By Wayne Pacelle
Two weeks ago, at the urging of The HSUS, the House passed legislation by a vote of 416-3 to reinstate a federal prohibition on gruesome animal crush videos that have made a comeback since the federal courts overturned the 1999 law Congress passed to ban their production and sale. The U.S. Supreme Court granted an appeal on this case and in a ruling in April declared the 1999 federal anti-cruelty law invalid and unconstitutional, creating an opening for peddlers of this smut to get back into this business.
Despite the near universal view among the public that individuals should not be able to profit from illegal, malicious, and obscene acts of animal cruelty, The New York Times (“Disgusting But Not Illegal,” Aug.1) and Los Angeles Times ("Cruelty and the Constitution," Aug. 3) editorialized this week against the bill, arguing that the legislation is somehow unconstitutional because “obscenity is limited in American law to certain prurient sexual content,” that an animal crush video “does not fit that category,” and that the bill is trying to expand the concept of obscenity by “simply declar[ing]” all animal crush videos obscene.
I asked Supreme Court expert Scott Ballenger of Latham & Watkins to share his thoughts on the issue with our readers. Mr. Ballenger represented The Humane Society of the United States in United States v. Stevens and testified before the House Committee that drafted the new proposed legislation on depictions of animal cruelty.
The new proposed legislation does not “simply declare” that all images of animal cruelty are “obscene.” It establishes new criminal penalties for trafficking in depictions of animal cruelty that are obscene. That is clear from the language, which says that “[i]n this section the term ‘animal crush video’ means any obscene photograph, motion-picture film, video recording, or electronic image that depicts actual conduct in which one or more living animals is intentionally crushed, burned, drowned, suffocated, or impaled in a manner that would violate a criminal prohibition on cruelty to animals under Federal law or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.” If it is not “obscene,” it is not an “animal crush video” and hence not covered by the law.
The newspapers' confusion stems from Section 2 of the bill, which contains a prefatory “finding” by Congress that “[a]nimal crush videos appeal to the prurient interest and are obscene.” This finding just further confirms Congress’s understanding that the phrase “animal crush videos” refers to a narrow subcategory of depictions of animal cruelty that are prurient and obscene. The Supreme Court in Roth v. United States, 354 U.S. 476, 487 n. 20 (1957) defined prurient as “a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.”
Congressional testimony during hearings on the 1999 law revealed that crush videos deal with a specific type of sexual fetish involving feet (pages 52-58). The testimony described how men developed this sexual fetish and how crush videos were developed so that those with this fetish could “transfer their fantasy and excitement” of being crushed. Id. at 53. The testimony noted that “[m]any videos are produced wherein defenseless animals are tortured and crushed to death for the sole purpose of sexually exciting men. The animals are tortured in a slow, cruel and deliberate way. The women torturing the animals talk to them as if they are human. The women play the part of a dominatrix. The women wear different types of shoes including spike heels and stilettos.” Id.
Thus, the bill is not an attempt by Congress to declare what is and is not “obscene” for constitutional purposes. If the courts interpreted it that way, they would just disregard it. An unpersuasive “finding” by Congress does not make the substantive law it is attached to unconstitutional. See, e.g., Sable Commn'cs of California v. FCC, 492 U.S. 115, 129 (1989). Even staunch defenders of Stevens’ dogfighting videos acknowledged in their briefs to the Supreme Court that Congress could lawfully enact a narrow ban on crush videos. As explained by the Association of American Publishers, “Had Congress sought to proscribe only 'crush videos,' it could have done so, and this would be a much different case.” Likewise, the Reporters Committee for Freedom of the Press and thirteen news media organizations opined that “Congress could have regulated legally obscene crush videos in a manner that did not threaten news reporting and other high-value speech.”
The editorials also seem to imply that to be constitutional an obscenity statute must list out, on its face, all of the constitutional requirements of the Supreme Court’s decision in Miller v. California—including that the material must be patently offensive and appeal to prurient interests. But that is not the law at all. Indeed, the federal obscenity statutes upheld in Miller and its progeny simply use the word “obscene,” exactly like the statute that the House of Representatives just passed. Take a look, for example, at 18 U.S.C. § 1461, which provides that “[e]very obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance . . . [i]s declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” In Hamling v. United States, 418 U.S. 87, 105, 113 (1974), the Supreme Court upheld that statute and specifically rejected an argument that it was unconstitutional because it failed to spell out the entire obscenity standard from Miller. The Court explained that it never intended the Miller case to be a “legislative drafting handbook” and made clear that it would “construe federal statutes dealing with obscenity to be limited to material such as that described in Miller.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 505 n.13 (1985), is to the same effect.
Moreover, in Ward v. Illinois, 431 U.S. 767 (1977), the Court specifically held that obscenity is not limited solely to depictions of actual sexual intercourse. As the Court explained in Ward, the defendant “appear[ed] to assert that sadomasochistic materials may not be constitutionally proscribed because they are not expressly included within the examples of the kinds of sexually explicit representations that Miller used to explicate the . . . obscenity definition.” 431 U.S. at 773. The Court rejected that argument, noting that the “examples” used in Miller “were not intended to be exhaustive.” Id. The Court also pointed out that in Mishkin v. New York, 383 U.S. 502 (1966), it had found sado-masochistic materials that did not depict actual sex acts to be obscene. The materials in Mishkin included “drawings of scantily clad women being whipped, beaten, tortured, or abused,” Mishkin, 383 U.S. at 505.
If images of scantily clad women being whipped, beaten, tortured, or abused can be obscene—even absent any actual depiction of sex acts—then surely images of scantily clad women crushing to death live animals for the sexual excitement of men can be obscene as well. The New York Times and L.A. Times editorials have entirely too narrow an understanding of the traditional obscenity doctrine that those papers claim to be defending.
The House of Representatives was very careful here and wrote a statute that is not only narrow in application but also plainly constitutional.