CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, July 19, 2008

Third Circuit Strikes Down Statute Criminalizing Visual Depictions of Animal Cruelty

In a 10-3 decision, the en banc U.S. Court of Appeals for the Third Circuit ruled that a federal statute criminalizing visual depictions of animal cruelty violates the First Amendment.  The law in question, 18 U.S.C. sec. 48 states:

(a) Creation, sale, or possession.--Whoever

knowingly creates, sells, or possesses a depiction

of animal cruelty with the intention of placing that

depiction in interstate or foreign commerce for

commercial gain, shall be fined under this title or

imprisoned not more than 5 years, or both.

(b) Exception.--Subsection (a) does not apply to

any depiction that has serious religious, political,

scientific, educational, journalistic, historical, or

artistic value.

(c) Definitions.--In this section–

(1) the term “depiction of animal

cruelty” means any visual or

auditory depiction, including any

photograph, motion-picture film,

video recording, electronic image,

or sound recording of conduct in

which a living animal is

intentionally maimed, mutilated,

tortured, wounded, or killed, if such

conduct is illegal under Federal law

or the law of the State in which the

creation, sale, or possession takes

place, regardless of whether the

maiming, mutilation, torture,

wounding, or killing took place in

the State; and

(2) the term “State” means each of

the several States, the District of

Columbia, the Commonwealth of

Puerto Rico, the Virgin Islands,

Guam, American Samoa, the

Commonwealth of the Northern

Mariana Islands, and any other

commonwealth, territory, or

possession of the United States.

[Mike Mannheimer]

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