[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

                                

