18 USC 48 found unconstitutional by en banc Third Circuit

Via How Appealing:By a vote of 10 to 3, the en banc U.S. Court of Appeals for the Third Circuit holds unconstitutional a federal law criminalizing the sale of creation, sale, or possession of depictions of animal cruelty: You can access today's en banc ruling at this link.

According to the majority's opinion, the "case is the first prosecution in the nation under [the federal statute in question] to proceed to trial, and this appeal represents the first substantive constitutional evaluation of the statute by a federal appellate court."

The majority opinion, written by Circuit Judge D. Brooks Smith, begins:

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years. 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. sec. 48 and to affirm Robert Stevens' conviction. For the reasons that follow, we decline the Government's invitation. Moreover, because we agree with Stevens that 18 U.S.C. sec. 48 is an unconstitutional infringement on free speech rights guaranteed by the First Amendment, we will vacate his conviction.

Back in October 2006, The Pittsburgh Post-Gazette had an article headlined "Dog fight videos called free speech" reporting on the oral argument of the appeal before the original three-judge panel. And in January 2005, The Associated Press reported on the trial of the case in an article headlined "Dogfight video seller on trial for cruelty; Virginia man is first charged under 1999 federal statute."

In related coverage, a little over one year ago, Adam Liptak of The New York Times had an article headlined "First Amendment Claim in Cockfight Suit." Liptak's new beat for The NYTimes is the U.S. Supreme Court, which is where the case that the en banc Third Circuit decided today is likely heading next.

That lawsuit about cockfighting referenced at the end was the one I (and Rick Bascuas) filed, discussed here.  Unfortunately, we had to dismiss the case as the client's business went under (after we had filed this motion for summary judgment).  Looks like we would've won.  We had a much stronger claim than the dog fighting case in the Third.  DAMN!  It's not often you get a chance to get a statute declared unconstitutional.  Congrats to the PD's office who represented the defendant in the Third Circuit.