More about US v. Stevens, the Third Circuit decision that the federal law criminalizing the depiction of animal cruelty is an unconstitutional infringement on the First Amendment.

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Previous post by Ruthann Robson here.

The Oregon Animal Law blog noted that the ability to federalize the prosecution of animal cruelty cases has been effectively terminated with this ruling if it is followed by the other circuits. It probably will be if the 3d Circuit ruling is affirmed by the Supreme Court. From the linked post:

Defendant sold pit bull related videos and merchandise. Law enforcement officers arranged to buy three videotapes from defendant. The first two tapes showed circa 1960s and 70s footage of organized dog fights that occurred in the United States and involved pit bulls, as well as footage of more recent dog fights, also involving pit bulls, from Japan. The third video showed footage of hunting excursions in which pit bulls were used to catch wild boar, as well as footage of pit bulls being trained to perform the function of catching and subduing hogs or boars. The district court denied defendant’s motion to dismiss the indictment based on his assertion that § 48 abridged his first amendment right to freedom of speech. In vacating defendant’s conviction, the court held that § 48 regulated protected speech and it was unwilling to create a new category of unprotected speech. The court also held that, subjecting § 48 to strict scrutiny, § 48 could not withstand that heightened level of scrutiny because it served no compelling government interest, was not narrowly tailored to achieve such an interest, and did not provide the least restrictive means to achieve that interest.

The court struck down § 48 as constitutionally infirm and vacated defendant’s conviction. Petition for certiorari filed at, 12/15/2008. The Third Circuit found that there were already laws in all states against animal cruelty. The intent of Congress was to supplant those laws (which are hard to enforce without witnesses to the cruelty) with a law to prohibit the depiction of the cruelty. The analogy in the briefing is made to laws prohibiting the depiction of child   pornography. The Third Circuit rejected the analogy finding that animals are not like children when it comes to the first amendment analysis. Part of that difference is found in the fact that animals do not perceive the injury of the depiction of the cruel act (as would a child) and thus the injury is not in the depiction but in the cruel act (which is already illegal under state statutes). See, United States v. Stevens, 533 F.3d at 230.

The statute at issue, 18 U.S.C.S. § 48, was passed because while all individual states criminalize cruelty to animals, none has a statute that prohibits the sale of depictions of cruelty to animals, so distributors of “crush porn” in which animals were tortured   could not be effectively prosecuted.   The faces of   women inflicting torture on aninals in “crush porn” may not be shown, and neither   the location of filming nor the date of the activity may be ascertainable by scrutinizing the porn itself. Defendants arrested for violating a state cruelty to animals statute in connection with the production and/or sale of   “crush porn” could successfully assert as a defense that the state could not prove its jurisdiction over the place where the acts occurred or that the actions depicted took place within the time specified in the state’s statute of limitations.     Only if the people involved in the production   of the crush porn were caught in the act could state anti-cruelty laws be   invoked, and then only for the torture itself, not for the production and sale of same.

The text of the statute at issue is as follows:

§  48. Depiction of animal cruelty

(a) Creation, Sale, or Possession.: Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.: Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.: In this section:

(1) the term”depiction of animal cruelty”means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term”State”means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.

–Ann Bartow
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