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.           Continue reading

U.S. v. Stevens, The Post-Mortem

David Cassuto

There’s little good here.  In Stevens, the Supreme Court struck down a law that aimed at and succeeded in curbing the market for crush videos and other animal mutilation.  To be fair, the law was seriously flawed.  But the Court’s analysis is worse.  However, the holding could have been worse still, so I am at least a little relieved as well as disappointed.

18 U.S.C. s. 48 banned depictions of cruelty “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.”  It exempted depictions possessing “serious religious, political, scientific, educational, journalistic, historical or artistic value.” 

Mr. Stevens operated a website called “Dogs of Velvet and Steel.”   He marketed videos of dog fighting, of dogs attacking pigs, and other similar works.  One would be hard pressed to find any redeeming social value to his wares and the Court makes no attempt to do so.  In fact it spends very little time analyzing the law as it relates to Mr. Stevens.   It instead focuses on the law’s potential applications to other cases not currently before it.  As a result, the opinion runs far into the weeds.   Continue reading

Supreme Court Hears Arguments on U.S. v. Stevens

David Cassuto

The Supreme Court heard arguments yesterday in U.S. v. Stevens, wherein the the federal law banning trafficking in illegal depictions of animal cruelty has been ruled unconstitutional by the Third Circuit.  The issues underlying this First Amendment case are complex and multi-layered (see posts here ) and there is much more to say.  Among the issues the Court faces are whether the law unconstitutionally constrains protected speech solely on a content-based basis and also whether animal cruelty rises to the level of a compelling state interest that justifies overriding the presumption in favor of free speech.

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

Free Speech at the Margins — ALDF and Animal Law Profs File Amicus Brief in U.S. v. Stevens

In U.S. v. Stevens, the Supreme Court will decide whether a federal law forbidding depictions of animal cruelty violates the First Amendment.  Suzanne first blogged about the case here.  ALDF and animal law professors from all over the country (of whom I am one) recently filed an amicus brief in this case.  One of the issues before the Court involves whether the Court’s 1993 holding in Church of Lukumi Babalu Aye v. City of Hialeah, striking down a municipal ordinance banning animal sacrifice (primarily because it targeted the Santeria religion), stands for the principle that animal cruelty cannot rise to a compelling state interest.  We argue that it does not.  I have written about the Lukumi case at some length and you can find it here.

I will have more to say about the Stevens case in the near future.  In the meanwhile, here’s a good post from ALDF.

–David Cassuto