WASHINGTON — This fall the U.S. Supreme Court will hear oral arguments in United States v. Stevens, a case in which the government is asking the justices to create a new exception to the First Amendment. The government makes this request in defense of 18 USC § 48, a law outlawing the creation, possession, or sale of depictions of animal cruelty. Given the large First Amendment implications of this case, it's important to take a close look at this law.
In relevant part, Section 48 prohibits the “knowing” creation, sale, or possession of “depictions of animal cruelty with the intention of placing” such depictions in “commerce for commercial gain.” The penalty is a fine, or five years’ imprisonment, or both. The law, however, does “not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Because the words of the First Amendment are specifically directed to Congress and its making of laws affecting free speech and other freedoms, it makes sense to consider the legislative history of Section 48 and what Congress intended when it enacted the law. A brief history and timeline follow.
18 USC § 48’s seven-month legislative journey from introduction to its final destination as public law was, by all accounts, a smooth one. The bill (H.R. 1887) was introduced in the House of Representatives by Rep. Elton Gallegly, R-Calif., and was initially co-sponsored by Reps. George E. Brown Jr., D- Calif., William O. Lipinski, D- Ill., Constance A. Morella, R- Md., and Christopher Shays, R-Conn. The bill was first referred to the House Judiciary Committee and then to the subcommittee on crime for a hearing.
The House subcommittee heard testimony from three witnesses, the first two from Gallegly’s district: Tom Connors, deputy district attorney in Ventura County, Calif., and Susan Creede, police investigator with the Ventura County district attorney’s office. The third witness was Loretta Swit, an actress testifying on behalf of Actors and Others for Animals, the Doris Day Animal League, the American Humane Association, the American Society for the prevention of Cruelty to Animals, the Humane Society of the United States and the Society for Protective Animal Legislation.
All three witnesses confined their testimony to “crush videos” (movies showing the crushing of small animals, like mice, with a stiletto heel). Swit alluded to a connection between violence against animals and violence against people. “We cannot afford to give violence a ‘stamp of approval’ by remaining silent,” she said, adding, “Is a ‘crush’ video featuring a human infant really so hard to imagine?”
Deputy District Attorney Connors said that under existing animal-cruelty laws it was difficult to prove the identities of crush-video makers and that prosecutors were hampered by the statute of limitations.
Finally, police investigator Creede discussed crush-video investigations, specifically her involvement in People v. Thomason, a crush-video criminal case then pending in a California trial court.
California crush-video case
The defendant in the Thomason case, Gary Lynn Thomason, was charged and convicted of a felony for violating California’s animal-cruelty law (Cal. Pen. Code §597). Here is how the facts were described by an appellate court when the matter came up for its review:
“On information from a Ventura County District Attorney Investigator who had learned, through a chat room and subsequent conversation with defendant, that he had produced a 'crush video' depicting rats, mice and baby mice ('pinkies') being crushed and killed by a female under heel of her shoe, Officer William Le Baron and other officers conducted a search of defendant’s apartment for any evidence of his production and distribution of videos. Officer Le Baron found 30 or 40 videos in defendant's closet, then asked defendant for the crush video he had filmed with co-defendant Diane Aileen Chaffin. Defendant told the officer the videotape was with the others and labeled 'Diane.' Officer Le Baron found two 'Diane' videotapes which, defendant stated, had been filmed at the home of Chaffin's parents. Other items seized were defendant’s computer containing chat room conversations relating to crush videos, clips taken from crush videos and still images.”
In People v. Thomason, a unanimous appellate court denied both of the defendants’ appeal claims: that the animal-cruelty statute was inapplicable to rodents, and that the state statute was impermissibly vague. The opinion by Justice Mildred Lillie of the Court of Appeal for the 2nd District, Division 7, was handed down Oct. 30, 2000. (Although the ruling occurred 10 months after Section 48 became law, Thomason was facing only state-law charges.) Subsequent appellate review in California was denied on Jan. 30, 2002.
House opposition; backers' response
No testimony, in front of the House subcommittee or elsewhere, addressed the constitutionality of H.R. 1887. The most vocal opposition to the bill in the House came from Reps. Bobby Scott, D-Va., Bob Barr, R-Ga., and Ron Paul, R-Texas.
Scott decried the bill as a contravention of the First Amendment, both overbroad in its applications and unable to meet the standards of strict scrutiny (i.e., a compelling government interest and a statute narrowly tailored to that interest). Barr denounced the bill as a violation of principles of federalism by encroaching into individual states’ regulatory spheres. Paul argued that under the proposed statute, people’s First Amendment rights would be tethered to “purely subjective” determinations of whether they intended to place a depiction in interstate commerce and of whether a depiction included serious religious, political, scientific, educational, journalistic, historical or artistic value.
“If ever there were a bill unnecessary,” Paul stressed, “this is one. It is an example of us here in Congress looking for dragons to slay.”
Supporters of H.R. 1887 countered that, together, the allowance of depictions with serious value, and the condition that at least an intent be found to place the depiction in interstate commerce, narrowly tailored the statute and sufficed to overcome any First Amendment barriers.
The law garnered wide bipartisan support, amassing 52 cosponsors. It cleared every hurdle in the House and the Senate with ease and won quick approval in December 1999, passing the House 372-42 and in the Senate by unanimous consent. Moreover, the bill emerged from the legislative process almost unscathed. The only revision of note was the addition of the exception for “any depiction that has serious religious, political, scientific, educational, journalistic, historical or artistic value.” The added language, introduced by Rep.William McCollum, R- Fla., was offered in the hope of putting the law in compliance with the First Amendment.
President weighs in
In signing the legislation into law on Dec. 9, 1999, President Bill Clinton noted that Section 48’s exception clause should be “broadly” construed as an important insulation against constitutional challenge. “So construed,” he said, “the Act would prohibit the types of depictions, described in the statute’s legislative history, of wanton cruelty to animals designed to appeal to a prurient interest in sex.”
The president’s signing statement, which referred to Section 48’s legislative history, strongly suggested that the primary, or even exclusive, focus of the law was on crush videos, as they alone might appeal to “a prurient interest in sex.”
3rd Circuit decision
In March 2004, a federal grand jury in Pennsylvania returned a three-count indictment against Robert J. Stevens, a Virginia resident. The counts charged the defendant with knowingly selling depictions of animal cruelty with the intention of placing the depictions in interstate commerce for commercial gain in contravention of Section 48. The charges stemmed from two videotapes portraying pit bulls fighting, and a third, titled “Catch Dogs,” offering instructional footage of dogs hunting prey (wild boars). The U.S. district court found the defendant guilty. But the 3rd U.S. Circuit Court of Appeals reversed the lower court by a 10-3 vote in Stevens v. United States. The majority held 18 USC § 48 to be unconstitutional on its face under the First Amendment.
Referring to the legislative history of Section 48, the majority noted:
"Resort here to some legislative history is instructive, not as a device to help us construe or interpret the statute, but rather to demonstrate the statute’s breadth as written compared to what may originally have been intended. The legislative history for § 48 indicates that the primary conduct that Congress sought to address through its passage was the creation, sale, or possession of 'crush videos.' A crush video is a depiction of 'women inflicting ... torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.' ... Testimony presented at a hearing on the Bill, and referenced in the House Committee Report, indicates that 'these depictions often appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.'"
The 3rd Circuit added:
"The sponsor of the Bill in the House of Representatives, Rep. Elton Gallegly, emphasized that the purpose of the legislation was to target crush videos. These videos evidently turn a brisk business, particularly over the Internet. ... The discussion of the Bill in the Senate similarly focused on § 48 as a tool to aid in the elimination of crush videos."
In light of the Thomason case, which prompted the introduction of this legislation by Rep. Gallegly, and the testimony before Congress, along with the president’s signing statement, it seems apparent that Section 48 was intended to regulate the production, distribution, and sale of crush videos. Nonetheless, and as the 3rd Circuit noted, the Stevens case is not a crush-video case. To what extent, if any, this incongruity may make a crucial difference to the Supreme Court remains to be seen when the case is argued on Oct. 6.
Adam Ezra Schulman is a law student at Georgetown University Law Center and an intern at the First Amendment Center in Washington, D.C.
May 20, 1999 — H.R. 1887 introduced in the House of Representatives by Rep. Elton Gallegly, R-Calif., with initial cosponsors noted above. Bill referred to the House Judiciary Committee.
May 24 — Gallegly makes introductory remarks on the bill.
May 27 — Bill referred to the Subcommittee on Crime.
Sept. 30 — Subcommittee hears testimony from three witnesses as noted above.
Oct. 7 — Amended version of the bill, which now includes an exception clause, forwarded by subcommittee to full Judiciary Committee on an 8-2 vote.
Oct. 13 — Bill ordered to be favorably reported to the House by the Judiciary Committee on a 22-4 vote.
Oct. 19 — Bill passes House on a tally of 372 yes, 42 no, and 20 not voting. One House seat was vacant.
Nov. 19 — Bill passes Senate by unanimous consent at the behest of Sen. Susan Collins, R-Maine.
Dec. 9 — President Bill Clinton signs Bill into law and issues signing statement.
Oct. 30, 2000 — A California court of appeals upholds the conviction of crush-video producer Gary Thomason.
March 2004 — First indictment under Section 48 is brought, against Robert Stevens of Virginia.
Jan. 11, 2005 — First trial for charges brought under 18 USC § 48 commences against Stevens.
July 18, 2008 — 3rd U.S. Circuit Court of Appeals holds 18 USC § 48 unconstitutional on a vote of 10 to 3.
April 20, 2009 — U.S. Supreme Court grants petition for certiorari in United States v. Stevens.
Oct. 6 — Date that the Supreme Court will hear oral arguments in Stevens.