Revised “Animal Crush Video” Statute Does Not Facially Violate First Amendment because “Obscene” Element Incorporates Miller Definition

United States v. Richards, No. 13-20265 (Wiener, Haynes, Higginson)

Richards and Justice were charged with five counts of violating the revised 18 U.S.C. § 48.  In response to United States v. Stevens in which the Supreme Court struck down 18 U.S.C. § 48 (1999), “Congress revised § 48 to make it crime to knowingly create, sell, market, advertise, exchange, or distribute an “animal crush video” that (1) depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and (2) is obscene.”

Richards and Justice did not challenge the statute as overbroad, but they filed a motion to dismiss on the grounds that § 48 is facially invalid under the First Amendment because it proscribes speech that is not within an unprotected category and is not narrowly tailored to serve a compelling government interest.  The district court dismissed those five counts, and the Government timely appealed. 

Since obscenity is one of the areas in which the First Amendment permits restrictions, the first issue is whether § 48 is limited to obscene speech.  Section 48 does not define “obscene,” but courts have held that the Miller v. California, 413 U.S. 15 (1973), definition of “obscene” is incorporated into such federal statutes that use but do not define the term.  Miller provides the trier of fact the following guidelines for determining obscenity:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24.

Richards and Justice argue that Congress did not intend to use the Miller definition of “obscene” because Congress did not intend § 48 obscenity to require depiction of sexual conduct.  The panel finds that the legislative history does not clearly exclude sexual conduct from the definition of obscene.  “[Section] 48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech.”  Presumably this leaves to the prosecutor to prove that the animal crush videos meet the Miller definition of obscenity by depicting sexual conduct or at least unusually deviant acts.

The panel also disagrees with Richards and Justice’s second argument that, even limited to Miller obscenity, § 48 is facially unconstitutional because it proscribes only a narrow category of obscenity based on its content.  The panel finds § 48 is content-neutral because it targets the secondary effects of speech (promotion of antisocial and violent behavior) and is reasonably and narrowly tailored.