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Wednesday, April 24, 2013

Animal cruelty law rejected

Following SCOTUS' 2010 decision in United States v. Stevens invalidating a federal statute prohibiting "animal crush videos," Congress responded with the Animal Crush Video Prohibition Act of 2010, which I wrote about here and here. The key to the new version was that Congress defined animal crush videos as prohibiting certain depictions of animal cruelty that are obscene, attempting to shoehorn this speech into an existing category of unproteced speech.

Last week, Judge Lake in the Southern District of Texas held that the new statute is still unconstitutional, dismissing the first prosecution under it. Judge Lake rejected the two government arguments in support of the statute: 1) that it regulates already-unprotected obscenity (the videos are not obscene because, while patently offensive, they do not depict sexual conduct, as required under Miller) and 2) that it is justified to dry up the market in animal cruelty  (the court emphasized the narrowness of this rationale outside child pornography and videos depicting conduct that is inherently and always unlawful). The law therefore was a content-based regulation subject to strict scrutiny, which it did not survive.

Curious to see if the government appeals or just waits to try again with a different prosecution in a different court.

Posted by Howard Wasserman on April 24, 2013 at 09:31 AM in First Amendment, Howard Wasserman | Permalink

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