Fifth Circuit Upholds Federal Crush Porn Statute Against First Amendment Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Reversing the federal district court, the Fifth Circuit issued its opinion in United States v. Richards upholding the Animal Crush Video Protection Act of 2010 against a First Amendment challenge.  At 14 pages, the opinion authored by Judge Stephen Higginson is workmanlike but ultimately fails to satisfy the concerns raised by the statute.

Recall that the 2010 Act, 18 U.S.C. § 48 (2010), is the Congressional revision of the crush porn statute the United States Supreme Court found unconstitutional in United States v. Stevens.  In Stevens, the eight Justice majority found that the statute criminalizing portrayals of animal cruelty was of "alarming breadth" and could operate to criminalize popular hunting television programs.  When Congress passed an amended statute, it included a provision that the portrayal "is obscene" and specific exclusions for hunting and slaughter.

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Unlike the criminal defendant in Stevens (who was prosecuted for dog-fight videos), the defendants in Richards were charged with producing "crush porn" in which there is the depiction of cruelty to a small animal in an arguably sexual manner. 

The First Amendment challenge to the statute contended that the "obscene" prong of the statute did not incorporate the necessary Miller v. California test for obscenity.  Under Miller, this requires "sexual conduct," but Congressional history seemed debatable on this requirement.  Disagreeing with the district judge, however, the Fifth Circuit panel concluded it should not look to "variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning."  Thus, it held that "§48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech."

The Fifth Circuit rejected the argument that §48 proscribes only a certain type of obscenity in contravention of what some would call the "categorical approach" employed by the Court in the hate speech case of R.A.V. v. City of St. Paul.  After describing this argument, the Fifth Circuit veered into the much-disparaged "secondary effects" doctrine to conclude that

even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.

The panel thus concludes that "Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals."  In doing so, the opinion noted that "a long history and substantial consensus, as seen in state and federal legislation, are indicative" of a compelling or substantial interest - - - and cited for this proposition New York v. Ferber.  Ferber, upholding the constitutionality of criminalizing child pornography, is of course the very case Chief Justice Roberts' opinion for the Court in United States v. Stevens distinguished; the Court rejected the analogy between child porn and (animal)crush porn. 

The Fifth Circuit en banc should take another look at United States v. Richards and the First Amendment contours of the "crush porn" statute without reference to "secondary effects."