Legal Commentary

Last week President Obama signed into law the Animal Crush Video Prohibition Act of 2010, Congress's response to the Supreme Court's decision striking down an analogous (but far broader) statute last term in US v. Stevens.  The statute raises a number of interesting issues, but one that struck me off the bat is the concept of "obscene" crush videos.  The statute focuses heavily on obscenity: it includes a finding that crush videos satisfy all the requirements under the Court's Miller standard, and its operative provision requires that a video be obscene before it comes under the prohibition.

So here's my first-blush question: does the concept of obscenity make sense in the context of sexual fetishes not involving sex?  In Miller the Court explicitly says that obscenity statutes must confine themselves to depictions of sexual conduct. And indeed, conceptually the Miller elements seem to be a bad fit with sexual fetishes involving activity most of us would consider non-sexual.  For example, it's one thing to say that a depiction of sexual activity appeals to the prurent interest in sex; there's a sense of voyeurism about sexual depictions that easily fits into the concept of prurience.  But a depiction of crushing an animal, or of a man or a woman in a police uniform, or of any other scene that someone might find to be titillating?  For most of us these depictions have minimal sexual content, but for those with the particular fetish, their sexual content is quite high. 

There's an obvious -- if ironic -- truth here: people who have majoritarian sexual stimulants -- call it "good looking people getting naked and acting sexually" -- can expect to have the most extreme versions of their sexual "fetishes" subject to regulation (at least at the margins), while people with distinctly minority tastes -- e.g., getting turned on by uniforms -- will usually have a protected supply of material.  Nobody would ever think of banning depictions of uniforms because some people find them a turn-on.  The interesting question arises when there are depictions of conduct -- such as crushing animals -- that presumably has, at best, miniscule social value, but that serves as a sexual fetish.  Can we appropriately think of that as obscenity?  Maybe we can, but it seems we'd have to alter not just the technical aspects of Miller's holding, but our entire conception of what it means for something to be sexually obscene.