Last April, the U.S. Supreme Court struck down a 1999 Federal law banning the creation, sale, or possession of depictions of animal cruelty as a violation of the constitutional right to free speech. Shortly after the decision, the original law’s main advocate, Rep. Elton Gallegly (R-CA), pledged to quickly introduce a new, more narrowly crafted measure. In July, the House passed his new bill by vote of 416 to 3. In November, the Senate unanimously approved it. Last Thursday, with Gallegly at his side, President Obama signed the Prevention of Interstate Commerce in Animal Crush Videos Act of 2010 into law.
Gallegly’s efforts have been targeted at cracking down on so-called “crush videos” — a narrow niche of erotic films that usually feature small animals being tortured and killed by scantily clad women. The original bill ran into constitutional trouble because it was written so broadly that it could be applied not just to crush videos, but also to other depictions of animal violence. For instance, in 2004, Robert J. Stevens was sentenced to three years in prison for violating the law by distributing graphic dog-fighting videos.
It was Stevens who challenged the constitutionality of the law, which the Supreme Court agreed to consider on April 20, 2009. The court ruled 8-to-1 in favor of Stevens, with only Justice Samuel Alito dissenting. In his majority opinion, Chief Justice John Roberts was reluctant to expand the definition of obscene material outside protection of the First Amendment beyond content of an explicitly sexual nature. (For full coverage of United States v. Stevens, see the November 2009 issue of Supreme Court Debates.)
The new law specifically mentions crush videos and prohibits the creation, sale, or possession of “obscene” depictions of animals intentionally “crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.” It also exempts “any visual depiction of customary and normal veterinary or agricultural husbandry practices, the slaughter of animals for food, or hunting, trapping, or fishing.”
Although the law is much more narrowly crafted than the earlier version, it still expands the scope of speech unprotected by the First Amendment, since crush videos, while of an erotic nature, do not directly depict sexual acts. At this point, no parties have come forward to challenge the constitutionality of the law — but that could change once the first arrests are made.
In addition, there is a case currently before the Court — Schwarzenegger v. Entertainment Merchants Association — that could have implications for the constitutionality of crush video law. In Schwarzenegger, the Court is considering the constitutionality of a California ban on the sale of violent videogames to minors. If the Court holds that the First Amendment does not offer a blanket protection of the sale of material with violent content, it would make upholding the crush video ban significantly easier. (This case is covered in-depth in this month’s issue of Supreme Court Debates.)
