WASHINGTON, D.C.—Though unable to agree to extend unemployment benefits for millions of unemployed Americans, nor to end tax breaks for millionaires and billionaires, Congress nonetheless found time to pass H.R. 5566, the "Prevention of Interstate Commerce in Animal Crush Videos Act of 2010." The bill, which had orignally been passed by the U.S. House on July 21, but which was amended by the Senate, which approved its own version on Sept. 27, was thought to be dead in the current Congress, since a new House vote would be required to pass it, and if the House made any alterations, a new Senate vote as well.
But sadly, the bill cleared both of those hurdles this week, with the Senate concurring with a new House version which stripped out a previous Senate amendment, and the bill is now cleared to be signed by President Obama—unless he realizes that in its current form, it is unconstitutional, and declines to sign it into law on that basis.
The main problem with the bill (aside from its criminalization of yet another type of speech) is that it defines its main term, "animal crush video," to mean "any obscene photograph, motion-picture film, video recording, or electronic image that depicts actual conduct in which one or more living animals is intentionally crushed, burned, drowned, suffocated, or impaled in a manner that would violate a criminal prohibition on cruelty to animals under Federal law or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution."
But in order for any form of speech to be "obscene," it must fail the three prongs of the "Miller test," which Justice William O. Douglas summarized as, (a) whether "the average person, applying contemporary community standards," would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
H.R. 5566, like the law that inspired it, the Depiction of Animal Cruelty Act, which was struck down by the Supreme Court in U.S. v. Stevens, fails that test on at least two grounds: The material in question does not appeal to the prurient interest, defined by the high court in Miller as "a shameful or morbid interest in nudity, sex, or excretion," and it also fails to "depict or describe ... sexual conduct."
Needless to say, several federal legislators hailed the passage of the bill.
"Animal torture videos are barbaric and have no place in a civilized society," said Rep. Gary Peters (D-MI), one of the bill's sponsors. "By promising to lock up the people who produce and distribute these videos we can work to put a halt to this horrendous practice."
The Humane Society of the United States (HSUS) was similarly overjoyed.
"After federal judges struck down the law banning the sale of animal crush videos, this horrible and cruel industry stepped into the legal void and resumed its commercial creation and peddling of these videos," said Wayne Pacelle, president and CEO of the HSUS. "We need this law on the books to halt some of the most sickening cruelty I have ever witnessed in my life. We urge President Obama to sign H.R. 5566 into law quickly."
While it's unclear that any video producers did indeed step "into the legal void" and begin making more of the videos, it's also unlikely that those who do sell such fare, operating as they do on the fringes of the video production community, will mount a court challenge to the new law, even though it is constitutionally flawed.