United States v. Ashley Richards

Case: 13-20265 Document: 00512662694 Page: 1 Date Filed: 06/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20265 FILED
June 13, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellant
v.
ASHLEY NICOLE RICHARDS; BRENT JUSTICE,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
The First Amendment restrains government to “make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. Speech, as expression,
“arcs toward the place where meaning may lie,” 1 and when that meaning is
hurtful or dislikable—meaningful, perhaps, to the bigot, or the flag burner—
courts must be vigilant to affirm First Amendment protection. See Snyder v.
Phelps, 131 S. Ct. 1207, 1219 (2011); Texas v. Johnson, 491 U.S. 397, 404–405
(1989). Yet when hurtful expression involves violence, 2 and dislikable
1 Toni Morrison, Nobel Lecture (Dec. 7, 1993), in Nobel Lectures, Literature 1991-
1995 (Sture Allén ed., 1997).
2 See Virginia v. Black, 538 U.S. 343, 362–63 (2003); Watts v. United States, 394 U.S.
705, 707–08 (1969); Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616–17 & nn.24–25
(5th Cir. 2004).
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expression involves obscenity, 3 First Amendment doctrine acknowledges also
the truth that language is “a living thing over which one has control, . . . an act
with consequences.” 4
In 2010, the Supreme Court struck down Congressional legislation,
codified at 18 U.S.C. § 48 (1999), which made it a crime to knowingly create,
sell, or possess “a depiction of animal cruelty,” declaring the statute to be
overbroad under the First Amendment. United States v. Stevens, 559 U.S. 460(2010). Responsively, Congress revised § 48 to make it a crime to knowingly
create, sell, market, advertise, exchange, or distribute an “animal crush video”
that (1) depicts actual conduct in which one or more non-human animals is
intentionally crushed, burned, drowned, suffocated, impaled, or otherwise
subjected to serious bodily injury and (2) is obscene. 18 U.S.C. § 48 (2010).
Thereafter, Defendants-Appellees Ashley Nicole Richards and Brent
Justice were charged with, inter alia, four counts of creating and one count of
distributing animal crush videos. In these videos, Richards is the person
“performing,” while Justice is the person behind the camera. Generally, the
videos portray Richards binding animals (a kitten, a puppy, and a rooster),
sticking the heels of her shoes into them, chopping off their limbs with a
cleaver, removing their innards, ripping off their heads, and urinating on them.
Richards is scantily clad and talks to both the animals and the camera, making
panting noises and using phrases such as “you like that?” and “now that’s how
you fu** a pussy real good.”
Richards and Justice were charged in Texas court with felony cruelty to
animals. Texas v. Justice, Harris County, Cause No. 1357897 (2012); Texas v.
Richards, Harris County, Cause Nos. 1357859, 1357860 (2012). A subsequent
3 See Miller v. California, 413 U.S. 15, 24 (1973); United States v. Ragsdale, 426 F.3d
765, 779–81 (5th Cir. 2005).
4 Morrison, supra note 1.
2
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federal indictment charged Richards and Justice with (1) four counts of
creation and one count of distribution of animal crush videos, in violation of 18
U.S.C. § 48; (2) one count of engaging in the business of selling or transferring
obscene matter, in violation of 18 U.S.C. § 1466(a); and (3) one count of
production and transportation of obscene matters for sale or distribution, in
violation of 18 U.S.C. § 1465.
Richards and Justice filed a motion to dismiss the federal indictment on
the ground that § 48 is facially invalid under the First Amendment. The
district court dismissed counts one through five, concluding that
§ 48 is facially invalid because it proscribes speech that is not within an
unprotected category—specifically the speech is neither obscene nor incidental
to criminal conduct—and is not narrowly tailored to serve a compelling
government interest. The government timely appealed, arguing that on its face
§ 48 proscribes only unprotected speech and is not overbroad. For the reasons
that follow, we REVERSE and REMAND.
I.
In Stevens, 559 U.S. at 482, the Court was clear that it did not take
measure of a statute limited to crush videos or other depictions of extreme
animal cruelty, but instead held that § 48, as then written, was substantially
overbroad. As noted, Congress promptly revised and narrowed the statute to
read as it has been applied against Richards and Justice. In that present form,
the statute reads, in full:
(a) Definition.—In this section the term “animal crush video” means 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
3
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serious bodily injury (as defined in section 1365[5] and including
conduct that, if committed against a person and in the special
maritime and territorial jurisdiction of the United States, would
violate section 2241 or 2242;[6] and
(2) is obscene
(b) Prohibitions.—
(1) Creation of animal crush videos.—It shall be unlawful for any person
to knowingly create an animal crush video, if—
(A) the person intends or has reason to know that the animal crush
video will be distributed in, or using a means or facility of,
interstate or foreign commerce; or
(B) the animal crush video is distributed in, or using a means or
facility of, interstate or foreign commerce.
(2) Distribution of animal crush videos.—It shall be unlawful for any
person to knowingly sell, market, advertise, exchange, or distribute
an animal crush video in, or using a means or facility of, interstate or
foreign commerce.
(c) Extraterritorial application.—Subsection (b) shall apply to the knowing
sale, marketing, advertising, exchange, distribution, or creation of an
animal crush video outside of the United States, if—
(1) the person engaging in such conduct intends or has reason to know
that the animal crush video will be transported into the United States
or its territories or possessions; or
(2) the animal crush video is transported in the United States or its
territories or possessions.
(d) Penalty.—Any person who violates subsection (b) shall be fined under
this title, imprisoned for not more than 7 years, or both.
(e) Exceptions.—
(1) In general.—This section shall not apply with regard to any visual
depiction of—
(A) customary or normal veterinary or agricultural husbandry
practices;
(B) the slaughter of animals for food; or
(C) hunting, trapping, or fishing.
5 18 U.S.C. § 1365 defines “serious bodily injury” as “bodily injury which involves—(A)
a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious
disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ,
or mental faculty.” 18 U.S.C. § 1365(h)(3).
6 18 U.S.C. § 2241 criminalizes aggravated sexual abuse, and 18 U.S.C. § 2242criminalizes sexual abuse, both of which require causing another to engage in a sexual act.
Thus, by referencing these two sections, § 48 proscribes bestiality.
4
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(2) Good-faith distribution.—This section shall not apply to the good-
faith distribution of an animal crush video to—
(A) a law enforcement agency; or
(B) a third party for the sole purpose of analysis to determine if
referral to a law enforcement agency is appropriate.
(f) No preemption.—Nothing in this section shall be construed to preempt
the law of any State or local subdivision thereof to protect animals.
18 U.S.C. § 48 (2010).
II.
“This court reviews constitutional challenges to federal statutes de
novo.” In re U.S. for Historical Cell Site Data, 724 F.3d 600, 603 (5th Cir. 2013)
(citing United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998)). “To succeed
in a typical facial attack [a plaintiff must] establish that no set of
circumstances exists under which [the statute] would be valid, or that the
statute lacks any plainly legitimate sweep.” Stevens, 559 U.S. at 473 (internal
quotation marks and citations omitted). “[A]s a general matter, the First
Amendment means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.” Stevens,
559 U.S. at 468 (internal quotation marks and citation omitted). “[H]owever,
the First Amendment has permitted restrictions upon the content of speech in
a few limited areas,” including obscenity, defamation, fraud, incitement, and
speech integral to criminal conduct. Id.The government argues first that § 48 is facially constitutional because
it is limited by its terms to speech that is obscene. The Supreme Court
established its enduring test for obscenity in Miller v. California, 413 U.S. 15,
24 (1973). “The basic guidelines for the trier of fact must be: (a) whether the
average person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken
5
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as a whole, lacks serious literary, artistic, political, or scientific value.” Id.(internal quotation marks and citations omitted).
Animal crush videos, to fall within § 48, must be “obscene.” 18 U.S.C. §
48(a)(2). Although the statute does not define the term obscene, the Supreme
Court has made clear that:
We do have a duty to authoritatively construe federal statutes
where a serious doubt of constitutionality is raised and a
construction of the statute is fairly possible by which the question
may be avoided. If and when such a serious doubt is raised as to
the vagueness of the words obscene, lewd, lascivious, filthy,
indecent, or immoral as used to describe regulated material in
[federal statutes], we are prepared to construe such terms as
limiting regulated material to patently offensive representations
or descriptions of that specific hard core sexual conduct given as
examples in Miller v. California.
United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 130 & n.7
(1973) (internal quotation marks and citations omitted). Following that
instruction, the Court, this circuit, and other circuits have held that federal
statutes that use but do not define the word “obscene” incorporate the Miller
definition. See Ashcroft v. ACLU, 535 U.S. 564, 581 n.11 (2002) (“Although
nowhere mentioned in the relevant statutory text, this Court has held that the
Miller test defines regulated speech for purposes of federal obscenity statutes
such as 47 U.S.C. § 223(b).”) (citing Smith v. United States, 431 U.S. 291, 299
(1977)); Hamling v. United States, 418 U.S. 87, 105 (1974) (construing federal
statute that criminalizes the mailing of “obscene” matter to incorporate the
Miller definition); United States v. Rudzavice, 586 F.3d 310, 314–15 (5th Cir.
2009) (upholding federal statute that prohibits the interstate transfer of
“obscene matter” to someone under 16, reasoning that courts construe
“obscene” to be consistent with Miller) (citing Reeves v. McConn, 638 F.2d 762,
763–64 (5th Cir. Mar. 1981)); see also United States v. Dean, 635 F.3d 1200,
1205 & n.4 (11th Cir. 2011) (noting that section of federal statute that
6
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criminalized only material that “is obscene” would satisfy all three Miller
prongs); United States v. Schales, 546 F.3d 965, 971–72 (9th Cir. 2008)
(upholding federal statute that required material to depict a minor engaging
in sexually explicit conduct and be obscene, reasoning that “obscene” requires
that the government satisfy Miller).
Where one construction of a statute would raise “serious constitutional
doubts,” it is “incumbent upon [courts] to read the statute to eliminate those
doubts so long as such a reading is not plainly contrary to the intent of
Congress.” United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).
Acknowledging this principle, Richards and Justice nonetheless argue that the
legislative history shows that Congress intended to write its own definition of
obscenity into § 48. The district court looked to the Findings section of the Act
and the House Report to conclude similarly that Congress intended a definition
of obscenity that excludes the Miller “sexual conduct” requirement. The district
court relied on Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2742
(2011), where the Supreme Court held that a California law that prohibited
the sale or rental of violent video games to minors was a content-based speech
restriction and failed strict scrutiny. Because “violence is not part of the
obscenity that the Constitution permits to be regulated,” the Court found that
the games did not fall within the obscenity exception. Id. at 2735.
In Brown, however, the statute included a definition of the proscribable
material that mimicked the Miller language but left out the “sexual conduct”
requirement. See Brown, 131 S. Ct. at 2732–33. Here, by contrast, § 48 simply
uses the word “obscene.” Moreover, the legislative history is, unsurprisingly
for a deliberative body, variable, hence debatable. On the one hand, the
Findings state that “many animal videos are obscene in the sense that the
depictions, taken as a whole—(A) appeal to the prurient interest in sex; (B) are
patently offensive; and (C) lack serious literary, artistic, political or scientific
7
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value.” Pub. L. No. 111-294, 124 Stat. 3177, § 2(6)(A)–(C) (2010). The House
Report states that “witnesses concurred that Congress can ban interstate and
foreign commerce in depictions of acts of illegal animal cruelty that appeal to
the prurient interest, are patently offensive, and lack serious literary, artistic,
political or scientific value.” H.R. Rep. No. 111-549, at 5 (2010). On the other
hand, the Findings also reference the fact that the Supreme Court has long
held obscenity to be an unprotected category of speech and the fact that certain
depictions of animals cruelty appeal to a “specific sexual fetish.” Id. at § 2(4)
& (5). Additionally, Senator Leahy stated that “in response to the Stevens
decision, the House overwhelmingly passed a narrower bill banning animal
crush videos on obscenity grounds” and that “[i]n drafting the substitute
amendment to the House bill, [the Senate was] careful to respect the role that
courts and juries play in determining obscenity. In any event, it will be up to
the prosecutor to prove and the jury to determine whether a given depiction is
obscene, because obscenity is a separate element of the crime.” 156 Cong. Rec.
S7653 (2010). Furthermore, the House Report notes that “witnesses also
agreed that crush videos could be constitutionally prohibited in line with the
obscenity doctrine formulated by the Supreme Court in Miller v. California.”
H.R. Rep. No. 111-549, at 5 (2010). The Report notes also that courts have
applied Miller to sadomasochism and that “[a]lthough obscenity may generally
apply to materials that depict or describe a more obviously sexual act, case law
shows that obscenity can also cover unusual deviant acts.” Id. at 5 & n.13. The
Report cites to Hamling for the proposition that “Miller and its progeny firmly
established the term ‘obscene’ as a legal term of art.” Id. at 5 & n.11. Finally,
written testimony submitted to the Senate Judiciary Committee indicates that
Congress considered this issue. See Prohibiting Obscene Animal Crush Videos
in the Wake of United States v. Stevens: Hearing Before the S. Comm. on the
Judiciary, 111th Cong. 24–25 (2010) (statement of J. Scott Ballenger, Partner,
8
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Latham & Watkins LLP) (“H.R. 5566 does not spell out the full constitutional
standard for obscenity under Miller . . . . But neither do the rest of the federal
obscenity statutes; they all simply use the word ‘obscene,’ and the Supreme
Court has repeatedly held that criminal statutes using that word will be
understood as incorporating the necessary constitutional limitations.”).
These few examples suffice to instruct us not to look to variable and
debatable legislative history to render unconstitutional a statute that
incorporates a legal term of art with distinct constitutional meaning. See
Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1266 (2011) (“Those of us who make
use of legislative history believe that clear evidence of congressional intent may
illuminate ambiguous text. We will not take the opposite tack of allowing
ambiguous legislative history to muddy clear statutory language.”); United
States v. Pruett, 681 F.3d 232, 242 (5th Cir. 2012) (“[C]ourts applying criminal
laws must generally follow the plain and unambiguous meaning of the
statutory language, and only the most extraordinary showing of contrary
intentions in the legislative history will justify a departure from that
language.”) (internal quotation marks and citation omitted). “It has long been
a tenet of First Amendment law that in determining a facial challenge to a
statute, if it be ‘readily susceptible’ to a narrowing construction that would
make it constitutional, it will be upheld.” Virginia v. Am. Booksellers Ass’n,
Inc., 484 U.S. 383, 397 (1988) (citing Erznoznik v. City of Jacksonville, 422 U.S.
205 (1975)). We hold that § 48 incorporates Miller obscenity and thus by its
terms proscribes only unprotected speech.
9
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III.
Richards and Justice argue, as they did in district court, that even if
§ 48 is limited to Miller obscenity, it nonetheless is facially unconstitutional
because it violates the rationale set forth in R.A.V. v. City of St. Paul, 505 U.S.
377, 395 (1992). 7 There, the Supreme Court struck down a city ordinance that
proscribed fighting words that insulted or provoked violence based on race,
color, creed, religion, or gender. See id. at 381. The Court held that, although
the ordinance was limited to fighting words, it applied only to fighting words
that addressed “one of the specified disfavored topics.” Id. at 391. Thus, the
ordinance was “facially unconstitutional in that it prohibits otherwise
permitted speech solely on the basis of the subjects the speech addresses.” Id.
at 381. 8 Richards and Justice correspondingly argue that § 48 violates the First
Amendment because it proscribes only a narrow category of obscenity based on
its content—the causation of serious bodily injury to an animal.
The Court in R.A.V. articulated several exceptions to its rationale. First,
“[w]hen the basis for the content discrimination consists entirely of the very
reason the entire class of speech at issue is proscribable, no significant danger
of idea or viewpoint discrimination exists. . . . A State might choose to prohibit
only that obscenity which is the most patently offensive in its prurience—i.e.,
that which involves the most lascivious displays of sexual activity.” R.A.V., 505
7 Richards and Justice have not challenged the statute as overbroad. Indeed, during
oral argument they disavowed any claim of substantial overbreadth. See Stevens, 559 U.S. at
473; Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973) (“[T]he overbreadth of a statute
must not only be real, but substantial as well.”).
8 Compare R.A.V., 505 U.S. at 401 (White, J., concurring in the judgment) (“It is
inconsistent to hold that the government may proscribe an entire category of speech because
the content of that speech is evil, but that the government may not treat a subset of that
category differently without violating the First Amendment; the content of the subset is by
definition worthless and undeserving of constitutional protection.”), with id. at 387 (“[T]he
First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content
discrimination’ limitation upon a State’s prohibition of proscribable speech.”).
10
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U.S. at 388. Second, “[a]nother valid basis for according differential treatment
to even a content-defined subclass of proscribable speech is that the subclass
happens to be associated with particular secondary effects of the speech, so
that the regulation is justified without reference to the content of the . . .
speech.” Id. at 389 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48
(1986)). “A State could, for example, permit all obscene live performances
except those involving minors.” Id. Third, “[t]o validate such selectivity (where
totally proscribable speech is at issue) it may not even be necessary to identify
any particular ‘neutral’ basis, so long as the nature of the content
discrimination is such that there is no realistic possibility that official
suppression of ideas is afoot.” Id. at 390.
Section 48 regulates a content-defined subclass based on its secondary
effects and is justified without reference to the content of the speech. See id. at
385. “The principal inquiry in determining content neutrality . . . is whether
the government has adopted a regulation of speech because of disagreement
with the message it conveys. The government’s purpose is the controlling
consideration. A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some
speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989) (internal citations omitted). The plain language and the history
and revisions of § 48 suggest that there is no realistic possibility that official
suppression of ideas is afoot. See R.A.V., 505 U.S. at 390. Nevertheless, even
assuming, for the sake of argument, that the creators and distributors of
animal crush videos, like Richards and Justice, intend to advance a distinct
message, perhaps about barbarism, § 48 is justified with reference not to the
content of such a message but rather to its secondary effects—wanton torture
and killing that, as demonstrated by federal and state animal-cruelty laws,
society has deemed worthy of criminal sanction. See 156 Cong. Rec. S7653-54
11
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(2010) (“The other element that occurs in animal crush videos and which
warrants a higher punishment than simple obscenity is that it involves the
intentional torture or pain to a living animal. Congress finds this combination
deplorable and worthy of special punishment.”). 9
The appropriate inquiry for a regulation that targets the secondary
effects of speech is whether it “is designed to serve a substantial governmental
interest and allows for reasonable alternative avenues of communication.” See
Renton, 475 U.S. at 50 (citing Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 (1984)). Cases have reiterated that the government has a
significant interest in combatting secondary effects such as public health,
safety and welfare; societal debasement; the promotion of violence; and other
serious criminal activity. See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 296–
98 (2000); Fantasy Ranch Inc. v. City of Arlington, Tex., 459 F.3d 546, 561 (5th
Cir. 2006). Furthermore, the Court has explained, even in the context of
compelling-interest analysis, that a long history and substantial consensus, as
seen in state and federal legislation, are indicative. See New York v. Ferber,
458 U.S. 747, 757–58 (1982); Burson v. Freeman, 504 U.S. 191, 211 (1992);
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S.
105, 119 (1991). Most states had passed some form of anticruelty laws by the
end of the 19th century. See Margit Livingston, Desecrating the Ark: Animal
9 Under this secondary-effects theory, § 48 also is justified with reference to the harm
that the underlying animal cruelty causes. See Elena Kagan, Regulation of Hate Speech and
Pornography After R.A.V., 60 U. Chi. L. Rev. 873, 891 (1993) (citing Ferber and arguing that,
in the wake of R.A.V., “the Constitution may well permit direct regulation of speech, if
phrased in a viewpoint-neutral manner, when the regulation responds to a non-speech
related interest in controlling conduct involved in the materials’ manufacture” and that “it
would appear the government may prohibit directly the dissemination of any materials whose
manufacture involved coercion of, or violence against, participants”); see also Frederick
Schauer, Harm(s) and the First Amendment, 2011 Sup. Ct. Rev. 81, 103–104 (2009); John
Tehranian, Sanitizing Cyberspace: Obscenity, Miller, and the Future of Public Discourse on
the Internet, 11 J. Intell. Prop. L. 1, 6 (2003).
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Abuse and the Law’s Role in Prevention, 87 Iowa L. Rev. 1, 25–56 (2001). Today
all states have laws that criminalize acts of cruelty similar to those listed in §
48. See generally Stevens, 559 U.S. at 500 (appendix of state anticruelty
laws). 10 This demonstrates a consensus that this “conduct is so antisocial that
it has been made criminal.” United States v. Williams, 553 U.S. 285, 292 (2008).
Federal statutes and regulations also proscribe cruelty to animals. See, e.g., 7
U.S.C. § 1902 (“No method of slaughtering or handling in connection with
slaughtering shall be deemed to comply with the public policy of the United
States unless it is humane.”); Animal Welfare Act, 7 U.S.C. §§ 2131–2159
(stating that purpose is to “insure that animals intended for use in research
facilities or for exhibition purposes or for use as pets are provided humane care
and treatment”); 25 C.F.R. § 11.446 (making it a misdemeanor to commit
cruelty to animals on Indian lands). Moreover, in enacting § 48, Congress found
that the clandestine manner in which animal crush videos are made makes it
difficult for states to enforce laws that criminalize the underlying conduct. See
Pub. L. No. 111-294, 124 Stat. 3177, § 2(9)–(10) (2010). 11 We conclude similarly
10 See, e.g., La. Rev. Stat. Ann. § 14:102(B)(1) (West 2009) (“Any person who
intentionally or with criminal negligence tortures, maims, or mutilates any living animal,
whether belonging to himself or another, shall be guilty of aggravated cruelty to animals.”);
Miss. Code Ann. § 97-41-1 (West 2011) (“[I]f any person shall intentionally or with criminal
negligence override, overdrive, overload, torture, torment, unjustifiably injure, deprive of
necessary sustenance, food, or drink; or cruelly beat or needlessly mutilate; or cause or
procure to be overridden, overdriven, overloaded, tortured, unjustifiably injured, tormented,
or deprived of necessary sustenance, food or drink; or to be cruelly beaten or needlessly
mutilated or killed, any living creature, every such offender shall, for every offense, be guilty
of a misdemeanor.”); Tex. Penal Code Ann. § 42.092(b)(1) (West 2007) (“A person commits an
offense if the person intentionally, knowingly, or recklessly: tortures an animal or in a cruel
manner kills or causes serious bodily injury to an animal.”).
11 In his dissent in Stevens, 559 U.S. at 495–96, Justice Alito found that “the
Government [ ] has a compelling interest in preventing the torture depicted in crush videos.”
Cf. Judith N. Shklar, Putting Cruelty First, 111 Daedalus 17, 17–18 (1982) (“Cruelty, as the
willful inflicting of physical pain on a weaker being in order to cause anguish and fear,
however, is a wrong done entirely to another creature. . . . Cruelty, like lying, repels instantly,
because it is ‘ugly.’ It is a vice that disfigures human character.”).
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that Congress has a significant interest in preventing the secondary effects of
animal crush videos, which promote and require violence and criminal activity.
Furthermore, § 48 serves that interest in a reasonably tailored way.
Section 48(a)(1) no longer includes the words “wounded” and “killed,” which
troubled the Court in Stevens because they might not imply cruelty and could
apply to depictions of activities such as hunting. See 18 U.S.C. § 48(a)(1);
Stevens, 559 U.S. at 474–75. Going further, § 48(e)(1) excepts depictions of
customary or normal veterinary or agricultural husbandry practices; the
slaughter of animals for food; or hunting, trapping, or fishing. 18 U.S.C. §
48(e)(1). Most importantly, as described earlier, by requiring proof of obscenity,
§ 48(a)(2) limits § 48(a)(1), which describes the proscribed acts of cruelty. See
id. at (a)(2); H.R. Rep. No. 111-549, at 10 (2010) (noting that § 48 excludes
depictions of activities such as hunting “even though the plain sweep of the
statute does not cover these activities”). Section 48 thus is narrow and tailored
to target unprotected speech that requires the wanton torture and killing of
animals. See Wisconsin v. Mitchell, 508 U.S. 476, 487–88 (1993); see also
Connection Distrib. Co. v. Holder, 557 F.3d 321, 328–30 (6th Cir. 2009) (en
banc); Valley Broad. Co v. United States, 107 F.3d 1328, 1331 n.3 (9th Cir.
1997). We hold that § 48 is a permissible regulation of a subset of proscribable
speech. 12
IV.
We hold that on its face § 48 is limited to unprotected obscenity and
therefore is facially constitutional. We REVERSE the district court’s judgment
and REMAND for proceedings consistent with this opinion.
12 We do not reach the government’s alternative argument that § 48 is facially
constitutional because it proscribes only speech that is incidental to criminal conduct under
the reasoning of New York v. Ferber, 458 U.S. 747, 749 (1982).
14