“A Stevens-proof ban on crush videos?” A Deeper Look at the Bills Being Drafted to Counteract the Supreme Court Legalizing Animal Crush Videos

Insightful Article Asks: “A Stevens-proof ban on crush videos?” A Deeper Look at the Bills Being Drafted to Counteract the Decision by the Supreme Court to Make Animal Crush Videos Legal

We wrote last week on the issue of the likelihood of the US Senate drafting a new law to counteract the Supreme Court decision to allow animal crush videos - http://geari.blogspot.com/2010/09/us-senator-states-that-re-banning.html

Yes, for those who didn’t see it, the US Supreme Court decided to make sick animal crush videos legal.

This article again addresses this issue, but provides great insight as to the nature of both versions of the bill coming from the separate chambers of the US legislative branch.

Titled, “A Stevens-proof ban on crush videos?” I suggest that all interested in this issue read this article.

I posted in the text below for quick reading, but, please view the original at http://hcb.typepad.com/hounded_cowed_badgered/2010/10/a-stevens-proof-ban-on-crush-videos.html as the author provides MANY hyperlinks to outside resources.

Article:

OCTOBER 11, 2010

A Stevens-proof ban on crush videos?

http://hcb.typepad.com/hounded_cowed_badgered/2010/10/a-stevens-proof-ban-on-crush-videos.html

In April, the Supreme Court decided United States v. Stevens, its biggest animal law case since the Lukumi decision in 1993. The case involved a First Amendment challenge to a federal law designed to stop crush videos, pornography showing small animals being crushed to death. The government in Stevens ran with the statute and prosecuted a seller of dog fighting videos. The Supreme Court, on an 8-1 vote, held the statute was constitutionally overbroad.

The majority opinion faulted the law for reaching animal-related acts that are not defined as "cruel." The law, as written, required use of a depiction of "animal cruelty," but defined cruelty to include any wounding or killing of an animal that violated federal or state law. The court imagined various scenarios where a depiction of a purportedly uncruel act (e.g., hunting without a license) would nonetheless violate the law. It found particularly troubling that a person could be convicted of possessing a video showing violence against an animal that was not in fact illegal in the possessor's state.

The Stevens court held out the possibility that a more targeted law--one "limited to crush videos or other depictions of extreme animal cruelty"--could pass constitutional muster. Now comes news that the House and Senate have passed bills aimed at crush videos that ... actually target crush videos.

I've put together a table comparing the language in the statue now, in the Senate bill, and in the House bill. The full texts of both versions are at Govtrack.us. Both bills do a better job of defining the depictions being banned, though the Senate does a better job still by not requiring the depicted abuse to also be a state or federal crime. Both contain findings that draw parallels to caselaw on obscenity and child pornography. Both in fact require the depiction to be obscene; given the descriptions in the case, I'd hope all crush videos would qualify.

I personally find it difficult to get excited about these bills. They target a tiny segment of the pornography market and a miniscule portion of the animal abuse in this country. How little Congress cares about animals is evident in one change between the House and the Senate bills. The House bill recognizes a compelling interest in "preventing animal cruelty," a good policy goal, if one rarely acted on. The Senate bill, however, finds a compelling interest only in "intentional acts of extreme animal cruelty." What of "mere" animal cruelty? Well, some arguably cruel practices are expressly excluded from the statute's reach by an exception for depictions (even obscene ones!) involving hunting, fishing, and agriculture.

The one bright spot I see in the legislation is in the Senate's definition of the offense. It criminalizes the sale, distribution, etc., of depictions of animals being abused in several specific ways (e.g., drowning, suffocation), but also includes a catchall for depictions of severe bodily injury against animals. Severe bodily injury is defines not once but twice in reference to existing laws against humans. The law incorporates the definition in 18 U.S.C. § 1365(h)(3), which contemplates the injury of "another person" and "any individual." Most strikingly, the Senate bill defines severe bodily injury to include "conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242." As the links show, these statutes define the federal crimes of aggravated and simple sexual abuse. The Senate bill thus implicitly recognizes that harm to nonhumans is of a similar kind as harm to humans.

The Senate bill is also notable for its definition of the animal being depicted. While the current law and the House bill cover "living animals," the Senate covers "non-human mammals, birds, reptiles, or amphibians." On the one hand, this definition excludes insects and fish; on the other, it acknowledges frankly that humans are animals of a sort. This language parallels some state definitions of "animal" which expressly exclude human beings. See this Maine statute.

U.S. Senator States that Re-Banning Animal Crush Videos 'A Virtual Certainty' After Horrible Supreme Court Decision Made them Legal

Thank whatever you want – god or not – but this is a huge development. It’s heartening to see that the Senate still has some decency as a key member used the terminology 'A Virtual Certainty' when saying that a bill to ban sick animal crush videos will survive.

Unbelievably, this is due to the fact that “On April 20, the Supreme Court in an 8-1 decision overturned a 1999 federal law that banned the creation of such videos...” I could go on and on as to the sick ramifications of this horrible decision, but you get the point.

As stated below, “Crush videos visually depict the abuse and killing of animals, many showing "a scantily clad, high-heeled woman stomping, squishing" and otherwise torturing animals such as puppies and kittens to feed a sexually deviant audience…”

We can only hope this happens and we’ll keep you informed.

Article:

Senator Says Re-banning Animal Crush Videos 'A Virtual Certainty'

http://legaltimes.typepad.com/blt/2010/09/senator-says-re-banning-animal-crush-videos-a-virtual-certainty-.html

A speedy Senate Judiciary Committee hearing this morning paid notice to animal rights groups that hope to flatten a resurgence of "animal crush" videos, an industry they say has regained ground after the United States v. Stevens decision reversed a previous ban on their creation and distribution.

Crush videos visually depict the abuse and killing of animals, many showing "a scantily clad, high-heeled woman stomping, squishing" and otherwise torturing animals such as puppies and kittens to feed a sexually deviant audience, said Nancy Perry, vice president for government affairs for The Humane Society, during testimony.

On April 20, the Supreme Court in an 8-1 decision overturned a 1999 federal law that banned the creation of such videos, reversing a criminal conviction of Robert Stevens, who was sentenced to three years of jail time for making videos of dog fights. The Court said the law was too broad and could include productions relating to hunting and fishing.

Ever since, Congress and animal rights organizations have been working on legislation that would put a federal ban back in place. Sen. Jon Kyl (R-Ariz.) presided over the hearing and said it was his hope, after testimony and questioning, to help draft a Senate version of the July 21 House bill that would "narrowly tailor" the issue. The more specific the bill, the better chances it has of standing should it ever face scrutiny again, he explained.

Kevin Volkan of the California State University psychology program testified that crush video fans suffer from paraphilias, or sexual disorders similar to fetishes. There's no question what purpose the videos serve, he said.

"They are clearly sexual in nature," Volkan said. He also said his research shows that viewers typically will not acknowledge or treat their behavior unless they've been arrested and forced into treatment by the court.

ACLU lobbyist Michael Macleod-Ball said Volkan's testimony also contributed to the obscenity argument, a rule of measure that excludes speech referring to explicit sexual acts from First Amendment rights. Animal cruelty is illegal but banning the depiction of such acts inherently violates free speech, he said.

Congress could be trying to expand the definition of obscenity, which they cannot and should not do, he said.

An audience of roughly 50 listened as Perry described a video in which a puppy's mouth and legs were tied shut while someone stomped a stiletto heel through its eye socket. Further, a Humane Society investigation has found that new videos are being custom produced — a viewer may place an order specifically requesting the type of animal and torture — and receive it within 48 hours, she said.

A federal ban would help limit the crush video industry, which almost disappeared after the 1999 law, she said.

Kyl said the likelihood of the new bill being signed into law before the end of this session is "a virtual certainty." Both he and Macleod-Ball said the challenge would be that the law is written narrowly enough to survive judicial scrutiny.

"If they don't get it right, it's just going to go back up and down again," Macleod-Ball said, referring to the possibility that someone could challenge a new ban and bring it to the Supreme Court once more.

United States Supreme Court Rejects Ban on Videos of Animal Cruelty: Sickos Given the Legal Green Light to Film their Sick Abusive Torture Practices

Nothing more I can add. Another sad decision from the ultimate decider. No way to go after they decide. Sad and sick and a clear indicator of the sickness of our society. I bet Michael Vick is happy. Should the NFL finally decide to ban felons and/or should he spend his 5.5 million salary this year, he can now make money off of his videos taken of his torture and killing of dogs.

Article:

Justices Reject Ban on Videos of Animal Cruelty

http://www.nytimes.com/2010/04/21/us/21scotus.html?src=twt&twt=nytimes

By ADAM LIPTAK

Published: April 20, 2010

WASHINGTON — In a major First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said that the law had created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech protected by the First Amendment.

It has been more than a quarter-century since the Supreme Court placed a category of speech outside the protection of the First Amendment. Tuesday’s resounding and lopsided rejection of a request that it do so, along with its decision in Citizens United in January — concluding that corporations may spend freely in candidate elections — suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.

And in the next couple of months, the court is set to decide several other important First Amendment cases about anonymous speech, the right of free association and a federal law that limits speech supporting terrorist organizations.

Tuesday’s decision arose from the prosecution of Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls. He did not participate in dogfights, but he did compile and sell videotapes showing the fights, and he received a 37-month sentence under a 1999 federal law that banned trafficking in “depictions of animal cruelty.”

Dogfighting and other forms of animal cruelty have long been illegal in all 50 states. The 1999 law addressed not the underlying activity but rather trafficking in recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.”

It did not matter whether the conduct was legal when and where it occurred so long as it would have been illegal where the recording was sold. Some of Mr. Stevens’s videos, for instance, showed dogfighting in Japan, where the practice is legal.

The government argued that depictions showing harm to animals were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion. “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” he wrote.

The chief justice acknowledged that some kinds of speech — including obscenity, defamation, fraud, incitement and speech integral to criminal conduct — have historically been granted no constitutional protection. But he said the Supreme Court had no “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

Chief Justice Roberts rejected the government’s analogy to a more recent category of unprotected speech, child pornography, which the court in 1982 said deserved no First Amendment protection. Child pornography, the chief justice said, is “a special case” because the market for it is “intrinsically related to the underlying abuse.”

Having concluded that the First Amendment had a role to play in the analysis, Chief Justice Roberts next considered whether the 1999 law swept too broadly.

The law was enacted mainly to address what a House report called “a very specific sexual fetish” — so-called crush videos.

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

The law, said Wayne Pacelle, the president of the Humane Society of the United States, “almost immediately dried up the crush video industry.”

But prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos.

The federal appeals court in Philadelphia struck down the law in 2008 in Mr. Stevens’s case, overturning his conviction. Tuesday’s decision in United States v. Stevens, No. 08-769, affirmed the appeals court’s ruling.

In it, Chief Justice Roberts said the law was written too broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.

“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude,” he wrote.

The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.

“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”

Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals” and would serve to protect “depraved entertainment.” He said it was implausible to suggest that Congress meant to ban depictions of hunting or that the practice amounted to animal cruelty.

Chief Justice Roberts replied that Justice Alito “contends that hunting depictions must have serious value because hunting has serious value, in a way that dogfights presumably do not. “But, he went on, the 1999 law “addresses the value of the depictions, not of the underlying activity.”

The exchange was unusual, as Chief Justice Roberts and Justice Alito are almost always on the same side. In the last term, the two justices, both appointed by President George W. Bush, agreed 92 percent of the time, more than any other pair of justices.

Justice Alito said the analogy to child pornography was a strong one. The activity underlying both kinds of depictions are crimes, he wrote. Those crimes are difficult to combat without drying up the marketplace for depictions of them and both kinds of depictions contribute at most minimally to public discourse, he added.

A number of news organizations, including The New York Times Company, filed a brief urging the court to rule in favor of Mr. Stevens.

Chief Justice Roberts concluded his majority opinion by suggesting that a more focused law “limited to crush videos and other depictions of extreme animal cruelty” might survive First Amendment scrutiny.

Mr. Pacelle, of the Humane Society, called for a legislative response to Tuesday’s ruling. “Congress should within a week introduce narrowly crafted legislation,” he said, “to deal with animal crush videos and illegal animal fighting activities.”