President Barack Obama has signed into law a bill that outlaws the creation and distribution of so-called animal crush videos, a response to an April 20 Supreme Court decision (United States v. Stevens) that struck down an earlier federal law that banned
a more broadly defined description of animal cruelty.
The new law specifically addresses creating and distributing videos and ties it to obscenity - saying that these kinds of videos - involving burning, crushing and mutilating animals appeal to a
particular sexual fetish. The act is linked to obscenity so as to make it an exception to the first amendment.
Earlier this year, the U.S. Supreme Court overturned a federal statute outlawing the creation and sale of videos depicting animal cruelty, and the ruling didn't sit well with various members of Congress. But the bill designed to narrow the law to simply
ban crush videos —videos where, typically, a woman in high-heeled shoes crushes a rodent—may have to be re-presented next year since Congress appears to be running out of time this term to vote on revisions to the bill.
by California Rep. Elton Gallegly, H.R. 5566, the Animal Crush Video Prohibition Act of 2010, would ban the creation, sale, trading or distribution of videos depicting 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, or the advertising of same.
The delay was caused when senators added language that would make it a federal crime,
punishable by up to seven years in jail, to attempt or conspire to create or distribute a crush video—an amendment Gallegly considers unnecessary, since it's already a crime to conspire to violate any federal criminal law.
So Gallegly had
that language stripped out of the bill, the House passed it in that amended form, but now the bill must go back to the Senate for approval of the final version—but with just eight days left in this Congress's lame duck session, the Senate is
unlikely to take the bill up again before adjourning for the year.
In an 8-1 vote, the U.S. Supreme Court struck down a law that banned videos depicting animal cruelty. The justices ruled that the measure violated constitutional free-speech rights.
Congress had adopted the law in question in1999 as an attempt to
prevent people from profiting from videos depicting animal killing and torture. The bill was primarily aimed at crush videos in which women in high-heeled shoes step on small animals as a type of sexual fetish, reports Reuters.
argued the bill was too broad and vague, making videos of such things as bullfights or hunting and even some documentaries illegal. They argued the bill was a form of government censorship.
The case presented to the high court involved Robert
Stevens of Virginia, who made and sold three videos of pit bulls fighting each other and attacking hogs and wild boars. His 2005 conviction was the first under the 1999 law, Reuters reports. Stevens was received 37 months in prison, but had not served
time as his case was on appeal.
Chief Justice John Roberts wrote the majority opinion, citing the law as too broad and therefore invalid under the U.S. Constitution's First Amendment free-speech protections.
The discovery of graphic videos in which kittens, rabbits, hamsters and other small animals are stomped to death by women, usually with their bare feet or in high-heeled shoes, led to a federal law that is now the subject of a legal battle that
involves questions about animal cruelty, free speech and the specter of censorship.
The 1999 law, pushed through Congress by Rep. Elton Gallegly, R-Simi Valley, banned the production, possession and sale of videos depicting acts of animal cruelty
for commercial gain.
In Washington, the Supreme Court will hear arguments Tuesday on whether the law should be overturned on the grounds that it threatens free speech.
The legal case has caught the attention of the film industry, book
publishers, news organizations and other opponents of censorship, all of which have filed legal briefs asking the court to strike down the statute.
On the other side are animal rights groups and attorneys general from 26 states, including
California, who argue the law should be upheld.
Three tapes at the center of the legal proceedings show brutal, bloody scenes of pit bull fighting. Robert Stevens, an author and sometime film producer, was arrested and charged with three counts of
violating the law after federal agents seized the tapes during a predawn raid of his home in 2003.
Stevens was convicted and sentenced to 37 months in prison for selling the videos. Last year, Stevens scored a legal victory when the 3rd U.S.
Circuit Court of Appeals in Philadelphia overturned his conviction and ruled that the federal law illegally restricts free speech. Though the court said preventing cruelty to animals is a worthy goal, it rejected the government's argument that the law is
justified by a compelling interest in protecting animals from wanton acts of cruelty.
The decision set the stage for Tuesday's proceedings before the Supreme Court.
The US passed a 1999 federal law that makes it a crime to sell, create or possess videos and other depictions of cruelty to animals for commercial use. Violators are subject to up to five years in prison for each count as well as fines.
arose in 2004, when Robert J. Stevens of Virginia was sentenced to 37 months in prison by a federal court in Pennsylvania for selling videos that showed pit bulls fighting and training to hunt wild boar. Stevens is not accused of organizing dogfighting,
and in a book he wrote about raising pit bills as pets and working dogs, Dogs of Velvet and Steel , he argues against the practice.
Last summer, the Third Circuit Court of Appeals in Philadelphia overturned Stevens' conviction, saying both
the law and its application were unconstitutional.
Now the Obama administration are pursuing the law and are taking the case against Stevens to Supreme Court where the U.S. v. Stevens is scheduled for argument on Tuesday, October 6, 2009.
The National Coalition Against Censorship, joined by the College Art Association, warned that a law banning depictions of animal cruelty violates the First Amendment right to free speech and that the exemption it provides for work with
serious value rings hollow, given the long history of censorship of disturbing or unpopular images.
In defending the law, the Obama Administration is making the unlikely claim that local prosecutors and juries can be trusted with the power
to decide whether certain words and images are worthy of First Amendment protection. Even more disturbingly, the government asserts that speech rights can be limited to promote a social interest in order and morality, and that the Constitution
only protects material with serious social value that serves a higher purpose.
The road to censorship is paved with good intentions said Joan E. Bertin, Executive Director of the National Coalition Against Censorship. The
assertion that free speech rights depend on 'balancing of the value of the speech against its societal costs,' could threaten a vast array of material that is currently considered protected expression.
The government could argue, as it has with
regard to depictions of animal cruelty, that flag burning, as well as some video games, rap music, and videos are not protected by the First Amendment because their social costs outweigh their value. This would overturn more than half a century of First
Amendment law holding that even material with no discernible social value is, in the words of the Court, 'as much entitled to the protection of free speech as the best of literature.'
NCAC, which tracks and responds to censorship incidents
around the country, provided numerous examples in its brief of works of art that were initially scorned but were later deemed to be groundbreaking and influential, from the Impressionist school to Marcel Duchamp to Andy Warhol. The brief also offers
examples of art works containing images of animal cruelty that are directly threatened by this law, including Blood Orgies by Austrian artist Hermann Nitsch, in which ritualistic performances combine fake crucifixion with the disemboweling of lambs and
other animals; as well as controversial work by French Algerian artist Adel Abdessemed and Belgian artist Wim Delvoye.
These and other similar artists, and anyone who buys or displays their work, would be at risk for prosecution. Even though
their work has been shown in major museums and art venues around the world, juries could still conclude that it lacks serious value. The law invites subjective judgments about what work has serious value and creates a real risk that it will be
used to punish the expression of ideas that are unpopular, unwelcome, or unfamiliar, NCAC said in its brief.
The fact that we have determined as a society that animal cruelty should be prohibited does not mean that speech about animal cruelty
or images of such acts can be similarly prohibited, said Svetlana Mintcheva, Director of Programs for NCAC and an author of Censoring Culture: Contemporary Threats to Free Expression . Indeed, a core purpose of the First Amendment is to
protect the right to express odious or offensive ideas or ideas that undermine moral and legal norms. We don't have to like the work and may even condemn it from an ethical standpoint – criminalizing it, however, forecloses an important discussion.
Mintcheva noted that the law threatens not only artists but also journalists, photographers, television and film producers, scientists, academics, and others if their works—despite having serious value when considered as a whole—contain
depictions of animal cruelty that juries may find lack such value when viewed in isolation. For instance, video footage of a bullfight from a travel documentary on Spain, when viewed without the context of the program, would by definition be grounds for
prosecution since it depicts animal harm that is illegal in this country