First Attempt at Legislating “Crush Videos” was Deemed Too Broad

Posted by Stephanie Ulmer, Guest Blogger on July 28, 2010

In response to recent U.S. Supreme Court decision, Congress seeks to find a narrower road to protecting animals

On July 21, 2010, the House stepped up to answer the U.S. Supreme Court’s call for a narrower version of a law aimed at stopping the distribution of “crush videos” (videotaped depictions of small animals being smashed underfoot). H.R. 5566, Prevention of Interstate Commerce in Animal Crush Videos Act of 2010, passed with a vote of 416 to 4. The House acted after an April 2010 decision by the Supreme Court in which it overturned a defendant’s conviction under a similar 1999 law, 18 U.S.C. §48, finding that it was too broad and that it could allow for prosecutions outside its intended scope. United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010).

The Animal Legal Defense Fund filed an amicus curiae brief in the case, arguing that, “As Congress has found, animal cruelty is often committed so that others can watch. It is those who peddle to that market who are § 48’s target.” It was also asserted that §48 criminalized depictions only when the depiction’s sole expressive content was an illegal act of cruelty. ALDF argued that it was clear that the prior law made an exception for certain materials. In the introduction to its brief, ALDF noted that § 48 also recognized that there may be depictions of animal cruelty that contain an expressive message beyond the commission of acts of animal cruelty. “Consistent with Miller v. California, 413 U.S. 15 (1973), § 48 does not criminalize such depictions.  If there was some expressive message, if there is content of ‘serious religious, political, scientific, educational, journalistic, historical, or artistic value,’ there is no criminal penalty. 18 U.S.C. § 48(b); Miller, 413 U.S. at 34.”  The brief goes on to state that § 48 criminalized depictions only when the depiction’s sole expressive content was an illegal act of cruelty. 

But, alas, the high court rejected the arguments, ultimately agreeing with opponents of the law (many of whom included sportsmen and journalist groups) that it created an unconstitutional burden on First Amendment rights. The new bill will now go to the Senate for a vote. This quick reaction by the House deserves praise. Now… let’s hope this narrower bill will provide the protection the animals deserve.

ALDF’s full amicus brief can be found at UNITED STATES v. STEVENS, 2008 U.S. Briefs 769 (U.S. June 15, 2009).