[Congressional Record Volume 156, Number 132 (Tuesday, September 28, 2010)]
[Senate]
[Pages S7653-S7654]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PREVENTION OF INTERSTATE COMMERCE IN ANIMAL CRUSH VIDEOS ACT OF 2010
Mr. DURBIN. Mr. President, I ask unanimous consent that the Committee
on Judiciary be discharged from further consideration of H.R. 5566, and
the Senate proceed to its immediate consideration.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report the bill by title.
The assistant legislative clerk read as follows:
A bill (H.R. 5566) to amend title 18, United States Code,
to prohibit interstate commerce in animal crush videos, and
for other purposes.
There being no objection, the Senate proceeded to consider the bill.
Mr. LEAHY. Mr. President, I am pleased that the Senate will pass the
Animal Crush Video Prohibition Act. In doing so, we have taken this
important step toward banning obscene animal crush videos, and I thank
Senators Kyl, Merkley and Burr for their leadership on this issue. We
worked on a bipartisan basis to ensure that this legislation respects
the first amendment and the role of our court system, while at the same
time giving law enforcement a valuable and necessary tool to stop
obscene animal cruelty. I urge the House to quickly adopt the
legislation.
Earlier this year, in United States v. Stevens, the Supreme Court
struck down a Federal statute banning depictions of animal cruelty
because it held the statute to be overbroad and in violation of the
first amendment. Animal crush videos, which can depict obscene, extreme
acts of animal cruelty, were a primary target of that legislation.
Two months ago, in response to the Stevens decision, the House
overwhelmingly passed a narrower bill banning animal crush videos on
obscenity grounds. The Senate Judiciary Committee regularly looks at
questions raised by Supreme Court decisions and the first amendment,
and the House-passed bill was referred to the Senate Judiciary
Committee for consideration.
There are a few well-established exceptions to the first amendment.
The United States has long prohibited the interstate sale of obscene
materials, and the Supreme Court recognized this exception to the first
amendment in 1957. Earlier this month, the Judiciary Committee held a
hearing focused on the obscene nature of many animal crush videos. We
heard testimony from experts who confirmed that many animal crush
videos depict extreme acts of animal cruelty which are designed to
appeal to a specific, prurient, sexual fetish. Indeed, these animal
crush videos are patently offensive, lack any redeeming social value,
and can be banned consistent with the Supreme Court's obscenity
jurisprudence. In drafting the substitute amendment to the House bill,
we were careful to respect the role that courts and juries play in
determining obscenity. In any given case, it will be up to the
prosecutor to prove and the jury to determine whether a given depiction
is obscene, because obscenity is a separate element of the crime. The
other element that occurs in animal crush videos and which warrants a
higher punishment than simple obscenity is that
[[Page S7654]]
it involves the intentional torture or pain to a living animal.
Congress finds this combination deplorable and worthy of special
punishment. That is why the maximum penalty is higher than general
obscenity law.
The United States also has a history of prohibiting speech that is
integral to criminal conduct. The acts of animal cruelty depicted in
many animal crush videos violate State laws, but these laws are hard to
enforce. The acts of cruelty are often committed in a clandestine
manner that allows the perpetrators to remain anonymous. The nature of
the videos also makes it extraordinarily difficult to establish the
jurisdiction necessary to prosecute the crimes. Given the severe
difficulties that State law enforcement agencies have encountered in
attempting to investigate and prosecute the underlying conduct,
reaffirming Congress's commitment to closing the distribution network
for obscene animal crush videos is an effective means of combating the
crimes of extreme animal cruelty that they depict.
I have long been a champion of first amendment rights. As the son of
Vermont printers, I know firsthand that the freedom of speech is the
cornerstone of our democracy. This is why I have worked hard to pass
legislation such as the SPEECH Act, which protects American authors,
journalists and publishers from foreign libel lawsuits that undermine
the first amendment.
Today the Senate struck the right balance between the first amendment
and the needs of law enforcement, while adhering to the separation of
powers enshrined in our Constitution. I commend the bipartisan
coalition that worked hard, alongside the Humane Society and first
amendment experts, to strike this balance, and I look forward to the
time when obscene animal crush videos no longer threaten animal
welfare.
Mr. DURBIN. Mr. President, I ask unanimous consent the substitute at
the desk be agreed to, the bill, as amended, be read a third time and
passed, the motion to reconsider be laid upon the table, and any
statements related to the measure be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 4668) was agreed to, as follows:
(Purpose: In the nature of a substitute)
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Animal Crush Video
Prohibition Act of 2010''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) The United States has a long history of prohibiting the
interstate sale, marketing, advertising, exchange, and
distribution of obscene material and speech that is integral
to criminal conduct.
(2) The Federal Government and the States have a compelling
interest in preventing intentional acts of extreme animal
cruelty.
(3) Each of the several States and the District of Columbia
criminalize intentional acts of extreme animal cruelty, such
as the intentional crushing, burning, drowning, suffocating,
or impaling of animals for no socially redeeming purpose.
(4) There are certain extreme acts of animal cruelty that
appeal to a specific sexual fetish. These acts of extreme
animal cruelty are videotaped, and the resulting video tapes
are commonly referred to as ``animal crush videos''.
(5) The Supreme Court of the United States has long held
that obscenity is an exception to speech protected under the
First Amendment to the Constitution of the United States.
(6) In the judgment of Congress, many animal crush videos
are obscene in the sense that the depictions, taken as a
whole--
(A) appeal to the prurient interest in sex;
(B) are patently offensive; and
(C) lack serious literary, artistic, political, or
scientific value.
(7) Serious criminal acts of extreme animal cruelty are
integral to the creation, sale, distribution, advertising,
marketing, and exchange of animal crush videos.
(8) The creation, sale, distribution, advertising,
marketing, and exchange of animal crush videos is
intrinsically related and integral to creating an incentive
for, directly causing, and perpetuating demand for the
serious acts of extreme animal cruelty the videos depict. The
primary reason for those criminal acts is the creation, sale,
distribution, advertising, marketing, and exchange of the
animal crush video image.
(9) The serious acts of extreme animal cruelty necessary to
make animal crush videos are committed in a clandestine
manner that--
(A) allows the perpetrators of such crimes to remain
anonymous;
(B) makes it extraordinarily difficult to establish the
jurisdiction within which the underlying criminal acts of
extreme animal cruelty occurred; and
(C) often precludes proof that the criminal acts occurred
within the statute of limitations.
(10) Each of the difficulties described in paragraph (9)
seriously frustrates and impedes the ability of State
authorities to enforce the criminal statutes prohibiting such
behavior.
SEC. 3. ANIMAL CRUSH VIDEOS.
(a) In General.--Section 48 of title 18, United States
Code, is amended to read as follows:
``Sec. 48. Animal crush videos
``(a) Definition.--In this section the term `animal crush
video' means any photograph, motion-picture film, video or
digital recording, or electronic image that--
``(1) depicts actual conduct in which 1 or more living non-
human mammals, birds, reptiles, or amphibians is
intentionally crushed, burned, drowned, suffocated, impaled,
or otherwise subjected to serious bodily injury (as defined
in section 1365 and including conduct that, if committed
against a person and in the special maritime and territorial
jurisdiction of the United States, would violate section 2241
or 2242); and
``(2) is obscene.
``(b) Prohibitions.--
``(1) Creation of animal crush videos.--It shall be
unlawful for any person to knowingly create an animal crush
video, or to attempt or conspire to do so, if--
``(A) the person intends or has reason to know that the
animal crush video will be distributed in, or using a means
or facility of, interstate or foreign commerce; or
``(B) the animal crush video is distributed in, or using a
means or facility of, interstate or foreign commerce.
``(2) Distribution of animal crush videos.--It shall be
unlawful for any person to knowingly sell, market, advertise,
exchange, or distribute an animal crush video in, or using a
means or facility of, interstate or foreign commerce, or to
attempt or conspire to do so.
``(c) Extraterritorial Application.--Subsection (b) shall
apply to the knowing sale, marketing, advertising, exchange,
distribution, or creation of an animal crush video outside of
the United States, or any attempt or conspiracy to do so,
if--
``(1) the person engaging in such conduct intends or has
reason to know that the animal crush video will be
transported into the United States or its territories or
possessions; or
``(2) the animal crush video is transported into the United
States or its territories or possessions.''
``(d) Penalty.--Any person who violates subsection (b)
shall be fined under this title, imprisoned for not more than
7 years, or both.
``(e) Exceptions.--
``(1) In general.--This section shall not apply with regard
to any visual depiction of--
``(A) customary and normal veterinary or agricultural
husbandry practices;
``(B) the slaughter of animals for food; or
``(C) hunting, trapping, or fishing.
``(2) Good-faith distribution.--This section shall not
apply to the good-faith distribution of an animal crush video
to--
``(A) a law enforcement agency; or
``(B) a third party for the sole purpose of analysis to
determine if referral to a law enforcement agency is
appropriate.
``(f) No Preemption.--Nothing in this section shall be
construed to preempt the law of any State or local
subdivision thereof to protect animals.''.
(b) Clerical Amendment.--The item relating to section 48 in
the table of sections for chapter 3 of title 18, United
States Code, is amended to read as follows:
``48. Animal crush videos.''.
(c) Severability.--If any provision of section 48 of title
18, United States Code (as amended by this section), or the
application of the provision to any person or circumstance,
is held to be unconstitutional, the provision and the
application of the provision to other persons or
circumstances shall not be affected thereby.
The amendment was ordered to be engrossed and the bill read a third
time.
The bill (H.R. 5566), as amended, was read the third time and passed.
____________________