When Congress says it needs to ban a little bit of speech for a really important reason, there is a risk that it will do more damage to free expression than it’s letting on.
That’s what happened with a 1999 law that was aimed at stomach-turning videos of animals being tortured and killed with sexual overtones but was written to sweep much more broadly, outlawing things that have nothing to do with so-called “crush videos.” In April, the Supreme Court struck down that law on First Amendment grounds, but the House of Representatives missed the point when it passed a similar bill on Wednesday.
In U.S. v. Stevens, the first case in which the government used that 1999 statute, federal prosecutors went after a Virginia man accused of selling dog-fighting videos – not the crush videos that President Bill Clinton said the law should be used for when he signed it. The law reached the dog fight videos because the fights themselves were illegal, and the law banned any depiction of the killing or wounding of an animal if that conduct is illegal under federal law or the law of the state where the video was created, sold, or possessed. The Supreme Court correctly read the statute to ban much more than crush videos, and even much more than dog fight movies. The law could put someone in prison for owning hunting videos or pictures of a Spanish bullfight, and it could even be used against journalists and animal rights activists using images of cruelty to bring attention to the issue.
The Supreme Court left the door slightly open for a future bill that targets only crush videos. Instead, Congress again used the appeal of the crush video issue to try to ban even more. The bill, which the ACLU opposed, starts by declaring that the videos it bans are “obscene” in an attempt to remove First Amendment protections. In the legal context, obscenity involves sexual conduct that is patently offensive, as judged by community standards. However, not even true crush videos are likely to include obscene sexual conduct and the Supreme Court has made it clear that it’s up to communities, not Congress, to decide where to draw the line. Congress cannot unilaterally deactivate the First Amendment by declaring something “obscene.”
The more fundamental problem is that Congress failed to fully respond to the Supreme Court’s concern that the ban sweeps too widely. The new bill offers an exemption for hunting, fishing and trapping, as well as for “customary and normal veterinary or agricultural husbandry practices.” These vague terms will leave people wondering whether their videos are legal or not, which was one of the Supreme Court’s problems with the previous law. Also, the new bill does nothing to address the Supreme Court’s concern that the law relies on a patchwork of varying state laws. It’s not enough to know that the conduct was legal where it was filmed; you need to know if similar conduct is legal in the state where the video is being sold or even possessed. Finally, the new bill does not make it clear that depictions with political, scientific, educational, journalistic, historical or artistic value will be exempt.
Most of us don’t have much sympathy for people who enjoy seeing animals tortured and killed. Maybe there’s a way for Congress to fight this cruelty without infringing on a wide swath of protected speech. But the bill the House just passed makes the familiar mistake of sacrificing too much free speech.
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