[Congressional Record Volume 156, Number 152 (Friday, November 19, 2010)]
[Senate]
[Pages S8202-S8204]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               ANIMAL CRUSH VIDEO PROHIBITION ACT OF 2010

  Mr. REID. Mr. President, I ask that the Chair now lay before the 
Senate the House message to accompany H.R. 5566.
  The Presiding Officer laid before the Senate the following message 
from the House of Representatives:

                               H.R. 5566

       Resolved, That the House agree to the amendment of the 
     Senate to the bill (H.R. 5566) entitled ``An Act to amend 
     title 18, United States Code, to prohibit interstate commerce 
     in animal crush videos, and for other purposes.'', with the 
     following House amendment to Senate amendment:
       In lieu of the matter proposed to be inserted by the 
     amendment of 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.

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       (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--
       ``(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.

  Mr. REID. Mr. President, I ask unanimous consent that the Senate 
concur in the House amendment, the motion to reconsider be laid upon 
the table, and any statements relating to this matter be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, today, the Senate passed the Animal Crush 
Video Prohibition Act of 2010. I thank Senators Kyl, Merkley and Burr 
for their leadership on this important legislation, which bans the 
creation, sale and distribution of obscene animal crush videos. We 
worked together on a bipartisan basis to ensure that the bill 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.
  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.
  Several 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 bill was referred to the Senate Judiciary Committee for 
consideration. The version of the bill passed today reflects a 
carefully crafted compromise between the House and Senate that strikes 
the right balance between the first amendment and the needs of law 
enforcement, while adhering to the separation of powers enshrined in 
our Constitution.
  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 year, 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. Courts and juries play an important role in determining 
what is obscene, and I worked hard with Senator Sessions, and the bill 
sponsors, to make sure that the law passed today respects the role of 
both.
  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 animal cruelty is often committed in a clandestine manner 
that allows the perpetrators to remain anonymous. The nature of the 
videos 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 investigating the 
underlying conduct, today Congress has taken an important step towards 
combating the crimes of extreme animal cruelty that obscene animal 
crush videos 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 like the SPEECH Act, which protects American authors, 
journalists and publishers from foreign libel lawsuits that undermine 
the first amendment.
  Today's success demonstrates that Congress can work on a bipartisan 
basis to pass legislation that is the focus of many competing 
interests. I commend the coalition that worked hard, alongside the 
Humane Society and first amendment experts, to strike the proper 
balance between the needs of law enforcement and the first

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amendment, and I am pleased that, once the President signs this bill 
into law, obscene animal crush videos will no longer threaten animal 
welfare.

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