A federal indictment announced in Houston last week could set up a legal challenge to the law passed by Congress in 2010 after the U.S. Supreme Court struck down an earlier statute criminalizing depictions of animal cruelty.

Ashley Richards and Brent Justice were indicted for creating and distributing eight animal “crush” videos that involved torturing puppies, kittens and chickens between 2010 and 2012. The indictment is the first under the federal Animal Crush Video Prohibition Act of 2010.

That law was passed to remedy the constitutional flaws in an earlier version that were identified by the Supreme Court in the 2010 ruling U.S. v. Stevens. The court found that the law criminalizing animal cruelty videos was overbroad and violated the First Amendment, in part because its definitions of the crime could have led to the prosecution of hunting videos and other depictions of legal activity.

The quickly drafted successor law focuses more narrowly on so-called crush videos, which are produced to appeal to a certain fetish by portraying the torture and killing of small animals, often by women using stiletto heels. The new law ties the crime both to other illegal activity — such as animal cruelty — and to obscenity, which the court has long placed outside the protection of the First Amendment.

The Houston residents indicted under the law were already in custody under state animal cruelty charges, but will be transferred to a federal facility and face arraignment in federal court soon, according to an announcement by U.S. Attorney Kenneth Magidson. The two could face up to seven years in prison on each of five charges under the new law.

Richards and Justice were first arrested in Houston based on a tip received by People for the Ethical Treatment of Animals, the organization stated. “These historic charges send a stern warning to anyone who mutilates and kills animals for sexual gratification,” said PETA Senior Vice President Daphna Nachminovitch.

The Humane Society of the United States also applauded the prosecution. Wayne Pacelle, president and chief executive officer of the society, said that when the earlier law was struck down, “we saw a resurgence of animal crush videos. Congress swiftly passed more narrowly tailored legislation to crack down on this horrific trade while addressing the courts’ concerns. We are thankful that countless animals will now be spared from intentional torture for sick entertainment and profit.”

Assistant federal public defender Philip Gallagher, who is representing Brent Justice, declined to state whether he plans to challenge the new law. “I can’t talk about litigation strategy,” Gallagher said. But some commentators say the statute, even though narrowly drafted, could still be vulnerable because of its inclusion of a specific kind of video under the definition of obscenity.

“The whole thing is just a mess,” said University of Chicago Law School professor Geoffrey Stone, a First Amendment expert. “As I understand the law, it tries to solve the Stevens problem by limiting its prohibition to images of animal cruelty that are obscene,” said Stone in an email. “That seems to me quite odd, because the objection to these videos really has nothing to do with the fact that a very small portion of them are obscene. The objection is that animals are tortured in the making of the videos.…It would be as if the law prohibited the commission of murder in order to make a snuff film only if the film is obscene.”

Stone said the new law also could be vulnerable because it can be viewed as a form of content discrimination that the court disapproved of in R.A.V. v. City of St. Paul, a 1992 case. That ruling said that under the First Amendment, government usually may not punish more harshly a particular kind of speech that falls within a category of unprotected expression. An example, Stone said, would be if “obscenity is punished especially harshly if it shows homosexual sex.…The Court in R.A.V. said that such content-based restrictions within a category that can be prohibited are permissible only if they flow logically from the reason for punishing the speech in the category more generally.” Stone continued, “Surely that’s not true of obscenity that involves animal cruelty. That’s not the worst type of obscenity.”

Tony Mauro can be contacted at tmauro@alm.com.