[House Report 106-397]
[From the U.S. Government Publishing Office]
106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-397
======================================================================
PUNISHING DEPICTIONS OF ANIMAL CRUELTY
_______
October 19, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. McCollum, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1887]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1887) amending title 18, United States Code, to
punish the depiction of animal cruelty, having considered the
same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 2
Hearings................................................... 5
Committee Consideration.................................... 5
Vote of the Committee...................................... 6
Committee Oversight Findings............................... 6
Committee on Government Reform Findings.................... 6
New Budget Authority and Tax Expenditures.................. 7
Committee Cost Estimate.................................... 7
Constitutional Authority Statement......................... 7
Section-by-Section Analysis and Discussion................. 7
Agency Views............................................... 8
Changes in Existing Law Made by the Bill, as Reported...... 9
Dissenting Views........................................... 10
Additional Dissenting Views................................ 13
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. PUNISHMENT FOR DEPICTION OF ANIMAL CRUELTY.
(a) In General.--Chapter 3 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 48. Depiction of animal cruelty
``(a) Creation, Sale, or Possession.--Whoever knowingly creates,
sells, or possesses a depiction of animal cruelty with the intention of
placing that depiction in interstate or foreign commerce for commercial
gain, shall be fined under this title or imprisoned not more than 5
years, or both.
``(b) Exception.--Subsection (a) does not apply to any depiction
that has serious religious, political, scientific, educational,
journalistic, historical, or artistic value.
``(c) Definitions.--In this section--
``(1) the term `depiction of animal cruelty' means any
visual or auditory depiction, including any photograph, motion-
picture film, video recording, electronic image, or sound
recording of conduct in which a living animal is intentionally
maimed, mutilated, tortured, wounded, or killed, if such
conduct is illegal under Federal law or the law of the State in
which the creation, sale, or possession takes place, regardless
of whether the maiming, mutilation, torture, wounding, or
killing took place in the State; and
``(2) the term `State' means each of the several States,
the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, and any other commonwealth,
territory, or possession of the United States.''.
(b) Clerical Amendment.--The table of sections for such chapter is
amended by adding at the end the following:
``48. Depiction of animal cruelty.''.
Purpose and Summary
H.R. 1887 enacts a new section in title 18 of the United
States Code to make it a crime to create, sell, or possess any
visual depiction of animals being tortured with the intent to
place that depiction in interstate or foreign commerce for
commercial gain. Violations of the new statute would be
punishable by a fine or imprisonment for not more than 5 years,
or both.
Background and Need for the Legislation
At a hearing on the bill before the committee's
Subcommittee on Crime, a California State prosecutor and a
police officer described how they came to learn about a growing
market in videotapes and still photographs depicting insects
and small animals being slowly crushed to death. While most of
this material featured torture to mice, hamsters, and other
small animals, their investigation did find depictions of cats,
dogs, and even monkeys being tortured. Much of the material
featured women inflicting the torture with their bare feet or
while wearing high heeled shoes. In some video depictions, the
woman's voice can be heard talking to the animals in a kind of
dominatrix patter. The cries and squeals of the animals,
obviously in great pain, can also be heard in the videos.
The witnesses explained that, through their investigation
into the sale of these materials, they learned that these
depictions often appeal to persons with a very specific sexual
fetish who find them
sexually arousing or otherwise exciting. The materials were
commonly available through the Internet, and were almost
exclusively distributed for sale through interstate or foreign
commerce. Many Internet sites were blatant in offering to sell
these depictions, and some even advertised to make such
depictions to order, in whatever manner the customer wished to
see the animal tortured and killed.
The witnesses testified that the faces of the women
inflicting the torture in the material often were not shown,
nor could the location of the place where the cruelty was being
inflicted or the date of the activity be ascertained from the
depiction. As a result, defendants arrested for violating a
State cruelty to animals statute in connection with the
production and sale of these materials in that State often were
able to successfully assert as a defense that the State could
not prove its jurisdiction over the place where the act
occurred or that the actions depicted took place within the
time specified in the State statute of limitations. While all
States have some form of a cruelty to animal statues, none have
a statute that prohibits the sale of depictions of such
cruelty. Accordingly, according to the witnesses, only if the
person making these depictions were caught in the act (often
through some type of undercover operation) could the State's
laws be brought to bear on their actions, and then only for the
cruelty itself, not for the production and sale of the
depictions.
As Congress alone has the power to regulate interstate
commerce, it is appropriate for it to act to stop the trade in
these materials in interstate and foreign commerce that affect
the United States. This bill does that. It does not punish the
acts of cruelty themselves, rather it prohibits the creation,
sale, or possession of depictions of such cruelty with the
intent to place them into interstate or foreign commerce for
commercial gain. The intent to affect interstate or foreign
commerce is a key element of this new Federal crime. The
statute is intended to augment, not supplant, State animal
cruelty laws by addressing behavior that may be outside the
jurisdiction of the States, as a matter of law, and appears
often beyond the reach of their law enforcement officials, as a
practical matter.
The Government has an interest in regulating the treatment
of animals. All 50 States have enacted statutes that make it a
crime to inflict cruelty on animals. Congress has also
previously enacted laws to require the humane care and
treatment of animals.\1\ These legislative enactments evidence
society's desire to ensure that animals are treated humanely.
---------------------------------------------------------------------------
\1\ E.g., 7 U.S.C. Sec. 2131, et seq., requires the humane
handling, care, treatment, and transportation of animals held for sale
in interstate commerce, or which will be used in a Government or
private research facility; 7 U.S.C. Sec. 1902 requires that animals to
be slaughtered must be killed in a humane manner and even specifies
ways in which that can be accomplished in accord with the statute; 46
U.S.C. Sec. 3901 dictates the treatment of animals while they are being
transported by rail or common carrier in interstate or foreign
commerce.
---------------------------------------------------------------------------
Our society values animals for many purposes. Animals have
long been used, and valued, for their utility--whether as
sources of food or clothing, or as laborers. And animals are
often even more valued as providers of entertainment and even
companionship. For some time, the proper treatment of animals
has been debated. Cruelty to these animals is often the subject
of news reports garnering widespread public interest.
Organizations which work to improve the treatment of animals in
our society are active participants in political dialog. The
committee is of the view that the great majority of Americans
believe that all animals, even those used for mere utilitarian
purposes, should be treated in ways that do not cause them to
experience excessive physical pain or suffering. The committee
recognizes the widespread belief that animals, as living
things, are entitled to certain minimal standards of treatment
by humans. And so, it is proper for our nation's laws reflect
society's desire that animals be treated appropriately.
The committee also notes the increasing body of research
which suggests that humans who kill or abuse others often do so
as the culmination of a long pattern of abuse, which often
begins with the torture and killing of animals. When society
fails to prevent these persons from inflicting harm upon
animals as children, they may fail to learn respect for any
living being. If society fails to prevent adults from engaging
in this behavior, they may become so desensitized to the
suffering of these beings that they lose the ability to
empathize with the suffering of humans. In either case,
society's failure to require that living things be treated
appropriately may lead some people to be more likely to act
upon their desires to inflict harm upon those around them. In
short, society has an interest in preventing any disregard for
living animals. And so, the committee believes that society has
an interest in preventing its citizens from gaining access to
materials which may encourage a lack of respect for those
animals.
The committee believes that the statute to be enacted by
H.R. 1887 has been narrowly drawn to proscribe only a limited
class of material. The committee believes that this material,
as narrowly defined in the bill, has little or no social
utility. By the very terms of the statute, material depicting
cruelty to animals that has serious utility--whether it be
religious, political, scientific, educational, journalistic,
historic, or artistic--falls outside the reach of the statute.
While the exclusion described in the statute is expressed in
seven different categories, the committee believes that any
material depicting animal cruelty which society would find to
be of at least some minimal value, falls within one of these
broad, general categories.
Not all speech is entitled to the protection of the First
Amendment. As the Supreme Court has held, the First and
Fourteenth Amendments have never been treated as absolutes.
Miller v. California, 413 U.S. 15, 23 (1973) (citing Breard v.
Alexandria, 341 U.S. 622 (1951)). The question whether speech
is or is not protected by the First Amendment often depends on
the content of the speech. Young v. American Mini Theaters,
Inc., 427 U.S. 50, 66 (1976). The courts have upheld as
constitutional the Government's decision to prohibit the sale
of obscene material (Miller) and even the sale of non-obscene
material that depicts children in a pornographic way. New York
v. Ferber, 458 U.S. 747 (1982). In both instances, these
materials were found to lie outside of the protection of the
First Amendment. Even before these decisions, the Court held
that some speech, such as libelous material, was not protected
by the Constitution. See, Beauharnais v. Illinois, 343 U.S. 250
(1952). And since these decisions, the Court has continued to
acknowledge that other forms of speech also lie beyond the
protection of the First Amendment. See, e.g., R.A.V. v. City of
St. Paul, 505 U.S. 377, 388 (1992) (fighting words).
In each of these cases, the Government has imposed a
content-based restriction on the form of speech. As the Supreme
Court stated in Ferber, ``It is not rare that a content--based
classification of speech has been accepted because it may be
appropriately generalized that within the confines of the given
classification, the evil to be restricted so overwhelmingly
outweighs the expressive interest, if any, at stake, that no
process of case by case adjudication is required.'' Ferber, 458
U.S. 747, 763-64 (1982). And so the committee, in enacting new
section 48 is also enacting a content-based restriction on a
narrow class of speech as to which it believe no case by case
adjudication is required.
The committee believes that no reasonable person would find
any redeeming value in the material proscribed by the new
statute. Even attributing some minimal value to the material
for the sake of argument, the committee believes that the harm
from the continued commercial sale of the material so outweighs
any value of the material that it is appropriate to prohibit
the creation, sale, or the possession of such material in their
entirety, provided that the Government can prove that these
acts were done with the intent to place the material in
interstate or foreign commerce affecting the United States. The
committee believes that in the case of the material to which
this statute is addressed, the harm to be restricted so
outweighs the expressive interest, if any, at stake, that the
materials may be prohibited as a class.
The committee has drafted this statute carefully so that it
restricts content, but not viewpoint. Persons holding the view
that this type of behavior is acceptable are still free to use
any means of interstate commerce to express that view, to
discuss the benefits of this material in whatever way they
believe them to exist, and even to urge that this new statute
be repealed. The freedom to profess that viewpoint is
unaffected by this statute. What is restricted is the
commercial pandering of graphic depictions of the actual
torture of a real animal.
Hearings
The committee's Subcommittee on Crime held one day of
hearings on H.R. 1887 on September 30, 1999. Testimony was
received from three witnesses, representing two organizations,
with no additional material submitted for the record.
Testifying before the subcommittee were Loretta Swit, Actors
and Others for Animals; Tom Connor, Deputy Prosecutor, Ventura
County (CA) District Attorney's Office; and Susan Creede,
Investigator, Ventura County (CA) District Attorney's Office.
Committee Consideration
On October 7, 1999, the Subcommittee on Crime met in open
session and ordered favorably reported the bill H.R.1887, as
amended, by a vote of 8 to 2, a quorum being present. On
October 13, 1999, the committee met in open session and ordered
favorably reported the bill H.R. 1887 with an amendment by a
recorded vote of 22 to 4, a quorum being present.
Vote of the Committee
On the question of reporting the bill favorable to the
House, the recorded vote was as follows:
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. X .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Goodlatte................................................... X .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... .............. .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Rogan....................................................... .............. .............. ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. .............. ..............
Mr. Bachus...................................................... X .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... X .............. ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... X .............. ..............
Mr. Berman...................................................... X .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... .............. X ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. X ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... X .............. ..............
Mr. Rothman..................................................... X .............. ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... .............. .............. ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
-----------------------------------------------
Total....................................................... 22 4 ..............
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Committee Cost Estimate
At the time of filing this report, no cost estimate from
the Congressional Budget Office had been received. In
compliance with clause 3(d)(2) of rule XIII of the Rules of the
House of Representatives, the committee believes that H.R. 1887
would not result is any significant cost to the Federal
Government. The committee also estimates that any impact on
direct spending and receipts would not be significant.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, of the Constitution.
Section-by-Section Analysis and Discussion
Section 1. Punishment for Depiction of Animal Cruelty.
The bill consists of one section. That section enacts new
section 48 in chapter 3 of title 18 of the United States Code
(which deals with activities involving animals, birds, fish,
and plants). New section 48 prohibits the creation, sale, or
possession of a depiction of animal cruelty with the intention
of placing that depiction in interstate or foreign commerce for
commercial gain. The phrase ``depiction of animal cruelty'' is
defined in the bill to mean any visual or auditory depiction,
including any photograph, motion picture film, video recording,
electronic image, or sound record in which a living animal is
intentionally maimed, mutilated, tortured, wounded, or killed
if such conduct is illegal under Federal law or the law of the
State in which the creation, sale, possession takes place,
regardless of whether the maiming, mutilation, torture,
wounding, or killing took place in the State.''
The term ``animal'' as used in the statute should be given
its common, rather than scientific, meaning. It is not the
committee's intent that the term include, for example, insects,
invertebrates, crustaceans, or fishes. Further, to fall within
the reach of the statute, the depiction must be of a real
animal. Also, the statute does not apply to simulated
depictions of animal cruelty. Therefore, material in which
cruelty to a real animal is only simulated or which is
accomplished only through ``special effects'' processes is not
covered by the statute.
The new section punishes the creation of the material, the
sale of the material, or the possession of the material only if
such act was done with the intent of placing the it in
interstate or foreign commerce for commercial gain. The
Government need not prove that the material actually did move
in interstate commerce for the Government to prove a violation
of the statue. However, in such a case, it must prove that the
defendant had intended to place it in that stream of commerce
at some point in the future.
Similarly, the Government must also prove that the intent
of the defendant in creating, selling, or possessing the
material was, at least in part, for commercial gain. Thus, mere
possession of the material described in the statute by a person
for his or her own private use is not prohibited by the
statute. The Government need not prove that the defendant
actually profited financially from his or her actions, rather
only that the defendant's intent was, at least in part, to gain
financially from the material.
Further, in order to fall within the conduct prohibited by
new section 48, the conduct depicted must be illegal under
Federal law or the law of the State in which the creation,
sale, or possession takes place. Thus, depictions of ordinary
hunting and fishing activities do not fall within the scope of
the statute. The term sale is meant to include both the place
from which the seller sends it and the place where the buyer
receives it. Thus, if a person selling such a depiction in
interstate commerce sends the depiction from a State where the
conduct depicted, had it occurred in that State, would be
illegal, the act of placing the material into interstate
commerce violates the statute even if the act depicted might
not be prohibited by the law of the place to which the seller
sends it. Similarly, if the act depicted would violate the law
of the place in which the buyer is located, had it occurred
there, the seller violates the statute, even though the act
depicted might not be prohibited by the law of the State where
the seller was located at the time he or she sent the depiction
into interstate commerce.
The Government is not required to prove that the animal
cruelty depicted violated the law of the place where the
cruelty actually took place. The activity prohibited by this
bill is not the animal cruelty itself. Rather, the illegal
activity is the creation, sale, or possession of a depiction of
such cruelty with the intent to use interstate or foreign
commerce to distribute it for commercial gain. Accordingly, the
bill does not criminalize the mere possession of such
depictions for one's private use. Possession of the material is
only prohibited when coupled with the intent to transmit it in
interstate commerce for commercial gain. The Government bears
the burden of proving the defendant's intent.
The new section does not apply to the creation, sale, or
possession of a depiction of animal cruelty if the material has
serious religious, political, scientific, educational,
journalistic, historic, or artistic value. This exclusion is
designed to ensure that the creation, sale, and possession of
material with at least some value recognized by society is not
hampered by the statute. The defendant bears the burden of
proving the value of the material by a preponderance of the
evidence. Examples of material to which the statute does not
apply would include televison documentaries about Spain which
depict bullfighting or which show poachers killing elephants
for their tusks, Doris Day Animal League training materials on
the problem of cruelty to animals, and information packets sent
by animal rights organizations to community and political
leaders urging them to act to combat the problem of cruelty to
animals.
Agency Views
No agency views have been received with respect to the
bill, H.R. 1887.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
CHAPTER 3 OF TITLE 18, UNITED STATES CODE
CHAPTER 3--ANIMALS, BIRDS, FISH, AND PLANTS
Sec.
41. Hunting, fishing, trapping; disturbance or injury on wildlife
refuges.
* * * * * * *
48. Depiction of animal cruelty.
* * * * * * *
Sec. 48. Depiction of animal cruelty
(a) Creation, Sale, or Possession.--Whoever knowingly
creates, sells, or possesses a depiction of animal cruelty with
the intention of placing that depiction in interstate or
foreign commerce for commercial gain, shall be fined under this
title or imprisoned not more than 5 years, or both.
(b) Exception.--Subsection (a) does not apply to any
depiction that has serious religious, political, scientific,
educational, journalistic, historical, or artistic value.
(c) Definitions.--In this section--
(1) the term ``depiction of animal cruelty'' means
any visual or auditory depiction, including any
photograph, motion-picture film, video recording,
electronic image, or sound recording of conduct in
which a living animal is intentionally maimed,
mutilated, tortured, wounded, or killed, if such
conduct is illegal under Federal law or the law of the
State in which the creation, sale, or possession takes
place, regardless of whether the maiming, mutilation,
torture, wounding, or killing took place in the State;
and
(2) the term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Commonwealth of the Northern Mariana Islands, and
any other commonwealth, territory, or possession of the
United States.
Dissenting Views
H.R. 1887 makes it a crime to create or possess or sell a
film that depicts an act involving the intentional maiming,
mutilating, wounding or killing of an animal if it is an
illegal act in the jurisdiction in which such film is created,
possessed or sold. While most anyone would find such films
disturbing, ``the fact that society may find speech offensive
is not a sufficient reason for suppressing it.'' Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988). ``If there
is a bedrock principle underlying the First Amendment, it is
that the Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable.'' United States v. Eichman, 496 U.S. 310, 319
(1990).
All States already have some form of animal protection laws
which would likely prohibit the crushing of animals in the
manner depicted on the so-called ``crush video'' films.
Proponents of the bill argue that prohibiting dissemination of
``crush videos'' will have the effect of deterring the actual
act of crushing animals. However, films of animals being
crushed are communications about the acts depicted , not the
doing of the acts. Shooting, possessing or selling such films
are distinct from the act crushing an animal. These are
activities similar to ``cops on the beat'' shows using closed-
circuit films of actual robberies or other crimes in order to
compete for ratings and the advertising revenues these ratings
bring in. Communication through film is speech which is
protected by the First Amendment to the United States
Constitution
The Supreme Court has consistently refused to carve out new
exceptions to the First Amendment. Although one cannot yell
``fire'' in a crowded theater and one cannot traffic in child
pornography, speech has been restricted in very few instances.
Obscene speech is one type of speech that has been restricted
by law. However, to be declared obscene, material must meet
several tests. First, it has to appeal to a prurient, or
sexually unhealthy and degrading, interest. Second it has to
violate contemporary community standards, which are judged on a
State by State basis. And third, taken as a whole, it must be
utterly lacking in redeeming literary, artistic, political, or
scientific merit. While the videos to which H.R. 1887 would
apply include images of women's legs and high heeled shoes,
there are not any cases in which such exposure has been found
to be obscene.
Compelling Governmental Interest
Another way in which speech can be restricted is when there
is a compelling governmental interest in restricting the
speech. However, any such restriction must meet the ``strict
scrutiny'' test which requires that it is 1) necessary to serve
a compelling governmental interest, and 2) is narrowly drawn to
achieve that end. Arkansas Writers' Project, Inc. v. Ragland,
481 U.S. 221, 231 (1987); Simon & Schuster v. Crime Victims
Bd., 502 U.S. 105 (1991).
Although it is clear that governmental interests in
protecting human rights may be sufficiently compelling to
overcome fundamental rights (Arkansas Writer's Project and
Simon & Schuster, supra) the question posed by the bill is
whether protecting animal rights counterbalances a human's
fundamental rights. While the question has not been directly
addressed by the Supreme Court, it would seem from the Church
of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
(1993) case that the answer is ``no.''
In Church of Lukumi Babalu Aye, Inc., the City of Hialeah
enacted various ordinances to prevent cruelty to animals by
prohibiting animal sacrifices which form a part of the
Santerian religion. One of the asserted bases for the
ordinances was protection of animals. Although the District
Court found a compelling governmental interest, inter alia, in
protecting animals, the Supreme Court invalidated those
ordinances as infringements upon the First Amendment's Free
Exercise Clause. The court noted the problem of distinguishing
what is done to animals for food, clothing and pest control
from what was being done to them by the Santerians. Although
the Supreme court recognized the governmental interest in
protecting animals from cruelty, as against the constitutional
right of free exercise of religion the governmental interest
did not prevail. Therefore, it seems that, on balance, animal
rights do not supersede fundamental human rights. Here, while
Government can and does protect animals from acts of cruelty,
to make possession of films of such acts illegal would infringe
upon the free speech rights of those possessing the films. To
do so, the ``strict scrutiny'' test must be met.
Proponents of the bill argue protection of animals is a
compelling governmental interest. However, like the District
Court in City of Hialeah, the argument is advanced with little
cogent support. In general, ``compelling governmental
interest'' relies on some protection of a citizen's safety. The
closest citizen's safety argument made by proponents is to
suggest a correlation between serial killers and the indication
that they often begin by torturing animals. Yet, the suggestion
is that serial killers actually torture animals themselves. The
testimony at the hearing on this issue revealed that in animal
crush videos, the person seeking satisfaction is the person
watching the act or video, not the one crushing the animal. And
there is no indication that the person actually torturing the
animal did so for any motive other than getting paid.
Therefore, the serial killer analogy does not appear to be an
apt one for these videos and is too tenuous a connection to
meet the ``strict scrutiny'' test necessary to restrict a
fundamental human right.
Narrow tailoring to achieve the asserted interest.
Even if the bill were deemed to meet a compelling
governmental interest, it still fails the ``strict scrutiny''
test because it is not sufficiently narrowly tailored. Although
the bill is tailored to avoid some of the more obvious First
Amendment issues, it is not underinclusive. The proponents have
exempted purely personal creation, possession or distribution
of such videos. Making, possessing or distributing these videos
is only prohibited if it is for the purpose of selling (or
intending to sell) in interstate or foreign commerce for
commercial gain. The bill also exempts ``serious political,
scientific, educational, historical, religious, artistic, or
journalistic'' uses of any such films as legitimate purposes
for disseminating them. And the bill makes illegal depictions
that are not illegal where made if they are illegal in the
State where possessed. For example, bullfighting is illegal in
Virginia, so possessing or selling a film in Virginia which
depicts a bullfight in Spain would, it seems, violate the act.
In Simon & Schuster, the Court found some of the compelling
governmental interests asserted by the State to be valid, but
found the statute was not narrowly tailored to achieve only
those interests.
So, although H.R. 1887 is designed to achieve a worthy
goal, it fails to do so consistent with the First Amendment
requirements. Under the provisions of the First Amendment,
speech, including detestable speech, can be abridged only where
there is a compelling governmental reason to do so and the
abridgement is narrowly tailored. Accordingly, we dissent from
the report on H.R. 1887.
Robert C. ``Bobby'' Scott, M.C.
Melvin L. Watt.
Additional Dissenting Views
These views dissent from the Judiciary Report on H.R. 1887,
the ``Punish the Depiction of Animal Cruelty'' Act.
H.R. 1887 makes it a crime to create, sell or possess a
film that depicts an act involving animal cruelty. While such
acts are abhorrent, making this a priority for Federal law
enforcement is not the correct way to address it.
All States already have enacted laws addressing
pornography, as well as animal protection laws that would apply
to these ``crush videos.'' I believe we should leave this issue
to the States. If the citizens of a State want to change its
animal cruelty law to strengthen or broaden them to cover the
activities addressed by this proposed legislation, then it
should be left up to that State to enact such laws.
Additionally, there are Federal anti-pornography laws in
place that regulate the movement of pornography in interstate
commerce. The Federal Government, if it so chooses, can use
these laws to prosecute the offenders.
I believe it is a waste of time by this House to deal with
an issue such as this, that can already be prosecuted using
other methods. Moreover, the Department of Justice does not
need to waste its resources on such matters. It should,
instead, be focusing on enforcing existing laws, including, but
not limited to, involving violence, drugs, corruption, and
terrorism.
Although H.R. 1887 seeks to solve a societal problem, I do
not believe this is an area that needs additional Federal
legislation.
For these reasons, I respectfully, dissent from the report
on H.R. 1887.
Bob Barr, Member of Congress