WASHINGTON, D.C.—Apparently unable to fathom the Supreme Court's ruling last April which overturned a federal law banning videos depicting cruelty to animals, the U.S. House of Representatives passed a new version of the ban which it believes will pass constitutional muster.
Sponsored by California Rep. Elton Gallegly (R-Simi Valley), the bill, H.R. 5566, has amassed 262 cosponsors, and was easily approved on July 21 by a vote of 416 to 3.
Referring to so-called "crush videos," which usually feature scantily-clad women crushing small mammals under their high heels, the bill claims several "congressional findings," including that the federal government has a "compelling interest in preventing animal cruelty"; that perpetrators of such cruelty are often difficult to find, "thus frustrating the ability of Federal and State authorities to enforce the criminal statutes prohibiting such behavior"; that crush videos "provide an economic incentive for, and are intrinsically related to, the underlying acts of the criminal conduct"; and that "Animal crush videos appeal to the prurient interest and are obscene."
There's only one problem with that last finding: They aren't.
"Under the holdings announced today," wrote Chief Justice Warren Burger for the majority in the 1973 Supreme Court case of Miller v. California, "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution." [Emphasis added]
Moreover, in describing how states might frame their own obscenity laws, the high court advised, "State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." [Emphasis added]
The portion of the bill that creates liability reads, "Whoever knowingly and for the purpose of commercial advantage or private financial gain sells or offers to sell, or distributes or offers to distribute, an animal crush video in interstate or foreign commerce shall be fined under this title or imprisoned not more than 5 years, or both." However, in the April 20 Supreme Court decision in U.S. v. Stevens, the justices made it very clear that they were not about to expand the forms of speech they're willing to ban without evidence of some compelling governmental rationale to do so.
"'From 1791 to the present,' however, the First Amendment has 'permitted restrictions upon the content of speech in a few limited areas,' and has never 'include[d] a freedom to disregard these traditional limitations'," wrote Chief Justice John Roberts, referring to various speech cases from Chaplinsky v. New Hampshire to U.S. v. Playboy Entertainment Group, Inc. "These 'historic and traditional categories long familiar to the bar,'—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—are 'well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.'"
Rep. Gallegly's bill, however, attempts to shoehorn crush videos into the accepted "obscenity" category by sleight of hand.
"In this section the term 'animal crush video' means 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," the bill reads. [Emphasis added]
(Of course, being a Republican, Gallegly's bill exempts videos depicting "customary and normal veterinary or agricultural husbandry practices" or "hunting, trapping, or fishing.") (Hooray! Bassmasters is saved!)
But as the Miller decision notes, for a work to be obscene, it must "depict or describe patently offensive 'hard core' sexual conduct"—and Gallegly's already exempted "animal husbandry," so H.R. 5566 clearly has no "obscene" legs to stand on.