a substantial -- if there is substantial overbreadth and only if it is a last resort of the Court, not the first.
John G. Roberts, Jr.: What would you -- if you could do it in one sentence, what is your test for determining which categories of speech are unprotected by the First Amendment?
Neal Kumar Katyal: In one sentence, if -- if -- if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can -- they can regulate a depiction, so long as it leaves alternative mechanisms for that expression in -- in place, and that is I think what Ferber--
Anthony M. Kennedy: Okay. And what case -- what case do you have for that proposition?
Neal Kumar Katyal: --United States v. Ferber -- New York v. Ferber. In Ferber, the Court -- the Court dealt, as modified or as glossed by your decision in Free Speech Coalition, because what Ferber and Free Speech Coalition together say is that Congress was not -- or the legislature, was not targeting the contents of a depiction; rather, it was trying to get at and dry up the underlying market, child exploitation in that case.
Ruth Bader Ginsburg: Mr. Katyal, the Court summarily dealt with a case some years ago, American Booksellers v. Hudnut, where cities attempted to make not even a criminal offense, but the subject of a civil suit, a violent depiction -- depictions of women as sexual objects enjoying pain and humiliation and degradation. The Seventh Circuit said that that was a blatant violation of the First Amendment, to go after purveyors who show these women in the shocking, degrading photographs, and I believe we summarily affirmed.
Neal Kumar Katyal: And this case is fundamentally different from all of those because here Congress is not aiming at the underlying communicative impact. It's not saying, as it was in the--
Antonin Scalia: Well, of course it is. I mean, you can't separate the means from the end and say, since its end is simply to prevent the -- the activity, the means, which is to prevent the communication, is okay. It is targeting the communication of videos that depict this conduct.
Neal Kumar Katyal: --Quite to the contrary, Justice Scalia. The bona fides of this statute are evident right on its face, because the very same depictions that Mr. Stevens or anyone else swept up under the statute wants to portray, they can -- they can do it, so long as they use simulated or images.
John G. Roberts, Jr.: Well, but to say that they are not concerned with the content, I -- I think is contradicted by the exceptions. You have to look at the content and make a decision, is this bona fide scientific, journalistic, educational, historical? So you have to look at the content to determine whether or not the speech is prohibited.
Neal Kumar Katyal: I don't think so, for two reasons. I think what Congress is dealing with with the exemptions clause in this statute was just reflecting the underlying nature of the market that they saw in 1999, a for-profit commercial market in cruelty. And so they exempted educational depictions, religious, and so on, because that wasn't what was driving the underlying market for crush videos--
John G. Roberts, Jr.: How can you tell these aren't political videos? You do have, with organizations, PETA and others, depictions of the same sort of animal cruelty that is used to generate support for efforts to prohibit it. Why aren't these videos the exact opposite, you know, efforts to legalize it, and, in each case, it would fall under the political exemption?
Neal Kumar Katyal: --And often they will fall under that exemption. My point is that Congress carved a broad exemption in Section 48 precisely to make sure that expressive messages aren't swept up.
Sonia Sotomayor: Could you -- could you tell me what the difference is between these video and David Roma's documentary on pit bulls? I mean, David Roma's documentary had much, much more footage on the actual animal cruelty than the films at issue here, greater sections of the film, and more explicit. In this film, the -- the Respondent didn't let the video show the actual tearing of the jaw. David Roma's did much more than that, showed much more than that. So isn't -- doesn't there have to be a judgment inherent in this statute?
Neal Kumar Katyal: The line will sometimes be difficult to draw, just as its difficult to draw in child pornography--
Sonia Sotomayor: But it's not in child pornography because, there, Congress says the very act -- it doesn't matter how artistic it is. That very act of child pornography is illegal.
Neal Kumar Katyal: --Quite to the contrary, Justice Sotomayor. In this -- this Court approved, in Osborne v. Ohio, a statute that's on child pornography, that had the following exemption: For a, quote, "bona fide artistic, educational, religious, governmental, judicial, or other purpose by or to a physician, psychologist, sociologist, persons pursuing bona fide research studies, a judge or other persons having a proper interest in the material or performance. " And this Court pointed to that exemptions clause to make the statute constitutional at two -- at two pages in that opinion. And so this Court has already gone down the path of saying these decisions are tough to make on a case-by-case basis, but nonetheless the legislature should have a freer hand to act when it is regulating, not the expressive message, but targeting the underlying content, the -- targeting the underlying production, not the content.
Antonin Scalia: Child -- child pornography is obscenity as far as I am concerned, and it has been treated as part of that same traditional classification which there has always been permission for the government to prohibit. This is something quite different. I mean, you know, what if -- what if I -- I am an aficionado of bullfights and I think, contrary to the animal cruelty people, I think it -- they enoble both beast and man, and I want to persuade people that bullfights are terrific and we should have them. I would -- I would not be able to -- to market videos showing people how exciting a bullfight is. Right? I would be able to talk and say, oh, you should really allow bullfights, but I cannot make the most significant point that I want to make, get people to watch it.
Neal Kumar Katyal: I want to answer your hypothetical, but if I could just have 20 seconds or so to -- to respond more generally to all of these hypotheticals which I think are going to reoccur in the course of our conversation. We believe that Section 48 will have as-applied constitutional challenges that will be inferred from case to case. But what this Court has said is that, in your decision, Justice Scalia, in United States v. Williams, is that we should be careful about that endless stream of fanciful hypotheticals precisely because the test under substantial overbreadth, which knocks an entire act of Congress out on its face, is that there must be a realistic danger that the statute will be applied in -- in the manner the hypothetical suggests. With respect to your bullfighting hypothetical, there is no realistic danger. We have had ten years of experience under the statute. Congress itself said -- the legislative history, which I know will not be of relevance to you but may to others on the Court -- they explicitly exempted Spanish bullfighting and said that is the paradigmatic case of what is educational and artistic and the like.
Stephen G. Breyer: What if I made--
Antonin Scalia: Well, wait. Wait. I don't understand that. Any depiction of bullfighting is educational?
Neal Kumar Katyal: Spanish depictions of bullfighting--
Antonin Scalia: And that is true because Congress said so?
Neal Kumar Katyal: --Well, that is true because it is educational, and -- and a prosecutor would bear the burden of proof.
Antonin Scalia: Well, I guess a dogfight is educational, too.
Neal Kumar Katyal: And some dogfights certainly are, which is my answer to Justice Sotomayor's question.
Stephen G. Breyer: --Well, look what you have done, and this is what is bothering me. You take these words, which are a little vague, some of them, "serious religious, political, scientific, educational, journalistic, historical, or artistic value. " and you say that's a standard that a judge or prosecutor will apply. And people have to understand it because they have to know what to do to avoid the risk of being prosecuted. Now, as I have gotten out of these briefs, you then require people to apply that standard, not simply to the crush videos or to the dogfighting, but also to, as Justice Scalia pointed out, bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pate de fois gras. All right, so there is a whole long -- quail hunting. There's a whole long list in here of things that people might want to do. They won't know if it falls within this exemption. Nobody in every State wants to forbid these things. Sometimes they are, sometimes they are not. They won't know whether or not they can make this particular film, picture, or other. That's the overbreadth argument. And I would like to hear your response.
Neal Kumar Katyal: We have had ten years of experience, Justice Breyer, under the statute, and we haven't seen those things being chilled. Indeed, Respondents--
Anthony M. Kennedy: Can you give me an example of a case where we said a statute which might otherwise be overbroad is not overbroad because prosecutors have been restrained? Can you give me one case where we've said that?
Neal Kumar Katyal: --Last year in United States v. Williams, an opinion that virtually every member of this Court joined, including you, Justice Kennedy, this Court said that it would look to the experience, the post-Ferber experience, in prosecuting cases to decide whether or not a -- two terms in the statute, "promotes" and "presents", were vague and would raise the--
Anthony M. Kennedy: But that was a case where we knew what the content was. The content was not subject to an -- to an overbreadth challenge. The content was not.
Neal Kumar Katyal: --Well, actually, Justice Kennedy, the reason that came up in the case is because there were hypotheticals being advanced such as police -- a man who wants to call the police that says that child pornography arrived in my -- in the mail and so on. And what the Court said is that even though the words in the statute, just as the words in this statute, could be read broadly or narrowly--
Anthony M. Kennedy: Well, but that -- that went to intent. It seems to me that -- let me tell you what I think your framework is and if it is wrong, tell me that it is wrong. This statute without the exceptions clause would be wildly overbroad. So you say it's not overly broad because of the exception or the savings clause. I will call it the exceptions. But it seems to me that the exceptions must be then tested as to whether or not they are vague.
Neal Kumar Katyal: --We do think that the--
Anthony M. Kennedy: And you have you to show that they are not vague.
Neal Kumar Katyal: --We do think that the exceptions clause does some of the constitutional work to exclude some of the hypotheticals like bullfighting and the like. We do think the statute itself has a number of restrictions built into it on its face to--
Ruth Bader Ginsburg: But what is a -- what is "and the like"? How about cockfighting? What is the difference between -- perhaps I missed something a few moments ago -- between bullfighting, cockfighting, dogfighting? You say dogfighting is included, but bullfighting -- and I don't know where you put cockfighting.
Neal Kumar Katyal: --Dogfighting and cockfighting are illegal in all 50 States and therefore would be swept up. Some certain depictions of dogfighting and cockfighting would be swept up, not all.
Ruth Bader Ginsburg: But what about bullfighting? Isn't that illegal in--
Neal Kumar Katyal: It may or may not be. There aren't, at least, specific statutes generally dealing with it, but--
John Paul Stevens: What about hunting with a bow -- What about hunting with a bow and arrow out of season?
Neal Kumar Katyal: --Okay. So-- [Laughter] In hunting, as well as--
Ruth Bader Ginsburg: --Can we -- have we finished with the category of fights?
Neal Kumar Katyal: --So let me just, to Justice Ginsburg's question. Not all dogfighting videos are swept up by Section 48. There may be educational videos, along the lines that Justice Sotomayor said, raised which are not swept up. Bullfighting is the same basic thing. It's not that there is a categorical -- a categorical exemption on bullfighting; it is rather that there are certain ones that are educational and not, just like in child pornography.
Ruth Bader Ginsburg: What's the--
Antonin Scalia: So noneducational bullfighting would be prohibited? If I market this just because I think, boy, bullfighting is really exciting?
Neal Kumar Katyal: If it meets the other terms in the statute, right. So commercial and things like that.
Antonin Scalia: Okay. It is covered.
Neal Kumar Katyal: Now, with respect to hunting, hunting is generally not considered animal cruelty. And it doesn't--
John Paul Stevens: No, but hunting with a bow and arrow, and some depictions of hunting are pretty -- are pretty gruesome.
Neal Kumar Katyal: --That's correct. And to the extent that it is something that resembles the terms of the statute, the language of which is "maimed, mutilated, tortured, wounded, or killed-- "
Antonin Scalia: "Or killed". How do you limit "killed" to cruel -- you say in your brief that it's noscitur ex sociis. But that's a doctrine that says when you have a string of words, one of which has various meanings, which meaning it has depends upon the words with which it is associated. So if you speak of staples, staples -- what, thumb tacks, nails, and other fasteners, "nails" obviously doesn't mean toenails. It means a nail that is a fastener, the word "nail" having various meanings. "Kill" has one meaning, which is kill. And you can -- you cannot limit that meaning just because in addition to killing you also prohibit torturing and other things. Do you have a single case where -- where that doctrine is used not to give meaning to an ambiguous word, but to limit the meaning of a word which on its face is absolutely clear?
Neal Kumar Katyal: --Yes, sir, Your Honor. I do.
Antonin Scalia: What is that?
Neal Kumar Katyal: That is the decision you wrote last year in United States v. Williams, which interprets the words "promotes and presents", which you yourself in the opinion said are capable of a wide variety of meanings.
Antonin Scalia: Exactly.
Neal Kumar Katyal: And -- and here the word "kill" in context is a term that the statute--
Antonin Scalia: No, it's not susceptible to a wide -- that's my whole point. It means kill.
Neal Kumar Katyal: --It means killed in the context of a statute that is defining the words "animal cruelty", and this Court has consistently said that the definition that is being defined by the legislature--
Antonin Scalia: Some people think eating an animal is animal cruelty. These people don't eat meat because it is the product of killing animals.
Neal Kumar Katyal: --And the legislature under no way, shape, or form was targeting that.
Antonin Scalia: Well, it shouldn't have said that, then.
Neal Kumar Katyal: Well, I think that it basically did say that by using the words "animal cruelty" in the statute. Now, if there's a disagreement about that--
Antonin Scalia: You don't have a single case in which a -- an absolutely clear word like "kill" is given a more narrow meaning because of other words that are different from that word.
Neal Kumar Katyal: --Justice Scalia, in Leocal, this Court defined the term INA had -- that the INA interpreted wrongly.
Stephen G. Breyer: So you want to say "cruelly kill"?
Neal Kumar Katyal: That's--
Stephen G. Breyer: Now, "cruelly kill" is not exactly crystal clear. And therefore my question is why, given the need for you to save this statute to read so many words that are so general, those contained here that I've read, cruelly kill, cruelly wound as opposed to just wound or kill. You are doing that in order to prevent chilling people who are engaging in activities that aren't intended to be covered by this statute. Why not do a simpler thing? Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit. Now, that can be done. I don't know why they couldn't do it.
Neal Kumar Katyal: --And it could have been done in Williams. It could have been done in the child pornography cases, which also have vague terms. But what this Court has said is that using the substantial overbreadth doctrine to do that leaves gaping holes in place. If we followed your invitation, Justice Breyer, we would leave crush videos unprotected.
Stephen G. Breyer: Why? You say a crush video, my description that I read of it, you would have a strong case. I'm not saying you would win, I don't have to decide that. But you have a very strong case. So you say to Congress, write a statute that focuses on that. You are worried about dog fighting, write a statute that focuses on that, and moreover, talks about something unlawful in every state. I am not giving Congress advice, though I seem to be. [Laughter] I'm just saying why -- why can't you here write a statute that does not force the courts into the work of interpreting these very vague words to prevent the statute from being held unconstitutional?
Neal Kumar Katyal: Well, here I think we should give Congress some credit, because what it actually did in the exemption clause was borrow this Court's own jurisprudence from the obscenity context on exceptions like literary, artistic, political and scientific. It had found that--
John G. Roberts, Jr.: Counsel, would this -- would a statute like this apply to humans be constitutional? You can't depict videos of, say, violent muggings or things of that sort?
Neal Kumar Katyal: --Well, I think it would be complicated because Congress would have to find that by targeting the underlying videos but leaving alternative simulated mugging videos in place, somehow it would have reduced the market for muggings or something like that. I think that's very hard. And it goes to Justice Ginsburg's question about whether this statute is aimed at the communicative of impact, which we don't think it is, or it is aimed at just reducing the first order problem which is--
Antonin Scalia: But the first order problem occurs in states where it is not illegal. These videos are taken in states where bullfighting or dog fighting or cock fighting is entirely legal. So, I don't know how you distinguish a -- a movie which many people think that violence in movie brutalizes people and causes violence in people's action. Why couldn't Congress, persuaded by these people say, you know, you can't have -- cannot depict torture? You know, these horror films that come out around Halloween, you can't depict that anymore. What is the difference between that and what you have done here?
Neal Kumar Katyal: --So dog fighting is illegal in all 50 states along with crush videos. I don't think that -- there may be--
Ruth Bader Ginsburg: --But it isn't -- it isn't -- illegal in Japan, and part of the video here were dog fights in Japan; legal where it occurred, no different from bull fighting.
Neal Kumar Katyal: --Right. This Court has dealt with that in footnote 19 of Ferber in which it said that just because something is legal somewhere else, it's often very hard to figure out where the underlying material is made. It doesn't have a GPS component.
Ruth Bader Ginsburg: But that wasn't--
Samuel A. Alito, Jr.: Justice Scalia spoke about the aficionada of Spanish bullfighting. Suppose that I am an aficionado of the sort gladiatorial contests that used to take place in ancient Rome, and suppose that some -- Rome or some other place decides that it wants to make money by staging these things and selling videos of them or broadcasting them live around the world. Do you have any doubt that that could be prohibitive?
Neal Kumar Katyal: This is -- I'm sorry if I'm not following the hypothetical. This is historical--
Samuel A. Alito, Jr.: A gladiatorial contests where the gladiators fight to the death.
Neal Kumar Katyal: --Right.
Samuel A. Alito, Jr.: Do you have any doubt that that could be prohibited?
Neal Kumar Katyal: Well, it sounds like it would fall under the historical exemption, at least in the hypothetical as you have raised it. So, it wouldn't be prohibited by section 48--
Antonin Scalia: Who knows.
Samuel A. Alito, Jr.: No, no, not under this statute, under a different statute.
Neal Kumar Katyal: --Well, I think that -- I think that there again, it would raise some First Amendment interest in suppressing historical -- historical information. Now, Justice Scalia, you said who knows. I think the answer to that is that this statute places the burden of proof on the government in order to -- in order to prove that there is no historical or educational value.
Antonin Scalia: If you dress up like an ancient Roman, the whole thing is of historical interest? [Laughter] Is that it?
Neal Kumar Katyal: Justice Scalia, I do think that is the Court's own jurisprudence with respect to, for example, obscenity and child pornography, both of which this Court has accepted precisely those types of exceptions.
Antonin Scalia: A different category. That is traditional First Amendment law that obscenity is not protected. And child pornography, as far as I am concerned, and I think as far as the Court is concerned is obscenity.
Neal Kumar Katyal: Well, I don't believe the Court has actually read child pornography to be obscenity. The rationale of Ferber--
Ruth Bader Ginsburg: --Mr. Katyal, there is something quite different between Ferber, because the abuse of a child is occurring at the very time. As I understand it, Mr. Stevens was not a promoter of dog fights. He was just filming them. And so the -- the -- the simultaneous abuse of the child, it occurs only because the picture is being taken. The dog fight goes on whether Mr. Stevens is there with his camera or not.
Neal Kumar Katyal: --Let me say two things about that. First Mr. Stevens, of course, even in the Japan videos you mentioned, he sent his dogs to Japan to -- to fight. And this statute encompasses real time transmissions of--
Ruth Bader Ginsburg: Where it was legal for him to do that.
Neal Kumar Katyal: --It was, just -- again, like child pornography and the like. The second--
Ruth Bader Ginsburg: It even -- what I would like you to confront is that the very taking of the picture is the offense. That's the abuse of the child. The abuse of the dog and the promotion of the fight is separate from the filming of it.
Neal Kumar Katyal: --I agree with that. And I don't think that's what underlay either this Court's Ferber decision or the free speech coalition. The move that Ferber makes is to say that the legislature can target the underlying loaded production, so long as it leaves alternative mechanisms for that same exact message to be spoken. And this statute does that. Mr. Stevens can produce the exact same message, just as long as he doesn't involve the torture or mutilation to an actual living animal. And to compare this--
Antonin Scalia: His message is that getting animals to fight is fun. That's his message.
Neal Kumar Katyal: --And Congress hasn't stamped that out.
Antonin Scalia: To say he -- you know, he can convey that message in some other way, how else does he do it?
Neal Kumar Katyal: With simulated messages, the written word. He has written an entire book about that. He has a whole variety--
Antonin Scalia: Simulated dog fights would be okay under this statute?
Neal Kumar Katyal: --Simulate -- absolutely. This statute leaves that in place, Justice Scalia. That's the key to understanding why this statute is not like the traditional statutes that come before this Court in which the government asserts some paternalistic interest and says viewers can't see this because of the offense of the message. This statute has nothing to do with the offense of the message. It has to do with trying to dry up an underlying market for animal cruelty. If the there are no questions, I would like to reserve the balance of my time.
John G. Roberts, Jr.: Thank you, counsel. Ms. Millett.
Patricia A. Millett: Mr. Chief Justice, and may it please the Court: It is not the exact same message, if you are forced in a popular debate that is going around this country now about the treatment of animals. To require one side to engage -- to use simulated images, which is exactly what the government's reply brief at page 3 insists upon, while those who want to ban conduct are allowed to use real images. That puts the government's censorial thumb on the scale of public debate.
Samuel A. Alito, Jr.: What about crush videos, which apparently were the focus of Congress's attention when it drafted these? Now, I suppose by an analogy to what Justice Scalia just said about the message of dog fighting videos, the people who produce crush videos think they have a message, and the message is that this is -- this is sexually exciting or it's exciting in some way to see a woman in high heeled shoes crushing a little animal to death. Do you think that is constitutionally protected?
Patricia A. Millett: I think -- I think there's a -- that a properly drawn law could very well, at least in my humble opinion, this Court would have to decide, survive strict scrutiny. There is also, I suppose, some argument whether it would fit into -- you wouldn't need strict scrutiny, you would fit it into an unprotected category of speech like obscenity or it would be the production issue that would -- like you have in Ferber. But what -- beyond that I do think we need to keep in mind a couple of things--
Samuel A. Alito, Jr.: You are not -- you are not even willing to say that that could be prohibited?
Patricia A. Millett: --No, no. I think -- I'm saying that there are three alternative ways in which to get to it. My first if one is that not this statute, but under a properly drawn statute--
Samuel A. Alito, Jr.: Under a properly drawn statute--
Patricia A. Millett: --that might survive scrutiny. I'm not sure you would--
Samuel A. Alito, Jr.: --Might. I would really like you to tell me whether it would; whether you are willing to concede. Because we are trying to determine whether this is overly broad. And this is the category of activity that Congress particularly targeted. So to me at least it's important to know whether at least as applied to what Congress principally had in mind, the statute could -- could pass constitutional muster. If it were, you know, as applied.
Patricia A. Millett: --I don't -- I don't want to, say this statute, because I don't think this statute -- but if the statute said, this -- I think this Court disagree -- it disagrees with me sometimes -- but I think this could pass constitutional muster. A statute that says the patently offensive intentional torture and killing of an animal for -- designed to appeal to the prurient interest for the purpose of producing the image, I think that would satisfy -- I think it would satisfy strict scrutiny. The Court might also decide that it's close enough to obscenity or it's like the Ferber production rationale. That's my position; there are sort of three ways it could be analyzed, a statute like that. That's not this statute and I don't think we can say that this statute, because Congress has the authority to reach something, that when it throws a blanket net as wide as this one has that this means this statute is the mechanism, a lawful mechanism for getting--
Anthony M. Kennedy: I have one more -- one more question along the lines of Justice Alito. Forget this statute. Under a properly drawn statute, suppose that bull-fighting or pitbull-fighting is unlawful in every State. Could a theater have a live broadcast of a pitbull fight in Japan and charge ten dollars? And let's add the hypothetical fact that a lot of the revenue goes back to Japan and promotes more bull-fighting. Could a properly drawn statute prohibit that? And then perhaps Justice Scalia, Alito, has a follow-up question on his own hypothetical. Could a properly drawn statute prohibit that, that speech?
Patricia A. Millett: --A properly drawn statute with the requisite congressional findings or record of a need to attack -- it sound to me like this is a need to attack production. As in child pornography, the fact that the image taking is legal overseas does not mean that it can't be prohibited here. And if you had the type of record of a statute that says we want to stop the production; it's not the content, it is the production, as this Court explained in Free Speech Coalition for Child Pornography. But that is a statute that then wouldn't have -- either you would have to decide which things are in and out -- if you started saying animal cruelty production, but we we'll let the bullfights in but the pitbull fights out and the cock fights, then you'd have problems--
Anthony M. Kennedy: We are asking whether or not that specific instance could be prohibited under a properly drawn statute, just like Justice Alito's hypothetical was under a properly drawn statute you could prohibit the conduct, the speech broadcast in that conduct.
Patricia A. Millett: --The theory -- I mean, ultimately this Court would have to decide whether Ferber is limited to an obscenity that's historically unprotected by the First Amendment.
Anthony M. Kennedy: So your answer to my hypothetical is yes it could be prohibited under a properly drawn statute?
Patricia A. Millett: If this Court -- two things. It would have to be a very, very narrowly drawn statute, I think going to the production theory like Ferber; and the question I think before this Court would be, given the nature of the harm that presumably would be found, the nature of the market, the synergistic effect, where the -- I am assuming the findings here would be that the crime and the image are one and the same, inextricably intertwined -- then maybe, although I still think it would be a bit harder because we are dealing with the First Amendment here. We don't make it up as we go along. At the time that the First Amendment was written dog-fighting was legal in this country.
Stephen G. Breyer: But the point -- the point I guess is when you say yes to this, what you are thinking is that, just as real obscenity when depicted does nothing communicative but rather appeals to the instinct of lust, so Congress could find a category of things that do not communicate, but appeal to the instinct of sadism; and that is true when other creatures are killed for the pleasure of the people who want to see them killed. Now, that's what you are saying. Now -- and I think maybe that's true. We don't have to decide that, perhaps. But the government says that is this statute, that is this statute read in light of its basic intent, and it is up to the Court to interpret it so as it achieves that objective. And you say that's not possible. Why not?
Patricia A. Millett: Two things. First of all, there is interpreting and then there is alchemy, and I think this statute requires alchemy. This is Reno versus--
Antonin Scalia: Requires?
Patricia A. Millett: --Alchemy, alchemy.
Antonin Scalia: Oh.
Patricia A. Millett: There's construction of--
Antonin Scalia: It's such an unusual word. I haven't heard it in a legal argument in a long time.
Patricia A. Millett: --We don't often get statutes that are so far off base that we're going, I think in my opinion, so far beyond construing ambiguity and doing instead what was asked of this Court and the Court declined in Reno v. ACLU, and that is to write the statute for Congress. The ambiguity, as, Justice Scalia, you explained -- you would have to excise this statute in and out, sever so many things. I don't know what you'd have left unless it's the statute I posited to Justice Alito, which might have a couple of words that overlap with this statute. But that is not statutory construction. This Court's job is not to write the statute for Congress. And also keep in mind, in the past this Court consistently under the First Amendment has required, not just the right words, but a record from Congress. In the First Amendment area we can't just posit the problems; we have to really have confidence that--
Ruth Bader Ginsburg: Does this -- would this record support any ban? I mean, there was a real concentration on crush videos. So there is that. Is there anything else in the current record other than the crush videos?
Patricia A. Millett: --No, there is not. And in fact they spent their time, as we said in our brief -- and this is perfectly accurate. Members of Congress, to the extent they discussed other things, kept saying in the floor debates: That's not in; bull-fighting's not in; dog-fighting's not in; hunting's not in; these things are not in. So they mentioned them in the context of saying these are not in.
John G. Roberts, Jr.: Counsel, I think -- I think Ferber analytically is the hard case for you, because the Court in Ferber did said -- and I am quoting from page 763: "The evil to be restricted so overwhelmingly outweighs the expressive interest at stake. " That was their articulation of the test. Now, why shouldn't we apply that test to this statute?
Patricia A. Millett: I don't think that is a legal test that is adopted under the First Amendment. I think that is a description of the types of categories that by history and tradition had been outside the First Amendment and the rationale for why Ferber came in, which was, yes, there's overlap, but I think it actually bridges the world of obscenity and virtual incitement because you have the crime and the image one and the same wrapped up together. There is in this instance -- there are about five different ways that this is different from child pornography. The first is that there has never been any finding, any assertion, even by the government, that creating the image is the primary or sole motive for creating these images. It's not if you lock Mr. Stevens up -- if you throw away every dog-fighting video in the country tomorrow, dog-fighting will continue. It -- no one thinks that it will go away.
Ruth Bader Ginsburg: I think the government does. It says that is how you dry up the market.
Patricia A. Millett: But you don't dry up the market by having a sweeping value exception like they have here. If Congress wants to dry up the market, what Ferber says is there's two things that have to happen: One, you've got to prove causation. You can't simply say, we got a problem, let's go first to the speech and cut that off as our first prosecutorial tool when we are not even ready to make the crime itself a felony, but we will make the speech a felony. You've got to prove causation, that these images cause the harm, they are one and the same with the harm as they are with child pornography. You also have got to prove that Congress is acting in an evenhanded way. It is not leaving, as Justice Scalia said, appreciable damage to the interests that its asserting uncovered by its many, many exceptions--
John Paul Stevens: May I ask you a question about your view of the breadth of the statute. I didn't yet really get an answer out of your opponent. Do you think the statute would prohibit depictions of hunting if it involved killing in the District of Columbia, because hunting as I understand it is not allowed in the District of Columbia, it's prohibited. Does that mean that any depictions of hunting that show the killing and cruelty are prohibited by this statute?
Patricia A. Millett: --Well, they are prohibited subject to the value police and the value trial like we had here, which I think is antithetical to the First Amendment. It's a very different rule under the obscenity statute. So it would all depend on whether a jury decided that that had serious value, which was defined as significant and great import in this particular case. That would decide whether--
Antonin Scalia: It's just not significant value; significant artistic, educational. What are the others? Scientific?
Patricia A. Millett: --Scientific, social, artistic, journalistic--
Antonin Scalia: Strictly entertainment value doesn't count, does it?
Patricia A. Millett: --No, it does not.
Antonin Scalia: And most of the hunting videos I have seen people watch for the entertainment. They like to see a hunt.
Patricia A. Millett: I think that's exactly right and that's what the Safari Club and the NRA have told us.
John G. Roberts, Jr.: Well, I mean, but this definition or these exceptions are not drawn out of thin air. They are drawn from Miller, and the Court in Miller recognized that they were significant in causing the restriction of obscenity to pass constitutional muster.
Patricia A. Millett: First of all, this is about -- this is Miller doubled -- there's a lot more here -- categories here. But it's a very different role that value plays under Miller in obscenity. First of all, this Court made quite clear again in Reno v. ACLU that Miller only works if you have all three prongs. You can't just use the serious value prong to take care of your constitutional problem. Second, you were dealing in an area that by history and tradition is unprotected speech. Milller--
Samuel A. Alito, Jr.: But in determining whether this is over -- overly broad, do we -- do we think of all of the hypotheticals that we possibly can think of that might fall within this statute: somebody hunting in the District of Columbia, somebody producing fois gras with a goose and say, "Well, we've thought of a lot of hypothetical situations where this statute might apply and therefore it's overly broad? " Or do we look at what's going on in the real world?
Patricia A. Millett: --I think what you do is you look at text of the statute, and then you ask yourself, how much of a strain is it to come up with a factual pattern that will fit into it? In Williams you had to first of all read the--
Samuel A. Alito, Jr.: So we really think of all the hypotheticals. That's how you think we determine the constitutionality of this under the overbreadth doctrine?
Patricia A. Millett: --I think at some level Congress has a job to write with a scalpel and not a buzz saw in the First Amendment area, and the only way to ensure that happens is to look at the text and say, does this text fit the purpose, does it fit what the Constitution will allow? And when the--
Samuel A. Alito, Jr.: If it's the fact that during the ten years when this statute has been in effect there has been no decrease in hunting videos and hunting shows on TV, and all of the rest -- the only perceptible change in the real world is that these -- is that the market for crush videos dried up, at least until the Third Circuit's decision, does that have any relevance?
Patricia A. Millett: --I don't -- I don't think it does for this reason. People -- and this gets a little bit to Justice Kennedy's vagueness concern. People have a right to know how to -- outside the courtroom how to conform their conduct to the law. If I got a call from the general counsel of Outdoor Channel or someone making hunting videos and they said, "Does this fall within this statute. " I wouldn't have to come up with a strained factual scenario. I would say yeah, it falls squarely in, subject to a prosecutor or jury anywhere where you market in this country, deciding that it has serious -- one of the adjectives -- value. I would have to say that to that person, and that would be accurate legal advice.
Antonin Scalia: It could be that the reason hunting videos are still out there is that the producers were quite confident that this Court would not allow them to be prohibited on the base of a statute such as this.
Patricia A. Millett: One would hope, and I think quite frankly the NRA has been quite honest in it's brief and said you know, this -- this is not an actively enforced statute. People were shocked to learn -- to become aware of it. Now maybe everyone's supposed to know the existence of laws, but I think the reality is that once people looked at what this said, they became very, very, very concerned, and I think when you're talking about a criminal prohibition here -- this is not a civil suit, this is criminal prohibition with severe penalties. The penalties for speech are higher than most animal cruelty statutes. And the whole point of the criminal law is to deter conduct and to make people stay wide of the margins here, wide of the borders.
John G. Roberts, Jr.: I--
Patricia A. Millett: You can't do that in the First Amendment.
John G. Roberts, Jr.: --I understood your answers to Justice Alito to acknowledge that there would be situations where this statute could be constitutionally applied, or as you put it, you could draft a statute.
Patricia A. Millett: Not this statute.
John G. Roberts, Jr.: Not this statute. But--
Patricia A. Millett: That's different. I think that's very different.
John G. Roberts, Jr.: --But if in fact there were situations where we thought a narrowly drafted statute could be applied to particular instances, perhaps the crush videos, perhaps others, why isn't that enough to say that this statute is valid on its face and then we will consider as-applied challenges?
Patricia A. Millett: I think in the First Amendment -- I'm not talking -- if I heard you right we were not talking about this statute. If you have another statute--
John G. Roberts, Jr.: I guess I am just trying to get at what your understanding of what the test is for overbreadth in this area. How much of an area of constitutional application is necessary before you decide that a statute is not unconstitutional on its face, but will consider as-applied challenges?
Patricia A. Millett: --Right. And this Court has been clear that the overbreadth has to be both quantitative and qualitative. It hasn't set a particular ratio. I think this one is easy. We are talking about 2,000 crush videos and tens if not hundreds of thousands of other images that are captured by this statute. I think normally when this Court says it wants to -- to apply overbreadth, it has been dealing with situations for the most part in two contexts. One where Congress has already regulated in an area that is unprotected under the First Amendment, unprotected in the sense that they are allowed to ban, regulate heavily. They are already there, and the question is did they draw the margins too broad? That is not this case. We are dealing in an area that was never until December 1999 barred by anybody, never considered to be outside the conception of the First Amendment's freedom of speech. The other scenario where we see substantial overbreadth is when Congress is regulating conduct.
Samuel A. Alito, Jr.: Well, isn't that -- isn't that due to changes in technology? Before people could show -- could watch videos at home, this sort of thing would -- would be very difficult.
Patricia A. Millett: This covers photographs, so this would go back as far as photographs. I'm not sure it wouldn't cover a sketch artist or a hieroglyphic, for all I know. All it requires is that it be a depiction in some form.
Samuel A. Alito, Jr.: And is there -- in the real world is there a market for sketches of dog fights?
Patricia A. Millett: I don't know if there's a market--
Samuel A. Alito, Jr.: People get a thrill from seeing that?
Patricia A. Millett: --With respect, I can't answer that. I'm not -- I don't know if there is a market for dog fighting videos. There is a few, but it depends on what you mean by a market. Will somebody buy something? I guess somebody in this world will buy anything.
Ruth Bader Ginsburg: Is there any indication that there has been any dry-up of the market for dog fights as a result of this statute?
Patricia A. Millett: There--
Ruth Bader Ginsburg: Justice Alito suggested that until the Third Circuit's decision, that there were fewer crush videos produced. But with respect to dog fights, animal fights, is there any indication that there has been -- there have been fewer animal fights as a result of this statute?
Patricia A. Millett: --None whatsoever, and in fact what we've seen is robust enforcement, and we cite the article in our case, we have seen robust enforcement; there was just an arrest a few weeks ago for I think a couple hundred people involved in dog fighting rings. So the dog fighting rings are going on unabated and they are getting found and discovered and prosecuted successfully, and in fact the images sometimes help with the prosecution. This is a place, when we start talking we are going to take something outside the First Amendment, one of the other things that unifies the categories of speech outside the First Amendment is a judgment that more speech doesn't work. This is an area where we know speech works powerfully. Speech about these ugly images produced this statute. It informed people. Unlike children and child pornography, people need to see images to understand what's going on with animals, and to make these important decisions and engage in these important debates that our society is having.
Anthony M. Kennedy: Suppose an argument -- excuse me. Suppose an argument had been made to the Court in Ferber, that, you know, it's really good for people to see molestation of children because then they will be outraged and they will enforce the statute more. I just can't see the Court accepting that argument for a single -- for a minute.
Patricia A. Millett: I -- I agree. I--
Anthony M. Kennedy: But that's the argument you are making.
Patricia A. Millett: --No, no, I think it's -- I think it's -- I'm trying to point out that this is in fact a contrast. First of all -- a contrast between the two situations between dealing with the subject, a very topical subject that--
Anthony M. Kennedy: Well, it seems to me that we ought -- if there is a significant chance that Congress can affect an illegal market, an illegal activity by a statutory regulation we ought to defer to Congress on that ground. I think you still have speech arguments.
Patricia A. Millett: --I--
Anthony M. Kennedy: On this economic causation, I think we have to defer to Congress largely.
Antonin Scalia: I really think you should focus, Ms. Millett, not on the educational value for -- to make people hate bull fighting and things, but on quite the opposite, it seems to me. On the right under the First Amendment of people who like bull fighting, who like dog fighting, who like cock fighting, to present their side of -- of the debate. And unless it's a subject like obscenity, which from the beginning has not been considered protected speech, it seems to me that side of the debate is entitled to make its point as -- as forcefully as possible. That's it seems to me what the problem is here. Not--
Patricia A. Millett: --I think that is 100 percent right.
Samuel A. Alito, Jr.: Well, if that's 100 percent, then what about people who -- who like to see human sacrifices? Suppose that is legally taking place someplace in the world. I mean, people here would probably love to see it. Live, pay per view, you know, on the human sacrifice channel. [Laughter] They have a point of view they want to express. That's okay?
Patricia A. Millett: The problem with this statute is that presumably that statute would be even-handed and would it not say if the sacrifices were religious, or journalistic, or historic. Or--
Antonin Scalia: --You can create a lot of First Amendment horribles. What about -- what about a new Adolf Hitler? Can we censor any depiction of that new Adolf Hitler and the horrible things that he is proposing, including extermination of a race? Is that proscribable under the First Amendment? Is that any less horrible than the human sacrifice contemplation?
Patricia A. Millett: --No, Justice Scalia. Again, I agree, because what the First Amendment says is we allow--
John G. Roberts, Jr.: I'm sorry; you agree you can prohibit it, or not?
Patricia A. Millett: --I agree that, just because something is repulsive, incredibly offensive or maybe even involves some harm to people does not mean that -- depictions of it that do not cause that harm, that are not integrally tied to it, that are not the purpose and animating motivation for that harm cannot be proscribed.
Anthony M. Kennedy: What was your answer to Justice Alito's hypothetical about human sacrifice?
Patricia A. Millett: The -- if -- at a minimum, Congress has got to be evenhanded. The point there is that you are trying to say we are concerned about the creation for purposes of the image. We are concerned about what the government calls the "snuff video situation". This whole reason that this is created is for purposes of creating the image. If you establish the causation -- and I don't think we -- the Court does just defer to Congress on these things. It looks carefully at factual records in -- as it has in the child pornography are under the First Amendment, Justice Kennedy. If Congress proves the causation and shows that it is -- it's the least restrictive means -- compelling and least restrictive means, the strict scrutiny that Congress -- the government never wanted this statute to march through.
Samuel A. Alito, Jr.: And what if there is no chance of drawing up the activity? Suppose you have the ethnic cleansing channel on cable TV, and there is no -- this is taking place in a country that's beyond our power to influence. Congress couldn't prohibit that?
Patricia A. Millett: The -- the fact that conduct is repulsive or offensive does not mean we automatically ban the speech. You would have to have -- it would have to follow this Court's patterns, either it would be an even-handed ban on production, under the Ferber theory, or you would have to establish that those images were never within the constraints--
Stephen G. Breyer: I think what -- I think what's going on is -- is not -- your conflating two things. One is you are trying to produce education about something that has no communicative value. In so far as you are trying to make an argument or educate, of course, it is protected, but the government, here, is saying I think the statute is intended to forbid a different thing entirely, and it's hard to draw a line. Maybe it's impossible; but promoting a thing which communicates nothing, but appeals to people's worst instinct, that is not to advocate it or not to advocate it. It is to try to make money out of it, and that's what they think, I believe, the statute is aimed at.
Patricia A. Millett: --Well--
Stephen G. Breyer: So that's why they have the journalistic exception.
Patricia A. Millett: --The -- when it comes to promoting illegal conduct, we have the Brandenburg Test, and, if you are close enough to be inciting it, to be causing it -- which I think is where Ferber, largely, is. They are just intertwined. That's one thing. But if it's not -- just because we have the really disgusting, despicable channel doesn't mean that we automatically ban it. Maybe it will be educational. Maybe we will learn from it. I think Congress is going to have to show, before it goes to speech as its first tool of repression to attack conduct with, very specialized, narrow circumstances--
Stephen G. Breyer: We are going to advertise a drug that is known to kill people.
Patricia A. Millett: --That is commercial--
Stephen G. Breyer: We are advertising--
Patricia A. Millett: --That is commercial speech. The fact that you want to get paid for speaking does not make it commercial speech. Samuel Johnson, himself, said that no one but a blockhead ever wrote, except for money. I don't necessarily agree with that, but it is -- it would be a shock to him, to Thomas Payne, who sold his tracks of "Common Sense", that the First Amendment would go all -- leap all the way from commercial speech and say, just because you are doing it for money, you need to make a buck. Your Honor--
Antonin Scalia: I would have thought that your response to Justice Breyer's comment about catering to people's worst instincts in the area of the First Amendment, at least, would have been that it's not up to the government to decide what are people's worst instincts. If -- if the First Amendment means anything, that's what it means.
Patricia A. Millett: --Well, it means--
Antonin Scalia: It's not up to the government to tell us what our worst instincts are--
Patricia A. Millett: --It means--
Antonin Scalia: --Except for those areas that have traditionally been outside the area of -- of protected speech, and -- and once you allow this one, what other -- what other base instincts do people have, besides this one? One can contemplate a lot of other areas, where government could say, You are appealing to people's worst instincts, and, therefore, the -- the movies cannot be made.
Patricia A. Millett: --I agree, Justice Scalia. The answer to that instance is more speech under the First Amendment. The answer--
John G. Roberts, Jr.: So I'm sorry. I'm still looking for your answer to Justice Alito's hypotheticals. Can Congress ban the human sacrifice channel or not?
Patricia A. Millett: --I -- the -- I think -- I -- I will start by saying -- no. Let's start with that and see. Maybe -- maybe it won't work, but I think--
John G. Roberts, Jr.: You are unwilling -- you are unwilling to say that Congress can pass a law, even-handed, straightforward, you cannot have a human sacrifice channel.
Patricia A. Millett: --If it did, it would have to be even-handed and have narrow tailoring, but the problem is--
Sonia Sotomayor: What do you mean by "even-handed", please? I'm not -- you are using those words. What do you mean about "even-handed and narrowly tailored"?
Patricia A. Millett: --When -- when the attack -- Justice Sotomayor, when the attack is on the production -- if it -- I don't mean to be -- I want to be direct in answering. It depends on two things. If the theory is we don't like the content, we don't want people to see the content, I don't think Congress can do it. I think the answer is more--
Ruth Bader Ginsburg: So that goes with snuff movies -- snuff movies. I don't know if they really exist, but they have been described.
Patricia A. Millett: --No one has ever found one, but the point I'm trying to get -- there are two theories--
Antonin Scalia: Adolf Hitler, can we keep him off the screen, too?
Patricia A. Millett: --It's a dangerous proposition. That's what the First Amendment says we won't do. There is -- so if it's just that we don't like the content, outside obscenity, we -- Congress doesn't get to ban it. The answer is more speech. If you have got--
John G. Roberts, Jr.: So we don't like -- we don't like human sacrifice, and so Congress passes a law saying you cannot have a channel that shows human sacrifice -- real human sacrifice. You think that is unconstitutional?
Patricia A. Millett: --I think, if the point is that we don't like the could content, we don't -- we want to protect people from these images, the First Amendment says a lot about that. If it's a different -- snuff video, because, like child pornography, like I said, it's not the content that we are concerned about, where obscenity is a pure content baseline. It is -- we got to stop -- we can't stop the conduct. The conduct and the speech are inextricably intertwined. The only way we can stop human sacrifice is to stop the image because the sacrifice is solely for the image.
John G. Roberts, Jr.: Well, right, but, I mean, the hypothetical is we can't do anything about it. It is beyond our reach to stop the human sacrifice taking place wherever in the world, so that that argument -- the Ferber argument is off the table. In that situation, you think it's unconstitutional for Congress to pass a law saying there can be no human sacrifice channel.
Patricia A. Millett: I -- I think the fact that -- I think it would be a lot harder under the First Amendment to say why Congress is doing that. If it's not something -- if it's not conduct it has any authority to regulate, I don't -- then the only compelling interest is -- I'm trying -- I mean, I don't want to watch this channel, and people should fight with their wallets and their votes and not support these things, but -- I'm sorry. May I finish?
John G. Roberts, Jr.: No. Go ahead.
Patricia A. Millett: But, under the First Amendment, if the only rationale Congress is giving is we are here to shield your eyes for you, we will make this censorial decision, it has got to find some basis to think that was never freedom of the speech under the First Amendment, in the way that obscenity was. You don't get to make it up as you go along. We are interpreting a constitution.
John G. Roberts, Jr.: Thank you, Counsel. Mr. Katyal, you have three minutes remaining.
Neal Kumar Katyal: There is one analytic move Congress made in Section 48, which is simple and obvious, and it explains why both the human sacrifice channel is constitutional, as well as Section 48 itself. That is the logic of Ferber. When Congress tries to dry up a market for underlying cruelty by targeting depictions and leaves alternative mechanisms for that expression in place, the legislature has latitude. When the statute is not aimed at the communicative impact of the message, like the Hitler video, but, rather, is aimed at reducing underlying acts of exploitation, that is an area which Congress has great leeway.
Antonin Scalia: I don't understand. Are you saying, since there is no human sacrifice in this country and no market to be dried up, the videos would be okay?
Neal Kumar Katyal: I'm saying that, if Congress identified a market and if a video -- if the snuff video market was driving, somehow, people to get killed, Congress would be fully within its power to regulate it.
Antonin Scalia: Yeah; but we don't have any human sacrifice. Nobody's doing that stuff. So you could not proscribe the human sacrifice channel.
Neal Kumar Katyal: That's precisely correct, but, here, Congress did find an overwhelming market in animal cruelty, and the State attorney's general that filed a brief before you saying that Section 48 is a success story, that it dried up 3,000 crush videos, that it has reduced the market for animal--
Ruth Bader Ginsburg: How many prosecutions have there been for crush videos?
Neal Kumar Katyal: --There -- there haven't been any prosecutions for crush videos, and I think the reason is because the market dried up very quickly after the enactment of Section 48.
John G. Roberts, Jr.: Did I just understand you to agree with your colleague on the other side, that Congress could not ban the human sacrifice channel because there would be no connection between drying up the underlying activity?
Neal Kumar Katyal: Oh, no. If there is an underlying argument--
John G. Roberts, Jr.: No. I'm saying there is no connection. We can't reach the activity where it is taking place.
Neal Kumar Katyal: --I think that does start to reach into questions about obscenity and expressive impact on viewers, which is not before this Court. Congress is not resting its judgment here on something saying these images are repulsive and can't be seen. Rather, it is saying--
John G. Roberts, Jr.: So if Congress is -- and we will give you sufficient rebuttal time. So, if Congress is saying, Look, we just don't like what -- is being shown on the human sacrifice channel, we don't want people to see it, they can't do that?
Neal Kumar Katyal: --Again, that raises a whole different set of questions under obscenity and expressive impact that isn't before the Court here. Now, if I could return to, Justice Stevens, you had he wasn't clear on the position on hunting. I want to be very clear about this. Hunting, like the other hypotheticals, is not covered by section 48 for two reasons: First, the statute -- the statute's term "animal cruelty" should be defined to encompass torture, mutilation and the like, and not simple acts of ordinary hunting, most of which, by the way, are legal anyway under animal cruelty.
Antonin Scalia: How about the statute's term, "kill"--
Neal Kumar Katyal: And again--
Antonin Scalia: --what should that be interpreted to mean?
Neal Kumar Katyal: --And again, Justice Scalia, as I said before, I think that comes within a definition of animal cruelty. That's the term being defined. And just as this Court has defined, for example, crimes of violence to exclude certain things that otherwise would be within the statute, such as drunk driving offenses in the context of the IMA, a similar result is possible here, particularly because of the doctrine of constitutional avoidance. And, so, we are saying that if this Court were to write an opinion that made clear that these things are outside of the purview of section 48, there would be no chilling effect, and you wouldn't have to--
John Paul Stevens: Wait, I want to just be sure I understand you. Even if the hunting depiction is very offensive and cruel and all the rest, and that the cruelty to the animal using bow and arrows or knives or something, you say it's not -- and even if it's illegal in this particular jurisdiction, you say the statute still does not apply at all?
Neal Kumar Katyal: --It would have to be for a reason of animal cruelty or something like torture, mutilation and the like. So there may be certain hunting examples that fall within it--
John Paul Stevens: But the hunting would never qualify, because the hunter's motive is benign; is that what you are saying?
Neal Kumar Katyal: --No, it has nothing to do with the motive, it has to do with what happens to the animal. And, so, there could be images of hunting which are not really hunting, like the images in this case.
Antonin Scalia: If you shoot a little low and wound the animal, that is cruelty even though you didn't intend that.
Neal Kumar Katyal: Justice Scalia, with all due respect, I think the images in this case and what Congress was getting at was not shooting a little low. These are the most horrific images that you can imagine of cruelty to living animals. And that's what Congress--
Antonin Scalia: But what about your response to Justice Stevens on the hunting matter? I understand Congress wasn't directed at--
Neal Kumar Katyal: --And my point if those -- if there are those cases at the area -- at the gray areas, that is perfect for as applied challenge, but it's not what this Court -- this Court shouldn't be blessing the Third Circuit's decision to in toto invalidate an entire statute which has produced -- which has produced 3,000 crush videos and the like.
John G. Roberts, Jr.: Thank you, counsel, both counsel, for very able presentation. The case is submitted.


Earl Warren: Number 40, Harold D. Rogers, versus Mark S. Richmond. Mr. Pollak, you may proceed.
Louis H. Pollak: May it please the Court. This habeas corpus proceeding, brings before this Court, a murder conviction and sentence of death which are now six years old. It is a conviction and death sentence which Judge Smith formally of the District Court in Hartford, and recently elevated to the Court of Appeals for the Second Circuit has twice had occasions to say was obtained in violation of the Due Process Clause of the Fourteenth Amendment. How then does it come that we are here as petitioners complaining of a failure to grant the writ of habeas corpus? I submit to the Court that the case is one which raises at the most dramatic and hazardous level of life itself. The question of the vitality of the constitutional rights protected by the Due Process Clause and of the federal habeas corpus statute designed to vindicate those rights. This case comes here. I think this Court knows for the third time. The first, on a petition for certiorari from the Supreme Court of Errors of Connecticut on direct review. A petition which was denied, a petition which raised questions of the validity of petitioner's murder conviction based on contentions that incriminating statements were admitted in evidence against them at trial which were coerced and further that he was twice before each of those incriminating statements were elicited, twice denied access to his already retained counsel. After the denial of certiorari in 1956, habeas corpus proceedings before Judge Smith were instituted which resulted in a grant of habeas corpus by him, a reversal by the Court of Appeals for the Second Circuit and a denial by this Court of certiorari, a denial however accompanied as this Court will remember by an opinion, a memorandum opinion construing the Court of Appeals' opinion, an opinion which is at 357 U.S. 220 and which is reprinted at page 14 of our brief. The case comes here today on a grant of certiorari by this Court last February, a grant to review the Court of Appeals affirmance of Judge Smith's ultimate reluctant denial of the writ of habeas corpus, a denial of company as I've said by his second assertion. Harold Rogers has been convicted by the State of Connecticut and sentenced to death by the State of Connecticut in defiance of the Fourteenth Amendment. As the case stands today, it presents to this Court, three issues. The two initially raised on review, unsuccessful petition for certiorari from the State Supreme Court, the coercive character of the incriminating statements admitted against petitioner, and the questions of denial of counsel. And third, and this is -- at this point perhaps the dominant question in the case, the question of the scope of the inquiry which can be made by the Federal District Court sitting in habeas corpus when that inquiry goes beyond the inquiry already made by the state trier whether in Court or jury which has already considered in some degree the constitutional claims of the applicants. In this case, the problems involved whether the District Judge is bound by so-called factual findings of the state trier, whether the District Judge may take testimony to amplify whatever light is thrown by the state transcript. I submit --
Felix Frankfurter: Mr. Pollak, I don't want to break in when you get in the mainstream of your argument. But it would help me a great deal when you come to the crux of your argument, you would state exactly what was before the state court when the appeal came through it with reference to the admissibility of the confession of (Inaudible) confessions --
Louis H. Pollak: That is the state trial court, Mr. Justice Frankfurter.
Felix Frankfurter: What -- what there was before this -- what there was before the state trial court as both he hearing before the judges and the absence of -- without the presence of the jury and then what went before the jury. Then what went up to the Connecticut Supreme Court, what they actually rule, and what is after all the ultimate constitutional question here namely, whether this if is a confession, is that the core of the constitution?
Louis H. Pollak: I think that is the core of the constitutional question.
Felix Frankfurter: Because a lot of the things are merely evidentiary considerations with reference to that. With so much discussion about whether he did or didn't ask for consul, but not only there, that isn't a constitutional issue apart from bearing upon the so-called confessions, am I right?
Louis H. Pollak: Well --
Felix Frankfurter: I just want to know what the actual undisputed, I hope, is (Inaudible) so that you should agree what it was really that was before the Connecticut Supreme Court on the affirmance of the judgment of which you sought to have had a certiorari here and then what there was before the District Judge the first time, and what there wasn't, so that we know what the conceded facts are --
Louis H. Pollak: I certainly will --
Felix Frankfurter: It's not the legal significance of any of it but just what the -- well I should like to call historic facts.
Louis H. Pollak: Well --
Felix Frankfurter: At your good time, but it seems to me, if I may say so at the outset, there is a great deal of confusion in all of five opinion in this case as far as I'm concerned.
Louis H. Pollak: I think there has been confusion and precisely because of that Mr. Justice that the program I planned for myself involved just your recommendation. Before I enter into my description of --
Felix Frankfurter: I expect across your argument, I wanted you to know what --
Louis H. Pollak: No I -- I -- I believe --
Felix Frankfurter: But it's my understanding of this case, once I realize because I think I do realize that all the five opinions to me are highly unsatisfactory.
Louis H. Pollak: Well, I will -- I will take comfort in -- in some of the opinions in Judge Clark's opinion for instance, but I think there has been a confusion and I will attempt to see if we can eliminate that confusion for this Court because certainly precisely the issue to which Mr. Justice Frankfurter pointed.
Felix Frankfurter: I don't take comfort in Justice Clark's opinion, because I don't take comfort in an opinion which says that the District Judge has two appellate masters. As I understand that he has only one appellate master, not this Court.
Louis H. Pollak: I -- I believe Judge Clark was expressing commiseration with Judge Smith for a very natural confusion to which he was subjected by the opinions, all of them which have been the cited opinions, I do believe that that will try to develop that Judge Smith was in error in his construction of what this Court ordered him to do, but I will address myself, Mr. Justice precisely to what you requested and direct myself to. If I may do it in this sequence, may I say before I begin my description of the course of this case here, that my colleague, Mr. Zeldes who has been concerned with this case, since he was a student at the (Inaudible) Law School four years ago will develop the separate issue of access to counsel, to the extent that that is an issue separate from the denial of counsel as a coercive element in the confessions, which we challenge the validity of. I will then direct myself to the course of this case from the beginning to how it got here with an attempt to make claim just what was before each tribunal at each stage of the case.
Earl Warren: We will recess now, Mr. --