By David J. Chapman
Chapman Immigration Law Group
I must admit some naiveté because the term “crush video” meant nothing to me until the case of U.S. v. Stevens, 130 S.Ct. 1577 (2010), was decided on April 20, 2010 and the only word that can describe my reaction is disbelief. Apparently crush videos primarily appeal to those weird dregs of humanity that derive a perverse sexual enjoyment in watching scantily clad women crushing small animals to death with their spiked heels or bare feet. And I thought the revelation that some people have a foot fetish was weird? The screams, whimpers and death throes of these innocent small animals apparently bring enjoyment to the individuals watching the depiction. Although it takes an unusually warped person to enjoy such a repugnant depiction of the death of defenseless animals there are apparently a thousand people who qualify in this special category of weird in the U.S. However, the U.S. v. Stevens case was not about approval or disapproval of these individuals or their strange predilections.
The case considered application of 18 U.S.C. §48, which prohibited knowingly creating an animal crush video if: “the person intends or has reason to know that the animal crush video will be distributed in, or [will use] a means or facility of, interstate or foreign commerce”, or “the animal crush video is distributed in, or [uses] a means or facility of, interstate or foreign commerce.”
However, it was not this conduct portion of the statute, but the definition of a crush video that became the Court’s primary focus. The statute addressed the depiction in “. . . photograph, motion-picture film, video or digital recording, or electronic image. . .” of “. . . 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” where such conduct is also obscene.
Although the majority was faced with speech valuation in U.S. v. Stevens, the case did not turn upon that issue. Congress apparently felt that so long as they threw in the word “obscenity” that it could do just about anything to restrict speech involving crush videos. Hiding the statute behind the rubric of obscenity initially raised the danger that the Court would once again be thrust into the unwinnable position of valuing speech. Past U.S. Supreme Court cases such as Chaplinsky v. New Hampshire and Beauharnais v. Illinois placed the Court in the position of placing value on certain types of speech. In those cases the Court tinkered around the edges of valuing speech and expression that many find repugnant. The Court in the Stevens case recognized that the exercise of valuing speech is a dangerous endeavor and avoided it like the plague. The Court avoided travel down the path chosen by Justice Brennan in Roth v. United States where he boldly cast the first stone into the cesspool of obscenity. Cases such as Miller v. California followed Roth and retooled the standard for obscenity.
The U.S. v. Stevens case relied in the end not upon the valuation of speech, but upon the over breadth of the statute. As an initial matter the Court stated that, “. . . the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” 130 S. Ct. at 1584. The Court did recognize that although obscenity, defamation, fraud, incitement and speech integral to criminal conduct are very narrow classes of speech not accorded protection, “animal cruelty” was not historically within the classes of unprotected speech. Although the Court conceded that there may be areas of speech that are not historically found to be without protection, there was also no evidence that “animal cruelty” was one of those yet undiscovered areas of unprotected speech.
Although the Government claimed that the actions in the crush videos are prohibited by almost every state under cruelty laws, Stevens was not charged for crush video production. Stevens ran a business selling videos depicting the equally repugnant practice of dog fighting. As part of its defense of the statute, the Government advocated a test that stated that: “. . . “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,” because “the balance of competing interests is clearly struck,” 130 S. Ct. at 1586. The Court rejected this balancing test as “startling and dangerous”. The Court was right in that regard as the balancing test leads to valuation of speech, which is exactly what the First Amendment frowns upon. To adopt a balancing test would convert our judges or even worse our unelected bureaucrats into speech appraisers who estimate the value of speech against its costs. The First Amendment stands for the opposite proposition. One man’s trash is another man’s treasure.
The Court did admit that the Government’s push for a balancing test appeared to have some basis in precedent. The Court then cleared up the appearance by concluding that it had never adopted such a balancing test and did not do so now. The Court cited New York v. Ferber as a justifiable basis for the Government position. Ferber dealt with prohibiting the distribution of material depicting the sexual performance of a person under the age of 16. However, in U.S. v. Stevens the Court called Ferber a special case where the market for child pornography was intrinsically related to the underlying production, a production which was illegal throughout the nation. Although the court did determine in Ferber that the value of the use of children in these productions was de minimis the Court in Stevens correctly points out that there was much more to Ferber than a simply balancing test.
This case does show how dangerous it is for Courts to embark on speech valuation. Such valuations simply encourage legislative and executive branch efforts to restrict speech based on the popularity of speech. The logical progression of Ferber is to attempt to prohibit crush videos because their production would be so intrinsically related to the repugnant conduct they depict. However, there were a couple of problems with comparing cruelty with the sexual exploitation of children. The first was that the production of this type of video is not universally prohibited across the United States. Prohibitions on cruelty are one thing and video productions are another. The second problem is that the definition of cruelty varies across the country, as do the sanctions for various acts. Thus, unlike Ferber there is no universality.
If one did buy the Ferber line that a balancing test should apply, can a case be far removed where the very possession of materials is prohibited as in Osborne v. Ohio where prohibition of the mere possession of child pornography was upheld because of its relation to the criminal behavior? The Court is right to avoid being goaded into valuing speech. Rightfully the Court did not take the bait in the Stevens case and decide whether preventing animal cruelty was important enough to ban the mere creation of videos depicting animal cruelty. The best opponent of bad speech and expression is good speech and expression in opposition.
In the end the case avoided the unpleasant task of valuing speech or adopting new areas of unprotected speech. Stevens challenged the application of §48 on its face. Stevens’ challenge would have required the Court to determine whether the statute could ever be applied in a constitutional manner. That would have required the Court to determine whether crush videos could be prohibited. In the end the Court fell back on over breadth as a reason to strike down the law, which Justice Alito’s dissent pointed out was really a misinterpretation of the over breadth doctrine. The over breadth doctrine requires that a petitioner against whom a statute can be lawfully applied show that it reaches other conduct which cannot be prohibited. Justice Alito pointed out that Stevens did not claim the statute could be lawfully applied to him and, thus, consideration of the over breadth doctrine was improper. However, the Court clearly did not want to address the actual “crush video” situation because it would have had to create a precedent saying that crush videos specifically are protected speech. Legitimizing the gruesome crushing of small animals does not make for popular reading. Thus, the Court relied on the over breadth doctrine.
The Court did not grant a stamp of legitimacy to crush videos, but concluded that one major flaw of §48 was its definition of a crush video which included illegal depictions of wounding or killing animals. The Court pointed out that all hunting is prohibited in the District of Columbia, but it is not prohibited elsewhere in the country. Possibly a video depicting the hunting and killing or wounding of pheasant in North Dakota might be found to violate §48 in the District of Columbia. In the end the overly broad definition of crush videos that rendered §48 unconstitutional.