In an attempt to stop "crush videos" (explanation of a sexual fetish involving a dominatrix stomping on animals in high heels or bare feet here and here ), Congress passed a law reading as follows:
18 U.S.C. §48. Depiction of animal cruelty
“(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 5years, or both. “(b) EXCEPTION.—Subsection (a) does not apply to any depictionthat 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 orauditory 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 ( ... ***)
In United States v. Stevens, 559 U.S. ___ (April 20, 2010) found here, Congress affirmed the Third Circuit's striking the statute down as overbroad and unconstitutional. From the decision:
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that gov-ernment has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal isintentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).
The Supreme Court goes on to analyze how the statute may be used to apply to situations involving perfectly legal and ethical behavior having nothing to do with crush videos. The defendant was prosecuted for inter alia distributing videos of legal Japanese dogfights from decades past.
The decision shows a healthy skepticism of the government's claims that prosecutorial discretion will be used in the enforcement of an overbroad statute. It is amazing how many Americans watch hunting videos (for recreation, not instruction), and the decision is interesting for its exploration of the depth and breadth of human cruelty for enjoyment's sake.
I agree with Clancco that the decision is a correct one. The decision will be misread by popular media as endorsing cruelty to animals, it does no such thing and it speaks approvingly of state statutes regulating cruelty to animals.
Wednesday, April 21, 2010
SCOTUS - Congress Lacks Power to Criminalize Depictions of Killing Wounding and Torturing Animals
Labels: art law, art litigation, cruelty to animals, crush videos, film law, first amendment, video law
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.