Congress is looking for a new way to combat animal cruelty videos in the wake of the Supreme Court’s recent ruling that found the current law unconstitutional.
At a subcommittee hearing of the House Judiciary Committee last week, lawmakers focused on how Congress should frame a new "crush porn" or animal cruelty bill following the court’s opinion in United States v. Stevens, which said the statute criminalizing the creation, sale or possession of depictions of animal cruelty was invalid because it violated the First Amendment.
The statute was enacted in 1999 to prosecution those who made and distributed so-called "crush" videos that depict scantily-clad women stepping on and killing small animals while wearing high-heeled shoes. However, the defendant in Stevens was prosecuted under the statute for possessing videos depicting dog fighting. The Supreme Court said that the statute was so broad it criminalized protected speech.
The subcommittee, which is chaired by Rep. Bobby Scott, D-Va., heard from two House representatives who have drafted bills to that they say are more narrowly-tailored. The first, H.R.5092, introduced by Elton Gallegly, R-Calif., focused more specifically on the issue of crush porn, while H.R.5337, introduced by Gary Peters, D-Mich., was drafted to address any depictions of animal cruelty and focuses on the intent to possess or sell the depictions.
The goal of the committee, Scott said, was to come to a conclusion on one of the bills or a combination of the two in a way that all members feel confident the new law, if passed, would stand up to constitutional scrutiny.
Three constitutional law experts also testified before the committee about what they felt the court pointed to as key issues with the original law and how a new statute could be drafted to pass constitutional tests. “The court was sending Congress a message that it wouldn’t be opposed to a more narrowly tailored bill,” said J. Scott Ballenger, a partner with the firm Latham & Watkins.
The experts pointed to several issues raised by the court’s decision, including the fact that the law did not require intentional acts and the fact that the justices said depictions of animal cruelty are not outside the scope of the First Amendment, as child pornography is considered to be.
To address the First Amendment issues, the subcommittee assessed the potential for the statute to include obscenity language, for which there is already a clear test. Using the obscenity test would be one way to ensure that the statute would not be too broad or violate the Constitution, the experts said
There was no resolution from the hearing, but the committee said the record would be open for one week so committee members could submit additional questions about what potential legislation might look like.