In 2010, the U.S. Supreme Court made a curious ruling: it held that a federal ban on animal crush videos was unconstitutional.
Animal crush videos are despicable depictions of torture, dismemberment, and killing of animals, often in a sexually fetishized context. Few would argue that these videos deserve the protections of the First Amendment, but the Supreme Court ruled the way it did because of the text of the statute: an overly broad wording that could've been applied to hunting and husbandry.
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Congress responded promptly by passing the 2010 Animal Crush Video Prohibition Act (18 U.S.C. § 48), a far more specific version of the law that included detailed language on the prohibited conduct, as well as a requirement that the video be "obscene."
The revisions still weren't narrow enough for the district court, but the Fifth Circuit, late last week, reversed and upheld the law.
What Exactly Are We Talking About Here?
If you're still having trouble understanding what exactly a crush video is, the Fifth Circuit described the defendants in this case's conduct in disturbingly graphic detail:
Generally, the videos portray Richards binding animals (a kitten, a puppy, and a rooster), sticking the heels of her shoes into them, chopping off their limbs with a cleaver, removing their innards, ripping off their heads, and urinating on them. Richards is scantily clad and talks to both the animals and the camera, making panting noises and using phrases such as "you like that?" and "now that's how you **** a ***** real good."
Ashley Richards and Brent Justice (the camera operator) were the first to be charged under the revised version of the federal law, but the district court dismissed the case, finding the law to be facially invalid because it proscribes speech which is neither obscene or incidental to criminal conduct, and because the statute was not narrowly tailored.
What Exactly Was the District Court Smoking?
In a detailed opinion, the Fifth Circuit reversed, holding that the law is both narrowly tailored and facially valid as a restriction on obscene speech.
For the obscenity prong, the statute actually explicitly limits its application to "obscene" speech. According to the Supreme Court, if a statute declines to elaborate on what constitutes "obscene," the default definition from Miller will apply:
"The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Given Richards' attire in the video, and her sexualized language, the obscenity prong seems to be satisfied here.
But what about narrow tailoring -- does § 48 avoid the problems of its predecessor?
The panel opinion notes that instead of "wounded" and "killed," the statute provides a very detailed description of the prohibited conduct ("intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury,") and § 48(e) contains exceptions for videos of hunting, veterinary treatment, and the like.
"Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals," the court concluded. "We hold that § 48 is a permissible regulation of a subset of proscribable speech."