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Friday, November 19, 2010

A descriptive defense of the new obscenity

I received a phone call from a learned reader in response to my earlier post on the new prohibition on animal-crush videos. The reader suggested that, while hardly slam dunks, the arguments in support of H.R. 5566 may be closer than I suggested. So I thought I would lay out those arguments (as they came through in our conversation) for why Congress thought this would work.

First, although Congress did not define obscenity in the statute, finding # 6 stated that "many animal crush videos are obscene in the sense that the depictions, taken as a whole, appeal to the prurient interest in sex, are patently offensive, and lack serious literary, artistic, political, or scientific value." One possibility is that a court applying the statute will look to this finding to provide the definition in § 3(a)(2), as well as the elements the governemnt must prove in any prosecution under the statute. Interestingly, there was at least early discussion of a legislative declaration that crush videos are obscene (under this definition), with the court bound by that definition in its findings, but that idea was rejected. Good thing, too, because that would seem to be a pretty clear violation of Klein's prohibition on Congress dictating findings to courts.

Second, although there is some absolute language in Chief Justice Roberts' Stevens opinion suggesting that the Court would not recognize any new unprotected categories, perhaps we need not read the opinion for all its worth. The closing paragraph did expressly reserve judgment on "whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional." Perhaps the Court might be willing to adopt this new, narrower category as unprotected. Importantly, this new category almost perfectly tracks an existing unprotected category--obscenity--except for the requirement in the second prong that what is patently offense be "sexual conduct." So maybe the Court will be receptive to finding a new unprotected category grounded on 85 % of an existing categorical definition.

Third, perhaps Bartnicki's rejection of dry-the-market as a government interest for regulating protected expression is not as absolute as my broadest reading would suggest. This is especially so in light of Justice Breyer's concurring opinion, which adopted a more open-ended balancing approach. Thus, even if animal-crush depictions are not categorically unprotected, perhaps the Court will accept drying the market as a compelling interest justifying this ban as part of a strict scrutiny analysis. This argument becomes particularly strong when we compare crush videos with dog-fighting videos (the speech at issue in Stevens). Most dog fighting will occur regardless of whether it is recorded or distributed; the point is to hold the fight, not to create and sell its depiction. Banning dog-fighting videos will not eliminate the conduct, because the videos do not drive the conduct. Animal crushing only occurs for the depiction and the marketing of the depiction, so a ban on the sale and distribution of videos might better eliminate the underlying conduct.

Again, none of this is a slam dunk. And I obviously prefer my initial reading of the case law; were I a judge, I would not buy these arguments. But this appears to be how things are going to play out.

Posted by Howard Wasserman on November 19, 2010 at 10:15 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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Not that it is the biggest issue in my mind, but this sort of thing comes off as dumb, especially if taken literally.

For instance, some cooks suggest you stun a lobster before you kill it. This makes the killing relatively painless (whatever that means). So, even for lobsters, pain is an issue.

But, pain doesn't seem to be the talisman here. "Serious bodily injury is." I don't really know what that means though it happens all the time on the way to our dinner plate.

So, if an frog or lizard (yes the bill would apply to them; fish aren't protected though ... new sexual fetish alert!) is anesthetized, at first blush, you still can get in trouble for making a film of crushing them. OTOH, you can kill one for dissection. Or, food for that matter.

I might forgive this sort of thing to protect puppies though mice (exempt from various protections as it is) somewhat less so. But, for frogs? No.

Posted by: Joe | Nov 22, 2010 2:26:19 PM

"Good thing, too, because that would seem to be a pretty clear violation of Klein's prohibition on Congress dictating findings to courts."

Oh, so that's what Klein stands for. That's a great deal clearer than what either my Con Law or Fed Courts professor had to say about it, and it makes sense of the case. I agree that this statute has a decent shot, although creating a crush video carve-out would be a little doctrinally awkward and would beg the question of what other carve-outs might be next - anything that appeals to the prurient interest, lacks serious value, and is patently offensive? But the question that interests me is whether you could make an argument that crush videos in fact do contain sexual conduct, which would save the Court from extending obscenity into something that's, as you put it, only 85% obscene. When you consider that Miller explicitly extended to depictions of excretory functions, which aren't sexual under any obvious or medical sense of the word, one could reasonably argue that sexual conduct is simply whatever people find sexual, and some people find crush videos sexual. Unless you limit sexual conduct to sex, and that can't be right, I think you have to use a subjective standard because I can't see what objective criteria for sexuality there could be. I suppose you could propose an anatomical standard - only certain organs may apply - and that would explain the excretory functions, but what would really be underlying that standard is the fact that people happen to deem those organs sexual. If crush video enthusiasts fetishize small animals being stomped on by women's feet, I can't see why that's any less sexual than a topless bar - not that the latter's obscene, but it's surely sexual. The only possible reason for distinguishing between the two is that interest in the former's much rarer in the general population than interest in the latter.

Posted by: Asher | Nov 22, 2010 2:25:21 AM

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