Justices Side with NRA in Striking Ban on Crush Videos
In an 8-1 opinion with only Justice Samuel J. Alito dissenting, the U.S. Supreme Court has struck down the federal law prohibiting anyone from knowingly creating, selling or possessing crush videos and other depictions of animal cruelty for trade in interstate or foreign commerce. 18 U.S.C. §48.

The films, photos and other depictions that are banned under this law show a living animal that is "intentionally maimed, mutilated, tortured, wounded, or killed". The law does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

The purpose of the law was to stop crush videos which depict people inflicting torture on animals with their bare feet or while wearing high heeled shoes. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos. H.R. REP. NO. 106-397, at 2 (1999).  Without this law, such conduct was almost impossible to prosecute. The videos are made in secret at unknown locations and faces of the perpetrators are not shown.  As Justice Alito pointed out, "Congress concluded that the only effective way of stopping the underlying criminal conduct was to prohibit the commercial exploitation of the videos of [animal cruelty]". 

Indeed, by 2007, the crush video industry was dead.  Now, crush videos are already back online.
Other government interests behind this law included "discouraging individuals from becoming desensitized to animal violence because that may serve to deter future antisocial behavior toward human beings". H.R. REP. NO. 106-397, at 3-4. There is a well established link between animal cruelty and domestic abuse and other violence to humans. People who hurt animals are substantially more likely to commit spousal and child abuse as well as violence to others.

The challenge to §48 was raised by Robert Stevens convicted in 2005 of knowingly making and selling dog fighting videos in violation of 18 U.S.C. §48. He was sentenced to 37 months of imprisonment and 3 years supervised release. Stevens advertised his homemade videos in Sporting Dog Journal. They included "Pick-A-Winna" and "Japan Pit Fights," which show organized dog fights, and "Catch Dogs," which includes footage of a dog encouraged to attack a domestic farm pig, known as hog dog fighting. The Supreme Court's decision means Stevens' conviction is overturned.

In the opinion authored by Chief Justice John G. Roberts, the Supreme Court rejected the idea depictions of animal cruelty should be regarded as unprotected speech that can be regulated, much like obscenity, child pornography or words that incite violence or are integral to criminal activities.  Instead, the Court found the law is unconstitutionally overbroad, an infringement of the First Amendment right of free speech.  The Court worried, for example, that depiction of the "humane slaughter" of a stolen cow or hunting magazines with photos of animals killed during hunts would be illegal.

Citing the National Rifle Association, the Court noted "hunting magazines alone account for $135 million in annual retail sales".  Citing the Safari Club International and the Congressional Sportsmen's Foundation, the Court said "many popular [hunting] videos ‘have primarily entertainment value' and are designed to ‘entertai[n] the viewer, marke[t] hunting equipment, or increas[e] the hunting community.'"  Again citing the National Rifle Association, the Court added "much of the content of hunting media . . . is merely recreational in nature."

The Court also pointed out that state laws regarding animal cruelty, hunting, treatment of livestock and wildlife vary such that it would be very difficult to know what depictions would be illegal. The Court noted there is no good way to tell what has "serious" value as news, art, education, science, history, politics, or religion, for example, and which depictions are simply animal cruelty offered for commercial gain. A bull fight in Spain covered by an internet blogger v. a dog fight depicted in a video sold over the internet.

Justice Alito disagreed, however. Justice Alito pointed out the statute does not apply to depictions of hunting which is legal in all 50 states. The same is true of "humane slaughter". Regardless, said, Justice Alito, the law is not "substantially overbroad" such that it would infringe First Amendment rights.    

He pointed out that after all the conduct targeted, animal cruelty, is not legal in any state.  Justice Alito rejected that the First Amendment protects violent, criminal conduct. 

Justice Alito concluded, "The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country."

Big Blend Radio: Laura Allen was a featured guest on Rants, Raves & Rock 'N Roll radio on June 5, 2010. To listen to the entire show, please click here. To listen to Laura's interview, please click here.

For more information, go to http://www.animallawcoalition.com/animal-cruelty/article/558  

Laura Allen, Esq. "Attorney for Animals" is the founder and Executive Director of Animal Law Coalition, which advocates for the rights of animals to live and live free of cruelty and neglect. Laura is a trial attorney with more than 20 years of experience trying cases and arguing appeals in the state and federal courts in Washington, Illinois, Missouri and Arizona. She is a member of the bar of the U.S. Supreme Court. 
Learn more at www.AnimalLawCoalition.com