New animal-cruelty indictments raise First Amendment questions

Tuesday, December 11, 2012

WASHINGTON — Congress moved quickly in 2010 to pass a new law criminalizing certain depictions of animal cruelty, after the U.S. Supreme Court struck down an earlier version on First Amendment grounds.

But now the Animal Crush Video Prohibition Act of 2010 is under the microscope since the announcement last month that two Houston residents had been indicted by a federal grand jury under the revised statute.

“I think this law has some pretty serious First Amendment problems,” said Neil Richards, a professor and First Amendment scholar at Washington University School of Law in St. Louis.

Ashley Nicole Richards and Brent Justice were indicted for producing and distributing eight “crush” videos that involved torturing puppies, kittens and chickens.

The indictment is the first under the statute that Congress passed to remedy constitutional flaws identified by the Supreme Court in the 2010 ruling U.S. v. Stevens. The Court found that the law criminalizing animal-cruelty videos was overbroad and violated the First Amendment, in part because it could have led to the prosecution of hunting videos and other legal portrayals.

The successor law focuses more narrowly on crush videos, which appeal to a certain fetish by displaying the torture and killing of small animals, often by women using stiletto heels. The new law ties the crime to animal cruelty and to obscenity, which the Court has long placed outside the protection of the First Amendment.

The law specifically exempts depictions of “customary and normal veterinary or agricultural husbandry practices … the slaughter of animals for food or … hunting, trapping, or fishing.”

Richards and Justice were already in custody under state animal-cruelty charges when the federal indictments were announced by U.S. Attorney Kenneth Magidson. They could face up to seven years in prison on each of five charges under the new law.

Assistant federal public defender Philip Gallagher, who represents Brent Justice, would not say whether he planned to challenge the new law. “I can’t talk about litigation strategy,” Gallagher said.

But some commentators say the statute, even though more narrowly drafted, could still be vulnerable under established First Amendment doctrine.

“The whole thing is just a mess,” said University of Chicago Law School professor Geoffrey Stone, a First Amendment expert.

“As I understand the law, it tries to solve the Stevens problem by limiting its prohibition to images of animal cruelty that are obscene,” Stone said. “That seems to me quite odd, because the objection to these videos really has nothing to do with the fact that a very small portion of them are obscene. The objection is that animals are tortured in the making of the videos. … It would be as if the law prohibited the commission of murder in order to make a snuff film only if the film is obscene.”

Stone said the new law also could be vulnerable because it can be seen as content discrimination, which the Court disapproved of in R.A.V. v. City of St. Paul, a 1992 case. That ruling said that under the First Amendment, government usually may not punish more harshly a particular kind of speech that falls within a category of unprotected expression.

An example, Stone said, would be if “obscenity is punished especially harshly if it shows homosexual sex. … The Court in R.A.V. said that such content-based restrictions within a category that can be prohibited are permissible only if they flow logically from the reason for punishing the speech in the category more generally.” Stone continued, “Surely that’s not true of obscenity that involves animal cruelty. That’s not the worst type of obscenity.”

Said Neil Richards at Washington University, “The First Amendment bars the government from saying what kind of films are appropriate for everyone. The law singles out one narrow subset of animal-cruelty films (it doesn’t apply to hunting films or films of industrial animal-processing plants), and makes distributing them a felony. This is the kind of selective punishment of weird and deviant speech that the First Amendment prohibits. Congress can’t single out categories of speech that it doesn’t like and then make it a felony to engage in that speech.”

Richards added that the new law “tries to get around Stevens by limiting it to only ‘obscene’ videos, but that’s problematic, too.” In part, Richards said, that is because “while the government can punish the distribution (but not the possession) of obscene films, it must either regulate all obscenity, or a subset of obscenity that is particularly bad for the reasons obscenity is really bad. This is a small exception that doesn’t seem to apply here.”

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