please the court philip gallagher for brant justice the issue before the court is whether the three videos at issue four counts of the conviction in this matter are obscene and specifically whether they include depictions patently offensive depictions of sexual conduct they are not obscene because they do not to the videos do not contain depictions of sexual conduct in the other video while it does contain conduct which is included a sexual  miller backed away from that same day the court announced in twelve twenty reels of film that it would use those examples to remedy vagueness and federal laws that did not define obscenity or lewdness and then it in fact applied that the next year and hammering to another federal statute which did not define obscenity or littleness and then this court of course did the same in vivus shortly after miller to again applying that list of examples for miller to remedy what would otherwise be a  be graphic here but you can there's no other way to look at it she is masturbating with a chicken why is that not patently offensive sexual conduct i disagree that what's going on and you're right that masturbation would be included i don't dispute that i disagree that that's what's happening in that video on or i think the government's general if there is a factual dispute of what somebody could perceive that to be wouldn't that be a fact finding we defer to the district court not no no i agree with the district court on simulating that she's enjoying that that's masturbation so i don't understand how you can say that's not sexual conduct and well first you question the standard of review no i don't think you defer to the district court on this i think greg stale and other decisions made clear that this court exercise independent judgment as to whether something is obscene i doubt my independent judgment she's masturbating and then as far as how can you what would what would dissuade me from that i get i mean i have two colleagues or they may have a different view but i'm speaking for myself tell me what would dissuade me from that i think the lack of nudity displays i think the i mean frankly i think the way the government describes it as her moaning and writhing in a sexually suggestive manner  all sexually clad is correct i mean is frankly more akin to a provocative dancing with the chicken than it is masturbation it is clearly sexual charged i don't dispute that obviously we've conceded throughout the disappearance the period interest and so does the conduct you're specifically referring to there but no i do what actually is happening in the part of that video you're referring to your honor's not masturbation it's not simulated masturbation it is simulated sexual dancing provoke bracy dancing provocative dancing however you want  around and see the top came down and she pulls it back up that's your description that is actually what happened and the list of examples what counts of sexual conduct is lewd acts vision of the genitals not just topless nudity which other states have done that  would agree that's all that happened is she danced around it and her breasts were exposed that would be you know but isn't that part of the context of when we're looking at the whole video if you want us to do whether it's sexual no i well i think it's i mean there's context and that obviously that is why we're conceding experience but as far as it is the sexual and i think greg still makes this clear ragsdale in determining whether or not the works at issue in that case were obscene for  doesn't come into the equation because it's not sexual content in the first place based on the definition provided by the court to miller and subsequent cases so i'm sad i know we disagree on this but i'm suggesting there's no sexual content video i understand you disagree your honor but then we're looking at whether the sexual conduct that what you're simply referring to a simulated masturbation then the question becomes does is that patently offensive and so and frankly that i agree with you that is longer than some of the other conduct we've talked and some of these other videos that i'll talk about so that the subsequent statement that's how you sorry again but that's how you fuckin pussy which comes i do want to point out that comes four minutes after that is also interspersed with much other graphic violence which non sexual between them including chopping off other limbs and cat and so that comes after all that and says referring to this whole context not just that instance that incense itself is about forty seconds long it's relatively brief she's not saying sexual things at that point that again much later i don't think that i think again that is much more can do the stabbing that's happening throughout that video of other parts of the cat that is a simulated sexual and just this is it's hard because you have to kind of conviction matters i'm not taking that lightly at all but if we were to reverse to in a firm count for example there would be nothing more to do except direct the district court to do that there wouldn't be any special assessment or there would be no need ok there would that would be one thing that there would be no need for a recent saying on that's right because sometimes there's an issue that affected the other sense or whatever but that's behind us right i get exactly he's done with the prison sentence so i guess right i couldn't go in and argue to give him a lower sentence because of the meaningless ok and you mentioned the state courts and what is the status of that that's going to be as clear as i can it's a little complicated because it's not final as of about two weeks ago the court of appeals hel we talk about those two videos the and i think the one frankly the one that's easiest is the black glove sample if you there's no sexual caught that one there's and again maybe i may find have a disagreement or change on this one but there does there's no sexual conduct in that video it is a woman dressed provocatively who talks provocatively to a dog and then stabs it and cuts at it but there's no masturbation there's no nudity there's no nothing of that that again nothing that's all  address this i have i think the government will argue i can avoid the specifics but my understanding their argument is that the miller lists of examples is not exhaustive i think that misunderstands what happens in both miller and the later cases it's not exhaustive as to what legislatures are permitted to do in the courts make that very clear but miller in every case after that it's made clear that when regulating obscenity legislatures or courts must be specific and so that's been remedied because of the absence of congressional legislation this morning obscenity by courts implying the list for miller into that but to be clear is if and i realize we disagree on this but if we were to conclude that  by miller so the court doing that would not be an expansion again so we would have to reach the question of the miller expansion if my statements about those videos were accepted by the pale i believe that yes i believe that's right and if you found those patently offensive which again i have disagreement i won't risk i won't go back into that and here are the questions your honor so i think the only reason not to get into that is if the court found something that was sexual conduct in the black glove sample video which i do not see in it so that i can address that on  may please the court john pelan terry from the department of justice on behalf of the united states i'll go directly to what has been referred to as the weakest part of the government's case and that's the black blood sample video now the statute here s forty eight uses the term obscene i've seen is a term of art and it carries with it the definition as set forth in miller and miller has the support be which requires a depiction or description of sexual conduct that is patently offensive now the miller decision in numerate some examples of what can be sexual conduct that prescribe or the depictions of which are  proscribed or may be proscribed but that list is not exhaustive it's suggestive and when a when a legislature either the federal congress or state legislature uses the term obscene that term of art incorporates the miller standard and that non exhaustive list so the type of sexual conduct that can be prescribed extends beyond the specific examples of miller's regardless of the specific examples what is actual about this video i mean i watched it's horrible in terms of animal cruelty i don't think anybody disputes that but what is sexual well this is violence toward an animal that a certain segment of the population finds sexually arousing and it's intended of material that can be prescribed as obscene and has to appeal to the prairie and interest in sex it has to be not only sexual depiction of sexual conduct but also patently offensive and then it has to be lacking in social value so all those narrow it do there have to be something actual in the video if somebody walked in and in a white suit and just started carving up an animal and somebody else was aroused by that would then make that obscene it would that make that sexual conduct just because someone's aroused by something is that sexual conduct or just a back up the the supreme court has made clear that conduct that would not be obviously sexual to any average viewer can be sexual conduct under the the miller standard so for example sadomasochism that you know is violence between that is violent conduct that's intended to be sexually arousing to a certain segment of the population can be sexual conduct it does not have to be typical from things that the average person when viewing could be it would understand it to be sexual conduct so there's been an why do we need support to it all i mean why wouldn't just any video in which animals are mistreated that someone might find arousing that's good enough and your test seems much broader than what we i was on the prior panel as you may recall that's correct i mean i don't think it's the standard as anyone might find sexual arising we have to provide evidence that this material is sexually arousing to a segment of the population and that the conduct in the video was in and you can look to the context that supreme court has made clear  handling decision that you can look to the context of it's how it's distributed what it's intended use is for so for example if you know if you have a photograph that's included in a a a  world sexual thing because somebody might be turned on by this section of an animal now it becomes a violation of section forty it may if the larger evidence distributing because i'm not sure creation the person who created it for the lab would have the right requisite mens rea a but i would have to review the statute but to be clear it has to be patently offensive your honor so i think that you're highly and you know highly unlikely to have satisfy the type of conduct toward an animal that is under subsection a but for the obscenity provision of subsection b it has to be a patently offensive depiction of sexual conduct it also has so it would have to be contravened social norms about the description or depiction of sexual conduct and i think it would also have to have no social value so here even though it you know it does have social value even though when you know pandered to other people it's in a different context so i think that i just want to be clear that are prosecuted because you seem to have so many other things you could prosecute so i don't understand why you went after that because you're really struggling to make a case here i mean you may prevail but well i think your honor that  t this very well may be i can't speak to the charging decision but i do think that this in some respects is very typical of animal crush videos where you have a scantily clad woman who is kind of speaking in a provocative manner toward an animal and then physically aggressively physically abusing it and that is what congress intended to get at when these types of physical abuse of animals are produced because there are certain people who find it sexually arousing and to be clear i just want to go over why this statute is so narrow it number one it defines certain type of physical conduct under some subsection a number two that physical conduct must be obscene and again we've been talking about the sexual conduct the definition of the obscenity standard but there's much more than that that limits the the universe of what is obscene it has to be appealed to the prairie and interest in sex it has to be patently offensive mean it meaning it contravenes social norms about how the description of their depiction of sexual conduct and it also has that lacks social value so all that's under that subsection b and then in addition there's a exceptions where it does not apply to visual depictions of normal veterinary or agricultural husbandry practices the slaughter of animals for food or hunting trapping or fishing so this is a very narrow statute and the reason why this is a type of sexual conduct that falls under the miller definition even though it is not enumerated as one of the examples in the miller decision if you look at the lord versus illinois case in that case the illinois  legislature passed a law that proscribed obscenity it did not define the type of sexual conduct that it reached the but the illinois supreme court said that the statute encompasses by reference subsection b the sexual conduct provision of the miller standard now the supreme court said basically that means that the illinois supreme court did the same exact thing that we did in hamlin which is meaning which means that we basically comp incorporated by reference the miller definition into the statute that's what the supreme court did for federal obscenity statutes in handling and that's what the illinois supreme court did in ward versus illinois and then the supreme court said ok well here the miller definition is not limited to those specifically enumerated examples in the miller decision which is ultimate sex acts masturbation excretory functions and  d there's a fourth which i can't recall but it's not part of those it's extends beyond those four examples and specifically said you know of course reaches the type of material that we did that the supreme court discussed in michigan which is sadomasochism even though it is not enumerated under them in the miller examples so when the statute uses the term of seen when it incorporates animal crush videos are effectively one form of sado masochism it's the infliction of violence that is some people find sexually arousing now in the large majority of sadomasochistic met material is infliction of pain on a human being but an animal crush videos it is the infliction of pain on an animal and that's why it falls under the miller definition that's what congress intended and to be clear  we had to examine the question of facial unconstitutionality and too broad a definition which are now arguing for would have made it actually unconstitutional so we stand imported what you're now saying is a narrow definition but arguing as  broad the miller standard and the miller standard require sexual conduct and you know to some degree almost anything could be sexual if somebody is perception is that you know if i smile at someone someone could perceive that is flirtatious when i just meant to be friendly so i mean life is full of that kind of misapprehension so the notion is that sexual conduct is anything that could appeal to someone you know that's a super broad and i just don't think about the broader reaches of whether smiling or things of that sort can be sexual conduct because here we're talking about physically abusive conduct which is effect effectively a form of sadomasochism which the supreme court has held is sexual conduct under the miller i mean so if you're abusing an animal in any way that's sadomasochistic under your definition so you don't really need be you don't need the obscene part because it doesn't add anything to it it can't have a video abusing animals well it has quite a lot because  the first provision describes the type of actual physical conduct that has to be depicted and then the second obscenity requires a number of requirements one of which is it has to appeal to the interest in sex it has to be it has to be patently offensive right and it has to be sexual conduct in that it appeals to someone's sexual interest yes and it also has to lack social value so all of those are very very narrowing principles that mean just because there's abuse to an animal does not mean that that is that that qualifies under the statute the abuse of the animal itself the sexual conduct you wouldn't need the extra element of having to go to part b would have three elements and one of them is to pick sexual conduct because your argument is abusing an animal is the sexual conduct we have to show in the specific case that is sexual conduct not we're not saying that every abuse toward an animal is sexual conduct or tha we have to show that this abuse toward an animal is sexually arousing to some sexual interest to some segment of the population that's our burden of proof we have to show that we didn't this case we show that these videos were produced specifically for individuals who were purchasing them for their own sexual gratification they were marketed online on a triple x fetish website for people who find them sexually gratifying we have salish our burden of proving beyond a reasonable doubt that these to the extent to establish is demonstrated to show depicts conduct is going to be many times oftentimes sexual conduct but it also has to be patently offensive that is the really the main kind of work that is being done by that subsection b and of course it also has the lack social well you all of these are very limiting factors which makes it a very narrow statute now the the the the  evidence in this case i believe as we've shown establishes that this is that this was conduct that this that was intended to and did appeal to the sexual interests of certain individuals and there's no dispute about the pertinent interest and the social value  standards we congress passed a narrow statute which it was focused on this type of conduct which is abusive conduct that's appeals to the sexual interests of individuals it's a narrow that congress intended to reach and the the the conduct and the depictions that are what will congress determined was a robust market in these types of materials which are violence toward animals that are sexually arousing to particular that actually has a significant impact on dealing with crush videos and maybe other things i mean is that you really are pushing pretty hard on this in in in a video that has no obvious sexual content face have what most people would consider sexual content conduct but because it appeals to pure yet sexually arousing interest to certain people this statute is being used to pursue though i haven't done a survey of all of the kind of material that congress looked at and wanted to reach in this but my understanding is that many of the materials that congress looked at when it was deciding and that it wanted to pass this statute after the former statute was invalidated as overbroad stevens were women who were scantily clad crushing small animals and vi and being physically abusive toward animals and then as far as i understand there may not have been a saddam is ation of the animal there may not have been since simulated masturbation and congress intended to reach those materials because it understood sexual conduct to include conduct that is not obviously sexual to the average person's questions  but the position i'm representing is based on my understanding of all congress wanted to reach an intended to reach and what was part of the robust market that congress saw at the time that that developed after stevens was invalidated congress two points just want to star's relative importance of a ruling on black blood samples to govern efforts obviously i think mr proletariat have a better view of the national scope of prosecutions i've tried to keep track of these since i argued the previous case for this court several years ago i'm only aware of one other prosecution involving animal crush videos of the past couple years i'm certainly not aware of any in this district which is quite a large district i'm certainly not aware of any cases that have gone to all manner of course videos of any kind not kinds of distinctions we're making here between two of  and the third correct so it's very hard to imagine how this would hamper such rare prosecution said frank the now ruling that it seems like the court that the court is contemplating the effects of such an awful industry i would  again i'm i'm i know what i'm saying is anecdotal but i have tried to keep track of it and it just does not seem to be many cases on this and in the court and i've tried to keep track of reported appellate decisions really to this too and i just simply haven't found any and frank i mean i think frankly this case gives an example of why that might be despite concerns about people who do these things as scaping state prosecution it certainly didn't happen in this case both codefendant both mr justice and ms richards were prosecuted in state court and for reasons that i think the state likely made charging decisions are wrong as they based on where it thought it could go with the single count as we know there was more than one video here they probably could have brought additional counts there too and they chose not to be they had they thought they could get fifty years s balance means suggest that was wrong but in the future they'll have more higher anecdotal whorl are the states doing this and then the feds are staying out of it is that what you're saying well i certainly know the state's a prosecuting animal cruelty but again there i have and whether or not several reasons one i think as judgments that are suggested perhaps that it's in tension with the government's previous position too it's also frankly flatly contrary to the requirement of miller and other federal cases that sexual conduct be specifically defined by courts or statute and now the government saying what we can imply the things what happened in the ward the illinois case is the state there had specifically defined domestic masochistic conduct as sexual conduct and the supreme court held that was permissible but again that step simply hasn't happened here court the mill the court has been clear repeatedly that the miller list allows legislatures to do to include additional sexual conduct but it must be specifically done in regulating this kind of first amendment and regulating first woman activity it must be done with specificity the courts never backed away from this and allowing other conduct to be included swept in by implication this is i think obvious but i think the governor's sweeping in again reading out the second problem by saying well it's made for sexual purposes and therefore it's actual but again that reads out and the  miller which does more than just say it must be patently offensive and must be specifically defined and that's required by fair notice and due process in the courts never backed away from that so this should be limited and i understand it and so certainly black love sample for the reasons we discuss