[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.

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