Legal Commentary

The House this week passed H.R. 5566, the Animal Crush Video Prohibition Act of 2010, accepting the version approved in the Senate in September. This is Congress' response to United States v. Stevens, which struck down as overbroad the prior prohibition on the creation, possession, and sale of certain animal cruelty videos. Kathleen Bergin wonders if the new law can survive challenge.

Just after Stevens came down and the conversation immediately turned to how Congress could re-enact the ban, I had my doubts. The key to Stevens was the Court's refusal to recognize animal cruelty as an unprotected category (a la  child pornography) in which visual depictions of conduct can be proscribed in order to dry-up the market as a way to stop the conduct itself (which could not be stopped purely by enforcing prohibitions on the underlying conduct). And I did not see in the Court's reasoning a willingness to recognize even a narrower category, such as "animal crush depictions," as a new unprotected category of speech; Chief Justice Roberts really seemed to insist that it was a closed set of unprotected categories, most of them historically grounded. And in Bartnicki v. Vopper, the Court had refused to accept dry-up-the-market for conduct as a proper government interest justifying regulations of constitutionally protected expression. Thus, I could not see any ban passing muster--the statutorily targeted speech would not fall in an unprotected category, so Congress could not ban it purely to dry the market and halt the underlying conduct.

The apparent solution was to work a pre-existing unprotected category into the statutory definition. Section 3(a) defines animal crush video as a video or recording that "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" and is obscene (applying the constitutional Miller standard). That definition resolves the category problem--by defining crush videos as a sub-species of an already-unprotected category, Congress has a free hand to ban it.

The problem, as Mike Dorf pointed out when the Senate bill was still under consideration, is that the statute does not actually prohibit anything. Obscenity under Miller requires that the speech depict or describe, in a patently offensive way, sexual conduct, specifically defined. But the bill does not define any sexual conduct. And animal crush videos typically do not contain any sexual conduct or even any nudity. Although animal crush videos appeal to the prurient interest in sex and people are sexually aroused by watching them, that alone does not make the thing shown sexual--and if it is not sexual, it cannot be obscene.

So no conceivable real-world conduct could violate the statute. Which, I suppose, makes it constitutionally valid, even if merely symbolic. It also makes it, as Dorf says, useless--prohibiting a unique animal cruelty "so deviant it does not exist."