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Dillard - 2. United States v. Stevens 19-28

Dillard - 2. United States v. Stevens 19-28

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Published by: ALDF on Jul 07, 2014
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19Even assuming that
Ferber 
 may, in limited circumstancesand without Supreme Court guidance, be applied to other categories of speech, 18 U.S.C. § 48 does not qualify for suchtreatment. The Court cited five bases in
Ferber 
 for upholdingthe anti-child pornography law. That reasoning does nottranslate well to the animal cruelty realm. We address the five-factor rationale in its entirety, although the first factor is themost important because, under
Ferber 
, if the Government’sinterest is not compelling, then this type of statute necessarilyviolates the First Amendment.1. First
Ferber
Factor The compelling government interest inquiry at issue hereoverlaps 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–toelevate it to the status of a
compelling
 interest. Three reasons give us pause to conclude that “preventingcruelty to animals” rises to a compelling government interestthat trumps an individual’s free speech rights. First, theSupreme Court has suggested that the kind of governmentinterest at issue in § 48 is not compelling.
See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
, 508 U.S. 520(1993)
.
The Supreme Court in
 Lukumi
 held that city ordinancesthat outlawed animal sacrifices could not be upheld based on thecity’s assertion that protecting animals was a compelling
 
20government interest.
 Id 
. at 546–47. The Government contendsthat
 Lukumi
is inapplicable to a compelling government interestanalysis. Although that case dealt with the Free Exercise Clauserather than the Free Speech Clause, and was limited by theCourt to the context of the particular ordinances at issue, itremains instructive. The possible relevance of
 Lukumi
wasnoted under the “Dissenting Views” section of the House Reportof § 48: Although the Supreme court [sic] recognized thegovernmental interest in protecting animals fromcruelty, as against the constitutional right of freeexercise of religion[,] the governmental interestdid not prevail. Therefore, it seems that, on balance, animal rights do not supersedefundamental human rights. Here, whileGovernment can and does protect animals fromacts of cruelty, to make possession of films of such acts illegal would infringe upon the freespeech rights of those possessing the films. H.R.
 
EP
.
 
 N
O
.
 
106-397, at 11. When we consider
 Lukumi
 alongwith the fact that the Supreme Court has not expanded theextremely limited number of unprotected speech categories in ageneration, the only conclusion we are left with is that we—asa lower federal court—should not create a new category when
 
21the Supreme Court has hinted at its hesitancy to do so on thissame topic.Second, while the Supreme Court has not always beencrystal clear as to what constitutes a compelling interest in freespeech cases, it rarely finds such an interest for content-based restrictions. When it has done so, the interest has–withoutexception–related to the well-being of human beings, notanimals. When looking at these cases, as well as the interestsat issue in the unprotected speech categories, it is difficult to seehow § 48 serves a compelling interest that represents “agovernment objective of surpassing importance.”
Ferber 
, 458U.S. at 757. The Supreme Court has suggested that a state interest inavoiding an Establishment clause violation may be compelling,although that remains an unsettled question of law.
CompareCapitol Square Review & Advisory Bd. v. Pinette
, 515 U.S. 753,761–62 (1995) (“compliance with the Establishment Clause isa 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 (2001) (“We have said thata state interest in avoiding an Establishment Clause violation‘may be characterized as compelling,’ and therefore may justifycontent-based discrimination. However, it is not clear whether a State's interest in avoiding an Establishment Clause violationwould justify viewpoint discrimination.”) (citations omitted).The Government also “has a compelling interest in ensuring that

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