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Legislation banning "crush" videos signed into law

By J. DeVoy

STOMP! - just a musical production after all.

Ever the free speech patriot, president Obama signed the Animal Crush Video Prohibition Act of 2010 (ACVPA) into law earlier this month.  The bill, which labels crush videos as “obscene,” contains a maximum penalty of seven years’ imprisonment for violating its provisions. (full text here.)

Here’s the relevant portion of the new law, 48 U.S.C. § 18:

(a) Definition- In this section the term ‘animal crush video’ means any photograph, motion-picture film, video or digital recording, or electronic image that–

(1) 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 (as defined in section 1365 and including conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242); and

(2) is obscene.

The Supreme Court recently considered a similar issue in US v. Stevens, affirming the Third Circuit and ultimately striking down a 18 U.S.C. § 48 due to constitutional overbreadth. 559 U.S. ___ (2010).  That statute prohibited depictions of animal cruelty, and was enacted with a focus on the interstate market for the same crush videos the legislation enacted by Obama seeks to outlaw.  The Supreme Court ultimately decided that the sweep of 18 U.S.C. § 48 was too broad, encompassing protected speech within its scope and effectively outlawing an entire genre of expression without any judicial oversight.

Remember, also, that it was Alito’s dissent that showed his morbid fascination with crush videos.  Surprisingly, he argued that they should be their own form of unprotected speech, a la child pornography.  It looks like he may have gotten his wish.

The ACVPA apparently tries to side-step this by invoking the word “obscenity,” and criminalizing only depictions of harm to animals that is obscene.  In contrast, 18 U.S.C. § 48 did not require that the content be obscene.  This new legislation creates an interesting proposition: either it will be widely used and essentially turn prosecution of crush videos into obscenity trials under the Miller test, or, fearing that obscenity will never be provable, prosecutors will never try a case under this law.  Given Eric Holder’s tenure as Attorney General to date, I’m inclined to believe the former scenario is most likely, especially amidst increased pressure to bring obscenity prosecutions.  While I love like tolerate puppies as much as the next person, vocal members of the ASPCA and PETA – including the guy who changed his name to – are whiny agitators on a level previously reserved for the AARP’s bovine membership, and will try to see this law put to use immediately.

Because the law sets obscenity aside as its own provision for finding guilt, it may survive for a while.  There is a proprietary concern, however, with adding the animal abuse “plus factor” that augments the penalty for obscene speech beyond it merely being obscene.  While not a content-based restriction in the way an outright ban on animal abuse videos was in Stevens, this legislation’s content-consciousness may come into play in a hopefully inevitable constitutional challenge.

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