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Legislative Memo: An Act Prohibiting the Dissemination of Depictions of Animal Cruelty

This legislation would create a new Class D felony offense of disseminating a depiction of animal cruelty. The Supreme Court recently struck down on First Amendment grounds a federal statute designed to punish the kinds of conduct that would be prohibited by A.11161-B/S.7812-B in United States v. Stevens, No. 08-769, slip op. (2010).

While the legislation at hand is drawn more narrowly than the federal statute struck down in Stevens, we believe that the bill still would not pass constitutional muster. The Supreme Court clearly rejected the idea that the depiction of animal cruelty be added to a historically narrow list of categories of speech outside of the protection of the First Amendment.

Even so, we believe that banning the depiction of animal cruelty in the way that A.11161-B/S.7812-B attempts to do does not effectively reach the heart of the problem. If, as the sponsors explain in the memorandum supporting the bill, the state wants to stop the creation of “crush videos” and the animal cruelty involved in making them, it ought to create a more narrowly drawn statute that would strengthen the criminal law’s ability to reach the commissioning and creation of these films.

Banning the images themselves is precisely the type of government action that the First Amendment vigilantly guards against. As the court noted in Stevens:

The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. 1.

Because we believe that the bill would impose an unconstitutional restriction on speech, and because we believe that the sponsors can better accomplish the goal of preventing the kind of animal cruelty resulting from “crush videos” by strengthening existing penal code provisions to focus on the commissioning and creation of such videos, we oppose the bill and we urge members of the Assembly to vote against it.


At the outset, we acknowledge that we are not insensitive to the gruesomeness of the images that prompted the sponsors to introduce this legislation. “Crush videos” depicting the heartless and gratuitous murder of helpless animals are abhorrent and it is appropriate to use our penal laws to punish the actors engaged in staging and executing the actions filmed in such videos.

But as noble as the sponsors’ intentions are in attempting to reach this type of conduct through banning the images of the conduct, criminalizing speech in this way is a dangerous and impermissible violation of the First Amendment for the reasons explained below.

In its memorandum accompanying the bill, the sponsors acknowledge that the bill was designed to avoid the kind of overbreadth that caused the federal statute to be struck down by the Supreme Court. The New York bill, for example, limits the depiction of animal cruelty to those acts “that are illegal and depict a living animal that is tortured, maimed or mutilated.”

It also “provides an exemption for hunting videos as well as those videos which are of religious, political, scientific, educational, journalistic, historical, or artistic value.” (Sponsor’s Memorandum). As explained below, we believe that the sponsors’ narrowing of the prohibition on this type of speech is not sufficient to overcome the constitutional infirmity inherent in restricting depictions of animal abuse.

The Supreme Court has declined to add depictions of animal cruelty to the list of categories of speech outside the protection of the First Amendment

We begin our discussion of our opposition to A.11161-B/S.7812-B with an examination of the Supreme Court’s recent decision in Stevens striking down a federal statute similar to the one at issue here.

The case before the Court in Stevens was lodged by a purveyor of videos depicting dogfighting, an activity that is illegal in all 50 states and the District of Columbia, and prohibited by federal statute. The purveyor was convicted under the federal statute and sentenced to 37 months imprisonment followed by three years of supervision.

The Supreme Court began its analysis with the plain language of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech.” The Court then noted that “’as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”

Because the federal statute at issue in Stevens, like the proposed legislation at issue here, is a restriction on speech based on content, the Court held that the restriction is “presumptively invalid” and that the government bears the burden of rebutting that presumption.

After evaluating the governments arguments about the nature and danger of the depictions, the Court specifically declined to add depictions of cruelty to the narrow list of categories of speech, including obscenity, defamation, fraud, incitement and speech integral to criminal conduct that have been determined by the Court to be outside of the protections of the First Amendment.

The Government argued in Stevens that the “depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection.”

The Government proposed a balancing test for determining whether such speech can be restricted: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” The Court rejected the idea of adopting a balancing test and stated:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive ad hoc balancing of relative costs and benefits.

Stevens held that restrictions on speech related to animal cruelty must be evaluated using the traditional tools of constitutional analysis: the legislation must survive a test of strict scrutiny. The state must show that the bill advances a compelling government interest and that it does so in as narrow a way as possible.

The United States Congress got it wrong when it attempted to criminalize the broad category of depictions of acts of animal cruelty that are already criminalized under federal and state law, and the sponsors of the instant legislation follow down the same path. A.11161-B/S.7812-B is not drawn in a sufficiently narrow way to survive strict scrutiny analysis.

The bill is unconstitutionally overbroad

A notable departure to the strong protections of the First Amendment was occasioned by the Court’s decision on child pornography. The Court in New York v. Ferber, 458 U.S. 747 (1982) added depictions of child pornography to that class of speech unprotected by the First Amendment because, it determined, that type of expressive speech was integral to criminal conduct.

There, the court found persuasive the state’s argument that the advertising and sale of child pornography were “’intrinsically related to the sexual abuse of children,’ giving the speech at issue a ‘proximate link to the crime from which it came.’”

The Court declined to apply the same analysis to depictions of animal cruelty, however, leaving somewhat open the question as to whether restricting speech depicting animal cruelty like the one at issue here would survive constitutional scrutiny. It said:

Our decisions in [the child pornography case and others] cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.

But if so, there is no evidence that ‘depictions of animal cruelty’ is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.

The Court arguably left open the notion that the government may restrict speech that consists of depictions of illegal animal abuse if it finds that the speech sought to be prohibited is integral to criminal conduct.

If we were to accept that if speech has a “proximate link” with the commission of the criminal offense, then government restriction on this speech may be constitutionally permissible, this bill is still overbroad because the category of activities that it seeks to proscribe do not all (the majority may not) have the required nexus.

The “proximate link” theory is clear in the context of child pornography: Proponents of that argument hold that a child would not be used in a sexual performance but for the video camera. Under the same theory, a kitten would not be crushed to death by a woman in stiletto heels (a sparse description of what occurs in a “crush video”) but for the presence of a camera.

To be sure, horrific animal abuse, like horrific child abuse, will be committed by individuals not videotaping their activities for sale in the marketplace; and this legislation was not designed to remedy that type of “private” abuse. But to the extent that it is designed to get at those acts which would not be committed but for the existence of the camera, the legislation reaches much farther than that.

It extends, for example, to home videos of bullfighting during a family trip to Spain (bullfighting being illegal in New York, and many other states in the U.S.). While the state may assert that bullfighting would fall under one of the exceptions to the law (historical perhaps? artistic?) this begs the question of whether depictions of dogfighting should similarly be proscribed.

As gruesome as most of society finds dogfighting, there is little distinction between the brutality involved in dogfighting and that involved in bullfighting. And, perhaps more importantly, just as bullfighting would exist if the camera lights were turned off, so too would dog fighting continue. Just like bullfighting is an ancient pastime, so too is dogfighting, which can be traced back to as early as 43 A.D.

Notably, the majority of prosecutions under the federal statute had not been lodged against purveyors of crush videos. Rather, the majority of those charged under the statute were dealers in videos on dogfighting. And most importantly, dogfighting—the conduct before the court in Stevens—fell squarely within the category of speech about clearly illegal activity, just as it would under the legislation at hand. The Court could have chosen to declare that videos of dogfighting are the kind of speech that fall outside the protection of the First Amendment. It did not.


The dissent in Stevens seems to capture what the drafters of the New York legislation have in mind, that depictions of certain acts of animal cruelty, including dogfights, “have by definition no appreciable social value.” But as the majority in Stevens notes:

The dissent contends that hunting depictions must have serious value because hunting has serious value, in a way that dogfights presumably do not. . . . But [federal law] addresses the value of the depictions, not of the underlying activity. There is simply no adequate reading of the exceptions clause that results in the statute’s banning only the depictions the Government would like to ban.

The Court additionally noted that:

Most of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical or artistic value” (let alone serious value), but it is still sheltered from government regulation. Even “[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons.”

The protections of the First Amendment extend equally to political speech, to artistic speech, and, as the quote above suggests, “even wholly neutral futilities.” But the Amendment also protects the depiction of profoundly troubling images as well, and our disgust and sympathy as a society that have been brought to the fore in the context of “crush videos” cannot be reason to weaken this strong protection.

Therefore, we oppose this bill on three grounds: (1) it is a clear constitutional violation on its face in that depictions of animal cruelty do not fall within a category of speech undeserving of First Amendment protection; (2) it is overbroad in that it criminalizes a type of expressive speech that does not have the requisite proximate link to the underlying crime; and (3) because adopting the bill would truly invite costly litigation. We believe that the sponsors can adequately address the very real problem of the commissioning of animal abuse in order to create “crush videos” by strengthening existing provisions of our penal law, as suggested herein.

For these reasons, we urge the legislature to decline to adopt this bill.

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