[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




 UNIITED STATES v. STEVENS: THE SUPREME COURT'S DECISION INVALIDATING THE 
                          CRUSH VIDEO STATUTE

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               ----------                              

                              MAY 26, 2010

                               ----------                              

                           Serial No. 111-129

                               ----------                              

         Printed for the use of the Committee on the Judiciary





   Available via the World Wide Web: http://judiciary.house.gov










UNITED STATES v. STEVENS: THE SUPREME COURT'S DECISION INVALIDATING THE 
                          CRUSH VIDEO STATUTE

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 26, 2010

                               __________

                           Serial No. 111-129

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
TED DEUTCH, Florida                  TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               TOM ROONEY, Florida
ANTHONY D. WEINER, New York
MIKE QUIGLEY, Illinois
TED DEUTCH, Florida

                      Bobby Vassar, Chief Counsel

                    Caroline Lynch, Minority Counsel














                            C O N T E N T S

                              ----------                              

                              MAY 26, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     2

                               WITNESSES

The Honorable Gary C. Peters, a Representative in Congress from 
  the State of Michigan
  Oral Testimony.................................................     3
  Prepared Statement.............................................     6
The Honorable Elton Gallegly, a Representative in Congress from 
  the State of California
  Oral Testimony.................................................    16
  Prepared Statement.............................................    18
Mr. Stephen I. Vladeck, Professor, American University Washington 
  College of Law, Washington, DC
  Oral Testimony.................................................    29
  Prepared Statement.............................................    32
Mr. Nathaniel Persily, Professor, Columbia University School of 
  Law, New York, NY
  Oral Testimony.................................................    39
  Prepared Statement.............................................    41
Mr. J. Scott Ballenger, Partner, Latham & Watkins, Washington, DC
  Oral Testimony.................................................    48
  Prepared Statement.............................................    50

                                APPENDIX

Material Submitted for the Hearing Record........................    79

 
UNITED STATES v. STEVENS: THE SUPREME COURT'S DECISION INVALIDATING THE 
                          CRUSH VIDEO STATUTE

                              ----------                              


                        WEDNESDAY, MAY 26, 2010

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Jackson Lee, Cohen, 
Quigley, Deutch, Gohmert, Poe and Lungren.
    Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 
Counsel; Jesselyn McCurdy, Counsel; Joe Graupensperger, 
Counsel; Aaron Hiller, Counsel; (Minority) Caroline Lynch, 
Counsel; and Kelsey Whitlock, Minority Staff Assistant.
    Mr. Scott. The Subcommittee will now come to order. I am 
pleased to welcome you today to this hearing before the 
Subcommittee on Crime, Terrorism, and Homeland Security about 
the Supreme Court's recent decision in United States v. 
Stevens.
    In the late 1990's, Congress was made aware of a growing 
market for videotapes and still photographs depicting typically 
small animals being slowly crushed to death. These depictions 
are commonly referred to as crush videos. Much of the material 
features women inflicting torture with their bare feet or while 
wearing high-heel shoes. The depictions often appeal to people 
with a very specific sexual fetish who find them sexually 
arousing.
    Even in States where harming the animal in such ways itself 
violated State laws prohibiting cruelty to animals, prosecutors 
still had difficulty obtaining convictions for animal cruelty. 
For instance, the faces of individuals inflicting the torture 
often were not shown in the videos, and the locations, times 
and dates of the acts could not be ascertained from the 
depictions themselves. Defendants were therefore able to 
successfully assert as a defense that the State could not prove 
its jurisdiction over the place where the acts occurred or that 
the actions took place within the statute of limitations.
    Because it is hard to find the perpetrators of the 
underlying acts of cruelty to animals, it is also difficult to 
obtain convictions. Congress adopted and the President signed a 
new law prohibiting the creation, sale and possession of the 
depictions of such acts. The new law was codified in section 48 
of title 18 in the U.S. Code.
    In 2005, Robert Stevens was convicted of three counts of 
violating this law because he sold videos of pitbulls engaging 
in dogfights and attacking other animals. On appeal, the Third 
Circuit Court of Appeals declared the law facially 
unconstitutional and vacated the conviction. The Supreme Court 
granted cert and heard oral arguments in 2009 and rendered its 
decision on April 20, 2010. The Court upheld the decision, 
invalidated the statute and stated that it was overbroad and 
violated the Constitution's First Amendment.
    The Subcommittee is holding a hearing today to hear from 
those who have analyzed the Court's decisions and to discuss 
with them the implications of the decision for any future 
action by Congress in this area. Today we will have two panels 
of witnesses who will address the issue. One will be the 
gentleman from California, Representative Elton Gallegly, and 
the gentleman from Michigan, Gary Peters, both of whom have 
introduced legislation on this issue.
    But before we proceed with their testimony, it is my 
pleasure to recognize the Ranking Member of the Subcommittee, 
the gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thanks, Chairman Scott.
    I wish to welcome our witnesses here today and extend a 
special thanks to our fellow judicial colleague Mr. Gallegly 
and Mr. Peters. Today we will examine the Supreme Court's 
recent decision in U.S. v. Stevens, which invalidated the 
Federal animal cruelty statute codified in 18 U.S.C., section 
48, originally enacted in 1999. This statute prohibited the 
creation, sale or possession of a depiction of animal cruelty 
for commercial gain. Congress' focus in approving this law was 
the increasing prevalence of so-called animal crush videos 
depicting small animals being slowly crushed to death by women 
using their bare feet or while wearing high heels. According to 
the testimony before this Committee in 1999, as the Chairman 
indicated, apparently the depictions appealed to persons with a 
very specific sexual fetish. Those videos often don't reveal 
the identity of those involved, making it difficult to 
prosecute them for the underlying animal cruelty.
    Twenty-six States that joined together in an amicus brief 
touted the success of the statute in drying up the interstate 
market for crush videos. But in Stevens, however, the defendant 
was prosecuted under section 48 for producing and distributing 
videos that depict dogfighting. Stevens was convicted on three 
counts and sentenced to 37 months in prison followed by 3 years 
of supervised release.
    He challenged his conviction, arguing that section 48 is 
facially unconstitutional. The Third Circuit Court of Appeals 
agreed, and the Supreme Court affirmed, but undertook a 
different analysis than the appeals court. The Supreme Court 
declined to recognize animal cruelty as a new category of 
unprotected speech, rejecting the government's proposal that a 
categorical exclusion should be determined by balancing the 
value of the speech against its societal cost.
    The Court noted that the First Amendment's guarantee of 
free speech does not extend only to categories of speech that 
survive an ad hoc balancing of relative social costs and 
benefits. Siting its exclusion of child pornography in New York 
v. Ferber, the Court said that the analysis must go beyond a 
simple balancing test.
    The Court then turned its overbreadth analysis to ascertain 
whether a substantial number of section 48's applications are 
unconstitutional judged in relation to the statute's plainly 
legitimate sweep. The Court concluded that an animal cruelty 
statute such as that was a criminal prohibition of alarming 
breadth. The Supreme Court did use the word ``breadth.'' The 
Court cited a number of issues that contributed to the 
statute's reach, namely the absence of any requirement that the 
prohibited conduct be cruel or illegal. The Court also noted 
the inadequacy of the exception clause, which fails to capture 
a wide array of protected speech that does not fall within one 
of the enumerated categories.
    Ultimately, the Court declined to interpret the statute in 
such a way as to afford it constitutional validity, noting to 
do so would constitute a serious invasion of the legislative 
domain and sharply diminish Congress' incentive to draft a 
narrowly tailored law in the first place.
    With this analysis in mind, I welcome input from our 
witnesses and look forward to the testimony they have today.
    I yield back.
    Mr. Scott. Thank you.
    We have been joined by the gentleman from Texas Mr. Poe.
    Do you have a very brief statement?
    Mr. Poe. Mr. Chairman, I will submit a statement for the 
record.*
---------------------------------------------------------------------------
    *Note: Mr. Poe decided not to submit a statement for the record.
---------------------------------------------------------------------------
    Mr. Scott. Thank you very much.
    Our first panel will be our colleagues, the gentleman from 
Michigan, Mr. Peters, and the gentleman from California, Mr. 
Gallegly, each of whom has introduced a bill on the topic we 
are discussing today. The first witness will be Mr. Peters, who 
represents the Ninth District of Michigan. He is in his first 
term in Congress and is a member of the Financial Services 
Committee and Science and Technology Committee.
    Mr. Gallegly represents the 24th District of California. He 
is in his 12th term, and is a Member of the Judiciary 
Committee, the Committee on Foreign Affairs, the Natural 
Resources Committee and the Permanent Select Committee on 
Intelligence.
    Mr. Peters.

TESTIMONY OF THE HONORABLE GARY C. PETERS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Peters. Well, good morning, Chairman Scott and Members 
of the Subcommittee. Thank you for inviting me today to testify 
on the Supreme Court's decision last month in the United States 
v. Stevens and its implications for new legislation banning 
depictions of animal cruelty.
    Animal torture videos are heinous, barbaric and completely 
unacceptable, and we must stop them once and for all. It is 
hard to believe that this sort of thing even exists and that a 
new law is needed to prevent it. Animal torture is outrageously 
disturbing, and common decency and morality dictates that those 
engaged in it should not be profiting from it. They should be 
in prison. This is why I have introduced H.R. 5337, the 
``Animal Torture Prevention Act of 2010.''
    Before I get into the specifics of this legislation, I 
would like to commend the leadership of my colleagues 
Representative Moran and Gallegly on animal protection issues 
generally and specifically on anti-crush video legislation. As 
co-chairs of the Congressional Animal Protection Caucus, of 
which I am a member, Representatives Moran and Gallegly are 
committed to advancing commonsense animal protection 
legislation, and they both have been true champions.
    As you know, the Supreme Court's decision invalidated the 
Federal law enacted in 1999 and codified 18 U.S.C., section 48. 
This law criminalized the creation, sale and possession of 
depictions of animal cruelty, and addressed what was then a 
growing market for so-called crush videos. These videos are 
depictions of small animals, such as cats and dogs, being 
tortured and crushed to death.
    While such cruelty on animals was and remains illegal under 
most State laws, prosecutors had difficulty obtaining 
convictions. Generally these videos omitted faces of 
participants, and other possible corroborating information, 
such as locations, times and dates of the acts, could not be 
ascertained from the depictions themselves. Defendants were 
often able to successfully assert a defense that the State 
could not prove jurisdiction over the place where the act 
occurred or that the action took place within the relevant 
statute of limitations.
    These difficulties were addressed by section 48, which 
prohibited the creation, sale and possession of depictions of 
such acts. Estimates suggest that approximately 2,000 crush 
videos were in circulation, some selling for as much as $400 at 
the time that section 48 was codified in 1999. This law was 
considered to be generally effective at chilling the market for 
crush videos.
    Last month the Supreme Court found the statute was 
overbroad, failed strict scrutiny, and was therefore invalid 
under the First Amendment. As a member of the Congressional 
Animal Protection Caucus, a pet owner and a strong supporter of 
animal rights legislation, I believe Congress must respond 
purposefully and deliberatively to the Stevens decision.
    With the United States v. Stevens, the Supreme Court left 
Congress very little room to regulate. We must enact a new 
narrowly tailored legislation that carefully parses and 
responds to Chief Justice Roberts' opinion and can survive 
another round of judicial review.
    Last week I introduced H.R. 5337, and this narrowly 
tailored bill is aimed at acts of extreme animal cruelty and 
will ban the creation, sale and distribution of such depictions 
in interstate commerce. This bill targets a very narrow set of 
behaviors, specifically the depiction of extreme animal cruelty 
that appeals to a particular sexual fetish, by requiring that 
the depiction of extreme animal cruelty appeal to a prurient 
interest. This focuses the legislation and prevents the 
prohibition of hunting videos, a concern the Court expressed in 
the Stevens opinion.
    Citing New York v. Ferber, the Court told us that a 
depiction of the legal behavior is still subject to First 
Amendment protection unless the crime is intrinsically related 
to the creation of the video. The original law the Court struck 
down failed to make this distinction and show that Congress 
must now go after the makers of crush videos to prevent these 
horrible acts.
    H.R. 5337 requires any prohibited depiction of extreme 
animal cruelty to depict actual torture, maiming, mutilation 
and subjugation of animals to other acts of extreme cruelty to 
be committed for the primary purpose of creating a depiction of 
animal cruelty. This will target and chill the market for these 
appalling videos and mitigate concern that a new law could be 
overturned in regards to surveillance cameras, advocacy videos 
by animal rights groups, and other such depictions unintended 
to perpetrate the market for these materials.
    Additionally, new legislation must carefully, but clearly 
expand the scope of the exceptions clause. The Supreme Court 
noted that the most protected speech has very little religious, 
scientific or political value, and a savings clause using an 
obscenity standard will not save an unconstitutional statute.
    New legislation should specifically eliminate the existing 
requirement that the depiction have serious religious, 
political, scientific, educational, journalistic, historical or 
artistic value. The Animal Torture Prevention Act has a savings 
clause that requires de minimis value, not serious value, to be 
accepted. This important distinction allows depictions with a 
minimal amount of societal value to avoid penalty under the law 
which would help survive strict scrutiny.
    Finally, while drafting legislation that follows the 
Stevens opinion must be an exercise in restraint to avoid 
overbreadth concerns, we must not miss the opportunity to crack 
down on depictions of extreme animal cruelty when we can do so 
within the bounds of the First Amendment. The original law did 
not address the distribution of these depictions, just the 
creation, sale or possession thereof. So the proliferation of 
broadband and file sharing over the Internet increases the 
ability to transmit and distribute these horrific depictions 
for profit or otherwise in an anonymous manner. H.R. 5337 will 
prohibit the distribution of these depictions.
    I believe that H.R. 5337 responds to the concerns expressed 
by the Court in the United States v. Stevens and provides a 
constitutional framework to prohibit the torture of helpless 
animals. I hope to have the opportunity to work with the 
Judiciary Committee, the Subcommittee on Crime, Terrorism, and 
Homeland Security, and Representatives Moran, Gallegly and 
Blumenauer to advance and enact legislation prohibiting crush 
videos and other depictions of extreme animal cruelty. I look 
forward to the Subcommittee panel of constitutional experts and 
appreciate their testimony on this very important issue.
    Thank you, Mr. Chairman, for this opportunity to testify 
before your Committee on this very important matter.
    Mr. Scott. Thank you.
    [The prepared statement of Mr. Peters follows:]
          Prepared Statement of the Honorable Gary C. Peters, 
               a U.S. Senator from the State of Michigan



                               __________

    [The bill H.R. 5337, follows:]

    
    
                               __________
    Mr. Scott. Mr. Gallegly.

TESTIMONY OF THE HONORABLE ELTON GALLEGLY, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Gallegly. Thank you very much, Mr. Chairman. In the 
interest of time this morning, I have an abbreviated testimony. 
But I would ask unanimous consent that the full statement that 
I have will be made a part of the record of the hearing.
    Mr. Scott. Without objection.
    Mr. Gallegly. Mr. Chairman, again, thank you for giving me 
the opportunity to testify in favor of H.R. 5092, which would 
prohibit animal crush videos. My bill currently has 306 
bipartisan cosponsors, including more than 75 percent of the 
Members of this full Committee. H.R. 5092 is also supported by 
many animal welfare organizations, including the Humane 
Society, American Humane Association, the American Society to 
Prevent Cruelty to Animals and others.
    As many of you know, I have a long record of fighting the 
issue of animal cruelty. I am the cosponsor of the 
Congressional Animal Protection Caucus, which is a bipartisan 
organization dedicated to raising the awareness about cruelty 
issues in Congress. I also have a long record of introducing 
and passing crime-fighting bills. H.R. 5092 both fights animal 
cruelty and crime.
    In 1999, I was contacted by the district attorney in 
Ventura County, California, regarding the issue of crush 
videos. These disgusting videos feature small, defenseless 
animals taped to the floor which are then slowly crushed to 
death by scantily clad women usually wearing high heels as 
weapons.
    Although crush videos were illegal under most State laws, 
the crime was very difficult to prosecute because video 
producers moved their goods through interstate commerce to 
avoid prosecution, some of the issues that my colleague 
Congressman Peters had said in his testimony. In response, I 
worked to address the serious law enforcement issue by drafting 
legislation to ban depiction of animal cruelty. At the time we 
believed the bill would withstand the constitutional test. This 
bill passed in the House of Representatives by a bipartisan 
vote of 372-42 in 1999 and by unanimous consent in the Senate, 
and was signed into law by then-President Bill Clinton.
    As you know, the Supreme Court recently ruled this bill to 
be too broad. However, the Court specifically stated that it 
was not deciding whether a law specifically banning crush 
videos would be constitutional. To address the Supreme Court's 
constitutional concern, I introduced H.R. 5092, which is a 
narrowly focused bill to specifically prohibit crush videos 
rather than the broader prohibition of animal cruelty. The bill 
expressly exempts things like hunting videos.
    As I previously stated, this is not just an animal cruelty 
bill; this is about crime. The FBI, U.S. Department of 
Education, and the U.S. Department of Justice consider animal 
cruelty to be one of the early warning signs of potential 
violence by youths. Jeffrey Dahmer, Albert ``The Boston 
Strangler'' DeSalvo, Ted Bundy, the Unabomber Ted Kaczynski all 
tortured animals before they began their terrible murder 
sprees.
    Immediately after my initial bill was signed into law in 
1999, the crush industry disappeared. It reemerged in light of 
the Court ruling. Quick passage of this bill into law will once 
again stop the industry and these disgusting videos that depict 
the torture and killing of defenseless animals.
    Thank you again for giving me the opportunity, and I hope 
that we will be able to bring this bill to the floor shortly 
and have its rapid passage. Thank you again, Mr. Chairman.
    And thank you, Representative Peters, for your work.
    Mr. Scott. Thank you.
    [The prepared statement of Mr. Gallegly follows:]
          Prepared Statement of the Honorable Elton Gallegly, 
       a Representative in Congress from the State of California



                               __________

    [The bill, H.R. 5092, follows:]
    
    
    
                               __________
    Mr. Scott. Any questions, Mr. Gohmert?
    Mr. Gohmert. Just a couple of brief ones.
    Mr. Peters, of course we know that the original bill was 
struck down for its breadth, as the Supreme Court said, being 
overly broad. And so in looking at both 5337 as well as the 
5092, I just had a couple of quick questions. I wondered if 
under section 48, the prohibition, ``Whoever, in or affecting 
interstate or foreign commerce,'' by using ``or affecting,'' if 
that might create another issue of overbreadth. I don't 
necessarily need an answer, but just to point that out, a 
concern because we certainly--anything we pass, we want it to 
be upheld. And I know that 5092 doesn't have ``or affecting'' 
because it seems like that is where a lot of cases these days 
are having issues raised. Well, what actually affects it? And I 
would hate for some brutal maniac to get off because they 
showed that, well, maybe it was just a local distribution and 
may not have affected. That was the one question that I had. I 
don't know if you wish to address that or not. Just a point.
    Mr. Peters. Well, I think those are good points. We have to 
look to make sure that it is very, very narrowly drafted. I 
think probably the item in 5337 I think is most significant, 
though, to make sure that it is narrowly crafted to the act of 
animal cruelty is that we have intent language in this bill 
that says that this depiction would not have been created had 
it not been the actual act of the crime. So had you not been 
filming this depiction, the crime would not have been 
committed.
    So I think it is very important to have intent language 
which really narrows it down even as you are bringing up other 
clauses with interstate commerce which are important we have 
got to take a look at. But to me, we have got to be in a 
situation that hopefully the speech is treated similar to child 
pornography where it is intrinsic. The activity is intrinsic to 
the crime itself, or the depiction of it is intrinsic to the 
crime itself. So I think that is where we get the most 
significant tightening of the language.
    Mr. Gohmert. And, Mr. Gallegly, you know my high regard for 
you, and I appreciate your efforts for so many years when it 
comes to animal cruelty. I am wondering, in section 48 of 5092, 
it says, ``Whoever knowingly sells or offers to sell,'' but 
doesn't mention distributes. And the question that comes to 
mind is whether someone might be able to affirmatively show 
they actually didn't receive anything or were not offered 
anything of value, they just enjoy distributing that, if that 
might be an area where it might require an additional word.
    Mr. Gallegly. I am having a real acoustical problem in 
here. It is a lot different sitting up there. I have not been 
down here in a long time.
    Mr. Gohmert. We are just adding the word ``distributes'' in 
addition to ``selling'' or ``offering to sell.''
    Mr. Gallegly. Well, one of the things that we have done in 
having been through this, as you have mentioned, for 12 years, 
we are being very, very sensitive to drafting this in a manner 
that the Court will not have a problem with.
    Mr. Gohmert. Well, and that was obvious that you were very 
careful about that.
    Mr. Gallegly. And make no mistake about it. While I was 
disappointed with the Court's ruling, I have tremendous respect 
for the Court. I have tremendous respect for the process. It 
certainly was not my intent from the beginning to have a 
challenge that was going to prohibit the ability from affecting 
the end objective here. And I think everyone on the Court 
recognized that during the process about how they understood 
the objective and agreed with the objective and really kind of 
gave us the challenge to make sure that we effectively 
accomplish the objective without compromising the 
constitutionality of the First Amendment. And obviously as we 
go through the process, we are going to fine-tune whatever 
needs to be fine-tuned to make sure we don't find ourselves 
back in this situation 12 years from now when you are Chairman 
of the Judiciary Committee.
    Mr. Gohmert. Yeah, right. I wouldn't hold my breath for 
that.
    And one other thing, I will just plant the seed. I am not 
sure, are animals defined somewhere? And this is with regard to 
both bills. I am just wondering if there is some reference to 
animals. What triggers this is I was working on something late 
the other night, and there was a replay of Men in Black with 
Will Smith and Tommy Lee Jones, and some guy was swatting 
flies, which would obviously be crushing or stepping on a 
cockroach. So I didn't know if they----
    Mr. Gallegly. Well, I can't speak to Congressman Peters' 
bill, but everything we have done here ties directly to the 
specific animal cruelty laws that are in effect in the specific 
State, and that is the procuring cause, if you will.
    Mr. Gohmert. Well, I will just plant that seed. It is 
looking for loopholes that might be raised.
    Mr. Gallegly. If it does not meet the test of the cruelty 
law in the specific State, then this law is not applicable.
    Mr. Gohmert. Right. But thank you all very much for your 
work.
    Mr. Gallegly. Thank you very much.
    Mr. Scott. The gentleman from Illinois, do you have any 
questions?
    Mr. Quigley. No, Mr. Chairman. I just want to thank you for 
having this. And to all those involved with this legislation, I 
appreciate their efforts. We all recognize the terrible 
qualities of any crime, but there is something particularly 
heinous with crimes against children and animals because we 
recognize the innocence involved. So thanks so much for your 
efforts, and I look forward to working with you.
    Mr. Scott. Thank you.
    The gentlelady from Texas, and we welcome you back.
    Ms. Jackson Lee. Thank you very much.
    This is just a brief question to both of the proponents of 
legislation. Just share with me the crux of the enforcement of 
the legislation that you are proposing. Forgive me, but if you 
would articulate again, Mr. Peters, Mr. Gallegly, the gist of 
the legislation.
    Mr. Gallegly. First of all, I want to thank the gentlelady 
for cosponsoring my bill.
    Ms. Jackson Lee. I am glad I am cosponsoring it as well.
    Mr. Gallegly. Thank you very much.
    Ms. Jackson Lee. I think enforcement is a key element for--
--
    Mr. Gallegly. What this does is it gives--the genesis of 
the bill to start with is the ability to enforce. When I had 
the former chairman of the State District Attorney's 
Association for the State of California come to me very 
frustrated back in the late 1990's where he had had this issue 
come before his jurisdiction, and it was literally impossible 
to enforce because they couldn't find the perpetrators of--and 
there were statute issues and so on that prohibited his ability 
to prosecute. And what this does is it provides a tool in order 
to prosecute by banning the sale of what is the actual crime. 
And it appears to be the only real solution that any of us have 
been able to come up with. And believe me, I welcome anybody 
else coming up with a better product. I will embrace it.
    All I am interested in is finding a way to stop this 
heinous situation once and forever, because, as I mention, this 
goes well beyond just animal cruelty. It gets into the Ted 
Bundys and Jeffrey Dahmers and so on and so forth. And this 
does provide a conduit to prosecute.
    Ms. Jackson Lee. Mr. Peters, thank you.
    Mr. Peters. Well, I concur with my colleague's description 
there. And I think that is why, again, as I mentioned for the 
previous question, that it is important for us to actually the 
link the intent, the actual act of animal cruelty which is 
crushing this poor defenseless animal, that that would not have 
occurred had it not been for the production of the depiction of 
the image.
    So you have to go after the image, the folks who are 
marketing this stuff, that are selling it, that are profiting 
from it or are distributing it. Unless you stop that market, 
you are not going to be able to stop the action of cruelty, 
which, as my colleague mentioned, is difficult to prove because 
you can't see the face of the perpetrator, you don't know the 
time it was done, whether it was the statute of limitations, 
you don't know the location of it. It can be very difficult so 
you really have to stop the market for it. But you have got to 
tie the actual depiction and the marketing of it to the crime 
itself, which is why in the bill that I have drafted I think we 
have got some strong language, tense language, in there that 
ties it specifically and intrinsically to the crime, which is 
what the Supreme Court asked us to do.
    And if I may, Mr. Chairman, if I mentioned Mr. Gohmert, who 
asked a couple questions, if I may to my colleague. The 
distribution, which I think is a very important question, we 
have that in my bill. We do add distribution as well, 
particularly with the Internet. It is going to be folks who may 
be distributing it over the Internet, which is a significant 
problem, so I agree with you that that needs to be in it. We 
have put that in the legislation.
    And we also have a definition in our bill on ``animal'' 
that we would certainly be open to your input. But the term 
``animal'' means any live amphibian, reptile, bird or mammal 
except human beings. So we do have a definition in there, but 
we are certainly open to any other further clarifications that 
you may be willing to provide.
    Ms. Jackson Lee. May I follow my line of questioning? Mr. 
Gallegly, I will let you answer if I just follow with my line 
of reasoning. Can you speak specifically and pointedly as it 
relates to your legislation that I have cosponsored on the 
question of the First Amendment and how you craft a response to 
that? But you go ahead. You were trying to give an answer. Mr. 
Gallegly, were you trying to add something?
    Mr. Gallegly. I just wanted to follow up.
    Ms. Jackson Lee. And as you follow up, then you answer the 
First Amendment issues that were cited in the Stevens case.
    Mr. Gallegly. We listened very attentively to the Court, 
followed this. But if you will just allow me to just back up 
for just a few seconds.
    The bill that was passed overwhelmingly in 1999 to 
effectively address the issue of crush videos, it worked. The 
videos disappeared off the Internet, $400 a copy, $300 a copy. 
And heaven only knows how many human lives may have been saved 
as a result of this over the years.
    The fact remains, the act that we took here as a Congress 
and signed by President Clinton did eliminate the sale of crush 
videos and the perpetration of these videos to start with; 
however, there was a technicality. I think it was a 
technicality, and as I said, I respected the Court.
    We have very carefully gone back with some of the finest 
constitutional lawyers we could find to go through to make sure 
the Ts were crossed, the Is were dotted, and it would meet the 
test as the Court indicated in their ruling. And, of course, 
you know there is a lot of subjectivity to this process, and I 
respect everyone's knowledge on the issue. But I think we have 
done everything humanly possible to meet the test and the 
direction of the Court, and I am receptive to any way that we 
may improve this through the process before we get it to the 
floor, which I hope will be very soon.
    Ms. Jackson Lee. Thank you.
    Mr. Scott. The gentleman from Florida, I think you are 
attending your first Subcommittee meeting. Welcome to the 
Subcommittee, Mr. Deutch. Do you have any questions?
    Mr. Deutch. Thank you, Mr. Chairman. I appreciate the 
welcome. I am attending today in large part to thank my two 
colleagues for this important piece of legislation, and I look 
forward to the next panel to ask some questions. Thank you.
    Mr. Scott. The gentleman from Tennessee, any questions?
    Mr. Cohen. Thank you, Mr. Chairman.
    I just appreciate your having this hearing and gentlemen 
for introducing the bills. Animal cruelty is a serious offense, 
and it is an indication of people's depraved behavior that also 
can see it being--that conduct going toward seniors and the 
very young and the handicapped, those who are, as in Hubert 
Humphrey's terms, the dawn of life, the twilight of life and 
shadows of life. And these people who take advantage of others 
or find some kind of satisfaction or some type of thrill from 
hurting small animals would hurt others, and it needs to be 
curtailed.
    But the animals are wonderful. I think it is great that 
dogs and cats have brought Democrats and Republicans together, 
something so many didn't think could happen. So I thank the 
dogs, the cats, the Chairman and the two Congressmen who 
crafted these bills.
    Mr. Scott. Thank you.
    Let me ask, this is kind of a technical question, and that 
is both of you have talked about the illegal animal cruelty 
where the video is produced. Isn't it true that the cruelty 
could be, in fact, legal where it is produced, but illegal 
where it is trying to be sold? And that would be a crime to 
sell the depiction of what was, in fact, legal, but illegal--a 
depiction of what would have been illegal had it occurred in 
the State? In other words, if California finds something 
illegal, but in Nevada it is not illegal, you produce it in 
Nevada, but if you try to sell it in California, it would be 
illegal because it violates--the depiction violates California 
law.
    Mr. Gallegly. That is the test.
    Mr. Scott. And if you tried to sell it in Nevada, it would 
be okay because it is not illegal in Nevada.
    Mr. Gallegly. I am not familiar with Nevada law 
specifically. I know that the overwhelming majority of the 
States in this country do have very specific laws that relate 
to animal cruelty. And if Nevada didn't, and that was the case, 
then I would really hope that the Nevada Legislature would very 
aggressively tighten their laws as it relates to animal 
cruelty, and then we wouldn't have that problem. I have a 
problem with going in and micromanaging State laws.
    Mr. Scott. Well, let us make it a little easier. If it was 
produced out of the country, it obviously did not violate where 
it was produced, when it was produced.
    Mr. Gallegly. If it is produced out of the country, and it 
was sold in California, it would be against the law. If it is 
produced somewhere and sold--I don't think we can regulate the 
other countries with what we are doing, but we can regulate 
what products we are selling no matter where they are produced.
    Mr. Scott. The point I am making is it could have been 
legal to produce it. The actions could have been legal during 
the production, but the crime would be committed because what 
is depicted is illegal in the State where it is attempted to be 
sold.
    Mr. Peters. Yes, Mr. Chairman. And I am speaking to the 
bill that I have put forward. It has to depict conduct that 
violates a criminal prohibition of intentional cruelty to 
animals under Federal law or the law of the State in which the 
depiction is created, sold or distributed. So if it is 
distributed in a State, it is illegal. And again, it is 
important, I think, to have that.
    The intent language, though, is that the depiction itself 
is so intrinsic to the crime that it doesn't matter where it 
may have been produced because, as we know, it is difficult to 
know where these things are even produced by looking at them. 
It is difficult to ascertain the place that that crime 
occurred. But we know where the distribution is occurring, and 
if it is occurring in a State--under State law or Federal law 
as extreme cruelty, because it is so intrinsically linked to 
the crime itself, that distribution is, indeed, a violation.
    Mr. Gallegly. If I might just add, Mr. Chairman, this was a 
genesis of the bill to start with. It was because of the 
difficulty of the District Attorneys Association in my State 
being able to prosecute these crimes, and our resolution did 
effectively end the business.
    Mr. Scott. Thank you.
    The gentleman from California Mr. Lungren, do you have any 
questions?
    Mr. Lungren. No.
    Mr. Scott. Thank you.
    We thank our colleagues, and we will call on the next 
panel.
    Mr. Gallegly. Thank you very much, Mr. Chairman.
    Mr. Peters. Thank you, Mr. Chairman.
    Mr. Scott. Our first witness on the second panel will be 
Stephen Vladeck, who is a professor of law at American 
University's Washington College of Law, where he is teaching, 
and his research includes constitutional law. The second 
witness will be Nathaniel Persily, who is the Charles Keller 
Beekman, professor of law and politics at Columbia Law School. 
He teaches courses on constitutional law, the First Amendment 
and election law. Our final witness will be J. Scott Ballenger, 
who is a partner with the Washington, D.C., law firm of Latham 
& Watkins. He has focused on appellate and Supreme Court 
litigation since joining the firm in 1999, and he was counsel 
of record for the amicus brief submitted by the Humane Society 
in the Stevens case before the Supreme Court.
    I think most of you have testified before. You are familiar 
with the lighting device, which will start green, turn yellow 
when 1 minute is left. And in your 5 minutes, we ask you to 
summarize your testimony in 5 minutes or less. And we will 
start with Professor Vladeck.

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR, AMERICAN UNIVERSITY 
           WASHINGTON COLLEGE OF LAW, WASHINGTON, DC

    Mr. Vladeck. Thank you, Mr. Chairman, Ranking Member 
Gohmert, for inviting me to testify today on the Supreme 
Court's decision last month in the United States v. Stevens and 
its implications with regard to Federal bans on depictions of 
animal cruelty going forward.
    Putting aside the more general implications of the Stevens 
opinion with regard to the Supreme Court's First Amendment 
jurisprudence, I want to focus my testimony today on three 
specific lessons that I think the case has to offer with regard 
to legislative attempts to prohibit the distribution of so-
called crush videos and other depictions of animal cruelty, 
including dogfighting.
    First, the Court specifically declined the government's 
invitation to hold that depictions of animal cruelty are, like 
child pornography, categorically outside the scope of First 
Amendment protection. As Chief Justice Roberts explained, the 
Court's decision in New York v. Ferber, exempting child 
pornography from the First Amendment, quote, ``grounded its 
analysis in a previously recognized, long-established category 
of unprotected speech, and our subsequent decisions have shared 
this understanding,'' unquote. In other words, there was no 
argument here that there is a similar tradition of exempting 
wholly from the First Amendment depictions of animal cruelty.
    Now, whatever the merits of the Stevens majority's analysis 
of this point, I think it is perhaps the most important 
takeaway with regard to continuing congressional attempts to 
prohibit the sale or transfer of depictions of animal cruelty 
or even of a more narrowly defined category that included only 
crush videos. If such depictions are not categorically beyond 
the scope of the First Amendment, attempts to proscribe their 
sale and transfer will constitute content-based restrictions on 
speech and will therefore trigger strict scrutiny, meaning that 
they must be narrowly tailored to achieve a compelling 
governmental interest. In plain English, any such law after 
Stevens will have to be precisely drafted and neither over- nor 
underinclusive.
    This brings me, Mr. Chairman, to the second takeaway point 
from the Stevens opinion, the Court's unhesitating application 
of traditional First Amendment overbreadth doctrine. I don't 
mean to delve into the academic weeds, but suffice to say that 
the Roberts Court, especially in the first few years of the 
Chief Justice's tenure, has shown noticeable skepticism toward 
so-called facial challenges to statutes, where litigants argue 
that the constitutional defects are so substantial as to 
preclude any valid application of the law. In various cases the 
Court has avoided controversial rulings on topics ranging from 
Congress' power to enforce the 14th Amendment, the right to 
choose under Roe, and campaign finance reform by rejecting 
facial challenges in favor of narrower as-applied challenges, 
holding that in those specific cases, the plaintiffs simply 
hadn't met their burden for invalidating the entire legislative 
regime.
    Numerous commentators, including my colleague Professor 
Persily, have stressed the unprecedented nature of these 
decisions and their sometimes dubious reliance on the 
distinction between facial and as-applied challenges, and I 
would be more than happy to elaborate on this trend and its 
potential implications in response to your questions.
    I mention this here because of the sharp and marked 
contrasts presented by the majority's opinion in the Stevens 
case. There, and I daresay rather surprisingly, the Chief 
Justice himself embraced a more traditional understanding of 
First Amendment overbreadth doctrine. As he wrote in Stevens, 
quote, ``A law may be invalidated as overbroad if a substantial 
number of its applications are unconstitutional judged in 
relation to the statute's plainly legitimate sweep,'' unquote. 
Thus, even if Congress could constitutionally prohibit the 
transfer or sale of crush videos, the language of the statute 
swept way too broadly and included too much protected sweep 
within its scope. Thus, Stevens is significant not just for how 
it applied traditional First Amendment overbreadth analysis, 
but also for the fact that it applied traditional First 
Amendment over breadth analysis in contrast to what had been a 
growing departure from doctrine.
    Finally, the third key point to take away from the Stevens 
decision is why the Court concluded that section 48 was 
substantially overbroad and therefore in violation of the First 
Amendment. Specifically, the Court held that it did not require 
the act to be unlawful because it is cruel under section 48 as 
currently as written. It is enough that the act is a violation 
of any criminal law of the State, which, as the Court 
explained, would draw no distinction based on the reason for 
intentional killing and would include, for example, the humane 
slaughter of a cow.
    Second, as the Members mentioned in the first panel, the 
statute, as written, includes no intent requirements, which 
means that animal rights groups or educational videos could 
easily fall within the scope.
    And finally, the Court said the exceptions clause was too--
was not broad enough. It only required that there be 
substantial educational, religious value, and so there is not 
enough room to carve out categories of protected speech.
    Now I think we can get into in the Q&A where I think the 
Committee can go from here, but those, to me, are the three 
major takeaway points, and I would be happy to elaborate in 
response to your questions. Thank you, Mr. Chairman.
    Mr. Scott. Thank you.
    [The prepared statement of Mr. Vladeck follows:]
                Prepared Statement of Stephen I. Vladeck





                               __________
    Mr. Scott. Professor Persily.

          TESTIMONY OF NATHANIEL PERSILY, PROFESSOR, 
        COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

    Mr. Persily. Thank you, Chairman Scott, and Ranking Member 
Gohmert and Members of the Committee, for having me back to 
testify on the U.S. v. Stevens case. I will just add to my 
written remarks a few points since many of you have already 
summarized the decision. But let me say this, and just 
emphasizing what my colleagues have said in their written 
testimony, that there is one special thing about this case; 
that it does settle one issue, which is that it does say that 
depictions of animal cruelty are not a categorically 
unprotected area of speech. More than that, though, what the 
Court suggests is that you have to--Congress or State 
legislatures or others that are legislating this area have to 
tie this regulation to one of the other unprotected categories 
of speech; for example, speech integral to criminal conduct, 
which is what the Court seems to suggest might be the area of 
regulation here, or perhaps obscenity, which is another area of 
unprotected speech. I will talk a little bit about those 
categories when I get to the dos and don'ts, I think, for 
future legislation.
    But let me just emphasize a few other things that come out 
of the opinion, and specifically its description of 
overbreadth. As Professor Vladeck was saying, that the Court 
decided to strike this law down as overbroad as opposed to 
saying--applying the normal standard for facial invalidity that 
it was unconstitutional in almost all of its applications. And 
here are the reasons why it was overbroad: The Court said that 
it wasn't limited to cruel conduct. So any future legislation 
has to point out that it is generally limited to cruel conduct 
not just in its title, which is what the previous legislation 
did, but also specifically; and not just in the legislative 
history, which the Court discounts, but which Justice Alito 
emphasized in his dissent.
    Secondly, the Court had problems with the description of 
illegal conduct in the statute itself. So this came up in the 
colloquy before with the Members' panel, which is at what point 
does conduct have to be illegal enough nationwide such that a 
person is on notice that the depictions that they are 
distributing, therefore, are going to be illegal? And so it is 
clear that the Court is signaling that the more nationally 
illegal a particular conduct is, the more likely the depictions 
of it, if they are going to be constitutionally regulated, will 
be sort of able to be regulated consistent with the First 
Amendment.
    And so the difficulty, as was exhibited in the discussion 
that you have just had with the previous Members, is what do 
you do when the conduct might be legal where it was enacted, 
but then is sold or distributed in an area where it is illegal? 
And so the Court, over the previous statute, raised this 
example: What about hunting videos, which were legal when they 
were shot, but then--I shouldn't say shot--they were legal when 
they were constructed, but then are distributed in the District 
of Columbia where hunting is illegal?
    Now, it is clear that the Court wanted to exempt hunting 
videos, agricultural videos and other types of protected 
expression, and it specifically describes those as protected 
expression. But that question of how to regulate illegal 
conduct by regulating the distribution of it is one that is 
going to be, I think, a thorny one for prospective legislation.
    Finally, as Professor Vladeck mentioned, the exceptions 
clause that was in the statute, which was modeled on the 
Supreme Court's decision in Miller v. California dealing with 
obscenity, was not sufficient to save an otherwise 
unconstitutional statute. So that it wasn't enough to say that 
something had to--could have serious literary, artistic, 
political, scientific, educational value because the Court said 
that nonserious speech is protected under the First Amendment, 
and so hunting videos, which might be primarily recreational in 
nature, are, nevertheless, protected speech.
    So here are the dos and don'ts, I think, for future 
legislation. First, I think there is more don'ts in the 
decision than there are dos, but then that is typical of a 
Supreme Court opinion. But let me sort of map them out.
    First, as I was saying before, I think it would be helpful 
to make clear that hunting and agricultural videos, which were 
the ones that the Supreme Court held up as clearly 
constitutionally protected, are not covered by the law.
    Secondly, avoid language including ``mere killing of 
animals'' as opposed to the other types of verbs that are in 
the legislation, both as proposed and has existed before, 
because, again, the Court emphasized that that might capture 
other types of conduct that--depictions of which would be 
protected.
    Third, as I said, beware of the exceptions clause, even 
though it might be useful to have in the law, because the Court 
seems to narrow the exceptions clause to the specific conduct 
of obscenity. I shouldn't say it definitely does that, but it 
is pointing in that direction.
    And finally, tie it to conduct that might be nationwide.
    I will say one last thing, which is the key question that 
seems to be arising out of this decision is to what extent can 
you regulate illegal conduct by trying to regulate depictions 
of it? And for that I am eager to hear your questions and to 
offer some opinions on that. And the real question is: To what 
extent does the analogy, for example, of child pornography 
extend beyond that specific factual context?
    Mr. Scott. Thank you.
    [The prepared statement of Mr. Persily follows:]
                Prepared Statement of Nathaniel Persily





                               __________
    Mr. Scott. Mr. Ballenger.

           TESTIMONY OF J. SCOTT BALLENGER, PARTNER, 
                LATHAM & WATKINS, WASHINGTON, DC

    Mr. Ballenger. Good morning, Mr. Chairman, Ranking Member 
Gohmert, Members of the Subcommittee. I appreciate the 
invitation to talk to you today about the Court's decision in 
Stevens and where we go from here.
    I think the most important thing to understand about the 
Court's decision in the Stevens case is really that it was 
based entirely on the First Amendment overbreadth doctrine.
    The easiest and most conventional way to resolve the 
Stevens case in a lot of ways would have been simply to look at 
the videos that Mr. Stevens himself was prosecuted for 
distributing and decide whether those videos were entitled to 
First Amendment protection or not. The Court didn't do that. 
Instead, the Court chose to avoid talking about Mr. Stevens at 
all and focused its decision entirely on hypotheticals 
involving videos of hunting practices that were legal in one 
State and illegal in another State or the District of Columbia.
    Justice Alito makes a strong argument, I think, that 
approaching the case that way was inconsistent with previously 
settled First Amendment doctrine when there could have been a 
valid as-applied challenge arguably to the law in Mr. Stevens' 
case. Instead, going at an overbreadth facial challenge was a 
little unconventional.
    So why would the Court do it? Well, in my view, the most 
likely explanation is that some or all of the Justices in the 
Court's majority actually agreed with Justice Alito that Mr. 
Stevens' own conduct might not have been constitutionally 
protected, that there might not be First Amendment protection 
for dogfighting videos, and wanted to leave that issue open for 
another day.
    I think the Court was sending this Congress a strong 
message that it would not necessarily be hostile to a law that 
actually was carefully limited to depictions of extreme animal 
cruelty, including animal fighting, so long as it could not be 
read to encompass ordinary hunting practices or agricultural 
practices.
    I think if Congress wants to reaffirm the important public 
policies that led it to pass section 48 in the first place, it 
could take two basic approaches to the law. The easiest and the 
safest way of coming at this from a legal perspective would be 
to confine section 48 entirely to materials that meet the legal 
definition of obscenity. The Supreme Court has held clearly and 
repeatedly that obscene materials have no First Amendment 
protection, and if materials that are obscene can be banned, 
then, of course, materials that are obscene and involve the 
torture of animals can also be banned.
    To be legally obscene under current doctrine, material must 
appeal to the prurient interest and satisfy several other 
requirements drawn from the Supreme Court's decision in Miller 
v. California. Appealing to the prurient interest generally 
means inciting lustful thoughts, although it can be a little 
bit broader than that. Of course, many depictions of extreme 
animal cruelty might not satisfy that requirement, but there is 
at least one important category of animal cruelty videos that 
are essentially pornographic in nature, and that is the crush 
videos that motivated the passage of section 48 in the first 
place.
    I know the Committee is familiar with that particular 
flavor of depravity because it has studied it before, and 
eliminating trafficking crush videos was a major purpose of the 
legislation. These videos are designed to appeal to people who 
have a very specific sexual fetish, and I feel fairly confident 
in saying that there is not a jury in this country that would 
have any trouble concluding that an animal crush video 
satisfies the various requirements of the Miller test for 
obscenity, such that it must be patently offensive under 
community standards and must have no serious redeeming 
political, artistic or social value.
    Now, the real problem with drafting a law that would be 
limited only to obscene crush videos is that it might not give 
law enforcement the tools that they need to go after purveyors 
of animal fighting videos, like Mr. Stevens himself. Of course, 
this Congress could choose to leave that problem for another 
day. But if Congress were inclined at this point to draft a law 
that goes beyond this sort of easy constitutional core of 
obscene crush videos and reach animal fighting videos as well, 
I think that the Stevens decision suggests several lessons.
    First, I think it would be very helpful for Congress to 
receive evidence and make findings about the role of video 
documentation in supporting and furthering the animal fighting 
industry.
    Second, Congress should carefully limit the statute to make 
clear that the hunting and slaughterhouse videos that troubled 
the Court in Stevens are excluded. The Stevens decision makes 
clear that this Supreme Court is going to take an essentially 
zero tolerance approach to ambiguity in a statute of this 
nature and is not inclined to read statutes narrowly in order 
to save them from constitutional attack.
    And third, the law should do what it can to address the 
Court's concerns about depictions of conduct that may be lawful 
in one State and unlawful in another. Limiting the law to 
depictions of conduct that violate animal cruelty laws would go 
a long way toward solving that problem, since, as the Supreme 
Court's majority recognized, every State has a prohibition 
against extreme animal cruelty, and unlike hunting laws, the 
content of those animal cruelty laws is reasonably consistent 
nationwide. Congress might also consider limiting prosecutions 
to conduct that is illegal everywhere in the United States or 
illegal under Federal law.
    Thank you, Mr. Chairman. I look forward to your questions.
    Mr. Scott. Thank you.
    [The prepared statement of Mr. Ballenger follows:]
                Prepared Statement of J. Scott Ballenger



                               __________

    Mr. Scott. And I want to thank all of our witnesses.
    We will have questions under the 5-minute rule. Mr. 
Vladeck, what is wrong with a statute that would just focus on 
obscenity? Because we have a well-established line of cases, 
prurient interest and everything, and I think the crush videos 
would appear to qualify under that.
    Mr. Vladeck. Mr. Chairman, I actually don't think there 
would be anything wrong with that. I think it is a question of 
how you draft it. So I think, you know, to focus on the analogy 
or obscenity makes at least some sense, except that the Supreme 
Court in the Stevens decision seemed to suggest that you can't 
line them up perfectly; that in the context of obscenity, the 
whole point to the Miller test is that there has to be prurient 
interest. You have to prove that. That is a pretty high bar. So 
I think----
    Mr. Scott. So the First Amendment is a tough bar to get 
over.
    Mr. Vladeck. I couldn't agree with you more. I think 
analogizing to obscenity would make a lot of sense. The problem 
is that the statute in its current form doesn't, right, and 
that the statute actually sweeps far beyond what Miller might 
have contemplated. So actually, you ask what is wrong. I am not 
sure that there is that much that would be wrong.
    Mr. Scott. One of the problems that has been suggested is 
that the prosecutor has a difficult time--if you are talking 
about something that is legal in the State--has a difficult 
time proving the elements of the crime to show that when it was 
done, it was illegal. I thought that came up when the virtual 
child pornography cases, where the allegation was that the 
prosecutors were having trouble. What did the Court say about 
that argument? If a prosecution has trouble, you can make it 
easier. What did the virtual child pornography cases say about 
that?
    Mr. Vladeck. Well, so the Court has had a series of virtual 
child pornography cases, and I think they have sort of split 
the difference where in one sense they say it is important to 
limit it--actual child pornography is, per Ferber, wholly 
exempted from First Amendment coverage. There is a little more 
leeway there than there would be here where the Court has 
declined to recognize----
    Mr. Scott. When they said, if you can't prove it is a real 
child, then you don't have a case, and then it is hard to 
prove. That is the prosecutor's problem, not the defendant's.
    Mr. Vladeck. And per your question before, Mr. Chairman, I 
think that's the Court saying that the First Amendment imposes 
some burdens on the prosecutors of these cases. So if you 
cannot prove in the context of virtual child pornography that 
it was actual child pornography, you are not going to be able 
to make a case. That is my understanding of what those cases 
stand for.
    Here, I think, the same question arises, and I think that 
is why Congress in 1999 tied it to whether the conduct was 
unlawful under the law in the State in which it was 
distributed, right, because you can't always even know where 
the video was produced. I think that is a problem, I think, 
that is----
    Mr. Scott. Sometimes you don't know. Sometimes you can't 
know that it was clearly produced in a State where it was 
legal.
    Mr. Vladeck. I think the problem is that if you draw the 
statute in a way where you have to prove an either/or, you 
know, that sort of changes the calculus. So could you actually 
have it say--if you can demonstrate that it was illegal in the 
State in which it was produced, it would count, or at the very 
least it was illegal in the State in which it was sold. I think 
that would be one way to do it, because you won't be able to 
have either rule as the categorical one to cover all cases.
    Mr. Scott. Well, you can have a Federal law that says 
selling the video in one State would be illegal. Selling the 
same video in another State--one would be illegal and the other 
State would be legal.
    Mr. Vladeck. That is true. There are plenty of other 
examples, Mr. Chairman, as you know, where Federal law turns on 
whether the conduct is actually against the law of that State, 
right? So the Federal Tort Claims Act is a prominent example 
where the question is simply whether under that State's law 
there is a cause of action.
    I don't think that is a problem here. I mean, I don't think 
that is a problem in legislative drafting. I think that is a 
problem only, as you suggest, when it comes to what the burden 
is going to be on the prosecutor in the individual case to 
demonstrate, if this is the direction the Congress is going in, 
that the producer or the distributor of the video had the 
requisite intent, right, because that will depend on where that 
happened.
    Mr. Scott. All States have animal cruelty laws. Those have 
been upheld, so we know the difference between a slaughterhouse 
and cruelty. We are talking about content to a certain extent, 
because if you have National Geographic showing animals in the 
wild killing each other, that would probably be illegal, it 
might be illegal in one State. Do we have a problem separating 
what is cruelty? If we went to illegal cruelty rather than just 
killing, would we be on much stronger ground using cruelty 
rather than killing, maiming?
    Mr. Vladeck. Mr. Chairman, I think it would certainly 
alleviate many of the overbreadth concerns expressed by the 
Court in Stevens if the statute required that the act be 
unlawful not just per se, but as a specific violation based on 
cruelty to animals.
    I don't think that would be a problem. I think that would 
be a substantial step toward removing the unconstitutional 
overbreadth of the statute. Just to be clear, I don't think 
courts would have that hard of a time deciding for themselves 
whether a particular State law was a law targeted at animal 
cruelty. This happens all the time in other contexts where 
Federal law uses a term of art, say, crime of violence, or 
aggravated felony, or crime of moral turpitude, and various 
State laws are applied and subjected to that definition. So I 
actually think that would be a very positive step and one that 
would make a lot of sense.
    Mr. Scott. The gentleman from Texas.
    Mr. Gohmert. Thank you, Mr. Chairman.
    I really appreciate each of your thoughtfulness in 
reviewing this. In view of the testimony that each of you have 
given today, I will tell you, I would welcome actual 
submissions of language that would stand the best chance of 
meeting the requirements of the Supreme Court, whether it is, 
as the Chairman suggests--you know, we know the word 
``obscene'' has been accepted. There is plenty of case law 
regarding that. But then I know a lot of people don't want to 
realize just how cruel nature is among its members, but if you 
just set up a camera out in the wild, you could see some 
horribly cruel and, some of us would think, obscene activity in 
what animals do to animals. So it is kind of hard to regulate 
nature, even though Congress often tries, obviously 
unsuccessfully.
    But any language that any of you might have--and I don't 
mean, well, try this, try that; I mean, actual proposal of, try 
this phrase instead, would be greatly appreciated on the panel 
because we do not want to be doing this or have someone else 
looking back over what we did, thinking, well, obviously if 
they had just used this language, 12 years later they wouldn't 
have had this problem. So anything along those lines would be 
appreciated.
    Do you believe that ``animal'' should be defined in the 
statute itself? Or do we leave that, just whether it is illegal 
in the State from which it came? Anyone.
    Mr. Ballenger. I will speak to two of those points very 
briefly. I think that tying the statute to the animal cruelty 
laws of the individual States as opposed to merely the general 
regulatory laws of every State would go a long way toward 
solving two of the problems you have identified. I believe the 
animal cruelty laws of every State exempt wildlife, for 
instance, from their requirements, and they also define what 
scope of animal life is subject to them. So, for instance, 
insects generally are not covered. So if you tie it to the 
animal cruelty law, then you have a sort of ready-made and 
well-understood body of law that sort of addresses both of 
those problems.
    Mr. Gohmert. Anyone else?
    Mr. Persily. Let me just say one thing, which is to some 
extent the language used depends on how broadly you describe 
the problem. And so, as Mr. Ballenger was saying, the question 
is does Congress want to apply this, for example, to 
dogfighting videos? Does it want to apply it to bullfighting 
videos, which is something that the Court mentions, right, 
which that would probably be, you know, trespassing onto more 
constitutionally protected territory. What is it in particular 
that is the problem? Because as Mr. Ballenger was pointing out, 
if you are limiting it to obscene animal cruelty, that is one 
category of speech. If you are extending it beyond that to 
other types of, say, animal fighting, that is going to 
encompass a lot more variability in State laws maybe. It will 
also bring in some other questions as to, you know, 
distinguishing among different animals as to what would be 
protected and not.
    Mr. Vladeck. I agree entirely. I would just add one last 
point, which is I think it is important to realize that from 
the perspective of the Court's opinion, the overbreadth 
concerns that led it to invalidate the statute will have 
different solutions in different parts of the statute. So if 
you want to more narrowly define ``animal,'' or if you want to 
require, as Chairman Scott suggested, that the State law be one 
that prohibits animal cruelty as such, those will both narrow 
the scope of the statute. But an intent requirement would also 
narrow the statute in ways that are different from it, perhaps 
more substantial than definitions of animal and definitions of 
animal cruelty laws. If we are requiring that the defendant 
have actually--or whoever produced the video----
    Mr. Gohmert. Well, don't you think it would be good to have 
both intent, some type of mens rea, in addition to the other 
type, meaning definition?
    Mr. Vladeck. Well, I agree that it would certainly narrow 
the scope of the statute. I think that the question is where 
exactly is the constitutional line between what Congress can 
prohibit and what it can't?
    Mr. Gohmert. And that is what we are asking for help with. 
That is why you are here.
    Mr. Vladeck. And I think the best I can say, Congressman, 
is that the Court only gave us clues. And so I think, you know, 
it would certainly be safer to go through all of these, to 
include an intent requirement, to more narrowly define what 
``animal'' is, to require the State law be specifically 
targeted to cruelty. All I am saying is that it is possible 
that it might go further than the law would actually have to go 
to satisfy the First Amendment concerns the Court raised.
    Mr. Gohmert. Well, it would seem to me the Court did a good 
job of giving us plenty of clues, as you say, and so we just 
need you all to have your Sherlock Holmes hats on and make the 
best deductions. Thank you.
    Mr. Scott. Thank you.
    The gentlelady from Texas.
    Ms. Jackson Lee. First I would like to say that it really 
pushes one's appreciation and understanding for American law 
and its commitment to the First Amendment when you can have the 
Supreme Court reject what I think most of us would find to be 
one of the most despicable acts. So I guess I can appreciate 
how pure we must be, how certain we must be that what we were 
engaging in as we try to correct the 1999 law--how we need to 
look very carefully so that this legislation can both solve the 
despicable acts which I think are below the definition of 
unacceptable, you can't even find words for it, but to also 
ensure that the First Amendment is, of course, upheld.
    And so I question several elements of both bills on this 
question of whether the First Amendment is protected, if the 
crux of it is a sale. And also in Mr. Peters' bill in 
particular, highlighting depiction, whether or not the acts of 
dogfighting would be able to be covered under the Court's 
interpretation. So let me just go down each of the witnesses 
and do what I did with the Members. But if you can focus in on 
the First Amendment.
    I don't know if we write a bill, then the Court may have 
another review. I heard one comment, I think, Mr. Ballenger, 
about associating with the language of State law, trying to, I 
guess, weave your way through that.
    But let's start with Professor Vladeck. Comfort me on what 
precisely needs to be done as it relates to First Amendment 
questions that the Court had. And if the others could follow, I 
would appreciate it. Thank you. And I thank the Chairman and 
the Ranking Member for bringing us back to this point and 
having this hearing. Thank you.
    Mr. Vladeck. I would just say, and I think this comes 
through a little bit in my testimony, I think the most 
important step going forward is the addition of some kind of 
mens rea, some kind of intent requirement. I think if you look 
at the oral argument in Stevens, if you look at the Court's 
opinion, the single biggest thing that the Justices seem 
concerned about was the fact that videos that accidentally 
encompass this kind of conduct, where the production was never 
meant to stimulate the market for these videos, would fall from 
the scope of the statute.
    I think that is a very big key here, and so, you know, if 
pressed to find one thing, Congresswoman, that is really the 
key, I think it is a far more specific intent requirement in 
the context of who could be liable for violating section 48.
    With regard to does it encompass dogfighting, does it not, 
again, I think all we have are hits. I think the Justices 
certainly seem to suggest that dogfighting and other forms of 
animal fighting are closer to First Amendment protection when 
we are talking about depictions than crush videos, so I feel 
less confident sort of asserting where the line would be there. 
But I think the addition of an intent requirement would go a 
very long way toward both protecting the First Amendment and 
carving out that conduct that this body can constitutionally 
proscribe.
    Mr. Scott. Will the gentlelady yield?
    Ms. Jackson Lee. I would be happy to yield to the Chairman.
    Mr. Scott. What would be the intent? Intent to do what?
    Mr. Vladeck. Well, at the very least, for example, I 
believe Congressman Peters' bill refers to that the video was 
made for the purpose of influencing the market, that the video 
was made--I am sorry, that the act of cruelty was undertaken 
for the purpose of creating a depiction and therefore 
stimulating the market. I think that would be a very important 
step.
    Mr. Scott. Wait a minute. Just very briefly, what would 
that intent--the intent to do what?
    Mr. Vladeck. My understanding of the Peters bill is that 
the intent would go with the act of the animal cruelty itself. 
Was the act of animal cruelty undertaken for the purpose of 
creating a depiction and for the purpose of furthering the 
market? And I think that that would go a long way, Mr. 
Chairman, toward excluding depictions of animal cruelty where 
the cruelty wasn't----
    Mr. Scott. So the intent would be staging the cruelty with 
the intent of making the video?
    Mr. Vladeck. Correct.
    Mr. Scott. I am sorry. The gentlelady may continue.
    Ms. Jackson Lee. I appreciate the clarification of the 
Chairman because I think that is truly key.
    I would yield to Professor Persily, I think. And as you do 
that, if you want to add to your comments, I will follow up. 
Why don't you just go ahead. Thank you.
    Mr. Persily. Let me just say that, again, the question is 
how does one define the problem? And if you define the problem 
as the--you know, one type of video as opposed to another, then 
the legislative language that would be recommended in order to 
comply with the First Amendment will be different. Each of 
these bills that has been proposed has a different scope. And 
so one, the first one, is limited to the prurient interest. So 
that would be limited to the types of videos that were 
discussed earlier. The second one, which is not limited to 
videos that are prurient in nature and, therefore, might apply 
more broadly to animal fighting or other kinds of--for example, 
bullfighting and that, would be, you know, closer to breaking 
the constitutional line there.
    I think we should be a little bit hesitant to predict how 
the Supreme Court is going to interpret these laws. As we have 
all discussed, one of the problems here is that there is going 
to be some constitutional speech which is likely going to be 
swept in by any of these proposals. The question is is it the 
type of speech which is so small in relation to the 
constitutionally unprotected speech which is swept in such that 
maybe an as-applied challenge to the law will succeed, but in 
general the law will be upheld?
    Clearly if one is going to target the type of obscene 
speech that was discussed earlier, then there is a specific 
rule for obscenity. And so all one needs to do is add the rule 
for obscenity and specify that it applies to those entailing 
animals as well. If one wants to go farther and deal with, say, 
dogfighting videos, et cetera, then one needs to try and tailor 
the law in order to combat the particular market. Perhaps, as I 
said in my testimony, model it, as Justice Alito suggests, on 
the directions that the Court has given in the child 
pornography cases.
    And one other recommendation, which is that--it should be 
obvious--but the more narrowly tailored the law, the more 
specific it is to a particular type of activity, the less 
effective it is going to be at regulating the types of things 
that we all find to be offensive. So that while on the one hand 
the Supreme Court is telling you be very specific, the more 
specific you are, the more difficult it is going to be to 
enforce this law in the usual context where we think it is 
applicable.
    Ms. Jackson Lee. Mr. Chairman, I ask unanimous consent, can 
Mr. Ballenger answer?
    Mr. Scott. Yes. We are going to have a second round. Did 
you want to answer, sir?
    Mr. Ballenger. Maybe I can just add one thing, because 
there is one caution I would like to give maybe a point on 
which I disagree with my colleagues here.
    Be careful with intent requirements. A requirement that a 
prosecutor has to prove that the purpose of a depiction was--
well, the purpose of the underlying cruelty was to make the 
depiction, it is going to be very, very difficult to prove 
beyond a reasonable doubt. You are going to have a defendant 
who says--who refuses to testify and won't give any information 
about why that particular act of cruelty was done. You have a 
defendant who was totally uninvolved with the underlying act of 
cruelty. And so I don't think it is really necessary to go 
quite that far in order to draft a constitutional law here.
    Mr. Scott. Thank you.
    The gentleman from California.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Do I take it that all three of you believe that it is 
within our capacity to write a constitutionally valid law that 
would render criminal under our Federal statute crush videos 
that would be considered obscene in the analysis that we have 
had, but that we have some question about whether we can go 
beyond that, that is with respect to the direction we have been 
given by the Court?
    Mr. Persily. Yes.
    Mr. Ballenger. Yes.
    Mr. Lungren. Do all of you agree that it is important, as 
Mr. Ballenger said, that we have hearings which would allow us 
to have specific findings that would be included as part of the 
statute?
    Mr. Persily. Yes.
    Mr. Vladeck. Yes.
    Mr. Lungren. There seems to be this general agreement that 
we can do it with a prurient interest element in there. And I 
am intrigued by all of you seeming to suggest that to the 
extent that we can establish that the conduct defined is 
unlawful in virtually every State or jurisdiction, yet what if 
jurisdictions subsequently change their minds in terms of their 
definition? Does that affect the underlying rationale for the 
constitutionality as suggested by the courts and as you have 
articulated here?
    Mr. Persily. It could. It is important to identify two 
lines of cases that are relevant here. So on the one hand, you 
have obscenity, which doesn't depend on the illegality of the 
act in any particular State. On the other, the model that I 
think the proposed legislation is pointing to are the child 
pornography cases where it typically is clearly illegal.
    Mr. Lungren. But the Court has basically said that is an 
exception that is unique and is not covered in this area. So we 
can't use that for justification.
    Mr. Persily. One thing that is interesting, though, about 
the Stevens opinion it that it says that the child pornography 
cases are sort of a species of a larger category of cases, 
talking about speech integral to criminal conduct. Okay, so the 
question, it seems to me, and why the illegality of the action 
becomes relevant, is the extent to which you are trying to 
regulate an underlying illegal act by regulating depictions of 
it. Okay? It is clear that you can't regulate all illegal acts 
through depictions of it. And the question is, well, what kind 
can you? Child pornography is an example of it. And then the 
question is, what about these other depictions of animal 
cruelty?
    Mr. Lungren. So the actual act of the animal cruelty which 
is illegal in and of itself is necessary for the production of 
the video that, therefore, you can find to be criminal in and 
of itself.
    Mr. Persily. If that is the object of the legislation. Like 
I said, obscenity doesn't depend on that.
    Mr. Lungren. Right. But I wanted to go beyond that to those 
other areas where you are not requiring the obscenity, where 
you are expanding it beyond the mere obscenity.
    Mr. Vladeck. I think it would undermine, at least to some 
degree, the argument that--if the argument was constructed 
around the proposition that you had to ban the depictions in 
order to destroy the market, I think it would undermine that 
argument to a very substantial degree if all of a sudden in 
some jurisdictions the content itself actually was legal, 
because then the argument would be, well, then so would be--
then there is no ``there'' there.
    Mr. Lungren. It is interesting. I signed on as a cosponsor 
of Mr. Gallegly's legislation with the caveat that this is just 
to show that I would like us to try and find a solution to 
this. And it is easier to say that to a colleague than it is to 
try to explain to the public writing in to you that we would 
all be committed to this end. But I call it the inconvenient 
truth, which is the First Amendment, and I don't want to harm 
the First Amendment in the process. And how we get from the 
legislation that is before us to what we need to do to answer 
these questions is a conundrum.
    I might just observe, Mr. Chairman, it is interesting when 
we are spending very good time to try to get this right, and we 
may have on the floor of the House a bill this week dealing 
with the First Amendment called the DISCLOSE Act coming out of 
my other Committee with which we did not make findings with 
respect to the bill that is presented to us, but that only 
deals with political free speech, which, of course, Justice 
Kennedy said was the essence of protected free speech. But, you 
know, we don't have to worry about those things, I guess.
    I thank you, Mr. Chairman.
    Mr. Scott. The gentleman from Florida.
    Mr. Deutch. Thank you, Mr. Chairman.
    Professor Vladeck, you raised a point in your last response 
that--as something that I am concerned about where the approach 
seems to be that we are both focused on the possibility of 
enacting a statute which would focus on the underlying act and 
the illegality of the act, while at the same time trying to 
build in the additional protections of obscenity as an 
unprotected act. And what you just pointed out is that in that 
case, while obscenity, as several of you have mentioned, 
doesn't require the underlying act be illegal, do we put 
ourselves in the position of having then a statute which by its 
nature makes it difficult to uphold? On the one hand we have 
got underlying acts that are illegal that would be subject to 
prosecution. At the same time, because of the focus of 
obscenity, we have other acts that aren't illegal that would 
also be subject to prosecution.
    Mr. Vladeck. I mean, I think that is a problem. I think to 
be fair, you know, I think it is just a question of how you 
construct the bill, right? So if you are trying to treat these 
kinds of depictions in the same way that we would treat child 
pornography, then I think you do have a problem if all of a 
sudden there is less of a direct connection between the market 
for the depiction and the underlying illegality. If instead it 
is more of an obscenity-based model, I think that just requires 
a judgment by Congress that it is the depiction itself that is 
causing some kind of illegal market, that is sort of 
promulgating the illegal activity. I think their intention, but 
I don't think they are exclusive of each other.
    Mr. Ballenger. Can I make a suggestion?
    Mr. Deutch. Certainly.
    Mr. Ballenger. You can have severable sections. You could 
have an obscenity section of the bill that just uses the word 
``obscene'' and really doesn't have to do anything else, and 
that would be clearly constitutional and would allow 
prosecutors to prosecute anything that meets the constitutional 
test. And then you could have a separate section that tackles 
the problem in a different way.
    Mr. Deutch. And if we could just focus on obscenity 
jurisprudence for a moment, which we haven't really gotten 
into. If we wrote a statute in that way, and we had a section, 
or if the statute would focus entirely on obscenity, what is 
it--if you could walk through the Miller factors and how they 
might apply to animal cruelty, and how we might come to some 
consensus that there are, in fact, some forms of animal cruelty 
which are absolutely obscene.
    Mr. Ballenger. Well, the traditional Miller test is whether 
the average person applying contemporary community standards 
would find that the work taken as a whole appeals to the 
prurient interest; depicts and describes in a patently 
offensive way sexual conduct specifically defined by applicable 
State law; and lacks serious literary, artistic, political or 
scientific value. That is the long-winded way of saying it. The 
short way of saying it is just to use the word ``obscene,'' 
which is what the Federal obscenity statutes do. You don't 
actually have to spell out the whole standard in the statute.
    My view is that if you just use the word ``obscene'' or 
spell out the Miller standard, it would allow prosecutors to go 
after the crush videos that were at the core of what section 48 
was originally about, because these are essentially 
pornographic materials. They are designed to appeal to people 
with a very specific sexual fetish, and they are clearly 
patently offensive, and they don't have any redeeming social 
value whatsoever.
    So there is sort of a core here that under the traditional 
settled obscenity doctrine really I think isn't even debatable. 
Then there is a hard question about whether obscenity law might 
be extended to encompass materials that are patently offensive 
and have no value and appeal to base instincts, but aren't 
obviously sexual in nature.
    Mr. Deutch. Right. And if you could speak to other examples 
where the Court has dealt with that issue specifically, where--
there wasn't a--the prurient interest wasn't clearly a sexual 
interest. Nevertheless, there is still something obscene, as in 
this case, about certain types of animal cruelty.
    Mr. Ballenger. Well, not Supreme Court decisions. There 
have been some lower court decisions, including a seventh 
circuit opinion that Judge Posner wrote, that have suggested 
that depictions of actual extreme violence against people could 
be obscene, like a snuff video, for instance.
    The only thing that I am aware of that the Supreme Court 
has said on this subject is that there are hints in footnotes 
in Miller and in a case called Roth v. United States that a 
morbid interest in excretion can be obscene, you know, sort of 
without regard to whether it is prurient in the ordinary sense. 
I am not sure if the Court really was confronted with the 
problem of why materials that appeal to a morbid interest in 
excretion are categorically unprotected by the First Amendment. 
But materials that appeal to a morbid and sadistic desire to 
torture animals somehow become, you know, the constitutional 
equivalent of the Lincoln-Douglass debates. I have a hard time 
believing that when push comes to shove, the Court would really 
believe that, and they avoided it here, I think, very 
deliberately.
    Mr. Deutch. Thank you.
    Thank you, Mr. Chair.
    Mr. Scott. Thank you.
    Let me ask a couple other questions. Is there any question 
that the ones we are aiming at are, in fact, obscene under 
present law? Do we need to pass any law to prohibit the ones 
that would fit the definition of obscenity?
    Mr. Ballenger. Not necessarily.
    Mr. Scott. You just go into the present obscenity law and 
just get them? You can get them for the production, the 
distribution and sale?
    Mr. Ballenger. Presumably that is correct. But Congress 
frequently passes laws to express its particular contempt for 
conduct.
    Mr. Persily. Can I add one thing on that? The obscenity 
prosecutions are extremely difficult. They are very rare, and a 
lot of it has to do with whether the work taken as a whole has 
any value, serious value.
    Mr. Scott. If it is not obscene, what standing do we have 
to talk about the depiction?
    Mr. Persily. Well, that is right. Then one has to go into 
this other category of cases dealing with the speech that is 
integral to criminal conduct. And we don't have a lot of cases 
on that, with the exception of, you know, child pornography 
cases as well as some other cases where it is mentioned, but 
which is really not applicable in this context.
    Mr. Scott. Let us kind of discuss for a second the First 
Amendment implications of the depiction of criminal activity as 
opposed to criminal activity. You can show a video, a camera, a 
video of a robbery. The robbery is illegal. The depiction--I 
mean, you see them on television all the time.
    Mr. Persily. That is right.
    Mr. Scott. How do you get to the prohibiting the depiction? 
What are the First Amendment implications of trying to prohibit 
the depiction rather than the underlying act?
    Mr. Persily. Well, that is why the child pornography cases 
are so unique.
    Mr. Scott. In child pornography, first of all, you have the 
underlying crime. You have to commit a crime to produce it. And 
they keep talking about the ongoing harm to the child by the 
fact that the video is out there. You are inflicting ongoing 
harm. So there is harm in the production and ongoing harm in 
the sale. And that is why you can prohibit child pornography, 
and if you can't prove it is a real child, you lose your case.
    Mr. Persily. No, that is right. One of the things that is 
important in this decision is that they describe the child 
pornography cases as a species of this category of unprotected 
speech dealing with speech integral to criminal conduct. The 
actual case they cite for that proposition is this case called 
Gibbony, which was really not even about this. It was about 
union protesters and whether their speech was--and boycotts 
violated State restraint of trade laws.
    And so the question here though, again, is whether you have 
to regulate the speech in order to get to the underlying crime, 
all right? So that, as you were suggesting in your opening 
remarks, is this the type of industry that can only be 
regulated by regulating the speech, regulating the depiction of 
it? And for that we really only have one example, and that was 
child pornography. The Court specifically relied on the fact 
that you would dry up the market in child pornography by 
regulating the speech.
    Mr. Scott. But also in that case, you had to commit a crime 
to produce the video.
    Mr. Persily. That is right.
    Mr. Scott. And you were continuingly inflicting harm as you 
sold it. How does that apply to depictions of other crimes? We 
are trying to do animal cruelty.
    Mr. Persily. It doesn't. No. Those aspects of child 
pornography aren't applicable here.
    Mr. Scott. And if the video is not inherently protected, I 
mean, if it is not--if it is not--if you are not talking about 
protected speech, where do we--what hook do we use to prohibit 
the depiction?
    Mr. Persily. Well, that you were trying to get at the--you 
are saying if the underlying act was not criminal, or if it 
was?
    Mr. Scott. You do not have to commit a crime to produce 
these videos if you produce it in a State where it may be 
legal, and there is no ongoing harm that you can talk about. 
And that was a hook on the child pornography.
    Mr. Persily. That is right.
    Mr. Scott. If the hook is that we dry up the industry by 
drying up the videos, and there is a strong--we would have to 
show that. Have we shown it?
    Mr. Persily. That is right. I think that what you are 
hinting at here is that it is extremely difficult to use the 
child pornography example in the context of animal cruelty both 
because of the differences in the factual situations, but also 
that this exception to general content-based speech limitations 
that deals with speech integral to criminal conduct is a real 
slippery slope in that it is clearly the case that you can't 
ban the depictions of all criminal conduct. And the question 
is, well, what subset of criminal conduct could you do? And the 
child pornography cases are more than mere criminal conduct. 
There are all kinds of other interests that are being served by 
those bans. And then the question is, well, are the States' 
interests here similar enough to those to then fit into the 
exception?
    But if you can't do it under that line of cases, then you 
have to go, I think, along the lines of banning it according to 
the obscenity cases.
    Mr. Ballenger. Can I offer a slight amendment? I think we 
are underselling the analogy to the child pornography cases a 
little bit here. Justice Alito makes a very powerful argument 
in his dissent in Stevens, which the majority of the Court 
doesn't really reach and disagree with in all its particulars, 
that there are very close analogies here; that the market, for 
instance, for dogfighting videos plays a very important role in 
the ongoing dissemination and propagation of the dogfighting 
industry. People sell these videos and disseminate these videos 
in order to prove that their dog has, you know, won a requisite 
number of fights to be considered a grand champion and be able 
to command, you know, $100,000 purses in subsequent bouts.
    So you really can strike a blow at the underlying criminal 
activity by drying up the market for these depictions here in a 
way that was true in the child pornography cases, but isn't 
true, for instance, of convenience store videos of robberies, 
right? You could eliminate every convenience store video of a 
robbery in the world, and it probably wouldn't do anything to 
dry up the market for robbery. But that is not true here.
    Mr. Scott. I think you pointed out that that was in a 
dissent for which the other eight did not agree.
    Mr. Ballenger. Well, they didn't reach those issues.
    Mr. Scott. Okay. Professor Vladeck?
    Mr. Vladeck. I will just add, I am largely in agreement 
with my colleague. All I would say is that I think--as you 
point out, Mr. Chairman, they didn't reach it, but I don't 
think this Court was particularly taken by the analogy, and 
your argument transcript, I think, reflects to some degree that 
they saw that there are fairly significant differences despite 
the analogies that Mr. Ballenger alluded to. There are entirely 
nonobjectionable uses of crush videos, I think, was what came 
out in the argument by animal rights groups who use them as 
advocacy pieces, by journalists who would use that as sort of 
parts of documentaries. So I think this is why the closer this 
is to obscenity doctrine, I think the safer the law will be, 
because the Court really just seemed very reluctant to add to 
the really sui generis child pornography category.
    Mr. Scott. The gentleman from California.
    Mr. Lungren. Let me try a slightly different direction. 
That is, the three of you have all agreed that the Court was--
about the overbreadth of the statute before it, that it could 
apply to other things. Is there a way in which we could have a 
more specific, narrow definition of what is the animal cruelty 
that is to be objected to--that is to be the object of the 
statute? Or do we not deal with the overbreadth question by 
narrowing the scope of the definition of animal cruelty? And 
if, in fact, you can move in that direction, what suggestions 
would you have to a more narrowly designed definition of animal 
cruelty?
    Mr. Persily. Well, you would have to, you know, take the 
Miller test and put it into the law, because that does narrow 
the potential applications. And so that is more narrow than the 
previous legislation and even describing it as regulating acts 
that are cruel. The Court said that the previous statute did 
not limit itself to extreme animal cruelty. At a minimum, that 
is the kind of thing that should be in the statute as well. And 
this was despite the fact that there was legislative history 
suggesting that that is what it was supposed to be targeting.
    Again, also you have to make sure that while having the 
Miller exception there, that anything with more than de 
minimis--or you have to specify that something that has de 
minimis or a little more de minimis value, artistic, 
scientific, et cetera, value, is something that would be 
protected and would be exempted by the statute. So it is both 
in describing the speech that is regulated here and is also 
specifying what is exempted.
    Mr. Lungren. I always wondered about that last part, about 
the more than de minimis artistic value and so forth, whether 
that just suggests that the person wants to create it, and they 
then construct a story around it.
    Mr. Persily. And that is the problem. And that is what is 
going to happen.
    Mr. Lungren. So you have longer videos with--no, no. I am 
serious about that.
    Mr. Persily. That is why obscenity prosecutions are so rare 
these days, I mean, because the test as taken as a whole, 
right, and the difficulty is you could always point to some 
artistic value at some point in the movie, and that is the 
exception that often saves the defendants.
    Mr. Lungren. But I do know it when I see it. Can we write 
it that way?
    Thank you, Mr. Chairman.
    Mr. Scott. The gentleman from Tennessee.
    Mr. Cohen. Thank you, Mr. Chairman.
    I don't know if the gentleman from California has ever seen 
it. It is an admission against interest.
    Mr. Lungren. No, no. I was lying on the description.
    Mr. Cohen. Have you all had an opportunity to read the two 
laws that are before us? I have had some personal business I 
had to attend to. Have you all commented on--you have already 
done that. So for my edification, Mr. Ballenger, which of the 
two do you think is a better one to go forward?
    Mr. Ballenger. Well, I haven't studied the language of the 
current proposals carefully.
    Mr. Cohen. Good admission. It is honest.
    And have the other professors studied these carefully?
    Mr. Persily. Each of them has problems, but each is also 
targeting a different problem. The scope of the speech that is 
regulated under each law is very different. If you want to make 
it more narrowly tailored, you are going to have to sort of 
combine the laws in some respects in order to get at some of 
these problems. And again, it depends on whether Congress is 
interested in regulating animal cruelty videos generally or a 
specific subcategory of them. And one bill goes after a 
specific subcategory, and another one goes more broadly.
    Mr. Vladeck. I agree. I mean, the Peters bill, I think, has 
the slightly broader definition, but the more specific 
requirements. So including the previous discussion that 
Chairman Scott and I had about how--there is a requirement that 
the depiction be created with the purpose--the act of animal 
cruelty take place with the purpose of creating the depiction. 
The Gallegly bill, in contrast, doesn't have those specifics, 
but focuses on a narrower class of conduct.
    I agree. I think there are positive additions to both 
pieces of legislation that could probably be put together for 
perhaps the most workable bill.
    Mr. Cohen. That is why we have a brilliant Chairman, 
because he will do that before the markup, and I am sure he 
will consult with you all and put them together in some manner 
that is just fascinating and brilliant and something that all 
of the animal people will absolutely be appreciative of. I look 
forward to the Chairman's work.
    Today we were talking about child pornography. I thought if 
you depicted something as being a child, even if the person or 
the depiction--the child was older than 16, or it was a 
depiction of a sketch and it really wasn't a child, I thought 
that still would fall under the child pornography laws. Am I 
wrong?
    Mr. Vladeck. It would fall within the scope of the statute, 
but the Supreme Court, I believe, in Ashcroft v. Free Speech 
Coalition specifically held that that is unconstitutional to 
the extent that it is not actually a child, because then the 
actual conduct is not child pornography even if the person 
thinks--even if the creator of the depiction thinks it is.
    Mr. Cohen. But it continues the market, the idea of a 
market, which continues the desire for the person who has this 
need for this gratification to seek out this type of a medium, 
which puts the children in jeopardy. It is the same thing with 
the animals. Anything that contributes to creating and 
continuing the market I would think would come within the 
sphere of conduct that you could control, limit, prohibit so as 
to protect the species or the interests involved.
    Mr. Vladeck. I mean, I think this is just where the Court 
has been clear that the First Amendment really doesn't--
although if we all sat down and sort of thought about it 
carefully, we might think that this is the most logical way to 
do it. Sometimes the First Amendment requires approaches that 
are suboptimal.
    Mr. Cohen. Thank you, Mr. Chairman. I look forward to your 
bringing all of this together in a very clear manner that will 
protect all.
    Mr. Scott. We will see.
    Other questions?
    The gentleman from California.
    Mr. Lungren. No, thank you.
    Mr. Scott. I would like to thank our witnesses for your 
testimony today. Members may have additional questions, which 
we will forward to you and ask that you respond as promptly as 
you can so the answers can be made a part of the hearing 
record. The record will remain open for 1 week for the 
submission of additional materials.
    Are there additional materials?
    Without objection, the Subcommittee stands adjourned.
    [Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]





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