Stevens, R.A.V., and Animal Cruelty Speech: Why Congress’ New Statute Remains Constitutionally Problematic
36 Pages Posted: 23 Jan 2016 Last revised: 1 Feb 2017
Date Written: January 22, 2016
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.
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