Cyber Animal Cruelty and Sex: Prohibiting “Crush” Videos

When the sons of billionaire Donald Trump, Donald Jr., and Eric tweeted pictures of themselves hunting wild life in Zimbabwe in their 2011 safari trip, over the internet last month (March 2012), many were quick to condemn the act of hunting as well as the online posting of the pictures. One photo even showed the severed snout of an elephant being held up like a trophy by one of the sons. The brothers justified their acts by insisting they violated no law. Mr. Trump made a public statement that he does not relish hunting and he could not understand why his sons are into it as a sport. He did not object to the sport and he also observed that his sons have gotten quite good at it. On the other hand, indigenous peoples came out with statements that such a sport is alien to their way of life because they hunt out of necessity, not for sport or amusement. News of this nature makes the cause of animal rights activists relevant in the digital world.

For those who are interested in these matters, the US Congress enacted 18 U.S.C. § 48 several years ago to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty. The statute addressed only portrayals of harmful acts, not the underlying conduct. It applied to any visual or auditory depiction, including those uploaded on the internet “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed,” if that conduct violates federal or state law where “the creation, sale, or possession takes place”. A clause exempted depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value”.

The legislative history of this law focused primarily on “crush videos,” which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish who are sexually excited about the killings. These videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain”.

The statute came under fire for being unconstitutional because of the prosecution of Robert J. Stevens. He has a business, “Dogs of Velvet and Steel,” and an associated Web site, through which he sold videos of pit bulls engaging in dogfights and attacking other animals. Among the videos were Japan Pit Fights and Pick-A-Winna: A Pit Bull Documentary, which include contemporary footage of dogfights in Japan (where such conduct is allegedly legal) as well as footage of American dogfights from the 1960′s and 1970′s. A third video, Catch Dogs and Country Living, depicts the use of pit bulls to hunt wild boar, as well as a scene of a pit bull attacking a domestic farm pig. On the basis of these videos, Stevens was indicted on three counts of violating § 48. Mr. Steven moved to dismiss, by arguing that § 48 is invalid under the First Amendment. The District Court denied his motion, and he was convicted. However, upon appeal, the Third Circuit vacated the conviction and declared § 48 facially unconstitutional as a content-based regulation of protected speech.

The case reached the Supreme Court of the United States which sustained the finding of the Third Circuit. There were several reasons given in striking down the law as unconstitutional. The law was overbroad since it criminalized activities that may be considered lawful and ordinary but which would not fall within the exemptions of the statute. The Supreme Court was not prepared to say that depictions of animal cruelty are a form of unprotected speech that the government can regulate. It is not similar to depictions of child pornography which is devoid of constitutional protection because these depictions are in themselves part of the unlawful activities constituting child abuse. In the words of the Supreme Court, the market for child pornography was “intrinsically related” to the underlying abuse, and was therefore “an integral part of the production of such materials, an activity illegal throughout the Nation”. In contrast, while hunting is illegal in some states, it is legal in several other states. The statute did not specifically criminalize the killings for crush videos. It was ambiguous to the extent that while it penalized the intentional killing of an animal, it did not draw any distinction based on the reason the intentional killing of an animal is made illegal. There are myriad federal and state laws concerning the proper treatment of animals, but many of them are not designed to guard against animal cruelty. “Livestock regulations are often designed to protect the health of human beings, and hunting and fishing rules (seasons, licensure, bag limits, weight requirements) can be designed to raise revenue, preserve animal populations, or prevent accidents”. But under the law, the depictions of the killings of animals for these purposes can be illegal.

This case teaches that statutes prohibiting certain depictions of animal killings should be limited in scope to the threat they seek to address. It is a valuable lesson that animal rights activists and sympathizers should take to heart in their online and offline advocacies.

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