New crush video ban and understanding First Amendment limits

The House this week passed H.R. 5566, the Animal Crush Video Prohibition Act of 2010, the House adopting the version approved in the Senate in September. This is Congress' response to United States v. Stevens, which struck down as overbroad the prior prohibition on the creation, possession, and sale of certain animal cruelty videos. Kathleen Bergin wonders if the new law can survive challenge.

Just after Stevens came down and the conversation immediately turned to how Congress could re-enact the ban, I had my doubts. The key to Stevens was the Court's refusal to recognize animal cruelty depictions as an unprotected category (a la  child pornography) in which visual depictions of conduct can be proscribed as a way to stop the conduct itself (because the conduct could not be stopped purely by enforcing prohibitions on the underlying conduct, Congress attempts to dry-up the market for depictions of the conduct). And I did not see in the Court's reasoning a willingness to recognize even a narrower category, such as "animal crush depictions," as a new unprotected category of speech; Chief Justice Roberts really seemed to insist that it was a closed set of unprotected categories, most of them historically grounded. Finally, in Bartnicki v. Vopper, the Court had refused to accept dry-up-the-market for conduct as a proper government interest justifying regulations of constitutionally protected expression. Putting that all together, I could not see any ban passing muster--the statutorily targeted speech would not fall in an unprotected category because the Court was not willing to recognize such a category, so Congress could not ban the videos purely to dry the market to halt the underlying conduct.

The apparent solution was to work a pre-existing unprotected category into the statutory definition. Section 3(a) defines animal crush video as a video, photo, or recording that "depicts actual conduct in which 1 or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled or otherwise subjected to serious bodily injury" and is obscene (presumably applying the constitutional Miller standard). That definition resolves the category problem--by defining crush videos as a sub-species of an already-unprotected category, Congress has a free hand to ban it.

The problem, as Mike Dorf pointed out when the Senate bill was still under consideration, is that the statute does not actually prohibit anything. Obscenity under Miller requires that the speech depict or describe, in a patently offensive way, sexual conduct, specifically defined. But the bill does not define any sexual conduct. And animal crush videos typically do not contain any sexual conduct or even any nudity. Although animal crush videos appeal to the prurient interest in sex and people are sexually aroused by watching them, that alone does not make the thing shown sexual--and if it is not sexual, it cannot be obscene.

It is possible, as some of Mike's commenters suggested, that the statute is using "obscene" in a narrower, more colloquial sense than Miller. But that does not really help. First, the statute does not define obscene, so there is an immediate void-for-vagueness problem if Congress wants to capture something other than the widely understood legal definition. Second, if the speech at issue does not fall within the constitutional definition of obscene, it is not unprotected (again assuming the Court will not recognize any new unprotected categories) and cannot be banned to dry-up the market.

So no conceivable real-world conduct could violate the statute. Which, I suppose, makes it constitutionally valid. It also makes it, as Dorf says, useless--prohibiting a unique animal cruelty "so deviant it does not exist." This is the perfect example of symbolic legislation.