Copyright (c) 2016 The Corporation of Gonzaga University; J. Alexandra Bruce. Reprinted with permission.
The constitutionality of restrictions on speech depicting actual cruelty to animals is a question that continues to divide courts and commentators. In U.S. v. Stevens, the Supreme Court struck down a 1999 ban on depictions of animal cruelty. The Court invalidated the ban on its face because, as written, the statute extended beyond acts of actual animal cruelty to other forms of unlawful animal harm, such as hunting out of season. Thus, the Court did not resolve the core question presented.
Congress responded by drafting a new statute, one narrowed to “crush” videos--obscene depictions of animal cruelty--in an effort to avoid constitutional problems. This new statute, however, continues to raise constitutional and public policy concerns--despite its recent upholding in the Fifth Circuit in United States v. Richards.
This article is the first to analyze the constitutional and public policy issues presented by Congress's new animal cruelty speech regulation. This article contends that the modified statute is poor public policy and remains constitutionally problematic. First, as a policy matter, the statute is ineffective because it fails to criminalize the most widespread and troubling form of animal cruelty speech: animal fighting videos. Second, the statute's overly narrow reach--limited to obscene depictions of animal cruelty--in fact increases its constitutional problems by triggering the “virulence” doctrine first articulated in R.A.V. Since courts are unlikely to view obscene depictions of animal cruelty as virulently “prurient” obscenity, as opposed to the kind of “morbidly” violent speech entitled to the protections of strict scrutiny as established in Brown, the statute will likely be invalidated.
The article concludes with an exploration of possible new legislation, which could effectively prevent animal cruelty, while also preserving free speech rights.
*482 Table of Contents
|A. Speech Integral to Criminal Conduct as an Unprotected Category of Speech||487|
|B. Ferber: Child Abuse and Child Pornography as Speech Integral to Criminal Conduct||489|
|C. Congress's 1999 Ban on Depictions of Animal Cruelty||490|
|D. Stevens: Depictions of Animal Cruelty as Speech Integral to Criminal Animal Abuse||491|
|1. The Court's Facial Invalidation as Overbroad||492|
|2. Analyzing Depictions of Animal Cruelty to Child Pornography: Unprotected as Intrinsic to Crime||493|
|3. Stevens: The Court's Unanswered Question||494|
|E. Congress's 2012 Ban on “Obscene” Depictions of Animal Cruelty||495|
|1. Congress's New Law: Animal Crush Videos||495|
|2. The 5th Circuit Upholds “Obscene” Depictions in Richards||496|
|II. Depictions of Actual Animal Abuse Are Unprotected as Speech Integral to Criminal Acts of Cruelty to Animals||497|
|A. Ferber: Suppressing a Market of Criminal Conduct||498|
|B. Ferber Factors Apply to Depictions of Animal Cruelty||498|
|1. States Have an Interest in Prohibiting Speech that Is a Product of Animal Cruelty||499|
|2. The Production of Speech Is Integral to Crime||501|
|3. An Economic Motive for Criminal Conduct||502|
|4. The Value of Permitting Speech Dependent of Animal Cruelty Is de Minimis||503|
|III. Congress's Decision to Narrow to “Obscene” Material Is Poor Public Policy and Raises Constitutional Doubts||504|
|A. Dog Fighting Thrives: The Public Policy Concerns of an “Obscenity” Classification||505|
|B. Failing to Suppress All Depictions of Animal Cruelty Is Constitutionally Problematic Under R.A.V.||506|
|1. Special Prohibitions Must Be Virulence Distinctions||507|
|2. Obscene Depictions of Animal Cruelty Are Not Virulent Obscenities||508|
|3. Obscene Depictions of Animal Cruelty Are Not Virulent Distinctions of Speech Inherent to Crime||509|
|4. Congress's Intent Appears to Be Suppression of Violent “Obscenity” Rather Criminal Conduct||510|
|C. Violent Speech Regulations Must Meet Strict Scrutiny||512|
|D. The Secondary Effects Doctrine Likely Cannot Save the Statute||512|
|IV. Model Legislation: A Statute Prohibiting All Speech Integral to the Commission of Criminal Animal Cruelty||514|
|A. Speech that Is Merely a Product of Criminal Acts Is Not Protected by the First Amendment||514|
|B. Actual Cruelty to an Actual Animal: Closing the Loophole and Eradicating the Constitutional Issues||515|
|C. Prohibition of the Conduct Necessary to Produce the Work: Ignoring the Content||516|
If you have men who will exclude any of God's creatures from the shelter of compassion and pity, you will have men who will deal likewise with their fellow men.
--St. Francis of Assisi1
One-third of Americans deem animal rights tantamount to human rights.2 Fifty-eight billion dollars are annually spent on the care of American pets, while entertainment industries dependent on animal cruelty generate immense profits.3
Animal cruelty plagues our society, thriving in lucrative, underground entertainment industries.4 Michael Vick's indictment exposed Americans to the cruel realities innate to these violent industries.5 Dogs used for fighting suffer ripped ears, broken bones, and puncture wounds.6 They are denied treatment, beaten further, or executed as “punishment” for losses.7 Additionally, animal “crush videos” have become popular through Internet circulation. Crush videos, too, require the torture and killing of animals for their creation.8 These films *485 portray provocatively dressed women torturing small animals in order to appease a particular sexual fetish.9
It is impossible to determine the number of animals affected by these industries.10 The animals used for the production of crush videos and organized animal fights experience criminally-condemned abuse and torture.11 Similar to pornographic films made using children, the location and those persons conducting the criminal abuse are exceedingly difficult to discover and prosecute.12 Appreciating the prosecutorial difficulties, Congress drafted “Depictions of Animal Cruelty.”13
This legislation targeted the production of the materials, in order to regulate the inherent crimes.14 The statute criminalized the production and sale of all “depiction[s] of animal cruelty.”15 Robert Stevens, the owner of a website devoted to promoting dogfights, was indicted under Depictions of Animal Cruelty.16 Subsequently, Stevens appealed his conviction to the Supreme Court.17 In that case, United States v. Stevens, the Court determined that the law was facially overbroad, thus making it constitutionally invalid.18
In response to Stevens, Congress narrowed the statute to prohibit solely “obscene” depictions of animal cruelty.19 Congress intended to draft *486 constitutionally valid legislation barring these films by suppressing only cruel animal depictions within the unprotected category of obscenity.20 As recognized in Justice Alito's dissent in Stevens, the acts depicted in both crush films and animal fighting films are “horrific acts of animal cruelty.”21 This modified version more narrowly bars the circulation of “crush videos,” absent any prohibitions on films depicting animal fights.22
The content-specific obscenity classification creates additional constitutional struggles.23 As written, the legislation fails to maintain the sole purpose of deterring criminal animal cruelty: enforcing valid laws. This raises suspicion that Congress holds hostility towards a particular viewpoint--sexually explicit animal violence.24
In Richards, the Fifth Circuit applied the secondary effects doctrine to interpret the content-specific prohibition constitutionally valid, consistent with R.A.V.25 However, the Richards holding avoided scrutinizing the Congressional deviation from its purported intent--deterring criminal animal cruelty.26 Unprotected, “obscene” speech relates only to the speech's sexually explicit expression,27 and it is only where these films are considered violent obscenities that strict scrutiny analysis is appropriately applied.28
Prior to Stevens, articles analyzed the constitutionality of Congress's Depictions of Animal Cruelty act and its ban on crush videos.29 Post Stevens, articles have scrutinized the majority opinion, Justice Alito's dissent, and the substantial overbreadth of the statute.30 Until this article, no articles have *487 scrutinized Richards, the Fifth Circuit's application of the secondary effects doctrine, the public policy implications of omitting animal fighting materials, and the additional constitutional issues emerging from the content-specific “obscene” classification.
Part I considers the unprotected class of speech integral to crime recognized in Ferber and furthered in Stevens.31 Part I also considers the question left open by Stevens, determining the constitutionality of speech prohibitions that intend to suppress criminal conduct, rather than the speech's content.
Part II applies the Ferber factors to depictions of animal cruelty. Expression requiring a criminal act for production lacks First Amendment protection.32 Part III examines the issues created by the more narrow statute including only “obscene” films.33 Some of the issues considered include how the classification forces the statute to be ineffective public policy by failing to proscribe the market of dog fighting films; similarly, the statute continues to create constitutional doubts. When using the Miller definition of “obscenity,” the statute prohibits only those depictions of animal cruelty that “appeal to the ‘prurient interest,”’ rendering the legislation constitutionally problematic by being underinclusive and viewpoint discriminative under R.A.V.34
Part IV explores legislation that accomplishes the necessary goal of prohibiting the market for animal cruelty depictions, and it details the specificity necessary to avoid First Amendment invalidation.35
A. Speech Integral to Criminal Conduct as an Unprotected Category of Speech
The constitutional freedoms promulgated by the First Amendment fail to protect “speech or writing used as an integral part” of criminal conduct.36 Speech *488 requiring criminal conduct for its creation, further generating an economic incentive to commit crime, is a “proximate link” to the crime itself.37
To effectively monitor the inherent crimes, markets for these materials must be closed.38 Statutes directed at barring speech “integral to criminal activity” in order to “dry up the market” must explicitly target the illegal activity intrinsic to creation.39 To date, the Court has addressed criminal acts intrinsic to expression largely through prohibitions on child pornography.
Furthermore, as Justice Alito's dissent recognized, First Amendment protections do not preserve expression that depicts the commission of a “violent crime.”40 Constitutional validity is maintained where the speech prohibition extends to only that speech which is itself a product of criminal animal cruelty.41 The demand for materials requiring criminal acts for production incentivizes criminal conduct and may be suppressed.42 Speech serving as a “proximate link” to crime receives no First Amendment protection, because criminal conduct is inherent to its creation.43
In both Ferber, which prohibited the creation and sale of child pornography, and Osborne, which barred the possession of child pornography, the Court held the prohibitions on expression were valid due to a concern for the “victims of child pornography.”44 This reasoning was further solidified in the Court's holding in Free Speech Coalition.45 Free Speech Coalition held virtual child pornography protected speech, as it failed to require the commission of a crime and did not create any victims through its production.46
*489 Of course, free speech protections do not extend to providing immunity from criminal offenses.47 When prohibiting these expressions, the government must prove that there is a “direct connection between the speech and illegal conduct.”48
B. Ferber: Child Abuse and Child Pornography as Speech Integral to Criminal Conduct
First Amendment exceptions include expression “intrinsically related” to crime, but the exceptions do not provide for suppression of particular content.49 The Court considered the constitutional protections of speech integral to crime in the 1982 Ferber decision.50 Ferber established that child pornography was unprotected by the First Amendment as “intrinsically related” to criminal child sexual abuse.51
After selling films of underage men to undercover officers, Paul Ferber was indicted under the New York statute prohibiting the promotion of child sexual performances.52 Ferber challenged his indictment on the grounds that the statute was overbroad.53 He argued that New York's failure to limit the proscribed speech to solely “obscene” depictions of child sexual performances forced the suppression of protected speech.54
The Court rejected Ferber's argument;55 as Justice O'Connor's concurring opinion recognized, the State has a valid interest in suppressing the market for products of “child sexual abuse” absent any content consideration.56 It is “irrelevant” to the victims of child pornography that the material is deemed legally “obscene.”57 Further, the State's power to suppress speech intrinsic to crime does not facilitate suppression of offensive expression based on its content.58
*490 The Ferber holding focused on the criminal acts necessary for production--the sexual abuse of children used for production--specifically avoiding content analysis.59 Congress constitutionally prohibits child pornography as the product of child abuse and molestation.60 Similarly, the majority opinion in Free Speech Coalition held that virtual child pornography was protected speech because of its failure to require the commission of any crime.61
Circulation of child pornography stimulates a market dependent on the sexual abuse of children, rendering this expression an “integral part” of the crime itself.62 To eliminate the sexual exploitation of American children effectively, the profit incentive evolving from the creation and sale of child pornography must be prohibited.63
Because the production of any child pornography--using real child actors--is illegal in every state, there is a forced “proximate link to the crime from which it came.”64 The State may constitutionally ban “nonverbal expressive activity . . . because of the action it entails, but not because of the ideas it expresses.”65
C. Congress's 1999 Ban on Depictions of Animal Cruelty
A 1999 House Judiciary Hearing exposed Congress to evidence of the expanding market of animal crush videos.66 These films feature women--often with hidden faces--using suggestive language as they torture small animals; the animals primarily include small cats, dogs, mice, and hamsters.67 With the intention of eradicating the crimes of animal cruelty, innate to crush videos, Congress drafted Depictions of Animal Cruelty.68
*491 The Massachusetts Bay Colony drafted and enacted the nation's first animal cruelty laws in 1641.69 The Body of Liberties determined, “No man shall exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie kept for man's use.”70 Currently, all 50 States and the District of Columbia have enacted statutes prohibiting cruelty to animals.71
At the time of the 1999 Judiciary Hearing, no legislation existed to prohibit the production or sale of crush videos.72 At the hearing, witnesses testified to the difficulties in prosecuting the crimes inherent to the creation of animal crush videos.73 Further, witnesses urged members of the Judiciary Committee to specifically prohibit these materials in order to enforce animal cruelty laws effectively.74
In response, Congress passed Depictions of Animal Cruelty, which “restricted . . . the commercial pandering of graphic depictions of the actual torture of a real animal.”75 The statute specifically prohibits the creation, sale, or possession of depictions of animal cruelty.76 Congress' aim was to reduce prosecutorial problems by criminalizing the materials.77
D. Stevens: Depictions of Animal Cruelty as Speech Integral to Criminal Animal Abuse
Depictions of Animal Cruelty was enacted to suppress the crush video market in particular, although the legislation prohibited the creation, sale, or possession of all depictions of animal cruelty.78 In his dissenting opinion, Justice Alito criticized the Court for failing to address the film before them, mentioning that the conduct depicted in dog fighting films and crush videos is criminal and ought to receive no First Amendment protection.79 Similar to the criminal child *492 abuse depicted in the Ferber materials, these animal cruelty materials are inherently tied to the crimes they record.80
Robert Stevens, creator of “Dogs of Velvet and Steel,” earned around $57,000 through advertising and reporting the results of dogfights.81 The films sold and promoted by Stevens depicted animal fighting and pit bulls ripping apart domestic animals.82 Stevens did not stage the actual fights; he merely facilitated and encouraged others to enjoy the entertainment.83 However, this business venture resulted in an indictment under Depictions of Animal Cruelty.84
Following the indictment, Stevens challenged the law as overbroad.85 A law is considered overbroad where a “substantial number of its applications are unconstitutional,” even where it may be constitutionally applied to the challenger.86 Stevens argued that the statute could be applied to lawful speech, thus violating the protections of the First Amendment.87 His appeal reached the Supreme Court in 2009.88
1. The Court's Facial Invalidation as Overbroad
Justice Alito's dissent in Stevens noted held that Depictions of Animal Cruelty was “not so limited but  instead substantially overbroad, and therefore invalid.”89 Writing for the majority, Justice Roberts supported the overbreadth holding by noting its influence on markets of protected speech--hunting films and animal activist materials--that could have fallen within the statute's reach.90
*493 In the majority opinion, Justice Roberts discusses the Ferber Court's holding, which made child pornography bans constitutionally valid on the basis that a “market for child pornography was ‘intrinsically related’ to the underlying abuse.”91 The Court's opinion distinguishes the proscriptions on child pornography from those on depictions of animal cruelty, as speech proscribed in Ferber was centered on a “previously recognized, long established category of unprotected speech.”92
In Stevens, the Court held that Ferber failed to establish a “freewheeling authority to declare new categories of speech outside of the scope of the First Amendment.”93 The majority opinion continues to hold with the tradition of forbidding depictions of animal cruelty inexistent, and therefore impractically considered as an additional category of unprotected speech.94 In any event, speech “intrinsically related” to illegal conduct remains unprotected, outside of the reach of the First Amendment.95
2. Analyzing Depictions of Animal Cruelty to Child Pornography: Unprotected as Intrinsic to Crime
Analogous to constitutionally valid statutes prohibiting child pornography, a constitutionally valid statute prohibiting depictions of animal cruelty will prohibit all materials intrinsic to criminal conduct.96 In his dissent in U.S. v. Stevens, Justice Alito analogized materials depicting criminal acts of animal cruelty to those materials depicting criminal child sexual abuse.97
*494 The dog fighting industry is dependent on depictions of the criminal animal fights.98 Films are used to show proof to perspective buyers of a dog's abilities.99 Live streaming videos of dogfights provide a method to bet on the fights and escape liability innate to attending a live dogfight.100 Animal crush videos require the torture of small animals for their creation.101 The animals used in these films are tortured and killed during the process.102 As recognized in Justice Alito's dissenting opinion, the conduct depicted in each of these is illegal in all 50 states.103
The economic incentive driving the production of both animal crush videos and dog fighting films renders these productions integral to crime.104 The violent crimes against animals, recorded in these materials, are committed for the sole purpose of the film's creation.105 Legalizing these materials encourages the continuance of the underlying crimes.106
3. Stevens: The Court's Unanswered Question
The majority opinion in Stevens expressly leaves open potential for a narrowed statute to be considered constitutionally valid.107 The Court explicitly stated that it “need not and [will] not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional.”108
In Stevens, the Court held that Congress lacked power to create new categories of unprotected speech based on their being “too harmful to be *495 tolerated.”109 The Stevens holding further solidifies that speech intrinsic to crime is an unprotected category.110
The majority opinion suggests a statute avoiding application to constitutionally protected speech, restricting solely depictions of criminal conduct, would maintain constitutionality, though it fails to determine what an appropriately narrowed statute would be.111
E. Congress's 2012 Ban on “Obscene” Depictions of Animal Cruelty
In reaction to Stevens, Congress drafted a narrower statute, banning “crush videos on obscenity grounds.”112 Crush videos have become more widespread and accessible through the growth of Internet circulation; thus, the modification to include “obscene” animal cruelty was drafted specifically to target and ban these films.113
This modification narrowed the scope of Depictions of Animal Cruelty to include solely an “‘animal crush video’ that (1) depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and (2) is obscene.”114
This definition solely encompasses the materials that appeal to particular sexual fetishes.115 The modification to include “obscene” animal cruelty was drafted to constitutionally narrow the prohibition to only unprotected “obscene” speech that also depicted animal cruelty.116
1. Congress's New Law: Animal Crush Videos
A provocatively dressed woman binds small animals while she beats and mutilates them as they cry out in pain; eventually, she kills them.117 This is a crush video--the materials Congress specifically intended to ban when *496 narrowing the prohibitions on depictions of animal cruelty to solely “obscene” materials.118
The new statute, Animal Crush Videos, criminalizes the creation, sale, and transport of crush videos.119 These videos are defined within the legislation as, “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.”120
House reports convey that the legislative intent was to ban depictions of “violence against . . . animal[s]” that “appeal to the prurient interest” and may be deemed “patently offensive.”121 Congress used the content-specific classification to narrow the statute to prohibit solely criminal animal cruelty in crush videos, films that depict animal cruelty, but are also “sexual content.”122 Prohibiting what is “obscene” is constitutionally problematic, as disgust cannot suffice as a “valid basis for restricting expression.”123
2. The 5th Circuit Upholds “Obscene” Depictions in Richards
Ashley Nicole Richards and Brent Justice were indicted under the Animal Crush Videos Act.124 The couple produced films depicting Richards “scantily clad,” binding animals, severing their limbs, and puncturing animal's heads with stilettos.125
In United States v. Richards, the government defended Animal Crush Videos as limited to speech that is an unprotected obscenity,126 arguing that the statute intended to limit only that speech which lacked protection under the First Amendment.127
Defendants argued that the statute was an impermissible content-based regulation.128 The defendants further argued that animal crush videos lacked the sexual content necessary to qualify for legal obscenity.129 The district court *497 determined that the modified statute was an attempt to “shoehorn speech about violence into obscenity.”130 All five counts were dismissed by the district court, which held that the films lacked the “sexual content” necessary for an obscenity classification.131
The Fifth Circuit reversed this decision, determining Section 48 narrowly was tailored to target solely unprotected speech and, therefore was valid.132 The holding further determined the films were sexual content as they were marketed on pornographic websites and were sexually arousing to the viewers with a particular sexual fetish and that the Miller obscenity test applied.133
The Fifth Circuit specifically rejected a Ferber application to Animal Crush Videos.134 The court relied on a secondary effects doctrine to hold the statute “narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals.”135
II. Depictions of Actual Animal Abuse Are Unprotected as Speech Integral to Criminal Acts of Cruelty to Animals
Speech inherent to crime is unprotected by the First Amendment.136 Analogous to the victims of child pornography, the criminal cruelty that animals used for crush videos and dogfights experience is intrinsically related to the creation of these materials.137 Congressional power to enforce animal cruelty laws extends power to pass legislation suppressing the market and financial incentive for these crimes.138
Child abuse conducted for the creation of child pornography is criminal conduct inherent to the creation of those materials.139 Similarly, the criminal cruelty portrayed through dog fighting and crush videos is performed solely to *498 produce these materials.140 As Justice Alito's dissent mentioned, animals experience physical and emotional abuse for the sole purpose of production.141
A. Ferber: Suppressing a Market of Criminal Conduct
Ferber recognized that the underlying crime of child sexual abuse could not be effectively controlled absent prohibiting the market and distribution of child pornography.142 The decision in Ferber was based on criminalizing the production of the speech--involving sexually abusing a child--rather than the content of the speech itself.143
It is impossible to allow for a market dependent on the sexual exploitation of children while combating the crimes of child sexual abuse.144 Child pornography serves as a record of criminal acts against children: criminal acts which are committed to create the films.145
The market of child pornography is “intrinsically related to the sexual abuse of children.”146 The materials are “a proximate link to the crime from which it came,” rendering these materials wholly unprotected by the First Amendment.147
B. Ferber Factors Apply to Depictions of Animal Cruelty
The constitutional protections promulgated by the First Amendment do not extend immunity “to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”148 Thus, in his dissenting opinion, Justice Alito recommended the finding that there is no Free Speech protection for violent crimes commenced for the purpose of expression.149
Crush films depict animals “shriek[ing] in pain,” and dogs used in dogfights are emotionally abused in order to condition them for fighting.150 The *499 physiological and emotional abuse suffered by the animals and the crimes of animal cruelty are intrinsic to the creation of these materials.151
Crush films, and other depictions of horrific animal cruelty, require criminal acts for their creation.152 These expressions serve as records of animal cruelty and require the commission of a crime for their creation.153
Similar to the reasoning in the Ferber holding, the government does not possess the ability to suppress any form of offensive expression based on its content.154 As recognized in Justice Alito's dissent, there is nothing particularly unique about child pornography or depictions of animal cruelty as “speech integral to crime.”155 The lack of First Amendment protection arises from the underlying crimes necessary for their creation.156
1. States Have an Interest in Prohibiting Speech that Is a Product of Animal Cruelty
This country has long condemned animal cruelty, considering it a serious criminal offense.157 Congress has a “significant interest” in preventing speech that “promote[s] and require[s] violence and criminal activity.”158 A clear consensus that animal cruelty amounts to “conduct so antisocial that it has been made criminal” is conveyed through the actions of all 50 states to criminalize the act of animal cruelty.159
“The animals used in crush videos” and brutal animal fights “experience excruciating pain” and suffering.160 These materials require the commission of violent crimes and inflict injury on the victims for commercial purposes.161 The *500 government's power to administer the nation's laws effectively extends to proscribing the speech inherent to these crimes.162
Those involved in the creation of crush videos and organized dogfights are shielded from law enforcement, rendering the conduct problematic for police and prosecutors.163 Just as child pornography has been prohibited, the animal crush videos and organized dog fights must also be criminalized to police criminal animal cruelty.164 Justice Alito's dissent was very accurate when it noted the impossibility of controlling criminal acts of animal cruelty without suppressing a market dependent on it.165 His opinion recognized that, where there is a “lucrative market for depictions of animal cruelty,” a monetary incentive to conduct such acts follows.166
Presented with evidence of crush videos' expansion in popularity, Congress reasonably determined that restraining the exploitation of these animals is impossible absent prohibitions of these materials.167 Drafting the Depiction of Animal Cruelty act, the legislature believed suppressing these materials dependent on animal cruelty was the only way to effectively control the crime.168
States hold an interest in enforcing the nation's laws and preventing criminals from profiting from their criminal conduct.169 Deterring harm to animals may not be of the same magnitude as the protection of our nation's youth, but this does not suggest that the government fails to hold an “interest in preventing the torture depicted in crush videos.”170
*501 2. The Production of Speech Is Integral to Crime
The conduct depicted in dog fighting films and crush videos is criminal, and it should not receive any First Amendment protection.171 Without the crime of animal cruelty, the “speech” in the videos could not be created.172 As with the expressions in Ferber, these require criminal acts for production and serve as a record of crime.173
Dogs used for fighting are subjected to abuses of physical and emotional torture--hangings, feeding hot peppers, beatings and electrocutions--in order to predispose the animals to violence and condition them to fight to their deaths.174 Unlike the victims of child pornography, animals are not continually psychologically harmed by the existence and circulation of these materials; however, animals are physiologically abused for the material's creation.175
Furthermore, materials depicting torture and abuse of animals serve as a record of an actual crime.176 Dog fighting films are “vital to the criminal enterprise,” the films are viewed to convey “proof” of a dog's fighting abilities, or be used as training videos for organizers.177 Justice Alito opined that, in a manner similar to the analysis used in statutes criminalizing child pornography, a constitutionally valid statute prohibiting materials depicting actual animal cruelty will forbid any speech integral to the crime of animal cruelty.178
*502 3. An Economic Motive for Criminal Conduct
The creation of the materials in Ferber was itself the crime of child sexual abuse.179 Criminalizing materials that require the sexual abuse of children deters crime by removing the financial incentive to commit criminal acts.180 “The production of the work, not its content, [is] the target of the statute.”181
In a similar manner, a “top-level” professional dogfight generates close to $100,000 through the gambling interest and film circulation of the event.182 “There are more than two thousand crush-video titles available in the marketplace, priced from $15 to $300.183 These profits demonstrate the powerful economic incentive to produce materials depicting animal cruelty.184
Marketing dog fighting films is an “integral part of the production of such materials.”185 As with the legislative goals evaluated in Ferber, this legislature sought to combat the crime of animal cruelty by targeting a market dependent on animal cruelty.186
The “economic motive” incentivizing the creation of tortured animal depictions necessitates the prohibition of expression in order to deter the crimes themselves.187
Through his dissent, Justice Alito applies a Ferber analysis to Depictions of Animal Cruelty.188 Congressional power to police animal cruelty, by prohibiting a market for depictions of the crime, is analogous to policing child sex abuse with prohibitions on child pornography.189
*503 4. The Value of Permitting Speech Dependent of Animal Cruelty Is de Minimis
Materials depicting the torture and killing of live animals fail to amount to necessary literary works or artistic expressions.190 Speech failing to advance any ideas or expression, while maintaining minimal social value, is constitutionally unprotected.191 As argued by Justice Alito in his dissent, any value of unprotected speech must be substantially outweighed by the evil sought to be eradicated by the government.192
Under Justice Alito's proposed test, the immense harm inherent to the underlying criminal acts vastly outweighs any “minimal value that the depictions might conceivably be thought to possess.”193 If there were an attempt to advance a particular message or express a belief, the Court has established that prohibiting the speech is justified with reference to the conduct, rather than the content.194 In this situation, the conduct in the materials--abuse and torture of animals--is a criminally condemned act.195
The First Amendment interest in protecting these materials extends only to concerns the “realistic” portrayal possible only with the use of real animals would be suppressed.196 Where it is necessary expression via these actions is the only way to further a message, a simulation could be conducted, which would hold First Amendment protections.197 Condemning speech that is evidence of a criminal conduct and the result of criminal acts fails to suppress any speech-content that is created by simulation.198
The injury generated by the criminal conduct intrinsic to these expressions-- cruel animal abuse and torture--grossly outweighs any value possessed by them.199 Prohibiting materials depicting cruel animal abuse is not intended to prohibit a “particular literary theme,” but to prohibit cruelty to animals.200
*504 III. Congress's Decision to Narrow to “Obscene” Material Is Poor Public Policy and Raises Constitutional Doubts
Prohibitions on actions evolving from nonverbal expressive activity must be justified without considering content.201 The First Amendment does not allow the government to impose unique prohibitions on disfavored content and subjects.202
Narrowing the proscribed speech to only “obscene” depictions of animal cruelty imposes a “special prohibition” on an obscenity that communicates a particular message via obscene depictions of animal violence.203 The First Amendment forbids prohibitions within categories of unprotected speech, with an emphasis on targeting intolerable modes of expression.204 The state may enforce laws by suppressing materials “intrinsically related” to criminal conduct, but government suppression of any particular content remains constitutionally invalid.205
There are limited areas in which the government is permitted to restrict content; however, no power exists to restrict speech due to the message or ideas conveyed.206 Further, the Constitution prevents the state from “impos[ing] special prohibitions on . . . disfavored subjects.”207
The First Amendment forbids content discrimination.208 However, an exception exists where there is a “compelling state interest” and the content discrimination is “reasonably necessary” to achieve such interests.209 The content-specific obscenity classification neither conveys a compelling state interest, nor is it reasonably necessary to achieve the purported interest of deterring the intrinsic crime of criminal cruelty.210
*505 A. Dog Fighting Thrives: The Public Policy Concerns of an “Obscenity” Classification
Unless a prosecutor proves that the cruel depictions of dogfights are sexually explicit speech, these materials will fail to maintain any criminality.211 Where the legislature is attempting to regulate “obscene” material, it is only empowered to do so within the realm of “sexual conduct.”212 As such, this statutory modification is not able to prohibit the portrayals of animal cruelty depicted in dog fighting films.213
“Obscene” depictions of animal cruelty proscribe only those depictions that additionally appeal to the “prurient interest.”214 While dogs used for fighting are beaten with objects, hung, fed gunpowder, and electrocuted,215 violent expression does not fall within the obscenity category.216 Obscenity is an unprotected category of “sexually explicit ” speech,217 so it would not include merely violent expression that is found in dog fighting videos.
The “obscenity exception” does not include everything the “legislature [finds] shocking, but only depictions of sexual content.”218 This modification goes beyond the depictions of criminal cruelty to animals, focusing more narrowly on depictions of cruelty that appeal to a particular sexual fetish, rendering the speech a legal “obscenity.”219 Because of the limited scope of the obscenity exception, dog fighting films, training videos, and promotions fail to come within the speech proscribed by the Animal Crush Videos act.220 With this existing standard, the market for dog fighting may legally continue.
*506 B. Failing to Suppress All Depictions of Animal Cruelty Is Constitutionally Problematic Under R.A.V.
The possibility that the legislature acted with intent to target a particular expression or idea is sufficient to render a regulation “presumptively invalid.”221 The “obscene” content classification deviates from the sole prohibition of speech inherent to criminal animal cruelty.222 The legislation effectively discriminates against a particular message and viewpoint--within the unprotected category of obscene speech.223
The current statute targets, specifically, sexually explicit speech that includes cruel acts towards animals.224 This raises doubts about the statute's constitutionality, as content specification is constitutionally forbidden when based on hostility towards the idea, even when that idea falls within a class of unprotected speech.225 The Court recognizes categories of unprotected speech, including: “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.”226 A statute prohibiting expression within these unprotected categories--due to hostility towards the particular subject matter--is constitutionally invalid,227 as these prohibitions amount to content discrimination.228
The First Amendment bars government regulation of expression due to its “message, its ideas, its subject matter, or its content.”229 The unprotected aspects of the expression or speech must pertain to the “nonspeech element of communication.”230 It is consistent with the First Amendment to prohibit materials with the intention of enforcing laws.231 Similarly, state impositions of “unique limitations” on content or conveyance of “paternalistic interest in regulating a person's mind” are constitutionally invalid.232
*507 It is impractical to equate a tolerance for sexually oriented materials with legislation intended to prevent criminal cruelty to animals.233 Further, there is no functional application to determine that animals are more or less harmed depending on the film's sexual connotation.234 Regardless, the content-specific regulation likely renders the speech subject to strict scrutiny analysis.235
1. Special Prohibitions Must Be Virulence Distinctions
In R.A.V., the court established a virulence exception for subcategories of speech, noting that the exception applies when the expression “consists entirely of the very reason its entire class of speech is proscribable.”236 Thus, a governmental body would be granted power to regulate subsets of unprotected categories where the speech is a particularly virulent form of expression within that category.237 These particular regulations present no “significant danger of idea or viewpoint discrimination.”238
The Court applied R.A.V.'s exception in Virginia v. Black, holding Virginia's specific limitation on cross burning valid due to its “particularly virulent form of intimidation.”239 As with the threatening expression inherent in cross burning, the State may ban obscenities amounting to the “most lascivious displays of sexual activity.”240 Regulations on the “most obscene” sexual content are justified as prohibitions pertaining to the reasons that the classes of speech are condemned in their entirety.241
Absent a “compelling need,” the government cannot regulate speech based on its content.242 A “compelling need” is not found where the statute would have “precisely the same beneficial effect” absent the limitation to a particular type of content.243 Narrowing the prohibition to solely “obscene” depictions of animal cruelty does not increase the effective control of criminal animal cruelty.244 *508 Instead, the statute is less effective, failing to prohibit the expansive market of dog fighting films.245
2. Obscene Depictions of Animal Cruelty Are Not Virulent Obscenities
Categories of speech failing to maintain First Amendment protection due to their “constitutionally proscribable content” may not be made the “vehicles for content discrimination unrelated to their distinctively proscribable content.”246 In Ferber, the Court held New York's statute valid, as it was not attempting to suppress a particular idea or artistic theme, but was instead only attempting to protect the victims of child sexual abuse.247
The “obscenity” classification is not a subset of an unprotected class made entirely for the same purposes that the entire class is unprotected.248 This classification does not suffice as “the most obviously proscribable instances” of obscenity.249
This obscenity regulation was purportedly drafted to narrow the Deceptions of Animal Cruelty to prohibiting only unprotected “obscene” speech inherent to animal cruelty.250 However, the content specific, “obscene” animal cruelty classification fails to convey an obscenity regulation of the most obscene “prurient” speech.251 The represented intent of the statute was not to consider the prurient interest of a crush film to conclude it the most obscene, obscenity.252 As such, this obscenity classification fails to further the purported interest of suppressing violent crimes of animal cruelty.253
*509 3. Obscene Depictions of Animal Cruelty Are Not Virulent Distinctions of Speech Inherent to Crime
In Free Speech Coalition, the Court invalidated the Child Pornography Prevention Act on the basis of overbreadth.254 The majority opinion analyzes the CCPPA considering Ferber-- targeting criminal acts of child abuse integral to production.255
Ferber's holding reiterated that prohibitions on speech integral to crime must focus on suppressing the criminal conduct inherent to the speech's creation.256 When looking to animal crush videos, it is clear that the crime is no less committed where the film is determined “obscene.”257 However, this narrower classification of obscenity incites suspicion that Congress' intent is suppressing sexually arousing images of animal cruelty rather than attempting to suppress the criminal conduct itself.258
Ferber held that the Miller obscenity standard failed to reflect the “more compelling interest in prosecuting those who promote the sexual exploration of children.”259 In that case, the majority considered the Miller test unrelated to the issue of whether speech required physical and physiological harm to children as speech require the sexual abuse of children without amounting to “patently offensive.”260
In practicality, it is irrelevant to animals subjected to criminal cruelty whether or not the expression is deemed worthy of “literary, artistic, political or social value.”261 The animals that are forced to suffer horrific pain and torture *510 through the production of these materials are no less harmed where the materials fail to amount to obscene.262
This classification fails to deter criminal animal cruelty more efficiently.263 This statute is no more beneficial with the classification; rather, it is less effective as it forces the larger category of materials inherent to animal cruelty--dog fighting films--to remain free of any criminal condemnation.264
4. Congress's Intent Appears to Be Suppression of Violent “Obscenity” Rather Criminal Conduct
A statute's selectivity of disfavored content establishes the possibility that the intent is to impede the expression of particular ideas, rather than prohibit intolerable acts.265 The First Amendment forbids government implementation of unique limits for particularly hostile content.266 Narrowing depictions of animal cruelty to only those depictions amounting to legal obscenities communicates an interest in suppressing violent obscenity, rather than suppressing a market of animal torture.267
Consistent with Miller, obscenity is work that “appeals to the prurient interest” and depicts sexual conduct.268 Application of this Miller standard in the Animal Crush Videos statute conveys an interest in criminalizing violence that “appeals to the prurient interest,” rather than an intent to suppress violent criminal conduct in general.269
*511 The purported intent of Depictions of Animal Cruelty is suppression of the criminal acts necessary for the creation of these materials.270 Where a prohibition would serve the same goal absent a particular topic classification, the content discrimination of that classification is not “reasonably necessary.”271 This goal is no more effectively reached by narrowing its application to only the cruelty depictions amounting to “obscene.” Rather, this narrowing leaves a loophole for an even larger industry that depends on animal cruelty to thrive: dog fighting films.272
The Miller test is unrelated to the issue of whether the speech requires physical and psychological abuse of animals.273 The inclusion of “obscenity” fails to achieve the goal of protecting the victims of these films.274 Animals are just as harmed via the creation of these videos when the film is not considered obscene as when the film is labeled “obscene.”275
The Richards holding evidences that the inclusion of “obscenity” forces the statute to regulate depictions of animal cruelty based on their content, not on the intrinsic crime.276 The court considers these “sexually arousing” films obscene because of the sexually explicit content they portray to the viewer.277
Distinguished from Ferber, Richards held the Crush Videos statute constitutionally valid, as it proscribes only unprotected speech, disregarding analysis of the inherent violent crime.278 In Richards, the court held that the *512 obscene classification was valid, as it is narrowly tailored to target solely unprotected speech.279
C. Violent Speech Regulations Must Meet Strict Scrutiny
Brown held violence excluded from the unprotected class of “obscene speech.”280 An attempt to make a violent-speech prohibition look like an obscenity prohibition will not suffice, as the Court considers obscenity to include only “depictions of ‘sexual conduct.”’281
Violent speech fails to amount to an obscenity.282 The subset class of “obscene” violent speech--depictions of animal cruelty--renders the restriction subject to strict scrutiny.283 The requirement that speech depicting animal cruelty be considered “obscene” fails to further the legislatures' conveyed intent of suppressing criminal conduct, thus rendering the legislation less effective.284 As Justice Alito noted in his dissent, a plethora of animal cruelty depictions marketed in the U.S. fail to meet the legal definition of “obscenity.”285
Because violent speech is protected speech, the State must demonstrate any prohibitions on violent speech are “justified by a compelling government interest and . . . narrowly drawn to serve that interest.”286 Thus, to regulate violent speech, the state needs to show a legitimate problem exists and that the free speech restriction is necessary to solve the problem.287 The “obscenity” classification, within the protected category of violent speech, will subject the legislation to strict scrutiny, where it is unlikely to survive.288
D. The Secondary Effects Doctrine Likely Cannot Save the Statute
The secondary effects of speech include only “secondary features that happen to be associated with the particular type of speech but have nothing to do *513 with its content.”289 The Richards court held that the promotion of violence and criminal animal cruelty were “secondary effects” of animal crush videos.290 These problematic impacts on the audience and the inherent crimes fail to amount to a secondary effect.291
Content discrimination aimed solely toward the negative “secondary effects” of a particular speech is constitutionally valid.292 In City of Erie v. Pap's A.M., the Court applied the secondary effects doctrine to validate the city ordinance suppressing public nudity.293 City of Erie held that the ordinance was aimed at the secondary effects of erotic dancing, such as “public health, safety and welfare,” and was not an attempt to suppress the erotic message itself.294
In R.A.V., the city of St. Paul argued that an ordinance suppressing threatening speech specifically directed towards a person's “race, color, creed, religion, or gender” was focused solely on the secondary effects of this speech--the victimization of persons belonging to groups with a history of discrimination.295 In R.A. V., the Court held that the statute's regulation of speech “most likely to promote a violent response,” was focused on the primary effects of the speech--the message conveyed.296 Legislation focused on the primary effects of speech is not a limitation on secondary effects.297
The congressional intent of Animal Crush Videos is not directed at secondary conduct or an “undesirable effect,” absent reference to expressive content.298 However, Richards cites the speech's impact on its audience-- promotion of violence--to justify application of the secondary effects doctrine.299 The secondary effects doctrine does not apply where the asserted justification focuses on the content and “primary and direct emotive impact on their audience.”300
*514 IV. Model Legislation: A Statute Prohibiting All Speech Integral to the Commission of Criminal Animal Cruelty
First Amendment cases distinguish between expressions and conduct.301 Through enforcing its laws, the government draws the power to suppress speech that is merely a record of criminal acts.302 This fails to extend any power to the government to draft legislation in an attempt to control a person's private thoughts.303
Any attempt to suppress criminal acts by closing a market dependent on crime must solely focus on suppression of criminal conduct.304 The prohibitions must intend to criminalize the production of the work, without any consideration of the content.305
A. Speech that Is Merely a Product of Criminal Acts Is Not Protected by the First Amendment
It is vital that legislation barring depictions of animal cruelty focus on the criminal conduct inherent to production, rather than what is communicated through the materials.306 The work's production--requiring criminal cruelty towards animals--needs be the target of any legislation suppressing depictions of animal cruelty.307
Regulations on the basis of content are valid only where the statute proves less effective absent the particular content regulation.308 The modification narrowing the prohibited speech to depictions of criminal acts that are additionally a legal “obscenity” not only fails to make the statute more effective, but renders it less effective at carrying out the purported goal of suppressing criminal animal cruelty.309
*515 B. Actual Cruelty to an Actual Animal: Closing the Loophole and Eradicating the Constitutional Issues
As with the reasoning in the Ferber decision, only those films depicting actual cruelty to a real animal avoid constitutional issues.310 To avoid any challenges on the basis of overbreadth, the legislature must consider the Court's holding in Free Speech Coalition and maintain regulation only where the actions create victims and require criminal acts.311
The statute barring depictions of animal cruelty needs to cover any depiction of the criminal act of cruelty towards animals.312 Additionally, the statute must have specificity of the acts deemed “cruel” in order to have the precision required under the First Amendment.313
There are some state statutes that reflect the requisite precision for a statute to be constitutional under the First Amendment. For example, Alabama defines animal cruelty as occurring when a person “recklessly or with criminal negligence” subjects an animal to cruel mistreatment.314 The state law further maintains an “aggravated cruelty to animals” statute,315 which applies to people who commit acts of animal cruelty and “inflict  . . . torture to [an] animal.”316
Congress's power to enforce laws includes the power to prohibit materials that require criminal animal cruelty for their production.317 With a more precise definition of “animal cruelty,” which would refrain from referencing the particular content of the videos, the prohibition would extend to all depictions of animal cruelty and maintain constitutionality.318 This would, in effect, close the loophole created by the obscenity definition in today's jurisprudence.
*516 C. Prohibition of the Conduct Necessary to Produce the Work: Ignoring the Content
“Where the images are themselves the product” of animal cruelty, the government would have an interest in removing the market, without needing to reference its content.319 To remain in compliance with constitutional requirements, it is the torture to animals inherit to the production of these works, not the content expressed through the films, which must be the target of the legislation.320
The possibility that some of the works could conceivably contain “serious literary, artistic, or other value” fails to excuse the harm caused to animals used for their creation.321 The First Amendment is not interpreted to extend immunity to expression inherent to violations of “valid criminal statute [s].”322
The animals used in these industries are cruelly tortured and killed for the sole purpose of the entertainment.323 When drafting a statute that closes the loophole to ban all material intrinsic to animal cruelty, maintaining constitutional validity is essential to eradicating this problem.
The circumscribed legislation remains constitutionally problematic and creates ineffective public policy. When the statutory reach is narrowed to obscene depictions, it fails to criminalize the largest market of depictions of criminal cruelty: animal fighting materials. Additionally, this content-specific distinction must meet the requirements of virulence distinctions, as articulated in R.A.V. Since courts are likely to view obscene depictions of animal cruelty as particularly offensive violent speech entitled to the protections of strict scrutiny established in Brown, the statute will likely be invalidated. This will allow for a continued market of violent crime towards animals. In order to close the loophole, the reach of the statutes must be increased.
a1 The author is a 2017 Juris Doctor candidate at the University of Mississippi School of Law. She received Bachelor of Arts degrees in Public Relations and Political Science from the University of Alabama. Prior to pursuing a legal education, the author worked in political fundraising and public policy in Washington, D.C. The author wishes to thank Professor Jack Wade Nowlin, for his immense efforts and guidance in the writing of this article. The author would also like to thank her sister, Daisy Bruce, for her continued support.
1 St. Francis of Assisi (attributed); see David P. Gushee, Can a Sanctity-of-Human-Life Ethic Ground Christian Ecological Responsibility?, 23 Notre Dame J.L. Ethics & Pub. Pol'y 471, 490 n. 67 (2009).
2 Jon Terbush, One-third of Americans think animals should have the same rights as people, The Week (May 19, 2015), http://theweek.com/speedreads/555823/onethird-americans-think-animals-should-have-same-rights-people.
3 Americans spent $58 billion on pampering, feeding and protecting pets in 2014... nearly $3 billion more than 2013, DailyMail (March 5, 2015), http://www.dailymail.co.uk/news/article-2981501/Americans-spent-58-billion-pamper-protect-pets-2014.html. See, e.g., United States v. Stevens, 533 F.3d 218, 246 (3d Cir. Pa. 2008) (en banc) (police raid of dogfights uncovered the fights were being videotaped), aff'd, 599 U.S. 460 (2010); Ash v. State, 718 S.W.2d 930, 931 (Ark. 1986); State v. Shelton, 741 So. 2d 473, 474 (Ala. Crim. App. 1999).
4 See generally Stevens, 533 F.3d 218.
5 Associated Press, Gruesome Details in Indictment Naming NFL Quarterback Michael Vick in Dogfighting Case, Fox News (July 18, 2007), http://www.foxnews.com/story/2007/07/18/gruesome-details-in-indictment-naming-nfl-quarterback-michael-vick-in.html.
6 Br. of Amicus Curiae the Humane Society of the United States in Supp. of Pet'r at 6, Stevens v. United States, 559 U.S. 460 (2010) (No. 08-769).
7 Stevens, 559 U.S. at 499 (Alito, J., dissenting).
8 Id. at 491 (describing the details of crush videos: “a kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten's eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal's head.”); see also United States v. Richards, 755 F.3d 269, 272 (5th Cir. 2014) (The defendants were indicted after creating a film featuring Ashley Nicole Richards “binding animals (a kitten, a puppy, and a rooster), sticking the heels of her shoes into them, chopping off their limbs with a cleaver, removing their innards, ripping off their heads, and urinating on them.”).
9 The most common crush video consists of a “scantily clad” woman stomping or puncturing the eye-socket of a small animal-- often a kitten or puppy--with the heel of a stiletto shoe. The term “crush video” originating from the common portrayal of animals being crushed in the films. The films are marketed to those with a particular sexual fetish of being crushed. Stevens, 559 U.S. at 466; see also H.R. Rep. No. 106-397 (1999), Richards, 755 F.3d 269, 272.
10 Paula J. Owen, Change in FBI tracking will highlight animal cruelty, Telegram (June 27, 2015, 6:47 PM), http://www.telegram.com/article/20150627/NEWS/150629197 (Until January of 2016, the Department of Justice Federal Bureau of Investigation failed to specifically track the number of animal cruelty cases prosecuted.).
11 The conduct, depicted in these films, is criminal in all 50 states. The creation of the materials requires the commission of crime. Stevens, 559 U.S. at 494 (Alito, J., dissenting); see also Richards, 755 F.3d at 278.
12 Those persons shown in crush videos often cover their faces or blur them to avoid identification. United States v. Stevens, 533 F.3d 218, 222 (3d Cir. Pa. 2008), aff'd, 559 U.S. 460 (2010).
13 H.R. Rep. No. 106-397.
14 See id.
15 18 U.S.C. § 48 (2012).
16 See Stevens, 559 U.S. at 465.
17 Id. at 467 .
18 Id. at 482.
19 18 U.S.C. § 48.
20 See 156 Cong. Rec. S8202-04 (daily ed. Nov. 19, 2010).
21 Stevens, 559 U.S. at 482 (Alito, J., dissenting).
22 United States v. Richards, 755 F.3d 269, 271, 273 (5th Cir. 2014); see also Animal Crush Video Prohibition Act of 2010, 111 P.L. 294, 124 Stat. 3177, 3178 (emphasis added) (stating in the findings, the U.S. has a “long history” of prohibiting “obscene material and speech that is integral to criminal conduct”).
23 The First Amendment exception provided for obscene speech fails to provide an exception to anything the legislature finds appalling. It applies solely to “depictions of sexual conduct.” Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2734 (2011); see also Cohen v. California, 403 U.S. 15, 20 (1971); Roth v. United States, 354 U.S. 476, 487-88 (1957).
24 There is a “content discrimination” limitation on the State's ability to regulate speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 387-88 (1992).
25 Richards, 755 F.3d at 279.
27 Brown, 131 S. Ct. at 2735.
28 Violent speech holds first amendment protection and renders strict scrutiny, even where Congress attempts to include it in an “obscenity” category. Id. at 2734.
29 Joseph A. Anclien, Crush Videos and the Case for Criminalizing Criminal Depictions, 40 U. Mem. L. Rev. 1, 3 (2009).
30 Casenote, Constitutional Law--Freedom of Expression-- Statute Criminalizing Creation, Sale, and Possession of Depictions of Animal Cruelty Was Substantially Overbroad and Facially Invalid As a Violation Of First Amendment Protection Of Speech, 80 Miss. L.J. Online 21, 32 (2010).
31 New York v. Ferber, 458 U.S. 747, 761-62 (1982); see also Stevens v. United States, 559 U.S. 460, 471 (2010).
32 Ferber, 458 U.S. at 761-62.
33 18 U.S.C. §48 (2012).
34 Violence is not included in the unprotected category of “obscenity.” It is protected speech that triggers a strict scrutiny analysis. See Miller v. California, 413 U.S. 15, 30 (1973); see also Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2734 (2011).
35 Stevens, 559 U.S. at 478.
36 Ferber, 458 U.S. at 761-62; Stevens, 559 U.S. at 471.
37 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250 (2002).
38 See generally Ferber, 458 U.S. at 759-60 (holding it was “practical” for law enforcement to “dry up the market” of child pornography in order to stop the crimes of child sexual abuse by closing the production of the material).
39 Id.; see also United States v. Richards, 940 F. Supp. 2d 548, 558 (S.D. Tex. Apr. 17, 2013), rev'd, 755 F.3d 269 (5th Cir. 2014).
40 “It is undisputed that the conduct depicted in crush videos may constitutionally be prohibited.” Stevens, 559 U.S. at 491-493 (Alito, J., dissenting).
41 The state maintains power to bar child pornography as the production requires criminal sexual exploration of children, and the state holds a compelling interest to protect the “physical and emotional well-being of youth.” Ferber, 458 U.S. at 761; see also Stevens, 559 U.S. at 471; United States v. Richards, 755 F.3d 269, 279 n.12 (5th Cir. 2014).
42 Ferber, 458 U.S. at 761.
43 Id. at 763; see also Free Speech Coalition, 535 U.S. at 251.
44 Free Speech Coalition, 535 U.S. at 250.
47 Ferber, 458 U.S. at 761-62; see also Stevens, 559 U.S. at 471; Osborne v. Ohio, 495 U.S. 103, 110 (1990).
48 Free Speech Coalition, 535 U.S. at 253 (citing Brandenburg v. Ohio , 395 U.S. 444, 447 (1969)).
49 Ferber, 458 U.S. at 759.
50 See generally id.
52 Id. at 751-52.
53 Br. for Resp't at 12, New York v. Ferber, 458 U.S. 747 (1982) ( No. 81-55).
55 See generally Ferber, 458 U.S. at 765.
56 Id. at 775 (O'Connor, J., concurring) (“As drafted, New York's statute does not attempt to suppress the communication of particular ideas.”); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002).
57 Ferber, 458 U.S. at 761.
58 Id. at 759.
59 Id. at 756-58.
61 United States v. Richards, 940 F. Supp. 2d 548, 552 (S.D. Tex. Apr. 17, 2013), rev'd, 755 F.3d 269 (5th Cir. 2014); see also Free Speech Coalition, 535 U.S. at 234.
62 Ferber, 458 U.S. at 761.
63 Id. at 761-62 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)); see also Osborne v. Ohio, 495 U.S. 103, 109-10 (1990).
64 Where child sexual abuse is conducted for the purpose of creating materials, the materials serve as an “integral part” of the criminal acts. Ferber, 458 U.S. at 761; see also Free Speech Coalition, 535 U.S. at 249-50.
65 R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992); see also Texas v. Johnson, 491 U.S. 397, 406-407 (1989); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569-570 (1991) (plurality opinion); United States v. O'Brien, 391 U.S. 367, 376 (1968).
66 H.R. Rep. No. 106-397, at 2-3 (1999).
67 Id.; see also United States v. Richards, 755 F.3d 269, 271 (5th Cir. 2014).
68 H.R. Rep. No. 106-397, at 1.
69 Stephen Iannacone, Comment, Examining New York State Law: Felony Animal Cruelty Laws in New York, 31 Pace L. Rev. 748, 749-50 (2011).
71 Stevens v. United States, 559 U.S. 460, 491 (2010).
73 The faces of women in the animal crush videos are often not shown and the location of the filming is impossible to determine from viewing the film. This allowed defendants to successfully assert the State lacked proof to convict. H.R. Rep. No. 106-397, at 3.
74 H.R. Rep. No. 106-397, at 3.
76 18 U.S.C. § 48 (2012).
77 See Anclien, supra note 29, at 5.
78 18 U.S.C. § 48.
79 Stevens v. United States, 559 U.S. 460, 486 (2010) (Alito, J., dissenting) (discussing the Court's failure the address the film before them-- deadly dogfights--and rather “rel[y] primarily on depictions of hunters killing or wounding game and depictions of animals being slaughtered for food” to consider the statute “overbroad”).
80 See Anclien, supra note 29, at 9.
81 Stevens, 559 U.S. at 465, 476.
83 Who is Bob Stevens?, Humane Society, http://www.humanesociety.org/news/news/2009/11/bob_stevens_110909.html? referrer=https://www.google.com/ (last visit-ed Mar. 30, 2016).
84 Stevens, 559 U.S. at 466.
85 Id. at 467.
86 Wash. St. Grange v. Wash. St. Republican Party, 552 U.S. 442, 449 n.6 (emphasis added); see also Dombrowski v. Pfister, 380 U.S. 479, 486 (1965); Thornhill v. Alabama, 310 U.S. 88, 97 (1940).
87 Stevens, 559 U.S. at 467.
88 Id. at 460.
89 Stevens held protected speech would fall within the scope of what was considered animal cruelty in the Depictions of Animal Cruelty act's definition of cruelty. The statute defined cruelty as “a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” and the conduct is “illegal under federal law or the law of the state in which the creation, sale, or possession takes place.” Id. at 482 (Alito, J., dissenting).
90 Id. at 481-82.
91 The market of child pornography is intrinsic to child abuse “an activity illegal throughout the nation.” Id. (citing New York v. Ferber, 458 U.S. 747, 759, 761 (1982)).
92 The Court's determination that child pornography could be legally prohibited by Congress was grounded in the belief no speech protection existed for speech serving as “an integral part” of unlawful production. Id. at 471 (majority opinion); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 243 (2012).
93 Stevens, 559 U.S. at 472.
94 Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2734 (2011) (Unprotected speech is “of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”); see also Stevens, 559 U.S. at 470.
95 Id. at 471.
96 Free Speech Coalition, 535 U.S. at 249; see also New York v. Ferber, 458 U.S. 747, 759 (1982).
97 Stevens, 559 U.S. at 494.
98 Dogfighting films serve to document important fights, demonstrate “training” techniques, and prove the dog's fighting abilities. Br. for Pet'r at 3, United States v. Stevens, 559 U.S. 460 (2010) (No. 08-769).
99 Id. at 19.
101 Br. for Pet'r, supra note 98, at 17; see also Stevens, 559 U.S. at 493 (Alito, J., dissenting).
102 Br. for Pet'r, supra note 98, at 18.
103 Stevens, 559 U.S. at 494 (Alito, J., dissenting).
104 An economic motive for criminal conduct is intrinsic to that very conduct. New York v. Ferber, 458 U.S. 747, 761 (1982).
105 Stevens, 559 U.S. at 493 (Alito, J., dissenting).
107 See Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2747 (2011) (Alito, J., concurring).
108 Stevens, 599 U.S. at 482.
109 Brown, 131 S. Ct. at 2734.
110 Stevens, 559 U.S. at 471 (citing New York v. Ferber, 458 U.S. 747, 759, 761 (1982)).
111 Id. at 482.
112 United States v. Richards, 755 F.3d 269, 275 (5th Cir. 2014).
113 Id.; see also H.R. Rep. No. 106-397 (1999).
114 Narrowing the prohibited speech to include solely “obscene” depictions of animal cruelty. Richards, 755 F.3d at 271 (citation omitted).
115 Id. at 275 (citation omitted); Stevens, 559 U.S. at 465-66 (citation omitted).
116 H.R. Rep. No. 106-397; Richards, 755 F.3d at 275.
117 145 Cong. Rec. H10267 (daily ed. Oct. 19, 1999); Richards, 755 F.3d at 272.
118 H.R. Rep. No. 106-397.
119 18 U.S.C. § 48 (2012).
121 H.R. Rep. No. 111-549 (2010); see also United States v. Richards, 940 F. Supp. 2d 548, 554 (S.D. Tex. Apr. 17, 2013), rev'd, 755 F.3d 269 (5th Cir. 2014).
122 Richards, 940 F. Supp. 2d at 551.
123 Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2738 (2011).
124 Richards, 940 F. Supp. 2d at 548.
125 United States v. Richards, 755 F.3d 269, 272 (5th Cir. 2014).
127 Richards, 940 F. Supp. 2d at 552.
130 Id. at 555 (quoting Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2734 (2011)).
131 The Court determined “under no set of community standards does violence towards animals constitute ‘sexual content’ and the crush video therefore did not fall within both prongs of Miller's obscenity test .” Richards, 940 F. Supp. at 548.
132 United States v. Richards, 755 F.3d 269, 279 (5th Cir. 2014).
133 Id. at 276.
134 Id. at 279 n.12.
135 Id. (citation omitted).
136 See generally New York v. Ferber, 458 U.S. 747, 761 (1982) (holding a Miller analysis unrelated to the interest of Congress to protect children from child abuse by barring a market of child pornography).
137 United States v. Stevens, 533 F.3d 218, 245 (3d Cir. Pa. 2008), aff'd, 559 U.S. 460 (2010).
138 Ferber, 458 U.S. at 760 (holding it necessary to pass bans on child pornography in order to dry-up the market, and stop child sexual abuse).
139 Id. at 761 n.13 (citation omitted).
140 United States v. Stevens, 559 U.S. 466 (2010).
141 Id. at 498 (Alito, J., dissenting) (citation omitted).
142 Ferber, 458 U.S. at 763; see also Stevens, 559 U.S. at 494 (Alito, J., dissenting).
143 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 251 (2012) (citation omitted).
144 Ferber, 458 U.S. at 759-60.
145 Id. at 758-59.
146 Id. at 759.
147 Free Speech Coalition, 535 U.S. at 250.
148 Ferber, 458 U.S. at 762 (citation omitted); see also United States v. Stevens, 559 U.S. 466, 471 (2010) (citation omitted).
149 Stevens, 559 U.S. at 493 (Alito, J., dissenting); see Ferber, 458 U.S. at 761-62.
150 Stevens, 559 U.S. at 491, 498-99 (Alito, J., dissenting) (citing Br. for Humane Society of United States as Amicus Curiae at 2, 5-6, United States v. Stevens, 599 U.S. 460 (2010) (No. 08-769)).
151 The creation and production of dogfighting films and animal crush videos require emotional and physical abuse of animals. Id.
152 It is impossible to create and produce these forms of entertainment without conducting criminal animal cruelty. Id. at 491.
153 See id.
154 Ferber, 458 U.S. at 761-64.
155 Id. at 761-63; Stevens, 599 U.S. at 497 (Alito, J. dissenting).
156 Ferber, 458 U.S. at 761-64; Stevens, 559 U.S. at 495-96 (Alito, J., dissenting).
157 Stevens, 559 U.S. at 496 (Alito, J., dissenting); see also United States v. Richards, 755 F.3d 269, 279 (5th Cir. 2014).
158 Richards, 755 F.3d at 279.
159 See id. at 278 (quoting United States v. Williams, 553 U.S. 285, 292 (2008)); Stevens, 599 U.S. at 491 (Alito, J., dissenting).
160 Stevens, 559 U.S. at 496, 498-99 (Alito, J., dissenting).
161 Id. at 493, 495.
162 Id. at 493; see also New York v. Ferber, 458 U.S. 747, 761-62 (1982) (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)).
163 Similar to child pornography, the women in crush films often cover or blur their faces to shield their identity. Dogfights are insulated from law enforcement as there is often a requirement to fight a dog prior to involvement in the fighting ventures. Stevens, 559 U.S. at 491-92, 497 (Alito, J., dissenting); see also United States v. Stevens, 533 F.3d 218, 234, aff'd, 559 U.S. 460 (2010) (“This is true as to crush videos because the only person typically onscreen is the ‘actress,’ and only her legs or feet are typically shown.”).
164 Child pornography requires separate, specific criminalization to effectively prohibit criminal child sex abuse. Ferber, 458 U.S. at 761-62.
165 Stevens, 559 U.S. at 495 (Alito, J., dissenting).
166 Stevens, 533 F.3d at 246 (Cowen, J., dissenting).
167 See H.R. Rep. No. 106-397, at 3 (1999).
168 See id.
169 In his Stevens dissent, Justice Alito forwards this reasoning to conclude an interest existed to support a ban on depictions of animal cruelty. Stevens, 559 U.S. at 496 (Alito, J., dissenting).
170 Id. at 495-96.
171 Stevens, 559 U.S. at 493 (Alito, J., dissenting).
173 Id. at 493-94 (citing New York v. Ferber, 458 U.S. 747, 753 (1982)).
174 Id. at 498-99 (citing Br. for Humane Society, supra note 150).
175 See Ferber, 458 U.S. at 758; Stevens, 559 U.S. at 471-72 (majority holding animal abuse portrayed in crush film dissimilar from that of the child abuse portrayed in child pornography).
176 Stevens, 559 U.S. at 493 (Alito, J., dissenting).
177 Id. at 498 (citing Brief for Humane Society, supra note 150) (“[V]ideos depicting live dogfights are essential to the success of the criminal dog fighting subculture, the commercial sale of such videos helps to fuel the market for, and thus to perpetuate the perpetration of, the criminal conduct depicted in them.”).
178 Through his dissent in Stevens, Justice Alito compared materials depicting criminal acts of animal cruelty to films depicting the criminal sexual abuse of children. The dissent considers the suppression of materials inherent to animal cruelty analogous to the prohibition of child pornography. See id. at 493, 495, 496; see also Ferber, 458 U.S. at 761-62.
179 See Ferber, 458 U.S. at 758-59.
180 The criminal conduct of child sexual abuse is constitutionally prohibited through Congress' actions barring child pornography. It is not the content Congress is targeting, but the conduct necessary for the film's creation. Where there are no crimes, nor victims, the materials are protected by the First Amendment. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254 (2002); see also Ferber, 458 U.S. at 772.
181 Free Speech Coalition, 535 U.S. at 249.
182 It is not uncommon for dogfights to be filmed. It is often circulated as a means to generate interest in placing bets on the outcome of the fight. Dogfighting a booming business, experts say, CNN (July 19, 2007), http://www.cnn.com/2007/US/07/18/dog.fighting/.
183 United States v. Stevens, 533 F.3d 218, 246 (3d Cir. Pa. 2008), aff'd., 559 U.S. 460 (2010).
184 United States v. Stevens, 559 U.S. 460, 497-98 (2010) (Alito, J., dissenting).
185 Id. at 497 (citing Ferber, 458 U.S. at 761).
186 Id.; see also H.R. Rep. No. 106-397 (1999).
187 Stevens, 533 F.3d at 246.
188 Stevens, 559 U.S. at 499 (Alito, J., dissenting) (citing Ferber, 458 U.S. at 757-58).
189 Id. at 493.
190 United States v. Richards, 940 F. Supp. 2d 548, 557 (S.D. Tex. 2013), rev'd, 755 F.3d 269 (5th Cir. 2014).
191 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
192 Stevens, 559 U.S. at 494 (Alito, J., dissenting) (citing Ferber, 458 U.S. at 762-63).
193 Id. at 495.
194 Richards, 755 F.3d at 278.
195 Stevens, 559 U.S. at 495 (Alito, J., dissenting).
196 Ferber, 458 U.S. at 763.
198 Id.; see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 251 (2002).
199 Stevens, 559 U.S. at 498 (Alito, J. dissenting).
200 Ferber, 458 U.S. at 763; H.R. Rep. No. 106-397, at 2-3 (1999).
201 R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992); see also Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
202 R.A.V., 505 U.S. at 391.
203 Id. at 406, 409.
204 Id. at 384.
205 Ferber v. New York, 458 U.S. 747, 759 (1982).
206 United States v. Stevens, 599 U.S. 460, 468 (2010) (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002)).
207 R.A.V., 505 U.S. at 391.
208 See generally id. at 387.
209 Id. at 395-396.
210 United States v. Richards, 755 F.3d 269, 272 (5th Cir. 2014).
211 Id. at 275.
212 Id. at 274.
213 The court rejects Congressional attempts to “shoehorn speech about violence into obscenity.” Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2734-35 (2011); Richards, 755 F.3d at 274, 276 (explaining the Miller definition under which animal crush videos may be properly considered “obscenity”).
214 Miller v. California, 413 U.S. 15, 21 (1973); see also Brown, 131 S. Ct. at 2734.
215 The dogs used for dogfighting suffer immense physiological and physical abuse. Training is focused on conditioning the dogs to preserver even where death is inevitable. United States v. Stevens, 559 U.S. 460, 499 (2010) (Alito, J., dissenting).
216 Brown, 131 S. Ct. 2729 at 2735.
217 Miller, 413 U.S. at 18.
218 Brown, 131 S.Ct. 2729 at 2734 (emphasis added); see also Miller, 413 U.S. at 24.
219 18 USC § 48 (2012).
220 United States v. Richards, 755 F.3d 269, 275 (5th Cir. 2014).
221 R.A.V. v. City of St. Paul, 505 U.S. 377, 393-94 (1992).
222 Ferber v. New York, 458 U.S. 747, 761-62 (1982).
223 Id. at 763-74.
224 18 USC § 48 (2012).
225 R.A.V., 505 U.S. at 396.
226 United States v. Stevens, 559 U.S. 460, 468 (2010); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
227 See R.A.V., 505 U.S. 384.
228 Id. at 391 (the legislature imposed a viewpoint discrimination when specifically targeting fighting words aimed at the disfavored topics of “race, color, creed, religion, or gender”).
229 Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983)).
230 R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).
231 Ferber v. New York, 458 U.S. 747, 762 (1982).
232 Osborne v. Ohio, 495 U.S. 103, 109 (1990); see also R.A.V., 505 U.S. at 396.
233 Ferber, 458 U.S. at 761 n.12.
234 Id. at 761; see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002).
235 Free Speech Coalition, 535 U.S. at 263.
236 R.A.V. v. City of St. Paul, 505 U.S. 377, 432 (1992); see also Virginia v. Black, 538 U.S. 343, 361-62 (2003).
237 Black, 538 U.S. at 344.
238 R.A.V., 505 U.S. at 388; see also Black, 538 U.S. at 382.
239 Black, 538 U.S. at 382.
240 Id. at 362.
241 Id. at 363.
242 R.A.V., 505 U.S. at 395.
243 Id. at 395-396.
244 Ferber v. New York, 458 U.S. 747, 753-54 (1982).
245 United States v. Richards, 755 F.3d 269, 275-76 (5th Cir. 2014); see also 18 U.S.C. §48 (2012).
246 R.A.V., 505 U.S. at 383-84.
247 There are no attempts to suppress any particular ideas or expressions. New York is only focused on curtailing a market of criminal child sex abuse. Ferber, 458 U.S. at 775.
248 The addition of the obscenity requirement was made to tailor the legislation to stop the criminal animal cruelty intrinsic to the creation of animal crush films. It was not to suppress a particularly explicit obscenity. Richards, 755 F.3d at 279; but see R.A.V., 505 U.S. at 388-89; Virginia v. Black, 538 U.S. 343, 382-83 (2003).
249 See Black, 538 U.S. at 382; see also R.A.V., 505 U.S. at 401.
250 Prior to passing Animal Crush Videos, the Judiciary Committee heard testimony of the extreme acts of cruelty depicted in the film. Testimony also confirmed these films were legal obscenities, as they appeal to the prurient interest of those who view them. 156 Cong. Rec. S8202-04 (daily ed. Nov. 19, 2010).
251 E.g., Black, 538 U.S. at 362.
252 “Congress has taken an important step towards combating the crimes of extreme animal cruelty that obscene animal crush videos depict.” 156 Cong. Rec. S8202-04 (daily ed. Nov. 19, 2010).
253 See generally, Ferber v. New York, 458 U.S. 747, 761 (1982) (holding obscenity should not be a factor in determining the criminality of child pornography as it failed to further the purported interest of protecting children from sexual abuse); see also R.A.V., 505 U.S. at 385; Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250 (2002); Osborne v. Ohio, 495 U.S. 103, 127 n.1 (1990).
254 Expanded federal prohibitions of child pornography to include “any visual depiction... that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(b) (2012); see also Free Speech Coalition, 535 U.S. 234.
255 Child pornography is not “by definition without value.” Free Speech Coalition, 535 U.S. at 251.
256 Ferber, 458 U.S. at 761-62.
257 Id. at 761.
258 The First Amendment forbids the government from barring child pornography based on the obscenity classification. The state may constitutionally ban these materials in order to effectively enforce prohibitions of child sexual abuse. Id.; see also Free Speech Coalition, 535 U.S. at 242 (the rationale images appearing to be child pornography may whet the appetite of pedophiles suggest the harm flows from the content, not the manner of their production); R.A.V., 505 U.S. at 394 (holding content classification generates the conception the state seeks to suppress a particular message or idea).
259 Ferber, 458 U.S. at 760-61.
260 Id. at 761.
262 See id.
263 Free Speech Coalition, 535 U.S. at 259 (Thomas, J., concurring) (the government may hold the power to regulate a narrow class of speech in order to enforce laws criminalizing pornography made by the abuse of real children).
264 R.A.V. requires a content specific speech prohibition be “reasonably necessary” to achieve the government's “compelling interest.” R.A.V. v. City of St. Paul, 505 U.S. 377, 395-96 (1992); see also Ferber, 458 U.S. at 762 n.15 (avoiding the obscenity test protects all children from child pornography).
265 R.A.V., 505 U.S. at 394.
266 Id. at 396.
267 Id. The First Amendment does not allow for prohibitions on child pornography to be considered under the Miller obscenity test. Whether or not the materials are legally obscene, fails to reflect the government's stated interest of policing child sexual abuse. Ferber, 458 U.S. at 761.
268 Roth v. United States, 354 U.S. 476, 489 (1957).
269 Ferber, 458 U.S. at 761 (Thomas, J., concurring) (including an obscenity test for materials inherent to child sexual abuse fails to reflect the state's interest in protecting children); see also Free Speech Coalition, 535 U.S. at 250 (holding a ban on virtual child pornography is not supported by the government's compelling interest in prohibiting child pornography where real children are used).
270 United States v. Stevens, 559 U.S. 460, 464 (2010).
271 R.A.V., 505 U.S. at 395-96 (A content specific speech prohibition is not reasonably necessary where the statute would have the “same beneficial effect” absent the content specific limitation.).
272 Stevens, 559 U.S. at 466 (the defendant was indicted under Depictions of Animal Cruelty as a result of his producing dog fighting films); United States v. Richards, 755 F.3d 269, 277 (5th Cir. 2014) (holding Congress narrowed Depictions of Animal Cruelty to include only those decoctions that were legally obscene).
273 Ferber, 458 U.S. at 761.
276 Richards, 755 F.3d at 276-77.
277 The circuit court applied Brown to determine the obscenity exclusion inapplicable to Animal Crush Videos. United States v. Richards, 940 F. Supp. 2d 548, 554 (S.D. Tex. 2013) (holding the violence in crush videos failed to “appeal to the prurient interest... applying contemporary community standards”), rev'd, 755 F.3d 269 (5th Cir. 2014). The determination Crush Videos may be considered sexually obscene, rather than only violent, because they appeal to the “prurient interest” of those who view the videos, not to community is additionally problematic. Stanley v. Georgia, 394 U.S. 557, 566, 568 (1969) (holding a Georgia statute that prohibited obscenity out of intent to “control the moral contents” of a person's mind invalid).
278 Richards, 755 F.3d at 279.
280 Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2735 (2011).
281 Id. at 2734.
282 It is clear that is “not part of the obscenity that the Constitution permits to be regulated.” Id. at 2735.
283 Id. at 2738 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992)).
284 The defendant's indictment under Depictions of Animal Cruelty in Stevens relation to his producing dog fighting films, would not apply as the depictions were not “obscene.” United States v. Stevens, 559 U.S. 460, 472 (2010).
285 Stevens, 559 U.S. at 485 (Alito, J., dissenting).
286 Brown, 131 S.Ct . at 2738.
287 United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 822-23 (2000); see also Brown, 131 S. Ct. at 2738.
288 R.A.V., 505 U.S. at 383, 394-95.
289 Boos v. Barry, 485 U.S. 312, 314 (1988).
290 United States v. Richards, 755 F.3d 269, 278 (5th Cir. 2014).
291 Id. at 279.
292 Id. at 389; see also Renton v. Playtime Theaters, 475 U.S. 41, 52 (1986).
293 City of Erie v. Pap's A.M., 529 U.S. 277, 291 (2000).
295 R.A.V. v. City of St. Paul, 505 U.S. 377, 389, 394 (1992).
296 Id. at 394 n.7.
298 United States v. Richards, 755 F.3d 269, 277 (5th Cir. 2014).
299 Id. at 277-78.
300 Boos v. Barry, 485 U.S. 312, 314 (1988).
301 R.A.V., 505 U.S. at 389.
302 See generally Ferber v. New York, 458 U.S. 747 (1982).
303 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254 (2002) (citing Stanley v. Georgia, 394 U.S. 557, 566 (1969)).
304 Ferber's upholding of New York's child pornography ban focused on how the speech was produced, not what was communicated. Id. at 239.
305 Ferber's case hinged on the Absence of a controlling obscenity factor. Ferber maintained the statute was over broad without an obscenity classification. Brief for Respondent, supra note 53, at 12; Free Speech Coalition, 535 U.S. at 254.
306 Ferber, 458 U.S. at 762; see also Free Speech Coalition, 535 U.S. at 239.
307 Free Speech Coalition, 535 U.S. at 249.
308 R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992).
309 As written, Animal Crush Videos, suppresses only a narrow class of obscenity. Further, this statute does not criminalize depictions of criminal animal cruelty in dog fighting films. Including the obscenity classification criminalized less speech intrinsic to animal cruelty, making it less effective at suppressing the actual crime. United States v. Richards, 755 F.3d 269, 276-78 (5th Cir. 2014).
310 The state's interest in protecting victims of child abuse facilitates the power to proscribe child pornography, but does not allow for the inclusion of virtual child pornography. Free Speech Coalition, 535 U.S. at 250-51; Ferber, 458 U.S. at 765-67.
311 Free Speech Coalition, 535 U.S. at 251.
313 United States v. Stevens, 559 U.S. 460, 481 (2010).
314 Ala. Code § 13A-11-14 (2012).
317 Stevens, 559 U.S. at 471.
318 Congress modified the statute to proscribe only a “narrow category of obscenity based on its content. United States v. Richards, 755 F.3d 269, 277 (5th Cir. 2014).
319 Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002) (citing Ferber v. New York, 458 U.S. 747, 761 (1982)).
322 Ferber, 458 U.S. at 761-62 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)).
323 United States v. Stevens, 559 U.S. 460, 465 (2010).