Rewritten federal “crush video” law is overturned in first courtroom test

From ANIMAL PEOPLE,  May/June 2013:

HOUSTON––U.S. federal prosecutors on May 16,  2013 dropped the last two of seven obscenity charges filed in October 2012 against alleged “crush video” producers Ashley Nicole Richards,  22,  and Brent Wayne Justice,  51,  and filed a notice of appeal on five counts that were dismissed on April 17,  2013 by U.S. District Judge Sim Lake.

“The defendants are to be transferred from federal to state custody,” wrote Houston Press crime reporter Craig Malisow.  “A federal prosecutor said that the Harris County District Attorney’s Office had refiled animal cruelty charges,”  but Malisow said he was not immediately able to confirm the refiling.

Responding to an April 2010 U.S. Supreme Court verdict that struck down a 1998 federal law prohibiting sale of images of animal torture,  Congress in November 2010 passed narrower legislation that outlawed “any photograph,  motion picture,  film,  video or digital recording, or electronic image that:  (1) depicts actual conduct in which one 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 (2) is obscene.”

Lake,  the first judge to consider a case brought under the 2010 law,  wrote that it “abridges the freedom of speech protected by the First Amendment,” creating “a criminal prohibition of alarming breadth,”  which is “therefore unconstitutional.”  In particular,  Lake argued,  the 2010 law attempted to create a new legal definition of obscenity.

“Ashley Nicole Richards and Brent Justice allegedly created and distributed violent sex fetish videos––animal snuff films––that depicted the torture of puppies,  kittens,  rabbits,  and other animals,”  summarized Malisow.   Their activity in July 2012 came to the awareness of People for the Ethical Treatment of Animals.  PETA enlisted the help of the Animal Beta Project,  described by Malisow as “a loose affiliation of animal-welfare activists and online sleuths,”  who identified Richards within 48 hours. Notified by PETA,  the Houston Police Department arrested both Richards and Justice,  the alleged videographer,  with whom Richards was living.

Cruelty charges were filed,  but the U.S. Attorney’s Office pre-empted the cruelty case by bringing five federal charges under the 2010 statute,  punishable by up to 45 years in prison,  and added two counts of obscenity under other federal legislation.

As result of the Lake decision,  Malisow wrote,  “What should have been a proud moment,  and a message to other producers of these [animal torture] videos,  backfired. As of this writing,  it appears that if you want to produce and sell videos showing the torture and death of cats and dogs in Texas,  you are immune to federal prosecution.  It’s open season.”

Because Lake is a U.S. District Court judge,  not an appellate court judge,  his ruling is not a precedent for other courts.  But it may become precedental if upheld by the court(s) hearing the U.S. Attorney’s Office Appeal.

Appointed to the U.S. District Court bench for the Southern District of Texas in 1988 by then-U.S. President Ronald Reagan,  Lake previously stirred controversy with a 2004 order that the Bible be removed from a display on the grounds of the Harris County Civil Courthouse.

The 1998 anti-“crush video” law was opposed by major journalism societies as a potential threat to news reportage,  but most took no position on the redrafted law passed in 2010.  The 2010 law specifically requires that prohibited videos must show activity which “would violate a criminal prohibition on cruelty to animals,”  and exempts videos showing hunting,  trapping,  fishing,  and common veterinary and agricultural practices.

The only case brought to court under the 1998 law was U.S. v. Stevens,  the case that led to the Supreme Court overturning the law.  U.S. v. Stevens was a 2004 federal prosecution in Pennsylvania of Virginia resident Robert G. Stevens for selling videotapes of Japanese dogfighting and “hog/dog rodeo.”

A second case brought under the 2004 law,  attempting to prosecute a man for distributing a video in which he allegedly “hunted” deer by hitting them with his car,  was pending in Missouri when the 1998 law was struck down.  Because the law was overturned,  the Missouri case was never tried.

The April 2010 U.S. Supreme Court verdict,  affirmed 8-1,  was largely framed as an affirmation of the need for news media and animal advocates to be able to expose cruelty to animals by making use of visual images.

The possible application of the 1998 law to hunting videos was the focal concern of amicus curiae briefs submitted to the U.S. Supreme Court by the National Rifle Association and Safari Club International.  The NRA and Safari Club argued that the 1998 law “would have imposed felony penalties for creating, possessing or selling mainstream hunting images,”  summarized NRA Institute for Legislative Action executive director Chris W. Cox.

Said an NRA press release acclaiming the Stevens verdict,  “Before becoming president of HSUS,  Wayne Pacelle said,  ‘The definition of obscenity on the newsstands should be extended to many hunting magazines.’   This is precisely what the law did.” —Merritt Clifton