Tuesday, April 20, 2010

Crush Porn, Animal Cruelty, and US v. Stevens: Opinion Analysis

Congressional enactment of 18 U.S.C. § 48 (1999) was motivated by a concern about so-called "crush porn."  As the House Committee Report  explained it, crush porn videos

feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. Crush videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.”  Apparently these depictions “appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.”

H. R. Rep. No. 106–397, p. 2 (1999).   Robert Stevens was not a crush porn aficiando, but the purveyor of videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel."  Roberts' conviction was reversed by the Third Circuit.

Except for Justice Alito, the Justices of the United States Supreme Court this morning concluded that the Congressional expression of that concern by criminalizing the creation, possession, or distribution of " a depiction of animal cruelty" does not withstand a constitutional challenge. 

In a relatively brief 8-1 opinion authored by CJ Roberts, the Court declined to "carve out" an animal cruelty exception (similar to the child pornography exception) to obscenity analysis under the First Amendment.  The Court found § 48 to be of "alarming breadth."  It also noted that the criminal law could operate to criminalize popular hunting television programs, a topic that was explored during the oral argument. Alito's dissent, with Appendix of state animal cruelty statutes, argues that the "animal" in animal cruelty statutes specifically excludes wildlife or lawful hunting.

The Court also had an interesting observation regarding prosecutorial discretion:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty,Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,”  The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.”  No one suggests that the videos in this case fit that description.

(Opinion at 18, citations omitted). 

The Court's 8-1 affirmance of the Third Circuit opinion does give one pause after yesterday's oral argument in CLS v. Martinez, discussed here.  Given the Court's decreased caseload, it seems the Court should be expending its energies a bit differently.

RR

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Comments

A great day indeed for freedom and the first amendment. The HSUS and other greedy animal rights solicitors should take notice that the people are getting wise to their exthortion schemes, and their days on the gravy train are near an end.

Posted by: Russell | Apr 20, 2010 10:31:15 AM

Torturing any life form when you have been a life form and know what pain is is beyond comprehension for a ‘Human’, but there it is.
What is also beyond comprehension are laws, ‘Laws’ that are ’not’ laws, but ‘’prosecutorial discretions’’, beyond comprehension and also terrifying.
(And please Mr. Roberts do not explain yourself with philosophic babble about interfering with the business progression of the society such a society’s movements are backwards.)

Posted by: carol budro | Apr 21, 2010 4:41:06 AM

I find this decision to be very interesting. In my mind it has nothing to do with animal rights whatsoever. The real question is whether someone who captures and distributes images of a crime should also be culpable for said crime.

Under my (admittedly limited) reading of this decision, if you happen upon a dogfight, video it and post in on YouTube, you are fine. So what if you happen upon a rape, videotape and post that?

The 1st Amendment part of may gives me pause, as does the possibility that by not taping the event should de facto require the witness to step in to prevent the crime.

However, there is a double-standard here. Animal cruelty is a crime. The question should be: how do we deal with people who record and post videos of crimes, against animals or otherwise.

Slippery slope is a term I am loathe to use, but it may be appropriate in this situation.

Posted by: Darren | Apr 25, 2010 8:24:14 PM

Not all people who oppose crush videos are animal rights extremists. Many of us are companion pet owners. I agree with the statement that "Real animals will suffer and die in horrific ways because the Court has declared that animal cruelty and suffering can be sold as entertainment. This case is a huge step backward for the evolution of a humane society." Please support HR 5092.
Urge Congress to Crack Down on Crush Videos
An HSUS investigation uncovered Internet traffic on a large scale involving "crush" videos, where women in high-heeled shoes impale, crush, stomp, or smother small mammals and birds for the sexual titillation of viewers.
Public disgust over this horrifying subculture prompted Congress to take action. But, the U.S. Supreme Court has invalidated the 1999 federal law banning the commercial sale of videos depicting animal cruelty.
Outrage over the Supreme Court's decision has spurred Congress to act again—the day after the Court issued its ruling, U.S. Representative Elton Gallegly (R-CA) and a bipartisan group of 55 other Representatives introduced H.R. 5092 to ban the distribution and sale of grotesque crush videos.
TAKE ACTION

Posted by: Mary Appleton | Jun 8, 2010 9:19:15 PM

Our veterinary clinic staff has sent correspondence to our representatives asking them to back legislation to ban crush videos under the premise that crush videos promote and glorify the CRIME of animal cruelty. Surely if someone posted videos depicting a human infant being crushed in the same fashion as these helpless animals (many of which are just "babies" themselves), there would be a huge outcry and a rush to legislate this sort of video-- First Amendment be deuced. There WOULD be no First Amendment protection. Many types of "speech" and "self-expression" are already outside the protection of the First Amendment-- sedition, child porn and "panic speech/yelling fire in the crowded theatre" for instance. The First Amendment also doesn't protect certain types of otherwise-criminal activity under the umbrella of "religious" activity, either. So this is no different.

Posted by: Schrodinger | Jul 6, 2010 10:02:18 AM

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