Tuesday, September 28, 2010

Why Would Congress Pass a Completely Useless Law?

By Mike Dorf

Last week I was a panelist on an ABA-sponsored "webinar" discussing last Term's "crush video" case, U.S. v. Stevens, and its aftermath.  My assigned task during the affirmative presentations was to describe the Supreme Court's First Amendment holding in the case, but during the Q&A, I raised the issue that has concerned me about the Stevens case since the Court first granted cert: Whether the law banning depictions of deviant animal cruelty was counter-productive to the wellbeing of non-human animals because it permits people who enjoy the fruits of animal suffering and death by eating and wearing them to feel as though they are better than people who derive sexual or other pleasure from observing photos and videos of such suffering and death.  (I have blogged about this issue before, and Sherry Colb wrote a FindLaw column on the topic.)  We had a lively and respectful exchange on the efficacy of the law at issue in Stevens and about animal welfare laws more generally.

Here I want to note another aspect of the webinar: Our discussion of the bill currently pending before Congress that would respond to Stevens  with a more narrowly drawn prohibition..  The Supreme Court in Stevens both declined to recognize "depictions of animal cruelty" as a new category of unprotected speech and held that the particular statute--18 U.S.C. sec. 48--was overbroad.  The Court left open the possibility that a statute forbidding only crush videos and depictions of illegal animal fighting might be constitutionally valid as surviving strict scrutiny.

After the introduction of a number of different bills, H.R. 5566 passed the House last month.  It forbids "animal crush videos" but not depictions of animal fighting.  The bill defines crush videos as follows:
the term ‘animal crush video’ means any obscene photograph, motion-picture film, video recording, or electronic image that depicts actual conduct in which one or more living animals is intentionally crushed, burned, drowned, suffocated, or impaled in a manner that would violate a criminal prohibition on cruelty to animals under Federal law or the law of the State in which the depiction is created, sold, distributed, or offered for sale or distribution.
Is that constitutionally valid?  Certainly.  Why?  Because it forbids nothing.  Why is that?  Because under 
Miller v. California, to qualify as obscenity, proscribed material must, among other things, "depict[] or describe[], in a patently offensive way, sexual conduct specifically defined by the applicable . . . law."  But H.R. 5566 does not define any sexual conduct.  The fact that some people are turned on by crush videos does not make crush videos into depictions or descriptions of "sexual conduct."  (If someone were turned on by pictures of kneecaps or videos of the Los Angeles Dodgers playing baseball, that wouldn't make the kneecap photos or the Dodgers videos depictions of sexual conduct either.)  So H.R. 5566 would only apply if a crush video ALSO happened to contain obscene sex acts.  But what would make the video proscribable would not be the animal torture but the sexual conduct as defined by some other statute.

To be sure, H.R. 5566 contains a "finding" that "Animal crush videos appeal to the prurient interest and are obscene."  But under Miller, appeal to the prurient interest isn't enough; the material must still be sexual in nature; and a congressional declaration that matter is obscene does not by itself satisfy Miller.  Thus, I conclude that H.R. 5566 would do literally nothing.

In a sense, the bill is a perfect metaphor for itself.   As noted above, I had feared that the version of the law struck down in Stevens was on the books largely for symbolic reasons.  By treating depictions of a tiny slice of cruelty to animals as the product of evil deviants, the law normalized the billions of cases of non-deviant cruelty.  H.R. 5566 perfects the fantastic dichotomy by singling out an even more despicable category of deviant cruelty to animals--cruelty that is so deviant it does not exist. 


Hashim said...

Why does "obscene" for purposes of statutory interpretation have to be the same as "obscene" for purposes of constitutional law? If the statute is constitutionally valid based on an extension of Ferber--regardless of whether the depictions are obscene under Miller--then there's no need to interpret the statutory term as co-extensive w/ the constitutional concept, and there's a good reason not to--namely, that it would render the statute a nullity. Indeed, given the statutory finding, there's a decent argument that the word "obscene" is superfluous.

Hashim said...

For purposes of completeness, I guess I should also have noted that the Miller term-of-art definition of obscene is narrower than the common understanding of the term, that crush videos (but not illegal animal fighting) would almost certainly fall w/in the common understanding of obscene, and that the canon in favor of construing statutory terms in light of terms-of-art is properly trumped by the presumption that Congress does not enact nullities.

Michael C. Dorf said...


That's a clever suggestion but one that I don't think the House had in mind. Earlier versions of the bill did not contain the limitation, which was added out of a concern that it would otherwise be unconstitutional. Now, if one wants to be a textualist about things, one can say that your reading nonetheless is the better one, and put aside the legislative history. But even aside from that point, competing with the canon that says a statute shouldn't be read to be a nullity here would be the canon of constitutional avoidance and the rule of lenity, each of which would argue for the narrower (albeit nullifying) reading of the law's coverage.

Sam Rickless said...

[Part 1 of 2]

Mike, my initial reaction to your post was the same as Hashim's. Just to amplify his point, the OED defines "obscene" as having one of two meanings: "offensively or grossly indecent, lewd" or "offending against moral principles, repugnant; repulsive, foul, loathsome". So, as you say, a textualist would have no problem construing this statute as other than a nullity. But even if we take account of more than the typical textualist would allow, namely the "statement of findings", there are reasons to read "obscene" as meaning something other than what Miller uses it to mean. It is reasonable to treat the "finding" stating that "animal crush videos appeal to the prurient interest and are obscene" as providing a *definition* of "obscene" for purposes of the statute. Congress is telling us what it means by "obscene" in this particular context, namely "appealing to the prurient interest". And "prurient" doesn't have a technical constitutional meaning. It simply means "characterized by an inappropriate or excessive concern with sexual matters". The "finding" in this case is that animal crush videos are typically purchased and viewed by people who take a prurient interest in them in this sense. They are therefore, in a loose but perfectly normal sense, "sexual in nature" even though they do not involve the depiction or description of sexual activity.

But things are a bit more complicated than this. I'm not sure whether the rule of lenity applies here, but I want to elaborate on your point about the rule of constitutional avoidance (or something in the ballpark). The question here is whether the statute conflicts with Miller, and there is at least some reason to think that it does, even if the word "obscene" is understood in its ordinary sense.

The interesting thing about Miller is that it bypasses the question of *meaning* altogether. Here we need a distinction with which philosophers of language are familiar, the distinction between meaning and extension. A word has a meaning (what a competent speaker understands) and an extension (the set of things to which the word applies, given its meaning). For example, "cruel" means something like "causing excessive and gratuitous pain" and its extension includes activities such as waterboarding, drawing-and-quartering, nail-pulling, and so on. These activities are not part of the *meaning* of "cruel", they are part of the *extension* of cruel.

Sam Rickless said...

[Part 2 of 2]

How does this apply to Miller? Well, Miller speaks of obscenity regulation generally, that is, statutes "designed to regulate obscene materials". The Court then states: "We now confine the permissible scope of such regulation to works which depict or describe sexual conduct." It then includes this restriction as one of the "basic guidelines for the trier of fact".

Read carefully, Miller is saying that, when triers of fact consider how to apply obscenity regulations, the *extension* of the word "obscene" is to be treated (by stipulation!) as including "works which depict or describe sexual conduct". Miller is therefore not telling us what the word "obscene" *means*, but what its *extension* is to be taken as including.

Returning to HR 5566, it therefore doesn't matter what Congress takes the word "obscene" to *mean*. So even if the finding of fact includes an implicit definition of "obscene", this does not enable the bill to avoid conflict with Miller. For Miller says that any "obscenity regulation" is to be treated as applying only to depictions or descriptions of sexual conduct. The moral of Miller is that it's the extension of "obscene" that counts, not its meaning. Or so it seems.

I did say that the situation is complicated. I think it is, because I don't think this is the end of the story. A further question is whether HR 5566 counts as an "obscenity regulation", that is "a statute designed to regulate obscene materials". If it is, then Miller applies. If it isn't, then Miller doesn't apply. Now, interestingly, HR 5566 is an amendment to Title 18, Part 1, Chapter 3, which concerns crimes relating to "Animals, Birds, Fish, and Plants". But Title 18, Part 1 (Crimes) explicitly includes a Chapter on "Obscenity" (Chapter 71), section 1466 of which regulates interstate commerce in obscene materials. So why is HR 5566 not an amendment to Chapter 71? Answer: because it is not an obscenity regulation. By placing it in Chapter 3, Congress is telling us that the bill is not designed to regulate interstate commerce in obscene materials relating to depictions of animal cruelty. Instead, the bill is designed to regulate interstate commerce in depictions of animal cruelty that count as obscene under the ordinary definition relating to prurient interests. Arguably, then, there is no conflict with Miller.

Hashim said...

Especially after FAIR v. Rumsfeld, I don't think a narrowing construction that literally nullifies the statute has any real chance of succeeding. The interpretation proffered by the Harvard amici was much more reasonable, and the unanimous Ct still gave it the back of their hand because it would essentially nullify the principal object of the Solomon Amendment.

As for your statutory history point, even if one were inclined to give obscene *some* weight, I still don't think that requires equating it w/ Miller's term of art if that would nullify the statute. Employing a colloquial understanding of obscene that covers most (but not all) animal crush films would still serve a constitutional narrowing function w/o nullifying the statute.

In any event, even if such a middle-ground interpretation of obscene is unavailable--and I admit I'm hard-pressed to think of non-obscene animal crush films under any definition--I ultimately remain unpersuaded that a court should interpret a statute to be a nullity, especially if the statute is actually constitutionally when construed more broadly.

Sam Rickless said...

Just a small addendum. When I say that there are reasons for thinking that HR 5566 conflicts with Miller, I just mean that there are reasons for thinking that Miller renders HR 5566 a nullity. I hope this doesn't cause confusion.

AF said...

I agree with Hashim and Sam that the statute, if enacted as quoted by Professor Dorf, would be unlikely to be construed as prohibiting nothing.

However, I think the inclusion of the word "obscene" is not only superfluous, as Hashim says, but potentially counterproductive from the point of view of the statute's ability to survive First Amendment challenge. Clearly, as Professor Dorf points out, the statute criminalizes activity that falls outside Miller's definition of obscenity. But by using the word "obscene," the drafters of the statute are practically asking courts to analyze the constitutionality of the statute under the obscenity line of cases. Under these cases, the statute likely fails.

It would make more sense to omit the word "obscene" and hope that the statute will be upheld under Ferber (or under an expansion of the obscenity doctrine, which the government can certainly rely on in defending the statute whether or not it uses the word).

cetude said...

You are a disgusting piece of human excrement if you don't find these animal torture videos as obscene. I bet you never seen one. I have. It's the worst thing ever, and it's sickening that you all approve of perverts downloading this to masturbate, and even children have access to these videos. You all are a bunch of sick puppies.

cetude said...

While you all nit pick the letter of the law, you have no idea of the sociological damage these video causes:
HR 5566 (Prohibition of animal torture crush videos) for economic and *public safety*:

--These crush torture animal videos WILL teach our young to become violent criminals, is linked to conduct and personality disorders, due to the fascination with animal torture.
--The USA also has the highest total documented prison and jail population in the world. In 2006, $68,747,203,000 was spent on corrections. (Florida alone spends $2.5 billion a year on State prison). States spend an estimated 7 percent of their budget on corrections. The cost of medical care for inmates is growing by 10 percent annually.

Isn't our USA prison population high and costly enough? Why are these disgusting animal torture videos considered free speech when it compromises our public safety? Don't we citizens have a right to a safer society? - what about our rights?


"One of the most dangerous things that can happen to a child is to kill or torture an animal and get away with it," Margaret Meade, Anthropologist.