By J. DeVoy
STOMP! - just a musical production after all.
Ever the free speech patriot, president Obama signed the Animal Crush Video Prohibition Act of 2010 (ACVPA) into law earlier this month. The bill, which labels crush videos as “obscene,” contains a maximum penalty of seven years’ imprisonment for violating its provisions. (full text here.)
Here’s the relevant portion of the new law, 48 U.S.C. § 18:
(a) Definition- In this section the term ‘animal crush video’ means any photograph, motion-picture film, video or digital recording, or electronic image that–
(1) depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury (as defined in section 1365 and including 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); and
(2) is obscene.
The Supreme Court recently considered a similar issue in US v. Stevens, affirming the Third Circuit and ultimately striking down a 18 U.S.C. § 48 due to constitutional overbreadth. 559 U.S. ___ (2010). That statute prohibited depictions of animal cruelty, and was enacted with a focus on the interstate market for the same crush videos the legislation enacted by Obama seeks to outlaw. The Supreme Court ultimately decided that the sweep of 18 U.S.C. § 48 was too broad, encompassing protected speech within its scope and effectively outlawing an entire genre of expression without any judicial oversight.
Remember, also, that it was Alito’s dissent that showed his morbid fascination with crush videos. Surprisingly, he argued that they should be their own form of unprotected speech, a la child pornography. It looks like he may have gotten his wish.
The ACVPA apparently tries to side-step this by invoking the word “obscenity,” and criminalizing only depictions of harm to animals that is obscene. In contrast, 18 U.S.C. § 48 did not require that the content be obscene. This new legislation creates an interesting proposition: either it will be widely used and essentially turn prosecution of crush videos into obscenity trials under the Miller test, or, fearing that obscenity will never be provable, prosecutors will never try a case under this law. Given Eric Holder’s tenure as Attorney General to date, I’m inclined to believe the former scenario is most likely, especially amidst increased pressure to bring obscenity prosecutions. While I love like tolerate puppies as much as the next person, vocal members of the ASPCA and PETA – including the guy who changed his name to kentuckyfriedcruelty.com – are whiny agitators on a level previously reserved for the AARP’s bovine membership, and will try to see this law put to use immediately.
Because the law sets obscenity aside as its own provision for finding guilt, it may survive for a while. There is a proprietary concern, however, with adding the animal abuse “plus factor” that augments the penalty for obscene speech beyond it merely being obscene. While not a content-based restriction in the way an outright ban on animal abuse videos was in Stevens, this legislation’s content-consciousness may come into play in a hopefully inevitable constitutional challenge.
By Email
By RSS Feed
The Legal Satyricon 
I’m a bit torn between my love of puppies, sheep, and anything else with a soft gentle coat and my love of free speech. I just don’t see how Holder is going to make the argument that videos of crushed puppies appeals to the prurient interest.
He doesn’t need to. Alleging it and bringing the suit will be sufficient to put most, if not all, producers out of business.
http://www.imdb.com/title/tt0136536/
As long as my videos depicting crushing Madagascar hissing coakroaches while masturbating on Mudskippers is legal I’m in the clear.
On a serious note, aren’t obscene videos already illegal and punishable a similar sentence? So what does this change other than adding one more law?
Obscenity generally goes toward adult content. Here’s the Miller test off of wikipedia (yeah, I know, it’s wiki, but this is a blog comment and not a brief):
1) Whether the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
2) Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
As Vaughn notes above, prong one will be a stretch. Good luck on prong two as well. Nobody would automatically think to apply Miller to a crush film due to prong #2, but now we’re opening the door to coercive litigation that will result in muzzled film producers and bad plea deals. Now there’s a door for US Attorneys’ Offices to go after these people, even if there’s little chance of winning.
But there are SO FEW crush videos in existence or being produced that this is just a monumental waste of time designed to court the vote of cat ladies who were going to vote democrat anyway.
So much for PETA’s hidden camera videos. ILLEGAL.
Check the exceptions in (e)(1) – videos showing the prohibited content are allowed so long as they depict “the slaughter of animals for food” or “hunting, fishing or trapping,” both of which are within PETA’s schtick.
I’m pretty sure there’s an R.A.V. issue here–which is what I think DeVoy was alluding to. Just because it’s “obscenity” doesn’t mean you get to draw content-based lines around it.
“And just as the power to proscribe particular speech on the basis of a non-content element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element, so also the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements.” R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992).
I note this law doesnt say the animal must be crushed by a HUMAN for the act to be illegal. I cant help but wonder if some guy’s film of his snake eating a live mouse/kitten/puppy/rabbit/baby chick (as constrictor snakes DO “crush” their prey) would be ruled as a violation. I think this law is flawed as a result.
And, if the animal belongs to the one stomping on it, should govt REALLY say what people can do with their possessions? No matter how much we may dislike that act?
“And, if the animal belongs to the one stomping on it, should govt REALLY say what people can do with their possessions? No matter how much we may dislike that act?”
Well, yes. That’s animal cruelty. But film away, I suppose.
This is hilarious. In your rabid anti- Obama sentiment, you like to latch onto anything you can and call it an assault on free speech. If Obama were the one to sign a bill banning videos depicting children being shot in the face, I’m starting to think you would assail on that too and call it some sort of gestapo stomping upon your natural freedoms.
What are you guys hoping for? When President Thune takes over in January of 2013, you’ll see where the chips fall.
you like to latch onto anything you can and call it an assault on free speech
1) I don’t think my anti-Obama sentiment is THAT rabid. He’s been a flop on civil liberties and broken virtually every promise he made in this arena; I merely like to remind people of this as often as I credibly can.
2) This law is a shallow reaction to US v. Stevens and seeking – admittedly on better constitutional grounds – to reenact the statute that case struck down. So, yes, we’re back to trying to recriminalize speech, which was the point of the law struck down in Stevens and this new statute. Killing children is illegal, but recording it is another question… from a speech perspective.
Hopefully in 2013 Mitt Romney will focus on things I care about, like telling the baby boomers to shove it, ignoring the various whining factions of America, and getting the Dow back over 13,000. This includes letting people produce and consume whatever content suits their desires or perversions. And maybe pigs will fly.
I’m a fairly rabid Obama supporter (or at least I defended him until this most recent tax deal). But this law makes me feel a little uneasy. The act of torturing an animal is one thing, and it’s already illegal. Perhaps there should be harsher penalties. However, the first amendment has to have meaningful bounds on what speech our government can prohibit. Criminalizing the speech, simply because we dislike the content, is the first step on a slippery slope towards eroding our civil liberties.
If we really cared about animal, we’d make factory farming illegal.
Raising meat in factory farms is torture, and yet we don’t care.
When someone watching an animal tortured, suddenly it’s an issue.
Why?
Because this is a blog run by First Amendment devotees and not animal rights activists? Just taking a stab on that one.
btw, I love your blog.
Hahaha. I meant that the existence of the law, First Amendment issues aside, is itself retarded. (I like your blog, too.)
Haha! Got it now. I can actually get behind animal cruelty laws, but acknowledge they’re bullshit and arbitrary. It’s a value judgment. You can hunt deer and some bears, but not certain predatory animals that are so rare that they’re endangered, but you also can’t kill cats and dogs for sport. We like cats and dogs more than bears, they’re our companions and we value them for those qualities. As such, we protect them because they generally don’t have the ability to protect themselves. Similarly, we don’t give a shit about cows because we eat and wear them; they can trample you and they are too large to be worthwhile companions. If you could just kick a cat across the room because you were allergic to it, that would be a pretty messed up society. Sure, it’s an object, but it’s still a mammal that breathes and cries, and one a lot of people like. We need to draw the line about where we care about life somewhere – even if it’s a total BS point – and I wouldn’t want to live in a society where we didn’t have such values.
As I pointed out in my most recent article on this subject — http://tinyurl.com/2e4u2fq — for a work to be obscene, it has to meet the three prongs of the Miller test, which animal crush videos clearly don’t; there’s just no explicit sexual content to them. I’m sure there are a few people who’d get off on seeing small animals crushed, but there are also people who’d get off on reading the Bible. I’m unclear why some people like crush videos, but if subjective reaction to material is the standard by which we judge legality, we’re all in trouble. (Of course, as you probably know, I’m not a lawyer; just an interested bystander.)
Agreed. But most people – including lawyers – don’t understand that and will use the law as excuse to shake down and intimidate producers.
Also, from your article: “After federal judges struck down the law banning the sale of animal crush videos, this horrible and cruel industry stepped into the legal void and resumed its commercial creation and peddling of these videos,” said Wayne Pacelle, president and CEO of the [Humane Society of the United States].
That comment from the Humane Society representative doesn’t even pass the giggle test. There are relatively few crush videos in existence (not that I’ve aggressively looked for them), and the productions tend to be low-value underground affairs. You note this in the article, and you are a journalist, but you could have just laughed at these people.
Any Orwellian inspired America that would make the creation, possession, or exchange of videos / recordings / pictures / or writings illegal – based solely on their content – makes me feel the need for a Jeffersonian inspired revolution.
If the content of the videos is detestable, the acts referenced are surely already illegal – by limiting the creation and transmission of the evidence of these crimes we are only hindering law enforcement – once Google adds reverse image search and facial recognition, thanks to privacy-lax social networking sites that use real names, we will be able to find these criminals and put them through either the criminal justice system or the anonymous mob reactionary system.
Those who do evil should be stopped and punished; the creation and distribution of information, even if it is of the most false or misleading kind, is not evil.
Blind adherence to traditional values is ignorance – we need crush videos to either remind us why animal abuse should be illegal, or to make us question whether or not it should be illegal.