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Sometimes First Amendment Rights Aren't Pretty... But Needed

U.S. District Court judge in Texas dismisses charges against animal abusers

Sometimes First Amendment Rights Aren't Pretty... But Needed

HOUSTON, TX—From all appearances, Ashley Nicole Richards isn't a very nice person. As "Cruel Meshalette," she dresses sexy—in at least one video, that means a black bra, high heels, short-shorts and a mask covering half of her face—talks kind of sexy... and crushes small animals for videos posted on the internet. And according to U.S. District Judge Sim Lake, those videos are legal.

Richards has posted several videos online showing her crushing or otherwise harming small animals, but the one that got attention from, first, People for the Ethical Treatment of Animals, and then, at PETA's urging, from the Animal Beta Project, which investigates such videos and tries to track their producers, involved a cat whose rear paws are duct-taped together, with the front paws taped individually, effectively immobilizing the cat. According to a story on HoustonPress.com, Richards proceeds to place the heel of her shoe on a fold in the cat's fur, which causes it to snarl, and then she runs the flat side of a knife blade across the cat's side, and presses its point against the cat's ass.

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"In this eight-minute-and-16-second clip, the cat does not die, nor is it even cut," reported Houston Press' Craig Malisow. "It's all foreplay. The long, slow mutilation comes later. And the sounds that come with it defy description."

But Richards doesn't just kill the animals; she revels in it.

"Hi, its me Meshalette, aka MsSexykiller," reads the text that accompanies another online clip titled "I Love 2 Kill." "I love to kill, I don't know why... This is for all my fans with a fantasy of a sexy black goddess... As a country girl I grew up killing and slaughtering to survive... Now I must survive by me makin ur fantasy cum true..... Send me an email with ur fantasy!!!!"

Even in Texas, such conduct is tough to ignore... and the Harris County District Attorney's office didn't: It had Richards and her roommate/alleged accomplice Brent Justice arrested under Texas Penal Code §42.09: Animal cruelty. And long-time animal cruelty prosecutor Belinda Smith was ready to throw the book at the pair.

But then, something slightly weird happened: The local U.S. Attorney's office stepped in and asked that Harris County turn the defendants over to it, for prosecution under 18 U.S.C. §48, now known as the "Animal Crush Videos" law: Legislation passed by Congress to replace a previous statute with the same number which had outlawed all videos depicting animal cruelty—until that law was overturned in April, 2010 by the U.S. Supreme Court in the case of U.S. v. Stevens.

The revised law criminalizes "any photograph, motion-picture film, video or digital recording, or electronic image that (1) depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury... and (2) is obscene."

Animal rights groups figured that Richards' and Justice's indictment under the revised statute would be a slam-dunk. Obviously, the animals in the pair's videos were "subjected to serious bodily injury," and as those with knowledge about humans' sexual fringes can testify, there are a lot of things that people use to get their nut off, including the mutilation of small animals, and many (probably most) would deem that kink to be disgusting and, yes, "obscene."

So imagine everyone's surprise when Judge Sim Lake issued his Memorandum Opinion and Order on April 17, dismissing all charges against the defendants—and he backed up his decision by citing a number of First Amendment cases brought by or of major interest to the adult entertainment industry!

"The First Amendment states that 'Congress shall make no law ... abridging the freedom of speech'," Judge Sim wrote. "All methods of expressing ideas, including movies, art, books, and expressive physical conduct, are safeguarded by the free speech clause... Accordingly, as a general matter, the government may not 'restrict expression because of its message, its ideas, its subject matter, or its content.' Ashcroft v. Am. Civil Liberties Union (2002). A law imposing a content-based restriction on expression is therefore invalid unless the government can demonstrate that the law satisfies strict scrutiny — i.e., the law is justified by a compelling government interest and is narrowly tailored to serve that interest. Brown v. Entertainment Merchants Ass'n, (2011); see also United States v. Plavboy Entm't Group, Inc., (2000)." [Parts of citations removed.]

It's been a long time since we've seen the Supreme Court's COPA decision, California's attempted videogame censorship decision and the ruling that scotched the attempt to make Playboy TV scramble or block its channels during the daytime cited in the same paragraph!

In any case, Judge Sim then goes on to discuss several successful attempts to exclude certain types of speech from First Amendment protection, including obscenity, incitement to riot, defamation, criminal conspiracy and "fighting words," but he notes that there have been many other proposed additions to that category, not the least of which was the dog-fight videos that were the basis of the Stevens case.

Regarding the "crush videos" case, Judge Sim first delves into whether the videos can be considered obscene under the Miller standard, and he concludes that they do not, since they do not "appeal to the prurient interest in sex," do not "portray sexual conduct in a patently offensive way," and do not "include representations or descriptions of 'ultimate sexual acts' and 'masturbation, excretory functions, and lewd exhibition of the genitals.'"

"Consistent with the Miller test and its accompanying examples," Judge Sim wrote, "the Supreme Court has made clear 'that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct'.'"

So much for whether the videos are obscene! No sexual conduct = no obscenity.

But obscenity isn't the only type of officially unprotected speech; there's also "Speech Integral to Criminal Conduct"—a phrase that gets its own section of Judge Sim's opinion.

The prosecution in the Richards case argued that since the crush videos apparently violated Texas' animal cruelty statute, the cruelty itself might not exist absent the defendants' having made a video of it, which they used to promote themselves online. It also argued that a ruling defining animal cruelty videos as "integral" to the animal cruelty crime itself would allow the government to "dry up the market" for such videos, since no one would make them if they knew they'd go to prison for having done so.

To torpedo that prosecutorial claim, Judge Sim referred to another sexual case, this time the seminal child pornography decision, New York v. Ferber.

"In Ferber the Court upheld a New York law that proscribed the dissemination of material depicting children under the age of 16 engaged in non-obscene sexual conduct, holding that such expression was categorically unprotected by the First Amendment," Judge Sim wrote. "The Court noted that the protection of children from sexual exploitation 'constitutes a government objective of surpassing importance,' while the value of permitting the depictions was 'exceedingly modest, if not de minimis'."

More pertinent to this case, Judge Sim noted that the high court had ruled that child porn photos and videos were "intrinsically related" to the child abuse, and in fact "an integral part of the production of such [criminal] materials." But then, citing Ashcroft v. Free Speech Coalition, he noted that virtual child porn, which doesn't involve actual kids, is perfectly okay, and that the Supreme Court found no evidence for the claim that such virtual kiddie porn could lead to someone making actual kiddie porn—and that it never approved the "dry up the market" concept for any speech other than child porn, which it noted might cause ongoing harm to its victims, even after they've grown up.

"The interest in protecting animals from extreme pain and suffering are significant and weighty," Judge Sim wrote. "Such an interest does not, however, rise to the level of 'surpassing importance.' Nor is it 'compelling' 'beyond the need for elaboration.' The court does not view the protection of animals from pain or death as a government objective equivalent to the protection of children from abuse... Moreover, 'virtual' animal crush videos could serve the same expressive purpose, whatever that may be." [Citations removed]

So having dismissed the possibility that the crush videos at issue are obscene and/or speech integral to an underlying crime, Judge Sim was ready to dismiss the charges... but he gilds the lily a bit by analyzing whether the crush videos survive the "strict scrutiny" called for in many speech cases, finding that the law at issue is not "narrowly tailored" nor "necessary to promote the government's compelling interest" in preventing animal cruelty.

"The acts depicted in animal crush videos are disturbing and horrid," Judge Sim admits in his conclusion, then goes on to quote the Playboy case, saying, "But '[t]he history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.' The court concludes that the speech proscribed by §48 does not fall within either categorical exclusion invoked by the United States. Furthermore, the court concludes that §48 cannot withstand strict scrutiny and therefore abridges the freedom of speech protected by the First Amendment."

But while Richards and Justice are off the hook federally—unless the Justice Department's appeal of Judge Sim's ruling is successful—Harris County has refiled animal cruelty charges against the pair, and those will likely be successful.






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Mark Kernes

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