Discussion Chapter 3: Constitutional Protections

1

Should Depictions of Animal Cruelty Be Protected by the First Amendment?

Congress enacted 18 U.S.C. § 48, which criminalizes commercial creation, sale, or possession of a visual or auditory depiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if that conduct violates federal or state law where the creation, sale, or possession takes place. In 
United States v. Stevens, 552 U.S. 442 (2010), the US Supreme Court held that this statute is 
facially overbroad and violative of the 
First Amendment. Specifically, the Court held that depictions of animal cruelty are entitled to First Amendment protection, and the statute is 
presumptively invalid because it is 
content based. In addition, the Court stated that the government’s interest in censoring this type of material is not compelling enough to outweigh the prohibition on protected speech and that the statute on its face included material that may have redeemed social value. The Court’s opinion is available at this link: 

http://www.law.cornell.edu/supct/html/08-769.ZO.htmlLinks to an external site.
.

1. Do you think the First Amendment should protect material depicting animal cruelty? Why or why not?

2. What are some possible consequences of criminalizing this type of speech?

Exercise: Chapter 3: Constitutional Protections

Answer the following questions and make sure your response is 100 words or more for each.

1. Andrew is sentenced to death for torture. In Andrew’s state, there is an “eye-for-an-eye” statute that mandates punishment that mimics the crime the defendant committed. Pursuant to this statute, Andrew will be tortured to death. Is the state’s eye-for-an-eye statute constitutional under the Eighth Amendment? Why or why not?

2. Read 
Lockyer v. Andrade, 538 U.S. 63 (2003). What was the defendant’s sentence in 
Lockyer? What was the defendant’s crime? Did the US Supreme Court hold that the defendant’s sentence was constitutional under the Eighth Amendment? 

3. Read 
Fierro v. Gomez, 77 F.3d 301 (1996). Did the US Court of Appeals for the Ninth Circuit hold that the gas chamber procedure in California was constitutional under the Eighth Amendment? 

4. Read 
Gall v. U.S., 128 S. Ct. 586 (2007). In 
Gall, the federal judge departed from the US Sentencing Guidelines and imposed a sentence of probation because the defendant had reformed and rejected his criminal lifestyle. Did the US Supreme Court uphold this sentence? Why or why not? 

Case Study: Chapter 3: Constitutional Protections

* Please make sure that your response is 100 words or more for each question/statement. *

Read the prompt, review the case, and then decide whether the issue is the defendant’s 
criminal act or 
criminal intent.

· Read 
State v. Andrews, 572 S.E.2d 798 (2002). In 
Andrews, the defendant took Prozac and Effexor for one day. The next day, the defendant ran his wife and her friend down with his car. After hitting both victims, the defendant jumped out of the car and stabbed his wife three times. He was convicted of attempted murder and assault with a deadly weapon against 
both victims. He appealed on the grounds that the jury was given an improper instruction as to his criminal responsibility for the crimes committed against his wife’s 
friend. Did the Court of Appeals of North Carolina hold that this is an issue of 
criminal act or 
criminal intent? The case is available at this link: 

http://caselaw.findlaw.com/nc-court-of-appeals/1197459.htmlLinks to an external site.
.

·  Read 
State v. Sowry, 155 Ohio App. 3d 742 (2004). In 
Sowry, Ohio police arrested the defendant and brought him to jail. Before booking the defendant, the police asked him whether he had any drugs on his person. He responded “no.” The police thereafter searched him and discovered a plastic bag of marijuana in his pocket. The defendant was later convicted of knowingly conveying drugs onto the grounds of a detention facility. The defendant appealed and was successful. Did the Court of Appeals of Ohio hold that this is an issue of 
criminal act or 
criminal intent? The case is available at this link: 

http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2004/2004-Ohio-399.pdfLinks to an external site.
.

· Read 
Regalado v. U.S., 572 A.2d 416 (1990). In 
Regalado, the defendant was convicted of animal cruelty for punching a puppy repeatedly in the face. The defendant appealed, claiming that he was merely “disciplining” the puppy. Did the District of Columbia Court of Appeals hold that this is an issue of 
criminal act or 
criminal intent? The case is available at this link: 

http://scholar.google.com/scholar_case?case=10084482120424691457&hl=en&as_sdt=2&as_vis=1&oi=scholarrLinks to an external site.
.   

· Read 
State v. Slayton, 154 P.3d 1057 (2007). In 
Slayton, the defendant received a hunting permit, hired a guide, and thereafter shot an elk and carried it out of the area. The defendant’s hunting permit was valid in only a limited location, and the defendant shot the elk outside that location. The defendant was convicted of unauthorized hunting and transporting wildlife. The Arizona Superior Court vacated the defendant’s convictions, the state appealed, and the Court of Appeals of Arizona reversed. Did the Court of Appeals of Arizona hold that this is an issue of 
criminal act or 
criminal intent? The case is available at this link: 

http://scholar.google.com/scholar_case?case=13377680343653410685&q= State+v.+Slayton&hl=en&as_sdt=2,5&as_ylo=2006Links to an external site.
.