In the First Amendment context, the U.S. Supreme Court recognizes a type of facial challenge whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.
Congress enacted 18 U.S.C. § 48 to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The legislative background of § 48 focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish. Respondent Stevens was indicted under § 48 for selling videos depicting dogfighting. He moved to dismiss, arguing that § 48 was facially invalid under the First Amendment. The District Court denied his motion, and thereupon, Stevens was convicted. The Third Circuit vacated the conviction and declared § 48 facially unconstitutional as a content-based regulation of protected speech. Petitioner United States then appealed the judgment of the U.S. Court of Appeals for the Third Circuit.
Was 18 U.S.C. § 48 facially unconstitutional as a content-based regulation of protected speech?
The Court held that § 48 was substantially overbroad and thus invalid under the First Amendment. According to the Court, depictions of animal cruelty were not, as a class, categorically unprotected speech, and § 48 did not even require that the depicted conduct be cruel as suggested by maiming, mutilation, and torture, but not by wounding or killing. Further, the Court ruled that the requirement that the depicted conduct be unlawful extended to laws such as hunting and animal protection laws which were unrelated to cruelty; depictions of conduct which was lawful in one state could constitute illegal depictions in another state, and the government's expressed intent to apply § 48 only to extreme depictions was insufficient to overcome the statute's overbreadth.