Freedom of Speech: Analysis of Constitutionality U.S.


The case of the United States v. Stevens (docket #: 08-769) (2009) seems to be one of the instances of the excessive freedom of speech as far as the person convicted for the creation and distribution of the videos promoting animal violence appeals to the Court of Appeals arguing that the conviction is unconstitutional as the 18 U.S.C. § 48 of the U.S. Code, according to Stevens and his defenders the very 18 U.S.C. § 48 violates the First Amendment and is against the basic human rights and freedoms. This paper focuses on the analysis of constitutionality of 18 U.S.C. § 48 using the cases of United States v. Stevens (docket #: 08-769) (2009), Regina v. Hicklin, LR 3 QB 360 (1868), Roth v. U.S., 354 U.S. 476 (1957), and Miller v. CA, 413 U.S. 15 (1973).

United States v. Stevens (docket #: 08-769) (2009)


In the case of United States v. Stevens Mr. Stevens was accused of promoting and selling his videos where pit bull dogs acted violently and attacked other pit bulls and other animals in the staged performances. By the 18 U.S.C. § 48 of the U.S. Code, the court ruled that Mr. Stevens violated the law according to which “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” (18 U.S.C. § 48). However, Stevens appealed that 18 U.S.C. § 48 was unconstitutional and violated the First Amendment, and the court admitted unconstitutionality of 18 U.S.C. § 48.

Being Constitutional/Unconstitutional

Regina v. Hicklin, LR 3 QB 360 (1868)

At the same time, the constitutional or unconstitutional character of 18 U.S.C. § 48 is a controversial point as far as numerous precedents and explicit court decisions display other ways of relating the First Amendment and 18 U.S.C. § 48 regarding animal cruelty and obscene materials on the whole. The first case that served as the basis for the US law was Regina v. Hicklin, LR 3 QB 360 (1868) after which it became acceptable to consider a publication obscene if at least a minor part of it is obscene and “whether or not the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall” (Regina v. Hicklin, 1868). According to such a principle, the case of United States v. Stevens (docket #: 08-769) (2009) can be decided only for the second conviction for Mr. Stevens as the obscene material is not protected by the First Amendment. Thus, 18 U.S.C. § 48 is constitutional.

Roth v. U.S., 354 U.S. 476 (1957)

The case of Roth v. U.S., 354 U.S. 476 (1957) reformed the test for defining obscenity and only the material whose “dominant theme taken as a whole appeals to the prurient interest of an average person, applying contemporary community standards” was to be considered obscene and lose the protection of the First Amendment after this case (Roth v. U.S., 1957). Therefore, if the precedent from this case is taken as the basis for United States v. Stevens (docket #: 08-769) (2009) consideration, the materials distributed by Mr. Stevens should also be held obscene as the contemporary standards condemn animal cruelty, i. e. “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” (18 U.S.C. § 48). Therefore, 18 U.S.C. § 48 is constitutional.

Miller v. CA., 413 U.S. 15 (1973) and SLAPS test

Finally, Miller v. CA, 413 U.S. 15 (1973) established the currently used definition of “obscene materials” that are not protected by the First Amendment and therefore can be the cause of the conviction for a person accused in their creation and distribution. After Miller v. CA, 413 U.S. 15 (1973) the Miller, or SLAPS, test was established to define the obscene material as any material that an average person would find obscene using the common social norms would find the one that “appeals to the prurient interest…depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Miller v. CA, 1973).


Thus, drawing from the data discussed above, 18 U.S.C. § 48 is constitutional in al aspects as it bans the use of obscene material, whose obscenity can be proved using the precedent and test from any of three above discussed cases. The videos by Mr. Stevens contain violent and socially unacceptable elements, are obscene as a whole, and have no obvious social, scientific, or artistic value. Therefore, these materials are obscene as well as any other material of the kind promoting animal violence. As obscene materials are not protected by the First Amendment, 18 U.S.C. § 48 is constitutional as it bans only the obscene materials. So, there is no violation of the First Amendment by 18 U.S.C. § 48.

Works Cited

Obscenity Law Reporter. Taken as a Whole. Morality in Media, 2004. Web.

“Regina v. Hicklin.” LR 3 QB 360 (1868). Morality in Media. Web.

“Roth v. U.S.” 354 U.S. 476 (1957). Free Speech, Obscenity, & Censorship in the Supreme Court. Web.

“Miller v. CA.” 413 U.S. 15 (1973). Enfacto. Web.

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