Tuesday, December 14, 2010

Animal Porn - Criminalized by Federal Law Again

Without much fanfare, President Obama signed into law the Animal Crush Video Prohibition Act of 2010, intended to cure the defects of the previous law, held unconstitutional last April in United States v. Stevens.  In Stevens, the Court affirmed the Third Circuit opinion with only Alito in dissent.   The Court was particularly concerned about the overbreadth of the statute, which could potentially criminalize hunting and similar videos.  The Court declined the invitation to carve out an "animal cruelty" exception to the First Amendment's obscenity doctrine, similar to the "child pornography" exception.   Spicy-Adventure_StoriesDecember_1936

In the 2010 statute (above), Congress reasserts its findings that there are "certain extreme acts of animal cruelty that appeal to a specific sexual fetish. These acts of extreme animal cruelty are videotaped, and the resulting video tapes are commonly referred to as 'animal crush videos.’ "   The statute defines 'animal crush video' as "any photograph, motion-picture film, video or digital recording, or electronic image that—

(1) depicts actual conduct in which 1 or more living nonhuman mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury . . . .  and

(2) is obscene.

Note that the definition does not include insects. 

The statute specifically exempts any visual depiction of

(A) customary and normal veterinary or agricultural husbandry practices;

(B) the slaughter of animals for food; or

(C) hunting, trapping, or fishing.

The statute also asserts its extraterroritorial application.

Recall that Stevens was prosecuted for distributing videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel."  Does the Congressional stress on "obscene" (requiring the "prurient interest in sex") in the 2010 statute mean that Stevens could not prosecuted?   Does this necessarily guarantee the law's constitutionality?

RR

[image: cover of Spicy Adventure Stories magazine, December 1936, via]

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Comments

So the SEXUAL interest here is key. Videos appealing to sadism or other psychological states that are NOT sexual are not criminalized?
And who defines whether a psychological state is sexual? Erotic interest is so broad, from the sensuality of fine linen to the fragrance of flowers.
Is non-masturbation "proof" of a non-sexual motivation?

Posted by: marty klein | Dec 20, 2010 12:33:15 PM

thanks admin

Posted by: lax | Dec 22, 2010 6:33:50 PM

I noticed that in the new law, Congress' explanation of the "Miller Test" seems to be lacking, namely in the fact that they forget that the first prong of MILLER applies to an "average person", and not just one individual or group of individuals. Also, they cleverly omit the part about "sexual conduct or excretory functions" from the second prong.

The average person applying contemporary community standards is not going to find crush videos or dog-fighting videos to appeal to sexual interests. Simply because somewhere someone does, doesn't satisfy the MILLER test. Somewhere there's at least someone who finds the state of the union address to appeal to the sexual interest, but that still doesn't satisfy the MILLER test.

Posted by: John Powers | Jan 3, 2011 12:01:04 PM

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