Crush videos are recordings which typically depict women in stilettos or bare feet literally crushing, stomping on, or impaling small, helpless animals to satisfy the bizarre sexual fetishes of sadistic viewers. The Animal Welfare Institute is vehemently opposed to “crush videos” and has supported federal legislation intended to stop the trade in these films in the US.
Even when such practices run afoul of animal cruelty laws, the actual perpetrators of the acts are difficult to prosecute as they seldom show their faces on camera or openly acknowledge participation. Instead, these videos are distributed and sold by third parties—whose acts of disseminating the materials may fall outside the animal cruelty laws. A law was needed to allow the prosecution of those who were making and selling such films—individuals who supported the activity and profited from the animal suffering.
In 1999, in response to a flood of crush videos available through the Internet, Rep. Elton Gallegly (R-CA) introduced a bill to prohibit the creation, sale, or possession for commercial purposes of “a depiction of animal cruelty.” It was signed into federal law later that year. (18 USC Section 48) “Depiction of animal cruelty” was defined as “any visual or auditory depiction... in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed if such conduct is illegal under Federal law or the law of the State in which [it] takes place,” regardless of whether the actual conduct took place in that State. Exceptions are allowed for material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” Punishment can include fine or imprisonment for as long as five years, or both.
The law succeeded in its purpose: Crush videos disappeared from the Internet almost immediately after its passage. Investigators then turned their attention to dog fighting videos, which continued to be available. Three successful cases were brought against purveyors of dog fighting videos before Robert Stevens of Pittsville, VA, was convicted in 2005 of selling such videos to undercover agents. He was sentenced to 37 months in jail. He challenged his conviction, which the appeals court overturned on First Amendment grounds in July 2008. The federal government asked the Supreme Court for review.
The Supreme Court Decision
On April 20, 2010, the Supreme Court upheld the appeals court decision and ruled that the law prohibiting the creation, sale, and possession of depictions of animal cruelty for commercial purposes was “substantially overbroad and therefore invalid under the First Amendment”—reasoning that it could potentially affect materials pertaining to legal activities such as hunting. Justice Samuel Alito, the lone dissenter, argued that the law was designed “not to suppress speech but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of crush videos, a form of depraved entertainment that has no social value.” The majority decision listed categories of speech on which the First Amendment permits restrictions, including “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct,” but concluded that “Depictions of animal cruelty should not be added to that list” (emphasis added). In his dissent, Justice Alito wrote that “the animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country.” Indeed, animal cruelty is illegal across the US, and 47 states and the District of Columbia treat egregious acts of cruelty as felonies.
What the Supreme Court Decision Did NOT Do
In ruling that the crush video law was “substantially overbroad,” the Court did not say whether a narrower law would be constitutional. In fact, the majority opinion explicitly stated that they “need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional.”
The court decision also did not say that committing animal cruelty is protected by the First Amendment and that the decision should have no affect on the enforcement of laws against animal cruelty.
Congressional Response to the Supreme Court Decision
In response to the ruling, the crush video law’s original sponsor, Rep. Gallegly, along with Rep. Gary Peters (D-MI) and 262 other members of the House of Representatives introduced H.R. 5566, to restore the ban on crush videos. By targeting crush videos only, it was hoped that the new legislation would pass constitutional muster. In July, 2010, HR 5566 passed the House of Representatives by a vote of 416-3. The bill passed the Senate by unanimous consent in November, and on December 9, 2010, President Obama signed the Animal Crush Video Prohibition Act into law (PL 111-294)—thus reestablishing the ban on the production, distribution or sale of all depictions of animal crushing in the US.