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.