[Congressional Record Volume 156, Number 148 (Monday, November 15, 2010)]
[House]
[Pages H7403-H7405]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   PROVIDING FOR CONSIDERATION OF H.R. 5566 AND THE SENATE AMENDMENT 
                                THERETO

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and agree to 
the resolution (H. Res. 1712) providing for consideration of the bill 
H.R. 5566 and the Senate amendment thereto.
  The Clerk read the title of the resolution.
  The text of the resolution is as follows:

                              H. Res. 1712

       Resolved, That upon the adoption of this resolution, the 
     House shall be considered to have taken from the Speaker's 
     table the bill H.R. 5566 and amendment of the Senate thereto, 
     and to have concurred in the amendment of the Senate to the 
     text with an amendment as follows: in lieu of the matter 
     proposed to be inserted by the Senate, 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, 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.
       `` `(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, if--

[[Page H7404]]

       `` `(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.

     ``SEC. 4. PAYGO COMPLIANCE.

       ``The budgetary effects of this Act, for purposes of 
     complying with the Statutory Pay-As-You-Go Act of 2010, shall 
     be determined by reference to the latest statement titled 
     `Budgetary Effects of PAYGO Legislation' for this Act, 
     jointly submitted for printing in the Congressional Record by 
     the Chairmen of the House and Senate Budget Committees, 
     provided that such statement has been submitted prior to the 
     vote on passage in the House acting first on this conference 
     report or amendments between the Houses.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Poe) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on House Resolution 1712.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself as much time as I may 
consume.
  Mr. Speaker and Members, I am happy to start off this part of our 
session with this resolution that provides that the House concur in the 
Senate amendments to H.R. 5566, with an amendment.
  With this resolution, we are adopting nearly all of the Senate's 
amendments to our House-passed bill addressing the very important 
subject of animal crush videos.
  I emphasize that the reason this resolution doesn't adopt the Senate-
passed bill in its entirety is due to concerns that criminalizing 
attempts and conspiracies in this area creates a serious constitutional 
concern about prior restraint of speech. And as chair of the Judiciary 
Committee, I hold myself open to the discussion or inquiries of any 
Member of the House about the constitutional aspect of the remark I 
just made.
  We need to remember that the history of this bill is thus: the prior 
law that we passed was struck down as unconstitutional by the Supreme 
Court, and that's why we are here doing it again. We think we've got it 
right this time.
  As a strong supporter of this bill, and of the law, I have tried to 
make sure that we pass a constitutional bill. To stop crush videos, we 
need a law that stays on the books, and that's what this resolution 
will do.
  The underlying subject is one that we have discussed previously. In 
summary, there is a market for videotapes and still photographs 
depicting, typically, small animals being slowly crushed to death. 
Don't ask me about the psychiatric make-up of people in our society 
that go in for this sort of thing. But it's, unfortunately, a reality.
  We adopted a bill in 1999 which became a law intended to ban the 
creation, sale, and possession of the depiction of such acts. They 
became known as crush videos. But in April, the Supreme Court, in 
United States v. Stevens, invalidated the statute. The Court held that 
the law was overbroad and violated the Constitution's First Amendment.
  The chairman of the Subcommittee on Crime, Chairman Bobby Scott of 
Virginia, held a hearing in May and heard from some good witnesses who 
all agreed that a narrower legislative approach would be constitutional 
and survive court challenges.
  The bill that we passed was narrower than the original law. The most 
important difference is that the bill would only prohibit the sale of 
crush videos that are obscene. This would likely address the key flaw 
in the original statute because obscenity is outside the protection of 
the First Amendment to the Constitution.
  In September, the Senate took up H.R. 5566 and amended it. The Senate 
version also used the same approach that we did to such obscene 
depictions. The only difference is that the Senate bill prohibits the 
creation of crush videos, which I believe is acceptable because it 
includes an interstate commerce requirement.
  However, that provision and the prohibitions on distributing crush 
videos, domestically or outside the United States, include prohibitions 
on attempts and conspiracies which would, in effect, impose punishment 
equal to that resulting from a completed offense. This is particularly 
problematic with respect to the creation of expressive materials, no 
matter how little redeeming value they may have.

                              {time}  1430

  We should not enact a prohibition on activity or discussions about 
creating materials which, as yet not completed, may or may not turn out 
to be obscene. Justice Potter Stewart explained the problem with 
describing when something is obscene in Jacobellis v. Ohio by saying, 
``I know it when I see it.''
  Until an image is completed, there is no way to know that it will be 
obscene. Once completed, then it can be prosecuted as such. Therefore, 
the version of the bill before the House today adopts every change that 
the Senate proposed, except the problematic part concerning attempts 
and conspiracies.
  The bill we passed was a strong and constitutional measure addressing 
the problem of crush videos, and the bill now before us is no less 
effective with these changes, and so I urge support of the bill.
  I particularly commend a member of the Judiciary Committee, Elton 
Gallegly, and my colleague from Michigan, Gary Peters, who both have 
worked in an effort to enact legislation addressing the problem.
  I reserve the balance of my time.
  Mr. POE of Texas. I yield myself such time as I may consume.
  Mr. Speaker, this resolution provides for consideration of 
legislation to prohibit the creation and sale of so-called ``animal 
crush videos.'' These videos depict small animals being slowly crushed 
to death by women using their bare feet or while wearing high heels.
  The FBI, the 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.
  All 50 States and the District of Columbia have laws banning acts of 
animal cruelty such as these portrayed in those videos. However, animal 
crush videos often do not reveal the identity of those involved, making 
it difficult for States to prosecute the perpetrators for the 
underlying animal cruelty. Federal legislation is necessary to address 
the interstate sale and distribution of these videos, which is often 
beyond the reach of many States. Federal penalties will serve as an 
additional deterrent to those who engage in this behavior.
  H.R. 5566, the Animal Crush Video Prohibition Act of 2010, responds 
to the Supreme Court's recent decision in U.S. v. Stevens, which 
invalidated the Federal animal cruelty statute codified at 18 U.S.C., 
Section 48.
  Originally enacted in 1999, with broad bipartisan support, the 
statute attempted to address animal cruelty, including crush videos. 
The law was successful in virtually eliminating the

[[Page H7405]]

market for those videos. In light of the Supreme Court's decision, 
however, the animal crush video industry has reemerged.
  H.R. 5566, sponsored by Mr. Gallegly and Mr. Peters, responds to the 
Stevens decision by specifically criminalizing only animal crush 
videos. The bill limits this new criminal offense to only obscene 
material. The Supreme Court has recognized Congress' authority to 
regulate obscene material as a category of unprotected speech under the 
First Amendment. The legislation also specifically omits customary and 
normal veterinary videos, and any depiction of slaughtering, hunting, 
trapping of animals for food. With this added safeguard for hunters, I 
support this legislation.
  The House of Representatives passed this bipartisan legislation by a 
vote of 416-3 on July 31 of this year. In September, the Senate 
approved a revised bill to expand the prohibition to include the 
creation and noncommercial distribution of animal crush videos, 
including those videos created overseas but distributed in the United 
States.
  Today we have the opportunity to send the bill to the President's 
desk and put an end to the revived animal crush industry. 
Unfortunately, this resolution does not do that; instead, it removes 
any culpability for those who attempt to make these videos and reduces 
penalty for coconspirators. By sending the bill back to the Senate 
today, we guarantee the animal crush legislation probably will not be 
completed by this Congress and that the animal crush market will 
continue to grow with little fear of prosecution. It is my hope this 
outstanding issue can be resolved quickly, however, so that our efforts 
to curb the proliferation of animal crush videos in this Congress will 
be successful.
  I reserve the balance of my time.
  Mr. CONYERS. I yield to our distinguished colleague from Oregon, Earl 
Blumenauer, for such time as he may consume.
  Mr. BLUMENAUER. Mr. Speaker, I appreciate the gentleman's courtesy in 
permitting me to speak on this bill, and I appreciate the expeditious 
work of the committee bringing this legislation forward.
  Mr. CONYERS. Will the gentleman yield?
  Mr. BLUMENAUER. I yield to the gentleman from Michigan.
  Mr. CONYERS. I just wanted to congratulate Judge Poe on his comments 
about the bill. I agree with him. But let's keep hope alive that the 
other body will not fail us at this moment with so few days left.
  Mr. BLUMENAUER. Reclaiming my time, I appreciate the opportunity to 
speak. I appreciate the quick turnaround. It is a little frustrating. I 
admire the persistence of our friend, Mr. Gallegly. It has been my 
pleasure to have worked with him for over a decade on this legislation. 
We thought we had it taken care of when it was woven into the farm bill 
of 2002. Unfortunately, as has been referenced, the Supreme Court 
decision earlier this year created a problem and brought the problem 
right back.
  It was a pleasure to join again with Mr. Gallegly, Mr. Peters, and 
Mr. Moran and others, as a broad bipartisan group introduced the 
legislation that same week in an attempt to narrow the scope of the ban 
and ensure that it met the First Amendment standards. I think we have 
reached the point where we have done that.
  I am a little frustrated, as I know people who care deeply about this 
legislation, that it seems to go back and forth on something where 
there is broad bipartisan awareness, agreement, and, certainly with the 
general public, that people ought not to profit out of torturing 
animals. This is, as is referenced, illegal virtually everywhere. It is 
disturbing in terms of what happens. And it isn't just issues of animal 
cruelty. Research has shown that the people who are involved with this 
despicable trade, both in terms of the dissemination and use of it, are 
much more likely to engage in other criminal acts.
  I am hopeful that at this point we might be able to bring this to a 
conclusion, to be able to pass this legislation to provide these 
protections, to get this out of the stream of commerce and be able to 
provide the protections that the public expects us to provide. We were 
given an opportunity from the Supreme Court to be able to narrowly 
craft a response. I think legislatively we have done that. I am hopeful 
that we can act expeditiously, passing this today and working with the 
Senate to make sure that it is enacted into law and we meet this 
objective.
  Mr. POE of Texas. I yield back the balance of my time.
  Mr. CONYERS. I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Conyers) that the House suspend the rules 
and agree to the resolution, H. Res. 1712.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the resolution was agreed to.
  A motion to reconsider was laid on the table.

                          ____________________