U.S. Supreme Court.
U.S. Supreme Court. (Photo: Steve Heap/Fotolia./Fotolia)

A federal appeals court on Friday revived a law passed by Congress in 2010 to criminalize the creation and sale of so-called “animal crush” videos.

A panel of the U.S. Court of Appeals for the Fifth Circuit found that the law, used to prosecute two Texans for their part in the production of such a video, passed constitutional muster and was a valid way to discourage illegal instances of animal cruelty.

Congress passed the statute in the wake of the U.S. Supreme Court’s United States v. Stevens ruling in 2010 that struck down an earlier version of the law on First Amendment grounds. The high court said the law was too broad and could have been used against hunting videos, documentaries and other depictions of legal activities.

The new law was more specific, requiring that the videos be found “obscene” to trigger prosecution. Under long-standing Supreme Court precedent, obscenity falls outside the free speech protection of the First Amendment.

Ashley Richards and Brent Justice were prosecuted under the new version of the law for their role in producing and distributing a crush video that involved killing a kitten, puppy and a rooster. They challenged the constitutionality of the law, arguing that the video could not be regarded as obscene—even though it and others are said to appeal to a certain sexual fetish. A judge in the U.S. District Court for the Southern District of Texas struck down the law, finding that the film was not obscene.

But the appeals panel reversed that decision, ruling that the video could be regarded as fitting the “legal term of art” as obscene, even though it does not depict strictly sexual activities. Noting other precedents that have found sadomasochist activities as obscene, the panel said the animal video law validly “proscribes only unprotected speech.”

Judge Stephen Higginson, writing for the panel, also said the law could be justified as a way combat the “secondary effects” of such videos, namely “wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.”

Fifth Circuit judges Catharina Haynes and Jacques Weiner joined the opinion.

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.