5th Circuit Upholds Ban on Crush Videos

Seth Victor

Four years ago the US Supreme Court overruled Congress’s attempt to regulate “crush videos,” stating that the law was an impermissible, over-broad regulation of free speech. For more analysis of the decision, see here. Though the decision was distressing, it did not herald an end of attempts to regulate that particular form of animal cruelty; Congress quickly passed an amended version of the law, one that has yet to be tested before the Supreme Court.

Last week the 5th Circuit Court of Appeals reinstated criminal charges in the case of US v. Richards for video of animals being tortured to death by a suggestively dressed woman, holding that images of animals killed for sexual gratification are not protected forms of speech, and are in fact “obscene.” Obscenity is the key to the law; obscene speech does not have the same protections as common speech, and can be regulated. Additionally, the 5th Circuit rejected an argument that the law is unconstitutional because it unfairly targets a narrow type of obscenity (here, animal cruelty), holding that particular categories of obscenity may be targeted based on their socially harmful secondary effects.

This is the first legal test of the amended law, and animal advocates have to be happy with the direction the case took at the appellate level. The court held that the law does serve a “significant interest” of preventing violence against animals, and is “reasonably tailored” to meet that interest. The 2010 version does not apply to the slaughter of animals for food, hunting, or agricultural husbandry practices, which helped it survive the “over-broad” challenge. If the Supreme Court ends up granting certiorari (it’s unclear at this point if the defendants will push it that far), it will be very interesting to see how the 5th Circuit decision holds up against US v. Stevens.

 

 

 

 

Kansas State Fair’s Restrictions on PETA are Upheld

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Adonia David

It is state and county fair season.  Speaking as a born and bred Midwesterner, I can say that for many of us, there is a bit of magic associated with them. Fairs are hot summer days and evenings, cotton candy, roasted corn, and the sound of cicadas floating high above the tumult.  Fairs are ferris wheels and other scary looking rides set up by carnies overnight that look as though they may tumble to the ground any moment.  And fairs are animals.  Animals – the glory of a state fair: cows and calves and bunnies; goats and pigs; chickens of all shapes and sizes and plumage.   The animals are beautiful.  Many are gentle, hand-raised by children in 4H, and many of them are destined for slaughter.   Just what this death involves seems to be generally ignored by fair-goers.  It disturbs the magic. Continue reading

Journalists Argue that Criminalizing the Depiction of Animal Cruelty is Counterproductive

A respected association of journalists – the Radio-Television News Directors Association (RTNDA) – filed an amicus brief in the Supreme Court case dealing with whether it is a violation of the first amendment to criminalize the depiction of animal cruelty. David and Suzanne have blogged about the case here and here.

According to the RTNDA, the federal statute will “make it impossible to cover cruelty as news, ironically eliminating the kind of public exposure that helps in the battle against such cruelty.” Along the same lines, counsel for RTNDA explains that:

We don’t take issue with the fact that the goal of preventing crush videos and other animal cruelty is certainly a worthy one, but argue that it is this very interest in protecting animals from abuse that makes speech about their treatment so valuable. The brief points out that media outlets ‘often expose the abuse of animals, participate in the national debate over the proper treatment of them, and cover commonplace activities involving animals such as hunting and fishing.’ But the law compromises the news media’s ability to perform any of these functions without fear of prosecution.

At first glance, the RTNDA concerns strike me as overblown. After all, the federal law at issue contains an exception which states that the ban “does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value”. It would seem that this exception saves the statute. The ACLU, however, has argued that it does not, since:

(1) “such exceptions are strictly limited to depictions of sexual conduct, which are not at issue here”,

(2) the exception clause “contains only one prong of the three-prong test for obscenity, and [the Supreme Court] has emphasized that all three prongs must be met before speech can lawfully be prohibited”, and

(3) “[t]he breadth and vagueness of [the exception] will make it impossible for people to know whether their speech will be considered criminal”.

The Humane Society, as one would expect, sees it differently. According to their amicus brief, the Supreme Court should rule that the depiction of animal cruelty is akin to the depiction of obsence sexual acts for the purposes of the First Amendment, given that:

“Although [the Supreme Court has] previously applied its obscenity jurisprudence to materials that appeal to the sexual subset of these base instincts, there is no justification in history or reason for treating materials that appeal to sadistic but (perhaps) not sexual impulses any differently”

I think that the Government and the Humane Society have the better argument here. Depiction of animal cruelty has little or no value. It should thus not be generally worthy of heightened First Amendment protection. On the other hand, in cases that involve the legitimate use of such depictions (e.g., journalistic purposes) it would seem that the aforementioned exception saves the statute. The ACLU’s argument that the exception is impermissibly vague is unconvincing, for it is not vaguer than typical obscenity ban exceptions, which are clearly constitutional.

Perhaps some of our readers – or David – can chime in with their opinion regarding the RTNDA’s contentions.

Luis Chiesa

AETA’s First Legal Challenge

We knew that the government would eventually invoke the Animal Enterprise Terrorism Act (AETA) and now it has.  Earlier this year, authorities arrested 4 activists for alleged threats and vandalism against research facilities at UC Santa Cruz and UC Berkeley and charged them under AETA.  The defendants (known as the AETA 4) argue that the law should be struck down as unconstitutional and the judge is at least listening.  We will be watching this one closely.  AETA is an abomination (as I have argued here) but a good result in this case would be nothing short of astounding.

–David Cassuto

Free Speech or Free Tyranny?

The U.S. Supreme Court has agreed to finally determine whether selling videos depicting animal cruelty should be constitutionally-protected speech.

This year, it will hear the case of United States of America v. Robert J. Stevens. The defendant, who sold dogfighting and hog-dog fighting videos, was the first person to be convicted under a 1999 federal law prohibiting the creation, possession and/or sale of videos depicting animal cruelty with the intention of profiting financially therefrom. He was convicted by a U.S. district court in 2005, but a U.S. appeals court vacated the holding as an unconstitutional restriction on free speech.  

According to one article, “Stevens argued in his appeal that the federal law was unconstitutionally vague and overbroad because it criminalized depictions of conduct that was either legal or happened before dogfighting was outlawed, prosecuted people who did not take part in the underlying conduct or could be extended to hunting and fishing violations.” 

According to the Washington Times, “the U.S. government seeks to carve out an exception to free speech in the case of those selling videotapes of pitbull fighting and the fetished crushing of small animals by high-heeled shoes.”

There has been a question for some years now regarding of legality of sales of videos depicting dog fighting, as well as fetish “crush” videos, in which small animals are crushed by high-heeled shoes. The Humane Society of the United States is currently suing online merchant Amazon.com and four other companies because of their sales of dogfighting and cockfighting videos and magazines. Dogfighting is illegal in all U.S. states, and cockfighting is illegal in 48 states.

-Suzanne McMillan