Animal Cruelty” Law Struck Down

The Supreme Court has thrown out on free speech grounds a 10-year old federal animal cruelty statute aimed at outlawing so-called crush videos - graphic depictions of intentional killing of small animals marketed to people who find the videos sexually arousing.

Chief Justice John G. Roberts Jr. led an 8-1 majority in concluding that the 1999 law risked criminalizing too much constitutionally protected speech to survive First Amendment scrutiny. Roberts described the law as creating “a criminal prohibition of alarming breadth” and discounted the government’s assurances in briefs and oral argument to apply it narrowly.

Roberts left open the possibility of a narrower law aimed solely at crush videos, dog fighting or “other depictions of extreme animal cruelty.” In a lone dissent, Justice Samuel A. Alito Jr. argued that the law could have been upheld under a narrow construction. He warned that the decision would result in renewed production of crush videos, which had largely disappeared since the law was passed.

The law, codified as 18 U.S.C. § 48, prohibited any “depiction of animal cruelty,” broadly defined to include still photographs or audio or video recording of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” The prohibition applied if the conduct was illegal under federal law or the law of the state where the conduct took place or the material was found. It included exceptions for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

Congress passed the law after hearing testimony from animal protection groups and others about the extensive market in crush videos and the difficulty of prosecuting people involved in their production. Roberts quoted a House committee report on the bill describing the videos as typically featuring women using their feet or high-heel shoes to slowly crush to death “helpless animals,” including dogs, cats, mice, monkeys and hamsters. The videos “appeal to persons with a very specific sexual fetish,” the House committee report said.

The Humane Society of America voiced “disappointment” with the ruling but urged Congress to move “swiftly” to pass a narrower law. “The Supreme Court's decision gives us a clear pathway to enact a narrower ban on the sale of videos depicting malicious acts of cruelty, including animal crush videos and dogfighting,” said Wayne Pacelle, the society’s president and CEO.