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Julie Hilden

Does the Federal Anti-Animal-Cruelty-Depiction Statute Violate the First Amendment? Part One


Monday, October 26, 2009

This Term, the Supreme Court will decide whether the federal criminal statute targeting depictions of animal cruelty violates the First Amendment. On October 6, the Court heard oral argument in the case.

In this two-part series of columns, I'll consider whether the law is constitutional. In this part, Part One, I'll focus on the statutory language, and how it might be applied. Then, in Part Two, I'll explain why that language could be seen as constitutionally problematic.

I'll also consider in Part Two whether it might have been wiser for the statute's drafters to draw from the law and precedent regarding the prohibition of child pornography, than from the law and precedent regarding the prohibition of obscenity.

The Intention Behind the Statute, and Its Language

The federal statute at issue was written to target "crush videos," which show women stepping on and crushing animals such as mice or kittens, to kill or maim them -- all in order to serve viewers' perverse sexual pleasure.

Yet the statute is written much more broadly than that – and, in particular, it lacks any sexual component.

Interestingly, as Eugene Volokh noted in his excellent discussion of the law, President Clinton's signing statement accompanying the law tried to cabin its application by saying that the Justice Department should construe the law narrowly, limiting it to "wanton cruelty to animals designed to appeal to a prurient interest in sex."

But as Volokh observes, a signing statement does not bind successor administrations. And accordingly, we now are seeing the Obama Administration defending the application of the statute to a video depicting dogfighting, despite the fact that the video lacks any sexual component or purpose.

Rather than mentioning any sexual motivation, the statute simply criminalizes "knowingly creat[ing], sell[ing], or possess[ing] a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain."

What counts as a "depiction of animal cruelty" under the statute? The statute defines the phrase to include "any visual or auditory depiction ... of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed…."

Moreover, the statute requires that the cruel conduct must be illegal under federal law or under the law of the relevant jurisdiction (that is, the jurisdiction of the state or other entity in which the depiction is created, sold, or possessed) – but not in the jurisdiction in which the cruel conduct originally occurred.

Notably, then, since America bans bullfighting, the federal statute bars the sale here of a video of a bullfight that was legal in the foreign jurisdiction (say, Spain) where the bullfight occurred.

This is a strange twist, but if the Court were to find this aspect of the law problematic, it could easily strike down the law only insofar as it reaches depictions of conduct that was legal where it occurred.

Still, this part of the law (or a variant upon it) might arguably be able to be justified by the need to stop evasion: If video producers were to merely move their "crush video" or dogfighting operations to jurisdictions without animal cruelty laws, but still continue to sell their wares in the U.S., then the statute would merely be exporting animal cruelty, rather than stopping it. And Americans would, in effect, be funding animal cruelty abroad.

The Statute's "Serious Value" Exception

The statute contains an exception for "any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value." This exception tracks the wording of the traditional "serious value" exception to anti-obscenity statutes, as approved by the Supreme Court.

Yet, unlike the parallel exception in anti-obscenity statutes, the anti-animal-cruelty-depiction statute's exception does not command the viewing judge to assess the work at issue "taken as a whole." As a result, as Eugene Volokh has noted, this exception might well be construed by judges, in practice, to be significantly narrower than the parallel obscenity-statute exception.

For instance, a full-length art-house movie depicting just a few moments of explicit sex would virtually never be viewed by a judge as obscene, thanks to the "taken as a whole" language. In contrast, a movie containing a few moments in which a live animal was (genuinely) killed could be viewed by a judge as violating the federal animal-cruelty-depiction statute, since the judge could focus on those moments, rather than being required to evaluate the work as a whole.

Assuming that the anti-obscenity-law model is the right one to use – and as I will explain in Part Two of this series, it may not be – it makes sense to omit the "taken as a whole" language. A few minutes is all it may require to maim or kill an animal, and embedding the depiction of that act in an hours-long film shouldn't make a difference when it comes to legal culpability. In contrast, giving a pass to a few minutes of consensual sex in a longer film has minimal real-word impact.

In addition, Hollywood has become expert in using live animals without harming them, and doing so is surely not too much to ask, regardless of how long or short the parts of the film in which they appear may be. Notably, videos of "virtual" animal killings or maimings, like videos of "virtual" child pornography, are First Amendment-protected, no matter how lifelike they may be, on the ground that they are pure speech, and to prohibit them would be to prohibit ideas (however despicable) and create true "thought crime."

Yet the decision not to incorporate the full obscenity-test language into the anti-animal-cruelty-depiction statute does have one drawback: It somewhat undermines the statute's drafters' attempt to draw the animal-cruelty statute directly under the rule set by prior precedent, and thus defend its constitutional validity.

Could the "Serious Value" Exception Be Invoked by Animal Rights Groups?

In the context of obscenity law, the "serious value" exception has been applied mainly to carve out works of art. Indeed, my sense is that this may be its primary application.

In the context of the anti-animal-cruelty-depiction statute, in contrast, the "serious value" exception might well primarily operate to protect educational, political, and scientific works.

One concern that has been raised about the federal anti-animal-cruelty-depiction statute is that it could, in theory, be turned against animal rights activists and groups such as PETA (People for the Ethical Treatment of Animals). (Full disclosure: I am a member of PETA.)

That's because PETA, at times, sends workers into factories and laboratories to film or take photographs of animal abuse, with a view toward exposing and ending that abuse. PETA also, at times, uses such films or photographs in its materials when it receives them from like-minded workers at factories or labs who are acting on their own, and are unaffiliated with PETA.

PETA members who participate in such undercover operations do "create" and "possess" videos of animal abuse. And a prosecutor might conceivably stretch the law to try to argue that PETA is also "selling" such videos or images and/or putting them into interstate commerce "for commercial gain"-- if access to the videos or images, via PETA's website or its magazine, were to be connected to PETA's membership fees or donations.

However, the "serious value" exception could – and should -- protect such videos, which, as presented by PETA, are "educational," "political," and also "scientific" to the extent that PETA places them in the context of an argument in favor of cruelty-free farming or drug- or product-testing methods.

Similarly, the "serious value" exception might cover one of the hypotheticals that Eugene Volokh raises: "[a] magazine with photographs of people illegally killing endangered species in a foreign country." This example, too, would be "educational," "political," and perhaps also "scientific."

Having now covered the anti-animal-cruelty-depiction statute's language, the genesis of that language, and how the statutory "serious value" exception may be applied, I will go on in Part Two of this series– which will appear tomorrow, October 27 -- to discuss the constitutional issues the statute raises. I'll also ask whether the anti-child-pornography statute model might have been a better model than anti-obscenity statutes in this context.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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