HOW YOU CAN HELP ANIMALS!
By reporting to the Federal
Bureau of Investigation any information that comes your way via the Internet,
Email, or in any other manner concerning "Crush Videos."
In April 2010 the Supreme Court of the United States, by a vote
of 8-1, in the case of United
States v. Stevens,
held unconstitutional the federal statute (18 U.S.C. Section 48) which made it
a crime to knowingly create,
sell, or possess "a depiction of animal cruelty."
ISAR had submitted an amicus curiae ("friend-of-the-Court") brief in the case and our Chairman, Professor Henry Mark Holzer, presented two audio commentaries about it--one after our brief was filed and the other following oral argument.
The Court's eight member majority ruled that the statute was "overbroad," meaning that the law could be interpreted to suppress speech of activities involving animals which, though distasteful to many (like hunting), were legal. In other words, the Court objected to the potentially broad sweep of the statute, not its laudable intention to protect animals from certain forms of unquestionable cruelty by suppressing depictions of that cruelty.
In its opinion, the Supreme Court very nearly invited Congress to craft a statute narrowly reflecting the federal legislature's substantial interest in curbing cruelty to animals that took the form of crush videos--a statute which would not be overbroad, but targeted more specifically to the goal that all members of the Court shared: ending the scourge of crush videos (and dog fighting, and similar barbaric conduct).
Accepting that invitation, effective December 9, 2010, Congress promptly reenacted Section 48 as the Animal Crush Video Prohibition Act of 2010. In essence, the statute now criminalizes knowing conduct that creates, sells, markets, advertises, exchanges, or distributes an animal crush video that:
ISAR had submitted an amicus curiae ("friend-of-the-Court") brief in the case and our Chairman, Professor Henry Mark Holzer, presented two audio commentaries about it--one after our brief was filed and the other following oral argument.
The Court's eight member majority ruled that the statute was "overbroad," meaning that the law could be interpreted to suppress speech of activities involving animals which, though distasteful to many (like hunting), were legal. In other words, the Court objected to the potentially broad sweep of the statute, not its laudable intention to protect animals from certain forms of unquestionable cruelty by suppressing depictions of that cruelty.
In its opinion, the Supreme Court very nearly invited Congress to craft a statute narrowly reflecting the federal legislature's substantial interest in curbing cruelty to animals that took the form of crush videos--a statute which would not be overbroad, but targeted more specifically to the goal that all members of the Court shared: ending the scourge of crush videos (and dog fighting, and similar barbaric conduct).
Accepting that invitation, effective December 9, 2010, Congress promptly reenacted Section 48 as the Animal Crush Video Prohibition Act of 2010. In essence, the statute now criminalizes knowing conduct that creates, sells, markets, advertises, exchanges, or distributes an animal crush video that:
- Depicts actual conduct in which one or more non-human
animals is intentionally crushed, burned, drowned, suffocated, impaled, or
otherwise subjected to serious bodily harm, and
- Is obscene. [Section 48 is actually more detailed than
this. For example it specifies not only "non-human animals," but
also "birds, reptiles, or amphibians." The entire statute appear
below.1]
We'll spare you the gruesome details of why Ashley Nicole
Richards and Brent Justice, who made crush videos, were indicted in the United
States District Court, Southern District of Texas, on (1) four counts of
creation and one count of distribution of animal crush videos in violation of
18 U.S.C. Section 48, (2) one count of engaging in the business of selling or
transferring obscene matter in violation of 18 U.S.C. 1466(a), and (3) one
count of production of transportation of obscene matters for sale or
distribution in violation of 18 U.S.C. Section 1465.
Taking a page from the defense's playbook in the Stevens case, in the federal
trial court Richards and Justice asked the judge to dismiss the indictment
because Section was an unconstitutional abridgement of their "free
speech."
The federal district judge agreed, primarily because the
defendants' "free speech" was not of a type the courts have
considered unprotected, such as obscenity and speech incidental to criminal conduct.
On appeal, to its credit the government argued that as written
new Section 48 punished only the type of speech that is unprotected and thus
the law was not overbroad, as had been the prior Section 48 ruled
unconstitutional in the Stevens
case.
On June 13, 2014, a three-judge panel of the United States Court
of Appeals for the Fifth Circuit unanimously reversed the district court.
The court began its analysis by observing that for new Section
48(a) (2) to apply animal crush videos must be "obscene," a crucial
element of the crime but not one defined in the statute itself.
To provide that definition, the Court of Appeals accepted the
one articulated by the United States Supreme Court in the 1973 obscenity case
of Miller v. California.
Under that test, the Court of Appeals ruled that the requisite
"obscene" element of the statute would be satisfied by "the
[defendants'] wanton torture and killing that, as demonstrated by federal and
state animal cruelty laws, society has deemed worthy of criminal
sanction."
The court's reversal sent the case back to the federal district
court for trial, which is yet to occur.
Under the facts, the defendants should be convicted. If they
are--either by trial or plea--they should be sentenced to the maximum 7 years
imprisonment on the Section 48 counts alone, with further punishment imposed on
the two obscenity counts of the indictment. Fines should be imposed at the
maximum amount allowed by law.
It should be noted that in upholding Section 48--thus condemning
wanton torture and killing of animals, and speaking approvingly of federal and
state animal cruelty laws--the Court of Appeals has struck a significant blow
for animal rights, albeit in the limited arena of unspeakable human conduct.
[1] 18.
U.S.C. Section 48 (2010)
(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.
(b) Prohibitions.--
(1) Creation of animal crush videos.--It shall
be unlawful for any person to knowingly create an animal crush video, if--
(A) the person intends or has reason to know
that the animal crush video will be distributed in, or using a means or
facility of, interstate or foreign commerce; or
(B) the animal crush video is
distributed in, or using a means or facility of, interstate or foreign
commerce.
(2) Distribution of animal crush videos.--It shall
be unlawful for any person to knowingly sell, market, advertise, exchange, or
distribute an animal crush video in, or using a means or facility of,
interstate or foreign commerce.
(c) Extraterritorial
application.--Subsection (b) shall apply to the knowing sale, marketing,
advertising, exchange, distribution, or creation of an animal crush video outside
of the United States, if--
(1) the person engaging in such conduct intends
or has reason to know that the animal crush video will be transported into the
United States or its territories or possessions; or
(2) the animal crush video is transported into
the United States or its territories or possessions.
(d) Penalty.--Any
person who violates subsection (b) shall be fined under this title, imprisoned
for not more than 7 years, or both.
(e) Exceptions.--
(1) In general.--This section shall not apply
with regard to any visual depiction of--
(A) customary and normal veterinary or
agricultural husbandry practices;
(B) the slaughter of animals for food; or
(C) hunting, trapping, or fishing.
(2) Good-faith distribution.--This
section shall not apply to the good-faith distribution of an animal crush video
to--
(A) a law enforcement agency; or
(B) a third party for the sole purpose of
analysis to determine if referral to a law enforcement agency is appropriate.
(f) No preemption.--Nothing
in this section shall be construed to preempt the law of any State or local
subdivision thereof to protect animals.
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