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