Reconsidering Crush Videos

Gillian Lyons

After the Supreme Court struck down 18 U.S.C. § 48 in United States v. Stevens for having too broad a focus (click here for Professor Cassuto’s post-mortem of that decision), there was a general feeling of dismay in the animal law community due, in part, to the fact that the law strove to make the sale of crush videos illegal.

However, in response to the Court’s decision, Congress acted quickly and in June 2010 H.R. 5566: Prevention of Interstate Commerce in Animal Crush Videos Act of 2010 was introduced.  H.R. 5566 amends 18 U.S.C. § 48 to give the Act a narrower focus: prohibiting the sale of crush videos, meaning any film, video, or recording that depicts live animals being crushed, drowned, suffocated or impaled in a manner that would violate a criminal prohibition under Federal or State law. The bill was resoundingly approved with 416 Ayes and 3 Nays.          

On Monday, September 27^th Jon Kyl (R-AZ), Jeff Merkley (D-OR), and Richard Burr (R-NC) introduced a companion bill to the Senate. The bill is set to be considered by the entire Senate on Wednesday, September 29^th.

In their United States v. Stevens decision, the Supreme Court noted that it was not restricting the power of government to punish actual acts of animal cruelty, but went on to stress that Congress did not have a similar power to ban the portrayal of such acts of cruelty.  That being noted, it would seem that H.R. 5566’s amendments to 18 U.S.C. § 48 would be unable to withstand a first amendment challenge due to fact that the law bans the sale videos and recordings that depict animal cruelty and not the acts themselves.  However, Justice Alito noted in his dissent that the Court’s opinion “tacitly assumed for the sake of argument” that laws preventing the sale of crush videos would be valid.

At the very least, let’s hope this bill gets through the Senate floor with as much support as it had in the House of Representatives.  We’ll leave our court challenge for another day.