Congress Takes Aim at Crush Videos and Misses

I am very concerned about HR 5566, a law that would amend Title 18 of the United States Code, to "prohibit interstate commerce in animal crush videos".  This new law is poised to replace the statute struck down by the Supreme Court in United States v. Stevens as unconstitutional.  In its current form, (and there seem to be only minor amendments on the horizon) HR 5566 will, I fear, be inadequate.

The original Title 18 language was drafted to prevent the marketing of crush videos, a genre of film where women in sexy shoes and lingerie stomp, crush and kill small animals, by prohibiting the creation, sale, or possession with intent to sell, a depiction of animal cruelty. It was asserted that this form of "expression/speech" was not protected under the first amendment.  Animal cruelty included maiming, mutilating torturing, wounding or killing the animal.

Stevens however, was prosecuted under this statute for selling dog fighting videos filmed in the United States and Japan, where such activity was illegal and legal respectively. Additionally, there were others who wanted to show cockfights and other extreme "sports" in the United States as "pay per view" entertainment who also contested the constitutionality of this statute.  They argued, and the court agreed, that the law as written, was too broad and infringed upon protected speech as well as unprotected speech. HR 5566 was introduced to fix all this.

I am afraid it does not. This bill requires that the depiction be obscene. Is it obscene under our current body of law? Is it obscene to stomp in stilettos as well as sneakers? Do both appeal to one's prurient interest? This bill requires conduct in which a live animal is "intentionally crushed, burned, drowned, suffocated or impaled" in such a way that would violate state or federal anti cruelty statutes where the film was created or sold. It does not say maimed, mutilated, killed or tortured which could catch other cruel conduct not specified above. (Since hunting, trapping and fishing is exempted -wounding or killing should no longer be an issue.) This draft requires sale or distribution for financial gain and eliminates possession with intent to sell. (As with narcotics there is an inference of intent to sell based upon the quantity possessed.) What if one possesses a hundred DVD s but no proof of sales is discovered? What if it is filmed and distributed for free? Finally, although the Justices of the Supreme Court suggested in dicta that dog fighting (remember Mr. Stevens) could specifically be included in a redraft and withstand constitutional scrutiny, it was not added to this statute. This worries me as it clearly invites the marketing and showing of animal fighting films in a variety of forums, like "pay-per-view" where actual harm to the pets occurred at some other time and place.

My concern with HR 5566 is that we may end up with a great caption and a poor law with the attendant congratulatory back slapping and high fiving. This practice does fool us a lot of the time. The substance of the bill must be tested against the likelihood of enforcement and the ability to convict under the enacted language. In this case - if the caption and the content don’t match - the ones celebrating will be the criminals.

If you share my concerns please contact Representative Elton Gallegly and ask him to consider reworking some of the proposed language. http://www.house.gov/gallegly/