Not long after the Supreme Court struck down a federal law criminalizing the depiction of animal cruelty in 2010, Congress responded by passing a new statute it hoped would pass constitutional muster.
Last week a federal judge in Texas ruled that the new version also violated the First Amendment, raising the possibility that the issue will return to the high court.
The ruling came in the case that resulted from the first indictment under the new law. Ashley Richards and Brent Justice were arrested in Houston in 2012 on state animal cruelty charges in connection with their production of numerous crush videos that depicted the abuse of dogs, cats and chickens. Federal charges under the new law were added in November.
In the United States v. Stevens case in 2010, the Supreme Court ruled that an earlier version of the law had "alarming breadth" and improperly expanded the category of speech unprotected by the First Amendment.
The new law passed in the aftermath of Stevens re-defined the expression it outlawed to target more specifically animal-crush videos that appeal to a certain sexual fetish, and it also in effect categorized the expression as a form of obscenity not protected by the First Amendment.
But Judge Sim Lake of the southern district of Texas said the new law is flawed because by definition, under numerous Supreme Court precedents, obscenity depicts sexual conduct—and animal crush videos do not.
"Animal crush videos may be obscene in the vernacular sense of the word," Lake wrote in an April 17 decision. "But as established by Miller [v. California] and its progeny the word ‘obscene’ has a specific meaning when used in the context of the First Amendment. Animal crush videos depict violence, not sex organs or graphic sex acts, and Congress may not ‘shoehorn speech about violence into obscenity.’"
Lake added, "To expand that which is unprotected by the First Amendment is to shrink that which is protected."
The ruling also said the new law could not be justified as "drying up the market" for the underlying abuse of animals. Lake said the law covers depictions that are not necessarily illegal. He also found that the expressive value of the videos is "extremely low," but that the government interest in protecting animals from abuse "does not … rise to the level of ‘surpassing importance.’"
First Amendment advocates applauded the decision and said it follows the Supreme Court’s precedents in the Stevens case as well as Brown v. Entertainment Merchants Association, which struck down a law limiting sales of violent video games.
"The Stevens case set the guidelines for what the First Amendment is going to look like under the Roberts Court," said Neil Richards, media law expert at the Washington University School of Law. The court, he said, made it clear in Stevens that it would look askance at any efforts to add new types of expression to the list of those that do not deserve First Amendment protection.
Richards said Judge Lake heeded the court’s signal and "correctly struck down the new statute."
Media lawyer Robert Corn-Revere of DavisWright Tremaine also said the district judge reached the right judgment. "The decision preserves strong protections for free expression by confirming that exceptions to First Amendment protection must be strictly limited," Corn-Revere said, "and by recognizing that expression cannot be banned simply because it is disturbing or seemingly worthless."
Tony Mauro can be contacted at firstname.lastname@example.org.