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.