UNITED STATES v. STEVENS: THE SUPREME 

COURT’S DECISION INVALIDATING THE CRUSH 

VIDEO STATUTE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MAY 26, 2010 

Serial No. 111–129 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

UNITED STATES v. STEVENS: THE SUPREME COURT’S DECISION 

INVALIDATING THE CRUSH VIDEO STATUTE 

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56–641 PDF 2010

UNITED STATES v. STEVENS: THE SUPREME 

COURT’S DECISION INVALIDATING THE CRUSH 

VIDEO STATUTE 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

MAY 26, 2010 

Serial No. 111–129 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

MIKE QUIGLEY, Illinois 

TED DEUTCH, Florida 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

MAY 26, 2010 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 2 

WITNESSES 

The Honorable Gary C. Peters, a Representative in Congress from the State 

of Michigan 

Oral Testimony ..................................................................................................... 3 

Prepared Statement ............................................................................................. 6 

The Honorable Elton Gallegly, a Representative in Congress from the State 

of California 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 18 

Mr. Stephen I. Vladeck, Professor, American University Washington College 

of Law, Washington, DC 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 32 

Mr. Nathaniel Persily, Professor, Columbia University School of Law, New 

York, NY 

Oral Testimony ..................................................................................................... 39 

Prepared Statement ............................................................................................. 41 

Mr. J. Scott Ballenger, Partner, Latham & Watkins, Washington, DC 

Oral Testimony ..................................................................................................... 48 

Prepared Statement ............................................................................................. 50 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 79 

(1) 

UNITED STATES v. STEVENS: THE SUPREME 

COURT’S DECISION INVALIDATING THE 

CRUSH VIDEO STATUTE 

WEDNESDAY, MAY 26, 2010 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10 a.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Jackson Lee, Cohen, Quigley, 

Deutch, Gohmert, Poe and Lungren. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Jesselyn McCurdy, Counsel; Joe Graupensperger, Counsel; Aaron Hiller, Counsel; (Minority) Caroline Lynch, Counsel; and 

Kelsey Whitlock, Minority Staff Assistant. 

Mr. SCOTT. The Subcommittee will now come to order. I am 

pleased to welcome you today to this hearing before the Subcommittee on Crime, Terrorism, and Homeland Security about the 

Supreme Court’s recent decision in United States v. Stevens. 

In the late 1990’s, Congress was made aware of a growing market for videotapes and still photographs depicting typically small 

animals being slowly crushed to death. These depictions are commonly referred to as crush videos. Much of the material features 

women inflicting torture with their bare feet or while wearing highheel shoes. The depictions often appeal to people with a very specific sexual fetish who find them sexually arousing. 

Even in States where harming the animal in such ways itself violated State laws prohibiting cruelty to animals, prosecutors still 

had difficulty obtaining convictions for animal cruelty. For instance, the faces of individuals inflicting the torture often were not 

shown in the videos, and the locations, times and dates of the acts 

could not be ascertained from the depictions themselves. Defendants were therefore able to successfully assert as a defense that the 

State could not prove its jurisdiction over the place where the acts 

occurred or that the actions took place within the statute of limitations. 

Because it is hard to find the perpetrators of the underlying acts 

of cruelty to animals, it is also difficult to obtain convictions. Congress adopted and the President signed a new law prohibiting the 

2 

creation, sale and possession of the depictions of such acts. The 

new law was codified in section 48 of title 18 in the U.S. Code. 

In 2005, Robert Stevens was convicted of three counts of violating this law because he sold videos of pitbulls engaging in 

dogfights and attacking other animals. On appeal, the Third Circuit Court of Appeals declared the law facially unconstitutional and 

vacated the conviction. The Supreme Court granted cert and heard 

oral arguments in 2009 and rendered its decision on April 20, 2010. 

The Court upheld the decision, invalidated the statute and stated 

that it was overbroad and violated the Constitution’s First Amendment. 

The Subcommittee is holding a hearing today to hear from those 

who have analyzed the Court’s decisions and to discuss with them 

the implications of the decision for any future action by Congress 

in this area. Today we will have two panels of witnesses who will 

address the issue. One will be the gentleman from California, Representative Elton Gallegly, and the gentleman from Michigan, Gary 

Peters, both of whom have introduced legislation on this issue. 

But before we proceed with their testimony, it is my pleasure to 

recognize the Ranking Member of the Subcommittee, the gentleman from Texas, Judge Gohmert. 

Mr. GOHMERT. Thanks, Chairman Scott. 

I wish to welcome our witnesses here today and extend a special 

thanks to our fellow judicial colleague Mr. Gallegly and Mr. Peters. 

Today we will examine the Supreme Court’s recent decision in U.S. 

v. Stevens, which invalidated the Federal animal cruelty statute 

codified in 18 U.S.C., section 48, originally enacted in 1999. This 

statute prohibited the creation, sale or possession of a depiction of 

animal cruelty for commercial gain. Congress’ focus in approving 

this law was the increasing prevalence of so-called animal crush 

videos depicting small animals being slowly crushed to death by 

women using their bare feet or while wearing high heels. According 

to the testimony before this Committee in 1999, as the Chairman 

indicated, apparently the depictions appealed to persons with a 

very specific sexual fetish. Those videos often don’t reveal the identity of those involved, making it difficult to prosecute them for the 

underlying animal cruelty. 

Twenty-six States that joined together in an amicus brief touted 

the success of the statute in drying up the interstate market for 

crush videos. But in Stevens, however, the defendant was prosecuted under section 48 for producing and distributing videos that 

depict dogfighting. Stevens was convicted on three counts and sentenced to 37 months in prison followed by 3 years of supervised release. 

He challenged his conviction, arguing that section 48 is facially 

unconstitutional. The Third Circuit Court of Appeals agreed, and 

the Supreme Court affirmed, but undertook a different analysis 

than the appeals court. The Supreme Court declined to recognize 

animal cruelty as a new category of unprotected speech, rejecting 

the government’s proposal that a categorical exclusion should be 

determined by balancing the value of the speech against its societal 

cost. 

The Court noted that the First Amendment’s guarantee of free 

speech does not extend only to categories of speech that survive an 

3 

*Note: Mr. Poe decided not to submit a statement for the record. 

ad hoc balancing of relative social costs and benefits. Siting its exclusion of child pornography in New York v. Ferber, the Court said 

that the analysis must go beyond a simple balancing test. 

The Court then turned its overbreadth analysis to ascertain 

whether a substantial number of section 48’s applications are unconstitutional judged in relation to the statute’s plainly legitimate 

sweep. The Court concluded that an animal cruelty statute such as 

that was a criminal prohibition of alarming breadth. The Supreme 

Court did use the word ‘‘breadth.’’ The Court cited a number of 

issues that contributed to the statute’s reach, namely the absence 

of any requirement that the prohibited conduct be cruel or illegal. 

The Court also noted the inadequacy of the exception clause, which 

fails to capture a wide array of protected speech that does not fall 

within one of the enumerated categories. 

Ultimately, the Court declined to interpret the statute in such a 

way as to afford it constitutional validity, noting to do so would 

constitute a serious invasion of the legislative domain and sharply 

diminish Congress’ incentive to draft a narrowly tailored law in the 

first place. 

With this analysis in mind, I welcome input from our witnesses 

and look forward to the testimony they have today. 

I yield back. 

Mr. SCOTT. Thank you. 

We have been joined by the gentleman from Texas Mr. Poe. 

Do you have a very brief statement? 

Mr. POE. Mr. Chairman, I will submit a statement for the 

record.* 

Mr. SCOTT. Thank you very much. 

Our first panel will be our colleagues, the gentleman from Michigan, Mr. Peters, and the gentleman from California, Mr. Gallegly, 

each of whom has introduced a bill on the topic we are discussing 

today. The first witness will be Mr. Peters, who represents the 

Ninth District of Michigan. He is in his first term in Congress and 

is a member of the Financial Services Committee and Science and 

Technology Committee. 

Mr. Gallegly represents the 24th District of California. He is in 

his 12th term, and is a Member of the Judiciary Committee, the 

Committee on Foreign Affairs, the Natural Resources Committee 

and the Permanent Select Committee on Intelligence. 

Mr. Peters. 

TESTIMONY OF THE HONORABLE GARY C. PETERS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. PETERS. Well, good morning, Chairman Scott and Members 

of the Subcommittee. Thank you for inviting me today to testify on 

the Supreme Court’s decision last month in the United States v. 

Stevens and its implications for new legislation banning depictions 

of animal cruelty. 

Animal torture videos are heinous, barbaric and completely unacceptable, and we must stop them once and for all. It is hard to believe that this sort of thing even exists and that a new law is needVerDate Aug 31 2005 12:01 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\052610\56641.000 HJUD1 PsN: DOUGA
4 

ed to prevent it. Animal torture is outrageously disturbing, and 

common decency and morality dictates that those engaged in it 

should not be profiting from it. They should be in prison. This is 

why I have introduced H.R. 5337, the ‘‘Animal Torture Prevention 

Act of 2010.’’ 

Before I get into the specifics of this legislation, I would like to 

commend the leadership of my colleagues Representative Moran 

and Gallegly on animal protection issues generally and specifically 

on anti-crush video legislation. As co-chairs of the Congressional 

Animal Protection Caucus, of which I am a member, Representatives Moran and Gallegly are committed to advancing commonsense animal protection legislation, and they both have been true 

champions. 

As you know, the Supreme Court’s decision invalidated the Federal law enacted in 1999 and codified 18 U.S.C., section 48. This 

law criminalized the creation, sale and possession of depictions of 

animal cruelty, and addressed what was then a growing market for 

so-called crush videos. These videos are depictions of small animals, such as cats and dogs, being tortured and crushed to death. 

While such cruelty on animals was and remains illegal under 

most State laws, prosecutors had difficulty obtaining convictions. 

Generally these videos omitted faces of participants, and other possible corroborating information, such as locations, times and dates 

of the acts, could not be ascertained from the depictions themselves. Defendants were often able to successfully assert a defense 

that the State could not prove jurisdiction over the place where the 

act occurred or that the action took place within the relevant statute of limitations. 

These difficulties were addressed by section 48, which prohibited 

the creation, sale and possession of depictions of such acts. Estimates suggest that approximately 2,000 crush videos were in circulation, some selling for as much as $400 at the time that section 

48 was codified in 1999. This law was considered to be generally 

effective at chilling the market for crush videos. 

Last month the Supreme Court found the statute was overbroad, 

failed strict scrutiny, and was therefore invalid under the First 

Amendment. As a member of the Congressional Animal Protection 

Caucus, a pet owner and a strong supporter of animal rights legislation, I believe Congress must respond purposefully and deliberatively to the Stevens decision. 

With the United States v. Stevens, the Supreme Court left Congress very little room to regulate. We must enact a new narrowly 

tailored legislation that carefully parses and responds to Chief Justice Roberts’ opinion and can survive another round of judicial review. 

Last week I introduced H.R. 5337, and this narrowly tailored bill 

is aimed at acts of extreme animal cruelty and will ban the creation, sale and distribution of such depictions in interstate commerce. This bill targets a very narrow set of behaviors, specifically 

the depiction of extreme animal cruelty that appeals to a particular 

sexual fetish, by requiring that the depiction of extreme animal 

cruelty appeal to a prurient interest. This focuses the legislation 

and prevents the prohibition of hunting videos, a concern the Court 

expressed in the Stevens opinion. 

5 

Citing New York v. Ferber, the Court told us that a depiction of 

the legal behavior is still subject to First Amendment protection 

unless the crime is intrinsically related to the creation of the video. 

The original law the Court struck down failed to make this distinction and show that Congress must now go after the makers of 

crush videos to prevent these horrible acts. 

H.R. 5337 requires any prohibited depiction of extreme animal 

cruelty to depict actual torture, maiming, mutilation and subjugation of animals to other acts of extreme cruelty to be committed for 

the primary purpose of creating a depiction of animal cruelty. This 

will target and chill the market for these appalling videos and mitigate concern that a new law could be overturned in regards to surveillance cameras, advocacy videos by animal rights groups, and 

other such depictions unintended to perpetrate the market for 

these materials. 

Additionally, new legislation must carefully, but clearly expand 

the scope of the exceptions clause. The Supreme Court noted that 

the most protected speech has very little religious, scientific or political value, and a savings clause using an obscenity standard will 

not save an unconstitutional statute. 

New legislation should specifically eliminate the existing requirement that the depiction have serious religious, political, scientific, 

educational, journalistic, historical or artistic value. The Animal 

Torture Prevention Act has a savings clause that requires de minimis value, not serious value, to be accepted. This important distinction allows depictions with a minimal amount of societal value to 

avoid penalty under the law which would help survive strict scrutiny. 

Finally, while drafting legislation that follows the Stevens opinion must be an exercise in restraint to avoid overbreadth concerns, 

we must not miss the opportunity to crack down on depictions of 

extreme animal cruelty when we can do so within the bounds of the 

First Amendment. The original law did not address the distribution 

of these depictions, just the creation, sale or possession thereof. So 

the proliferation of broadband and file sharing over the Internet increases the ability to transmit and distribute these horrific depictions for profit or otherwise in an anonymous manner. H.R. 5337 

will prohibit the distribution of these depictions. 

I believe that H.R. 5337 responds to the concerns expressed by 

the Court in the United States v. Stevens and provides a constitutional framework to prohibit the torture of helpless animals. I hope 

to have the opportunity to work with the Judiciary Committee, the 

Subcommittee on Crime, Terrorism, and Homeland Security, and 

Representatives Moran, Gallegly and Blumenauer to advance and 

enact legislation prohibiting crush videos and other depictions of 

extreme animal cruelty. I look forward to the Subcommittee panel 

of constitutional experts and appreciate their testimony on this 

very important issue. 

Thank you, Mr. Chairman, for this opportunity to testify before 

your Committee on this very important matter. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Peters follows:] 

6 

PREPARED STATEMENT OF THE HONORABLE GARY C. PETERS, 

A U.S. SENATOR FROM THE STATE OF MICHIGAN


GCP-1.eps
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GCP-2.eps
8 


GCP-3.eps
9 


GCP-4.eps
10 


GCP-5.eps
11 

[The bill H.R. 5337, follows:] 


GCP-6.eps
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HR5337-1.eps
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HR5337-2.eps
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HR5337-3.eps
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HR5337-4.eps
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Mr. SCOTT. Mr. Gallegly. 

TESTIMONY OF THE HONORABLE ELTON GALLEGLY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. GALLEGLY. Thank you very much, Mr. Chairman. In the interest of time this morning, I have an abbreviated testimony. But 

I would ask unanimous consent that the full statement that I have 

will be made a part of the record of the hearing. 

Mr. SCOTT. Without objection. 

Mr. GALLEGLY. Mr. Chairman, again, thank you for giving me 

the opportunity to testify in favor of H.R. 5092, which would prohibit animal crush videos. My bill currently has 306 bipartisan cosponsors, including more than 75 percent of the Members of this 

full Committee. H.R. 5092 is also supported by many animal welfare organizations, including the Humane Society, American Humane Association, the American Society to Prevent Cruelty to Animals and others. 

As many of you know, I have a long record of fighting the issue 

of animal cruelty. I am the cosponsor of the Congressional Animal 

Protection Caucus, which is a bipartisan organization dedicated to 

raising the awareness about cruelty issues in Congress. I also have 

a long record of introducing and passing crime-fighting bills. H.R. 

5092 both fights animal cruelty and crime. 

In 1999, I was contacted by the district attorney in Ventura 

County, California, regarding the issue of crush videos. These disgusting videos feature small, defenseless animals taped to the floor 

which are then slowly crushed to death by scantily clad women 

usually wearing high heels as weapons. 

Although crush videos were illegal under most State laws, the 

crime was very difficult to prosecute because video producers 

moved their goods through interstate commerce to avoid prosecution, some of the issues that my colleague Congressman Peters had 

said in his testimony. In response, I worked to address the serious 

law enforcement issue by drafting legislation to ban depiction of 

animal cruelty. At the time we believed the bill would withstand 

the constitutional test. This bill passed in the House of Representatives by a bipartisan vote of 372-42 in 1999 and by unanimous consent in the Senate, and was signed into law by then-President Bill 

Clinton. 

As you know, the Supreme Court recently ruled this bill to be too 

broad. However, the Court specifically stated that it was not deciding whether a law specifically banning crush videos would be constitutional. To address the Supreme Court’s constitutional concern, 

I introduced H.R. 5092, which is a narrowly focused bill to specifically prohibit crush videos rather than the broader prohibition of 

animal cruelty. The bill expressly exempts things like hunting videos. 

As I previously stated, this is not just an animal cruelty bill; this 

is about crime. The FBI, U.S. Department of Education, and the 

U.S. Department of Justice consider animal cruelty to be one of the 

early warning signs of potential violence by youths. Jeffrey 

Dahmer, Albert ‘‘The Boston Strangler’’ DeSalvo, Ted Bundy, the 

17 

Unabomber Ted Kaczynski all tortured animals before they began 

their terrible murder sprees. 

Immediately after my initial bill was signed into law in 1999, the 

crush industry disappeared. It reemerged in light of the Court ruling. Quick passage of this bill into law will once again stop the industry and these disgusting videos that depict the torture and killing of defenseless animals. 

Thank you again for giving me the opportunity, and I hope that 

we will be able to bring this bill to the floor shortly and have its 

rapid passage. Thank you again, Mr. Chairman. 

And thank you, Representative Peters, for your work. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Gallegly follows:] 

18 

PREPARED STATEMENT OF THE HONORABLE ELTON GALLEGLY, 

A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA


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Mr. SCOTT. Any questions, Mr. Gohmert? 

Mr. GOHMERT. Just a couple of brief ones. 

Mr. Peters, of course we know that the original bill was struck 

down for its breadth, as the Supreme Court said, being overly 

broad. And so in looking at both 5337 as well as the 5092, I just 

had a couple of quick questions. I wondered if under section 48, the 

prohibition, ‘‘Whoever, in or affecting interstate or foreign commerce,’’ by using ‘‘or affecting,’’ if that might create another issue 

of overbreadth. I don’t necessarily need an answer, but just to point 

that out, a concern because we certainly—anything we pass, we 

want it to be upheld. And I know that 5092 doesn’t have ‘‘or affecting’’ because it seems like that is where a lot of cases these days 

are having issues raised. Well, what actually affects it? And I 

would hate for some brutal maniac to get off because they showed 

that, well, maybe it was just a local distribution and may not have 

affected. That was the one question that I had. I don’t know if you 

wish to address that or not. Just a point. 

Mr. PETERS. Well, I think those are good points. We have to look 

to make sure that it is very, very narrowly drafted. I think probably the item in 5337 I think is most significant, though, to make 

sure that it is narrowly crafted to the act of animal cruelty is that 

we have intent language in this bill that says that this depiction 

would not have been created had it not been the actual act of the 

crime. So had you not been filming this depiction, the crime would 

not have been committed. 

So I think it is very important to have intent language which 

really narrows it down even as you are bringing up other clauses 

with interstate commerce which are important we have got to take 

a look at. But to me, we have got to be in a situation that hopefully 

the speech is treated similar to child pornography where it is intrinsic. The activity is intrinsic to the crime itself, or the depiction 

of it is intrinsic to the crime itself. So I think that is where we get 

the most significant tightening of the language. 

Mr. GOHMERT. And, Mr. Gallegly, you know my high regard for 

you, and I appreciate your efforts for so many years when it comes 

to animal cruelty. I am wondering, in section 48 of 5092, it says, 

‘‘Whoever knowingly sells or offers to sell,’’ but doesn’t mention distributes. And the question that comes to mind is whether someone 

might be able to affirmatively show they actually didn’t receive 

anything or were not offered anything of value, they just enjoy distributing that, if that might be an area where it might require an 

additional word. 

Mr. GALLEGLY. I am having a real acoustical problem in here. It 

is a lot different sitting up there. I have not been down here in a 

long time. 

Mr. GOHMERT. We are just adding the word ‘‘distributes’’ in addition to ‘‘selling’’ or ‘‘offering to sell.’’ 

Mr. GALLEGLY. Well, one of the things that we have done in having been through this, as you have mentioned, for 12 years, we are 

being very, very sensitive to drafting this in a manner that the 

Court will not have a problem with. 

Mr. GOHMERT. Well, and that was obvious that you were very 

careful about that. 

25 

Mr. GALLEGLY. And make no mistake about it. While I was disappointed with the Court’s ruling, I have tremendous respect for 

the Court. I have tremendous respect for the process. It certainly 

was not my intent from the beginning to have a challenge that was 

going to prohibit the ability from affecting the end objective here. 

And I think everyone on the Court recognized that during the process about how they understood the objective and agreed with the 

objective and really kind of gave us the challenge to make sure 

that we effectively accomplish the objective without compromising 

the constitutionality of the First Amendment. And obviously as we 

go through the process, we are going to fine-tune whatever needs 

to be fine-tuned to make sure we don’t find ourselves back in this 

situation 12 years from now when you are Chairman of the Judiciary Committee. 

Mr. GOHMERT. Yeah, right. I wouldn’t hold my breath for that. 

And one other thing, I will just plant the seed. I am not sure, 

are animals defined somewhere? And this is with regard to both 

bills. I am just wondering if there is some reference to animals. 

What triggers this is I was working on something late the other 

night, and there was a replay of Men in Black with Will Smith and 

Tommy Lee Jones, and some guy was swatting flies, which would 

obviously be crushing or stepping on a cockroach. So I didn’t know 

if they—— 

Mr. GALLEGLY. Well, I can’t speak to Congressman Peters’ bill, 

but everything we have done here ties directly to the specific animal cruelty laws that are in effect in the specific State, and that 

is the procuring cause, if you will. 

Mr. GOHMERT. Well, I will just plant that seed. It is looking for 

loopholes that might be raised. 

Mr. GALLEGLY. If it does not meet the test of the cruelty law in 

the specific State, then this law is not applicable. 

Mr. GOHMERT. Right. But thank you all very much for your work. 

Mr. GALLEGLY. Thank you very much. 

Mr. SCOTT. The gentleman from Illinois, do you have any questions? 

Mr. QUIGLEY. No, Mr. Chairman. I just want to thank you for 

having this. And to all those involved with this legislation, I appreciate their efforts. We all recognize the terrible qualities of any 

crime, but there is something particularly heinous with crimes 

against children and animals because we recognize the innocence 

involved. So thanks so much for your efforts, and I look forward to 

working with you. 

Mr. SCOTT. Thank you. 

The gentlelady from Texas, and we welcome you back. 

Ms. JACKSON LEE. Thank you very much. 

This is just a brief question to both of the proponents of legislation. Just share with me the crux of the enforcement of the legislation that you are proposing. Forgive me, but if you would articulate 

again, Mr. Peters, Mr. Gallegly, the gist of the legislation. 

Mr. GALLEGLY. First of all, I want to thank the gentlelady for cosponsoring my bill. 

Ms. JACKSON LEE. I am glad I am cosponsoring it as well. 

Mr. GALLEGLY. Thank you very much. 

Ms. JACKSON LEE. I think enforcement is a key element for—— 

26 

Mr. GALLEGLY. What this does is it gives—the genesis of the bill 

to start with is the ability to enforce. When I had the former chairman of the State District Attorney’s Association for the State of 

California come to me very frustrated back in the late 1990’s where 

he had had this issue come before his jurisdiction, and it was literally impossible to enforce because they couldn’t find the perpetrators of—and there were statute issues and so on that prohibited his 

ability to prosecute. And what this does is it provides a tool in 

order to prosecute by banning the sale of what is the actual crime. 

And it appears to be the only real solution that any of us have been 

able to come up with. And believe me, I welcome anybody else coming up with a better product. I will embrace it. 

All I am interested in is finding a way to stop this heinous situation once and forever, because, as I mention, this goes well beyond 

just animal cruelty. It gets into the Ted Bundys and Jeffrey 

Dahmers and so on and so forth. And this does provide a conduit 

to prosecute. 

Ms. JACKSON LEE. Mr. Peters, thank you. 

Mr. PETERS. Well, I concur with my colleague’s description there. 

And I think that is why, again, as I mentioned for the previous 

question, that it is important for us to actually the link the intent, 

the actual act of animal cruelty which is crushing this poor defenseless animal, that that would not have occurred had it not been 

for the production of the depiction of the image. 

So you have to go after the image, the folks who are marketing 

this stuff, that are selling it, that are profiting from it or are distributing it. Unless you stop that market, you are not going to be 

able to stop the action of cruelty, which, as my colleague mentioned, is difficult to prove because you can’t see the face of the perpetrator, you don’t know the time it was done, whether it was the 

statute of limitations, you don’t know the location of it. It can be 

very difficult so you really have to stop the market for it. But you 

have got to tie the actual depiction and the marketing of it to the 

crime itself, which is why in the bill that I have drafted I think 

we have got some strong language, tense language, in there that 

ties it specifically and intrinsically to the crime, which is what the 

Supreme Court asked us to do. 

And if I may, Mr. Chairman, if I mentioned Mr. Gohmert, who 

asked a couple questions, if I may to my colleague. The distribution, which I think is a very important question, we have that in 

my bill. We do add distribution as well, particularly with the Internet. It is going to be folks who may be distributing it over the 

Internet, which is a significant problem, so I agree with you that 

that needs to be in it. We have put that in the legislation. 

And we also have a definition in our bill on ‘‘animal’’ that we 

would certainly be open to your input. But the term ‘‘animal’’ 

means any live amphibian, reptile, bird or mammal except human 

beings. So we do have a definition in there, but we are certainly 

open to any other further clarifications that you may be willing to 

provide. 

Ms. JACKSON LEE. May I follow my line of questioning? Mr. 

Gallegly, I will let you answer if I just follow with my line of reasoning. Can you speak specifically and pointedly as it relates to 

your legislation that I have cosponsored on the question of the 

27 

First Amendment and how you craft a response to that? But you 

go ahead. You were trying to give an answer. Mr. Gallegly, were 

you trying to add something? 

Mr. GALLEGLY. I just wanted to follow up. 

Ms. JACKSON LEE. And as you follow up, then you answer the 

First Amendment issues that were cited in the Stevens case. 

Mr. GALLEGLY. We listened very attentively to the Court, followed this. But if you will just allow me to just back up for just 

a few seconds. 

The bill that was passed overwhelmingly in 1999 to effectively 

address the issue of crush videos, it worked. The videos disappeared off the Internet, $400 a copy, $300 a copy. And heaven 

only knows how many human lives may have been saved as a result of this over the years. 

The fact remains, the act that we took here as a Congress and 

signed by President Clinton did eliminate the sale of crush videos 

and the perpetration of these videos to start with; however, there 

was a technicality. I think it was a technicality, and as I said, I 

respected the Court. 

We have very carefully gone back with some of the finest constitutional lawyers we could find to go through to make sure the 

Ts were crossed, the Is were dotted, and it would meet the test as 

the Court indicated in their ruling. And, of course, you know there 

is a lot of subjectivity to this process, and I respect everyone’s 

knowledge on the issue. But I think we have done everything humanly possible to meet the test and the direction of the Court, and 

I am receptive to any way that we may improve this through the 

process before we get it to the floor, which I hope will be very soon. 

Ms. JACKSON LEE. Thank you. 

Mr. SCOTT. The gentleman from Florida, I think you are attending your first Subcommittee meeting. Welcome to the Subcommittee, Mr. Deutch. Do you have any questions? 

Mr. DEUTCH. Thank you, Mr. Chairman. I appreciate the welcome. I am attending today in large part to thank my two colleagues for this important piece of legislation, and I look forward 

to the next panel to ask some questions. Thank you. 

Mr. SCOTT. The gentleman from Tennessee, any questions? 

Mr. COHEN. Thank you, Mr. Chairman. 

I just appreciate your having this hearing and gentlemen for introducing the bills. Animal cruelty is a serious offense, and it is an 

indication of people’s depraved behavior that also can see it being— 

that conduct going toward seniors and the very young and the 

handicapped, those who are, as in Hubert Humphrey’s terms, the 

dawn of life, the twilight of life and shadows of life. And these people who take advantage of others or find some kind of satisfaction 

or some type of thrill from hurting small animals would hurt others, and it needs to be curtailed. 

But the animals are wonderful. I think it is great that dogs and 

cats have brought Democrats and Republicans together, something 

so many didn’t think could happen. So I thank the dogs, the cats, 

the Chairman and the two Congressmen who crafted these bills. 

Mr. SCOTT. Thank you. 

Let me ask, this is kind of a technical question, and that is both 

of you have talked about the illegal animal cruelty where the video 

28 

is produced. Isn’t it true that the cruelty could be, in fact, legal 

where it is produced, but illegal where it is trying to be sold? And 

that would be a crime to sell the depiction of what was, in fact, 

legal, but illegal—a depiction of what would have been illegal had 

it occurred in the State? In other words, if California finds something illegal, but in Nevada it is not illegal, you produce it in Nevada, but if you try to sell it in California, it would be illegal because it violates—the depiction violates California law. 

Mr. GALLEGLY. That is the test. 

Mr. SCOTT. And if you tried to sell it in Nevada, it would be okay 

because it is not illegal in Nevada. 

Mr. GALLEGLY. I am not familiar with Nevada law specifically. 

I know that the overwhelming majority of the States in this country do have very specific laws that relate to animal cruelty. And 

if Nevada didn’t, and that was the case, then I would really hope 

that the Nevada Legislature would very aggressively tighten their 

laws as it relates to animal cruelty, and then we wouldn’t have 

that problem. I have a problem with going in and micromanaging 

State laws. 

Mr. SCOTT. Well, let us make it a little easier. If it was produced 

out of the country, it obviously did not violate where it was produced, when it was produced. 

Mr. GALLEGLY. If it is produced out of the country, and it was 

sold in California, it would be against the law. If it is produced 

somewhere and sold—I don’t think we can regulate the other countries with what we are doing, but we can regulate what products 

we are selling no matter where they are produced. 

Mr. SCOTT. The point I am making is it could have been legal 

to produce it. The actions could have been legal during the production, but the crime would be committed because what is depicted 

is illegal in the State where it is attempted to be sold. 

Mr. PETERS. Yes, Mr. Chairman. And I am speaking to the bill 

that I have put forward. It has to depict conduct that violates a 

criminal prohibition of intentional cruelty to animals under Federal 

law or the law of the State in which the depiction is created, sold 

or distributed. So if it is distributed in a State, it is illegal. And 

again, it is important, I think, to have that. 

The intent language, though, is that the depiction itself is so intrinsic to the crime that it doesn’t matter where it may have been 

produced because, as we know, it is difficult to know where these 

things are even produced by looking at them. It is difficult to ascertain the place that that crime occurred. But we know where the 

distribution is occurring, and if it is occurring in a State—under 

State law or Federal law as extreme cruelty, because it is so intrinsically linked to the crime itself, that distribution is, indeed, a violation. 

Mr. GALLEGLY. If I might just add, Mr. Chairman, this was a 

genesis of the bill to start with. It was because of the difficulty of 

the District Attorneys Association in my State being able to prosecute these crimes, and our resolution did effectively end the business. 

Mr. SCOTT. Thank you. 

The gentleman from California Mr. Lungren, do you have any 

questions? 

29 

Mr. LUNGREN. No. 

Mr. SCOTT. Thank you. 

We thank our colleagues, and we will call on the next panel. 

Mr. GALLEGLY. Thank you very much, Mr. Chairman. 

Mr. PETERS. Thank you, Mr. Chairman. 

Mr. SCOTT. Our first witness on the second panel will be Stephen 

Vladeck, who is a professor of law at American University’s Washington College of Law, where he is teaching, and his research includes constitutional law. The second witness will be Nathaniel 

Persily, who is the Charles Keller Beekman, professor of law and 

politics at Columbia Law School. He teaches courses on constitutional law, the First Amendment and election law. Our final witness will be J. Scott Ballenger, who is a partner with the Washington, D.C., law firm of Latham & Watkins. He has focused on appellate and Supreme Court litigation since joining the firm in 1999, 

and he was counsel of record for the amicus brief submitted by the 

Humane Society in the Stevens case before the Supreme Court. 

I think most of you have testified before. You are familiar with 

the lighting device, which will start green, turn yellow when 1 

minute is left. And in your 5 minutes, we ask you to summarize 

your testimony in 5 minutes or less. And we will start with Professor Vladeck. 

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR, AMERICAN 

UNIVERSITY WASHINGTON COLLEGE OF LAW, WASHINGTON, 

DC 

Mr. VLADECK. Thank you, Mr. Chairman, Ranking Member 

Gohmert, for inviting me to testify today on the Supreme Court’s 

decision last month in the United States v. Stevens and its implications with regard to Federal bans on depictions of animal cruelty 

going forward. 

Putting aside the more general implications of the Stevens opinion with regard to the Supreme Court’s First Amendment jurisprudence, I want to focus my testimony today on three specific lessons 

that I think the case has to offer with regard to legislative attempts to prohibit the distribution of so-called crush videos and 

other depictions of animal cruelty, including dogfighting. 

First, the Court specifically declined the government’s invitation 

to hold that depictions of animal cruelty are, like child pornography, categorically outside the scope of First Amendment protection. As Chief Justice Roberts explained, the Court’s decision in 

New York v. Ferber, exempting child pornography from the First 

Amendment, quote, ‘‘grounded its analysis in a previously recognized, long-established category of unprotected speech, and our 

subsequent decisions have shared this understanding,’’ unquote. In 

other words, there was no argument here that there is a similar 

tradition of exempting wholly from the First Amendment depictions 

of animal cruelty. 

Now, whatever the merits of the Stevens majority’s analysis of 

this point, I think it is perhaps the most important takeaway with 

regard to continuing congressional attempts to prohibit the sale or 

transfer of depictions of animal cruelty or even of a more narrowly 

defined category that included only crush videos. If such depictions 

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tempts to proscribe their sale and transfer will constitute contentbased restrictions on speech and will therefore trigger strict scrutiny, meaning that they must be narrowly tailored to achieve a 

compelling governmental interest. In plain English, any such law 

after Stevens will have to be precisely drafted and neither over- nor 

underinclusive. 

This brings me, Mr. Chairman, to the second takeaway point 

from the Stevens opinion, the Court’s unhesitating application of 

traditional First Amendment overbreadth doctrine. I don’t mean to 

delve into the academic weeds, but suffice to say that the Roberts 

Court, especially in the first few years of the Chief Justice’s tenure, 

has shown noticeable skepticism toward so-called facial challenges 

to statutes, where litigants argue that the constitutional defects 

are so substantial as to preclude any valid application of the law. 

In various cases the Court has avoided controversial rulings on topics ranging from Congress’ power to enforce the 14th Amendment, 

the right to choose under Roe, and campaign finance reform by rejecting facial challenges in favor of narrower as-applied challenges, 

holding that in those specific cases, the plaintiffs simply hadn’t met 

their burden for invalidating the entire legislative regime. 

Numerous commentators, including my colleague Professor 

Persily, have stressed the unprecedented nature of these decisions 

and their sometimes dubious reliance on the distinction between facial and as-applied challenges, and I would be more than happy to 

elaborate on this trend and its potential implications in response 

to your questions. 

I mention this here because of the sharp and marked contrasts 

presented by the majority’s opinion in the Stevens case. There, and 

I daresay rather surprisingly, the Chief Justice himself embraced 

a more traditional understanding of First Amendment overbreadth 

doctrine. As he wrote in Stevens, quote, ‘‘A law may be invalidated 

as overbroad if a substantial number of its applications are unconstitutional judged in relation to the statute’s plainly legitimate 

sweep,’’ unquote. Thus, even if Congress could constitutionally prohibit the transfer or sale of crush videos, the language of the statute swept way too broadly and included too much protected sweep 

within its scope. Thus, Stevens is significant not just for how it applied traditional First Amendment overbreadth analysis, but also 

for the fact that it applied traditional First Amendment over 

breadth analysis in contrast to what had been a growing departure 

from doctrine. 

Finally, the third key point to take away from the Stevens decision is why the Court concluded that section 48 was substantially 

overbroad and therefore in violation of the First Amendment. Specifically, the Court held that it did not require the act to be unlawful because it is cruel under section 48 as currently as written. It 

is enough that the act is a violation of any criminal law of the 

State, which, as the Court explained, would draw no distinction 

based on the reason for intentional killing and would include, for 

example, the humane slaughter of a cow. 

Second, as the Members mentioned in the first panel, the statute, as written, includes no intent requirements, which means that 

animal rights groups or educational videos could easily fall within 

the scope. 

31 

And finally, the Court said the exceptions clause was too—was 

not broad enough. It only required that there be substantial educational, religious value, and so there is not enough room to carve 

out categories of protected speech. 

Now I think we can get into in the Q&A where I think the Committee can go from here, but those, to me, are the three major 

takeaway points, and I would be happy to elaborate in response to 

your questions. Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Vladeck follows:] 

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Mr. SCOTT. Professor Persily. 

TESTIMONY OF NATHANIEL PERSILY, PROFESSOR, 

COLUMBIA UNIVERSITY SCHOOL OF LAW, NEW YORK, NY 

Mr. PERSILY. Thank you, Chairman Scott, and Ranking Member 

Gohmert and Members of the Committee, for having me back to 

testify on the U.S. v. Stevens case. I will just add to my written 

remarks a few points since many of you have already summarized 

the decision. But let me say this, and just emphasizing what my 

colleagues have said in their written testimony, that there is one 

special thing about this case; that it does settle one issue, which 

is that it does say that depictions of animal cruelty are not a categorically unprotected area of speech. More than that, though, 

what the Court suggests is that you have to—Congress or State 

legislatures or others that are legislating this area have to tie this 

regulation to one of the other unprotected categories of speech; for 

example, speech integral to criminal conduct, which is what the 

Court seems to suggest might be the area of regulation here, or 

perhaps obscenity, which is another area of unprotected speech. I 

will talk a little bit about those categories when I get to the dos 

and don’ts, I think, for future legislation. 

But let me just emphasize a few other things that come out of 

the opinion, and specifically its description of overbreadth. As Professor Vladeck was saying, that the Court decided to strike this law 

down as overbroad as opposed to saying—applying the normal 

standard for facial invalidity that it was unconstitutional in almost 

all of its applications. And here are the reasons why it was 

overbroad: The Court said that it wasn’t limited to cruel conduct. 

So any future legislation has to point out that it is generally limited to cruel conduct not just in its title, which is what the previous 

legislation did, but also specifically; and not just in the legislative 

history, which the Court discounts, but which Justice Alito emphasized in his dissent. 

Secondly, the Court had problems with the description of illegal 

conduct in the statute itself. So this came up in the colloquy before 

with the Members’ panel, which is at what point does conduct have 

to be illegal enough nationwide such that a person is on notice that 

the depictions that they are distributing, therefore, are going to be 

illegal? And so it is clear that the Court is signaling that the more 

nationally illegal a particular conduct is, the more likely the depictions of it, if they are going to be constitutionally regulated, will 

be sort of able to be regulated consistent with the First Amendment. 

And so the difficulty, as was exhibited in the discussion that you 

have just had with the previous Members, is what do you do when 

the conduct might be legal where it was enacted, but then is sold 

or distributed in an area where it is illegal? And so the Court, over 

the previous statute, raised this example: What about hunting videos, which were legal when they were shot, but then—I shouldn’t 

say shot—they were legal when they were constructed, but then 

are distributed in the District of Columbia where hunting is illegal? 

Now, it is clear that the Court wanted to exempt hunting videos, 

agricultural videos and other types of protected expression, and it 

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tion of how to regulate illegal conduct by regulating the distribution of it is one that is going to be, I think, a thorny one for prospective legislation. 

Finally, as Professor Vladeck mentioned, the exceptions clause 

that was in the statute, which was modeled on the Supreme 

Court’s decision in Miller v. California dealing with obscenity, was 

not sufficient to save an otherwise unconstitutional statute. So that 

it wasn’t enough to say that something had to—could have serious 

literary, artistic, political, scientific, educational value because the 

Court said that nonserious speech is protected under the First 

Amendment, and so hunting videos, which might be primarily recreational in nature, are, nevertheless, protected speech. 

So here are the dos and don’ts, I think, for future legislation. 

First, I think there is more don’ts in the decision than there are 

dos, but then that is typical of a Supreme Court opinion. But let 

me sort of map them out. 

First, as I was saying before, I think it would be helpful to make 

clear that hunting and agricultural videos, which were the ones 

that the Supreme Court held up as clearly constitutionally protected, are not covered by the law. 

Secondly, avoid language including ‘‘mere killing of animals’’ as 

opposed to the other types of verbs that are in the legislation, both 

as proposed and has existed before, because, again, the Court emphasized that that might capture other types of conduct that—depictions of which would be protected. 

Third, as I said, beware of the exceptions clause, even though it 

might be useful to have in the law, because the Court seems to 

narrow the exceptions clause to the specific conduct of obscenity. I 

shouldn’t say it definitely does that, but it is pointing in that direction. 

And finally, tie it to conduct that might be nationwide. 

I will say one last thing, which is the key question that seems 

to be arising out of this decision is to what extent can you regulate 

illegal conduct by trying to regulate depictions of it? And for that 

I am eager to hear your questions and to offer some opinions on 

that. And the real question is: To what extent does the analogy, for 

example, of child pornography extend beyond that specific factual 

context? 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Persily follows:] 

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PREPARED STATEMENT OF NATHANIEL PERSILY


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Mr. SCOTT. Mr. Ballenger. 

TESTIMONY OF J. SCOTT BALLENGER, PARTNER, 

LATHAM & WATKINS, WASHINGTON, DC 

Mr. BALLENGER. Good morning, Mr. Chairman, Ranking Member 

Gohmert, Members of the Subcommittee. I appreciate the invitation to talk to you today about the Court’s decision in Stevens and 

where we go from here. 

I think the most important thing to understand about the Court’s 

decision in the Stevens case is really that it was based entirely on 

the First Amendment overbreadth doctrine. 

The easiest and most conventional way to resolve the Stevens 

case in a lot of ways would have been simply to look at the videos 

that Mr. Stevens himself was prosecuted for distributing and decide whether those videos were entitled to First Amendment protection or not. The Court didn’t do that. Instead, the Court chose 

to avoid talking about Mr. Stevens at all and focused its decision 

entirely on hypotheticals involving videos of hunting practices that 

were legal in one State and illegal in another State or the District 

of Columbia. 

Justice Alito makes a strong argument, I think, that approaching 

the case that way was inconsistent with previously settled First 

Amendment doctrine when there could have been a valid as-applied 

challenge arguably to the law in Mr. Stevens’ case. Instead, going 

at an overbreadth facial challenge was a little unconventional. 

So why would the Court do it? Well, in my view, the most likely 

explanation is that some or all of the Justices in the Court’s majority actually agreed with Justice Alito that Mr. Stevens’ own conduct might not have been constitutionally protected, that there 

might not be First Amendment protection for dogfighting videos, 

and wanted to leave that issue open for another day. 

I think the Court was sending this Congress a strong message 

that it would not necessarily be hostile to a law that actually was 

carefully limited to depictions of extreme animal cruelty, including 

animal fighting, so long as it could not be read to encompass ordinary hunting practices or agricultural practices. 

I think if Congress wants to reaffirm the important public policies that led it to pass section 48 in the first place, it could take 

two basic approaches to the law. The easiest and the safest way of 

coming at this from a legal perspective would be to confine section 

48 entirely to materials that meet the legal definition of obscenity. 

The Supreme Court has held clearly and repeatedly that obscene 

materials have no First Amendment protection, and if materials 

that are obscene can be banned, then, of course, materials that are 

obscene and involve the torture of animals can also be banned. 

To be legally obscene under current doctrine, material must appeal to the prurient interest and satisfy several other requirements 

drawn from the Supreme Court’s decision in Miller v. California. 

Appealing to the prurient interest generally means inciting lustful 

thoughts, although it can be a little bit broader than that. Of 

course, many depictions of extreme animal cruelty might not satisfy that requirement, but there is at least one important category 

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ture, and that is the crush videos that motivated the passage of 

section 48 in the first place. 

I know the Committee is familiar with that particular flavor of 

depravity because it has studied it before, and eliminating trafficking crush videos was a major purpose of the legislation. These 

videos are designed to appeal to people who have a very specific 

sexual fetish, and I feel fairly confident in saying that there is not 

a jury in this country that would have any trouble concluding that 

an animal crush video satisfies the various requirements of the 

Miller test for obscenity, such that it must be patently offensive 

under community standards and must have no serious redeeming 

political, artistic or social value. 

Now, the real problem with drafting a law that would be limited 

only to obscene crush videos is that it might not give law enforcement the tools that they need to go after purveyors of animal fighting videos, like Mr. Stevens himself. Of course, this Congress could 

choose to leave that problem for another day. But if Congress were 

inclined at this point to draft a law that goes beyond this sort of 

easy constitutional core of obscene crush videos and reach animal 

fighting videos as well, I think that the Stevens decision suggests 

several lessons. 

First, I think it would be very helpful for Congress to receive evidence and make findings about the role of video documentation in 

supporting and furthering the animal fighting industry. 

Second, Congress should carefully limit the statute to make clear 

that the hunting and slaughterhouse videos that troubled the 

Court in Stevens are excluded. The Stevens decision makes clear 

that this Supreme Court is going to take an essentially zero tolerance approach to ambiguity in a statute of this nature and is not 

inclined to read statutes narrowly in order to save them from constitutional attack. 

And third, the law should do what it can to address the Court’s 

concerns about depictions of conduct that may be lawful in one 

State and unlawful in another. Limiting the law to depictions of 

conduct that violate animal cruelty laws would go a long way toward solving that problem, since, as the Supreme Court’s majority 

recognized, every State has a prohibition against extreme animal 

cruelty, and unlike hunting laws, the content of those animal cruelty laws is reasonably consistent nationwide. Congress might also 

consider limiting prosecutions to conduct that is illegal everywhere 

in the United States or illegal under Federal law. 

Thank you, Mr. Chairman. I look forward to your questions. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Ballenger follows:] 

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Mr. SCOTT. And I want to thank all of our witnesses. 

We will have questions under the 5-minute rule. Mr. Vladeck, 

what is wrong with a statute that would just focus on obscenity? 

Because we have a well-established line of cases, prurient interest 

and everything, and I think the crush videos would appear to qualify under that. 


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Mr. VLADECK. Mr. Chairman, I actually don’t think there would 

be anything wrong with that. I think it is a question of how you 

draft it. So I think, you know, to focus on the analogy or obscenity 

makes at least some sense, except that the Supreme Court in the 

Stevens decision seemed to suggest that you can’t line them up perfectly; that in the context of obscenity, the whole point to the Miller 

test is that there has to be prurient interest. You have to prove 

that. That is a pretty high bar. So I think—— 

Mr. SCOTT. So the First Amendment is a tough bar to get over. 

Mr. VLADECK. I couldn’t agree with you more. I think analogizing 

to obscenity would make a lot of sense. The problem is that the 

statute in its current form doesn’t, right, and that the statute actually sweeps far beyond what Miller might have contemplated. So 

actually, you ask what is wrong. I am not sure that there is that 

much that would be wrong. 

Mr. SCOTT. One of the problems that has been suggested is that 

the prosecutor has a difficult time—if you are talking about something that is legal in the State—has a difficult time proving the 

elements of the crime to show that when it was done, it was illegal. 

I thought that came up when the virtual child pornography cases, 

where the allegation was that the prosecutors were having trouble. 

What did the Court say about that argument? If a prosecution has 

trouble, you can make it easier. What did the virtual child pornography cases say about that? 

Mr. VLADECK. Well, so the Court has had a series of virtual child 

pornography cases, and I think they have sort of split the difference where in one sense they say it is important to limit it—actual child pornography is, per Ferber, wholly exempted from First 

Amendment coverage. There is a little more leeway there than 

there would be here where the Court has declined to recognize—— 

Mr. SCOTT. When they said, if you can’t prove it is a real child, 

then you don’t have a case, and then it is hard to prove. That is 

the prosecutor’s problem, not the defendant’s. 

Mr. VLADECK. And per your question before, Mr. Chairman, I 

think that’s the Court saying that the First Amendment imposes 

some burdens on the prosecutors of these cases. So if you cannot 

prove in the context of virtual child pornography that it was actual 

child pornography, you are not going to be able to make a case. 

That is my understanding of what those cases stand for. 

Here, I think, the same question arises, and I think that is why 

Congress in 1999 tied it to whether the conduct was unlawful 

under the law in the State in which it was distributed, right, because you can’t always even know where the video was produced. 

I think that is a problem, I think, that is—— 

Mr. SCOTT. Sometimes you don’t know. Sometimes you can’t 

know that it was clearly produced in a State where it was legal. 

Mr. VLADECK. I think the problem is that if you draw the statute 

in a way where you have to prove an either/or, you know, that sort 

of changes the calculus. So could you actually have it say—if you 

can demonstrate that it was illegal in the State in which it was 

produced, it would count, or at the very least it was illegal in the 

State in which it was sold. I think that would be one way to do 

it, because you won’t be able to have either rule as the categorical 

one to cover all cases. 

66 

Mr. SCOTT. Well, you can have a Federal law that says selling 

the video in one State would be illegal. Selling the same video in 

another State—one would be illegal and the other State would be 

legal. 

Mr. VLADECK. That is true. There are plenty of other examples, 

Mr. Chairman, as you know, where Federal law turns on whether 

the conduct is actually against the law of that State, right? So the 

Federal Tort Claims Act is a prominent example where the question is simply whether under that State’s law there is a cause of 

action. 

I don’t think that is a problem here. I mean, I don’t think that 

is a problem in legislative drafting. I think that is a problem only, 

as you suggest, when it comes to what the burden is going to be 

on the prosecutor in the individual case to demonstrate, if this is 

the direction the Congress is going in, that the producer or the distributor of the video had the requisite intent, right, because that 

will depend on where that happened. 

Mr. SCOTT. All States have animal cruelty laws. Those have been 

upheld, so we know the difference between a slaughterhouse and 

cruelty. We are talking about content to a certain extent, because 

if you have National Geographic showing animals in the wild killing each other, that would probably be illegal, it might be illegal 

in one State. Do we have a problem separating what is cruelty? If 

we went to illegal cruelty rather than just killing, would we be on 

much stronger ground using cruelty rather than killing, maiming? 

Mr. VLADECK. Mr. Chairman, I think it would certainly alleviate 

many of the overbreadth concerns expressed by the Court in Stevens if the statute required that the act be unlawful not just per 

se, but as a specific violation based on cruelty to animals. 

I don’t think that would be a problem. I think that would be a 

substantial step toward removing the unconstitutional overbreadth 

of the statute. Just to be clear, I don’t think courts would have that 

hard of a time deciding for themselves whether a particular State 

law was a law targeted at animal cruelty. This happens all the 

time in other contexts where Federal law uses a term of art, say, 

crime of violence, or aggravated felony, or crime of moral turpitude, 

and various State laws are applied and subjected to that definition. 

So I actually think that would be a very positive step and one that 

would make a lot of sense. 

Mr. SCOTT. The gentleman from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

I really appreciate each of your thoughtfulness in reviewing this. 

In view of the testimony that each of you have given today, I will 

tell you, I would welcome actual submissions of language that 

would stand the best chance of meeting the requirements of the Supreme Court, whether it is, as the Chairman suggests—you know, 

we know the word ‘‘obscene’’ has been accepted. There is plenty of 

case law regarding that. But then I know a lot of people don’t want 

to realize just how cruel nature is among its members, but if you 

just set up a camera out in the wild, you could see some horribly 

cruel and, some of us would think, obscene activity in what animals do to animals. So it is kind of hard to regulate nature, even 

though Congress often tries, obviously unsuccessfully. 

67 

But any language that any of you might have—and I don’t mean, 

well, try this, try that; I mean, actual proposal of, try this phrase 

instead, would be greatly appreciated on the panel because we do 

not want to be doing this or have someone else looking back over 

what we did, thinking, well, obviously if they had just used this 

language, 12 years later they wouldn’t have had this problem. So 

anything along those lines would be appreciated. 

Do you believe that ‘‘animal’’ should be defined in the statute 

itself? Or do we leave that, just whether it is illegal in the State 

from which it came? Anyone. 

Mr. BALLENGER. I will speak to two of those points very briefly. 

I think that tying the statute to the animal cruelty laws of the individual States as opposed to merely the general regulatory laws 

of every State would go a long way toward solving two of the problems you have identified. I believe the animal cruelty laws of every 

State exempt wildlife, for instance, from their requirements, and 

they also define what scope of animal life is subject to them. So, 

for instance, insects generally are not covered. So if you tie it to 

the animal cruelty law, then you have a sort of ready-made and 

well-understood body of law that sort of addresses both of those 

problems. 

Mr. GOHMERT. Anyone else? 

Mr. PERSILY. Let me just say one thing, which is to some extent 

the language used depends on how broadly you describe the problem. And so, as Mr. Ballenger was saying, the question is does Congress want to apply this, for example, to dogfighting videos? Does 

it want to apply it to bullfighting videos, which is something that 

the Court mentions, right, which that would probably be, you 

know, trespassing onto more constitutionally protected territory. 

What is it in particular that is the problem? Because as Mr. 

Ballenger was pointing out, if you are limiting it to obscene animal 

cruelty, that is one category of speech. If you are extending it beyond that to other types of, say, animal fighting, that is going to 

encompass a lot more variability in State laws maybe. It will also 

bring in some other questions as to, you know, distinguishing 

among different animals as to what would be protected and not. 

Mr. VLADECK. I agree entirely. I would just add one last point, 

which is I think it is important to realize that from the perspective 

of the Court’s opinion, the overbreadth concerns that led it to invalidate the statute will have different solutions in different parts of 

the statute. So if you want to more narrowly define ‘‘animal,’’ or if 

you want to require, as Chairman Scott suggested, that the State 

law be one that prohibits animal cruelty as such, those will both 

narrow the scope of the statute. But an intent requirement would 

also narrow the statute in ways that are different from it, perhaps 

more substantial than definitions of animal and definitions of animal cruelty laws. If we are requiring that the defendant have actually—or whoever produced the video—— 

Mr. GOHMERT. Well, don’t you think it would be good to have 

both intent, some type of mens rea, in addition to the other type, 

meaning definition? 

Mr. VLADECK. Well, I agree that it would certainly narrow the 

scope of the statute. I think that the question is where exactly is 

68 

the constitutional line between what Congress can prohibit and 

what it can’t? 

Mr. GOHMERT. And that is what we are asking for help with. 

That is why you are here. 

Mr. VLADECK. And I think the best I can say, Congressman, is 

that the Court only gave us clues. And so I think, you know, it 

would certainly be safer to go through all of these, to include an 

intent requirement, to more narrowly define what ‘‘animal’’ is, to 

require the State law be specifically targeted to cruelty. All I am 

saying is that it is possible that it might go further than the law 

would actually have to go to satisfy the First Amendment concerns 

the Court raised. 

Mr. GOHMERT. Well, it would seem to me the Court did a good 

job of giving us plenty of clues, as you say, and so we just need 

you all to have your Sherlock Holmes hats on and make the best 

deductions. Thank you. 

Mr. SCOTT. Thank you. 

The gentlelady from Texas. 

Ms. JACKSON LEE. First I would like to say that it really pushes 

one’s appreciation and understanding for American law and its 

commitment to the First Amendment when you can have the Supreme Court reject what I think most of us would find to be one 

of the most despicable acts. So I guess I can appreciate how pure 

we must be, how certain we must be that what we were engaging 

in as we try to correct the 1999 law—how we need to look very 

carefully so that this legislation can both solve the despicable acts 

which I think are below the definition of unacceptable, you can’t 

even find words for it, but to also ensure that the First Amendment 

is, of course, upheld. 

And so I question several elements of both bills on this question 

of whether the First Amendment is protected, if the crux of it is 

a sale. And also in Mr. Peters’ bill in particular, highlighting depiction, whether or not the acts of dogfighting would be able to be covered under the Court’s interpretation. So let me just go down each 

of the witnesses and do what I did with the Members. But if you 

can focus in on the First Amendment. 

I don’t know if we write a bill, then the Court may have another 

review. I heard one comment, I think, Mr. Ballenger, about associating with the language of State law, trying to, I guess, weave your 

way through that. 

But let’s start with Professor Vladeck. Comfort me on what precisely needs to be done as it relates to First Amendment questions 

that the Court had. And if the others could follow, I would appreciate it. Thank you. And I thank the Chairman and the Ranking 

Member for bringing us back to this point and having this hearing. 

Thank you. 

Mr. VLADECK. I would just say, and I think this comes through 

a little bit in my testimony, I think the most important step going 

forward is the addition of some kind of mens rea, some kind of intent requirement. I think if you look at the oral argument in Stevens, if you look at the Court’s opinion, the single biggest thing 

that the Justices seem concerned about was the fact that videos 

that accidentally encompass this kind of conduct, where the proVerDate Aug 31 2005 12:01 Nov 19, 2010 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\052610\56641.000 HJUD1 PsN: DOUGA
69 

duction was never meant to stimulate the market for these videos, 

would fall from the scope of the statute. 

I think that is a very big key here, and so, you know, if pressed 

to find one thing, Congresswoman, that is really the key, I think 

it is a far more specific intent requirement in the context of who 

could be liable for violating section 48. 

With regard to does it encompass dogfighting, does it not, again, 

I think all we have are hits. I think the Justices certainly seem to 

suggest that dogfighting and other forms of animal fighting are 

closer to First Amendment protection when we are talking about 

depictions than crush videos, so I feel less confident sort of asserting where the line would be there. But I think the addition of an 

intent requirement would go a very long way toward both protecting the First Amendment and carving out that conduct that 

this body can constitutionally proscribe. 

Mr. SCOTT. Will the gentlelady yield? 

Ms. JACKSON LEE. I would be happy to yield to the Chairman. 

Mr. SCOTT. What would be the intent? Intent to do what? 

Mr. VLADECK. Well, at the very least, for example, I believe Congressman Peters’ bill refers to that the video was made for the purpose of influencing the market, that the video was made—I am 

sorry, that the act of cruelty was undertaken for the purpose of creating a depiction and therefore stimulating the market. I think 

that would be a very important step. 

Mr. SCOTT. Wait a minute. Just very briefly, what would that intent—the intent to do what? 

Mr. VLADECK. My understanding of the Peters bill is that the intent would go with the act of the animal cruelty itself. Was the act 

of animal cruelty undertaken for the purpose of creating a depiction and for the purpose of furthering the market? And I think that 

that would go a long way, Mr. Chairman, toward excluding depictions of animal cruelty where the cruelty wasn’t—— 

Mr. SCOTT. So the intent would be staging the cruelty with the 

intent of making the video? 

Mr. VLADECK. Correct. 

Mr. SCOTT. I am sorry. The gentlelady may continue. 

Ms. JACKSON LEE. I appreciate the clarification of the Chairman 

because I think that is truly key. 

I would yield to Professor Persily, I think. And as you do that, 

if you want to add to your comments, I will follow up. Why don’t 

you just go ahead. Thank you. 

Mr. PERSILY. Let me just say that, again, the question is how 

does one define the problem? And if you define the problem as 

the—you know, one type of video as opposed to another, then the 

legislative language that would be recommended in order to comply 

with the First Amendment will be different. Each of these bills that 

has been proposed has a different scope. And so one, the first one, 

is limited to the prurient interest. So that would be limited to the 

types of videos that were discussed earlier. The second one, which 

is not limited to videos that are prurient in nature and, therefore, 

might apply more broadly to animal fighting or other kinds of—for 

example, bullfighting and that, would be, you know, closer to 

breaking the constitutional line there. 

70 

I think we should be a little bit hesitant to predict how the Supreme Court is going to interpret these laws. As we have all discussed, one of the problems here is that there is going to be some 

constitutional speech which is likely going to be swept in by any 

of these proposals. The question is is it the type of speech which 

is so small in relation to the constitutionally unprotected speech 

which is swept in such that maybe an as-applied challenge to the 

law will succeed, but in general the law will be upheld? 

Clearly if one is going to target the type of obscene speech that 

was discussed earlier, then there is a specific rule for obscenity. 

And so all one needs to do is add the rule for obscenity and specify 

that it applies to those entailing animals as well. If one wants to 

go farther and deal with, say, dogfighting videos, et cetera, then 

one needs to try and tailor the law in order to combat the particular market. Perhaps, as I said in my testimony, model it, as 

Justice Alito suggests, on the directions that the Court has given 

in the child pornography cases. 

And one other recommendation, which is that—it should be obvious—but the more narrowly tailored the law, the more specific it 

is to a particular type of activity, the less effective it is going to 

be at regulating the types of things that we all find to be offensive. 

So that while on the one hand the Supreme Court is telling you 

be very specific, the more specific you are, the more difficult it is 

going to be to enforce this law in the usual context where we think 

it is applicable. 

Ms. JACKSON LEE. Mr. Chairman, I ask unanimous consent, can 

Mr. Ballenger answer? 

Mr. SCOTT. Yes. We are going to have a second round. Did you 

want to answer, sir? 

Mr. BALLENGER. Maybe I can just add one thing, because there 

is one caution I would like to give maybe a point on which I disagree with my colleagues here. 

Be careful with intent requirements. A requirement that a prosecutor has to prove that the purpose of a depiction was—well, the 

purpose of the underlying cruelty was to make the depiction, it is 

going to be very, very difficult to prove beyond a reasonable doubt. 

You are going to have a defendant who says—who refuses to testify 

and won’t give any information about why that particular act of 

cruelty was done. You have a defendant who was totally uninvolved with the underlying act of cruelty. And so I don’t think it 

is really necessary to go quite that far in order to draft a constitutional law here. 

Mr. SCOTT. Thank you. 

The gentleman from California. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

Do I take it that all three of you believe that it is within our capacity to write a constitutionally valid law that would render criminal under our Federal statute crush videos that would be considered obscene in the analysis that we have had, but that we have 

some question about whether we can go beyond that, that is with 

respect to the direction we have been given by the Court? 

Mr. PERSILY. Yes. 

Mr. BALLENGER. Yes. 

71 

Mr. LUNGREN. Do all of you agree that it is important, as Mr. 

Ballenger said, that we have hearings which would allow us to 

have specific findings that would be included as part of the statute? 

Mr. PERSILY. Yes. 

Mr. VLADECK. Yes. 

Mr. LUNGREN. There seems to be this general agreement that we 

can do it with a prurient interest element in there. And I am intrigued by all of you seeming to suggest that to the extent that we 

can establish that the conduct defined is unlawful in virtually 

every State or jurisdiction, yet what if jurisdictions subsequently 

change their minds in terms of their definition? Does that affect 

the underlying rationale for the constitutionality as suggested by 

the courts and as you have articulated here? 

Mr. PERSILY. It could. It is important to identify two lines of 

cases that are relevant here. So on the one hand, you have obscenity, which doesn’t depend on the illegality of the act in any particular State. On the other, the model that I think the proposed 

legislation is pointing to are the child pornography cases where it 

typically is clearly illegal. 

Mr. LUNGREN. But the Court has basically said that is an exception that is unique and is not covered in this area. So we can’t use 

that for justification. 

Mr. PERSILY. One thing that is interesting, though, about the 

Stevens opinion it that it says that the child pornography cases are 

sort of a species of a larger category of cases, talking about speech 

integral to criminal conduct. Okay, so the question, it seems to me, 

and why the illegality of the action becomes relevant, is the extent 

to which you are trying to regulate an underlying illegal act by regulating depictions of it. Okay? It is clear that you can’t regulate all 

illegal acts through depictions of it. And the question is, well, what 

kind can you? Child pornography is an example of it. And then the 

question is, what about these other depictions of animal cruelty? 

Mr. LUNGREN. So the actual act of the animal cruelty which is 

illegal in and of itself is necessary for the production of the video 

that, therefore, you can find to be criminal in and of itself. 

Mr. PERSILY. If that is the object of the legislation. Like I said, 

obscenity doesn’t depend on that. 

Mr. LUNGREN. Right. But I wanted to go beyond that to those 

other areas where you are not requiring the obscenity, where you 

are expanding it beyond the mere obscenity. 

Mr. VLADECK. I think it would undermine, at least to some degree, the argument that—if the argument was constructed around 

the proposition that you had to ban the depictions in order to destroy the market, I think it would undermine that argument to a 

very substantial degree if all of a sudden in some jurisdictions the 

content itself actually was legal, because then the argument would 

be, well, then so would be—then there is no ‘‘there’’ there. 

Mr. LUNGREN. It is interesting. I signed on as a cosponsor of Mr. 

Gallegly’s legislation with the caveat that this is just to show that 

I would like us to try and find a solution to this. And it is easier 

to say that to a colleague than it is to try to explain to the public 

writing in to you that we would all be committed to this end. But 

I call it the inconvenient truth, which is the First Amendment, and 

I don’t want to harm the First Amendment in the process. And how 

72 

we get from the legislation that is before us to what we need to 

do to answer these questions is a conundrum. 

I might just observe, Mr. Chairman, it is interesting when we are 

spending very good time to try to get this right, and we may have 

on the floor of the House a bill this week dealing with the First 

Amendment called the DISCLOSE Act coming out of my other 

Committee with which we did not make findings with respect to 

the bill that is presented to us, but that only deals with political 

free speech, which, of course, Justice Kennedy said was the essence 

of protected free speech. But, you know, we don’t have to worry 

about those things, I guess. 

I thank you, Mr. Chairman. 

Mr. SCOTT. The gentleman from Florida. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Professor Vladeck, you raised a point in your last response that— 

as something that I am concerned about where the approach seems 

to be that we are both focused on the possibility of enacting a statute which would focus on the underlying act and the illegality of 

the act, while at the same time trying to build in the additional 

protections of obscenity as an unprotected act. And what you just 

pointed out is that in that case, while obscenity, as several of you 

have mentioned, doesn’t require the underlying act be illegal, do we 

put ourselves in the position of having then a statute which by its 

nature makes it difficult to uphold? On the one hand we have got 

underlying acts that are illegal that would be subject to prosecution. At the same time, because of the focus of obscenity, we have 

other acts that aren’t illegal that would also be subject to prosecution. 

Mr. VLADECK. I mean, I think that is a problem. I think to be 

fair, you know, I think it is just a question of how you construct 

the bill, right? So if you are trying to treat these kinds of depictions 

in the same way that we would treat child pornography, then I 

think you do have a problem if all of a sudden there is less of a 

direct connection between the market for the depiction and the underlying illegality. If instead it is more of an obscenity-based 

model, I think that just requires a judgment by Congress that it 

is the depiction itself that is causing some kind of illegal market, 

that is sort of promulgating the illegal activity. I think their intention, but I don’t think they are exclusive of each other. 

Mr. BALLENGER. Can I make a suggestion? 

Mr. DEUTCH. Certainly. 

Mr. BALLENGER. You can have severable sections. You could have 

an obscenity section of the bill that just uses the word ‘‘obscene’’ 

and really doesn’t have to do anything else, and that would be 

clearly constitutional and would allow prosecutors to prosecute 

anything that meets the constitutional test. And then you could 

have a separate section that tackles the problem in a different way. 

Mr. DEUTCH. And if we could just focus on obscenity jurisprudence for a moment, which we haven’t really gotten into. If we 

wrote a statute in that way, and we had a section, or if the statute 

would focus entirely on obscenity, what is it—if you could walk 

through the Miller factors and how they might apply to animal cruelty, and how we might come to some consensus that there are, in 

fact, some forms of animal cruelty which are absolutely obscene. 

73 

Mr. BALLENGER. Well, the traditional Miller test is whether the 

average person applying contemporary community standards would 

find that the work taken as a whole appeals to the prurient interest; depicts and describes in a patently offensive way sexual conduct specifically defined by applicable State law; and lacks serious 

literary, artistic, political or scientific value. That is the long-winded way of saying it. The short way of saying it is just to use the 

word ‘‘obscene,’’ which is what the Federal obscenity statutes do. 

You don’t actually have to spell out the whole standard in the statute. 

My view is that if you just use the word ‘‘obscene’’ or spell out 

the Miller standard, it would allow prosecutors to go after the 

crush videos that were at the core of what section 48 was originally 

about, because these are essentially pornographic materials. They 

are designed to appeal to people with a very specific sexual fetish, 

and they are clearly patently offensive, and they don’t have any redeeming social value whatsoever. 

So there is sort of a core here that under the traditional settled 

obscenity doctrine really I think isn’t even debatable. Then there 

is a hard question about whether obscenity law might be extended 

to encompass materials that are patently offensive and have no 

value and appeal to base instincts, but aren’t obviously sexual in 

nature. 

Mr. DEUTCH. Right. And if you could speak to other examples 

where the Court has dealt with that issue specifically, where— 

there wasn’t a—the prurient interest wasn’t clearly a sexual interest. Nevertheless, there is still something obscene, as in this case, 

about certain types of animal cruelty. 

Mr. BALLENGER. Well, not Supreme Court decisions. There have 

been some lower court decisions, including a seventh circuit opinion 

that Judge Posner wrote, that have suggested that depictions of actual extreme violence against people could be obscene, like a snuff 

video, for instance. 

The only thing that I am aware of that the Supreme Court has 

said on this subject is that there are hints in footnotes in Miller 

and in a case called Roth v. United States that a morbid interest 

in excretion can be obscene, you know, sort of without regard to 

whether it is prurient in the ordinary sense. I am not sure if the 

Court really was confronted with the problem of why materials 

that appeal to a morbid interest in excretion are categorically unprotected by the First Amendment. But materials that appeal to a 

morbid and sadistic desire to torture animals somehow become, you 

know, the constitutional equivalent of the Lincoln-Douglass debates. I have a hard time believing that when push comes to shove, 

the Court would really believe that, and they avoided it here, I 

think, very deliberately. 

Mr. DEUTCH. Thank you. 

Thank you, Mr. Chair. 

Mr. SCOTT. Thank you. 

Let me ask a couple other questions. Is there any question that 

the ones we are aiming at are, in fact, obscene under present law? 

Do we need to pass any law to prohibit the ones that would fit the 

definition of obscenity? 

Mr. BALLENGER. Not necessarily. 

74 

Mr. SCOTT. You just go into the present obscenity law and just 

get them? You can get them for the production, the distribution 

and sale? 

Mr. BALLENGER. Presumably that is correct. But Congress frequently passes laws to express its particular contempt for conduct. 

Mr. PERSILY. Can I add one thing on that? The obscenity prosecutions are extremely difficult. They are very rare, and a lot of it 

has to do with whether the work taken as a whole has any value, 

serious value. 

Mr. SCOTT. If it is not obscene, what standing do we have to talk 

about the depiction? 

Mr. PERSILY. Well, that is right. Then one has to go into this 

other category of cases dealing with the speech that is integral to 

criminal conduct. And we don’t have a lot of cases on that, with the 

exception of, you know, child pornography cases as well as some 

other cases where it is mentioned, but which is really not applicable in this context. 

Mr. SCOTT. Let us kind of discuss for a second the First Amendment implications of the depiction of criminal activity as opposed 

to criminal activity. You can show a video, a camera, a video of a 

robbery. The robbery is illegal. The depiction—I mean, you see 

them on television all the time. 

Mr. PERSILY. That is right. 

Mr. SCOTT. How do you get to the prohibiting the depiction? 

What are the First Amendment implications of trying to prohibit 

the depiction rather than the underlying act? 

Mr. PERSILY. Well, that is why the child pornography cases are 

so unique. 

Mr. SCOTT. In child pornography, first of all, you have the underlying crime. You have to commit a crime to produce it. And they 

keep talking about the ongoing harm to the child by the fact that 

the video is out there. You are inflicting ongoing harm. So there 

is harm in the production and ongoing harm in the sale. And that 

is why you can prohibit child pornography, and if you can’t prove 

it is a real child, you lose your case. 

Mr. PERSILY. No, that is right. One of the things that is important in this decision is that they describe the child pornography 

cases as a species of this category of unprotected speech dealing 

with speech integral to criminal conduct. The actual case they cite 

for that proposition is this case called Gibbony, which was really 

not even about this. It was about union protesters and whether 

their speech was—and boycotts violated State restraint of trade 

laws. 

And so the question here though, again, is whether you have to 

regulate the speech in order to get to the underlying crime, all 

right? So that, as you were suggesting in your opening remarks, is 

this the type of industry that can only be regulated by regulating 

the speech, regulating the depiction of it? And for that we really 

only have one example, and that was child pornography. The Court 

specifically relied on the fact that you would dry up the market in 

child pornography by regulating the speech. 

Mr. SCOTT. But also in that case, you had to commit a crime to 

produce the video. 

Mr. PERSILY. That is right. 

75 

Mr. SCOTT. And you were continuingly inflicting harm as you 

sold it. How does that apply to depictions of other crimes? We are 

trying to do animal cruelty. 

Mr. PERSILY. It doesn’t. No. Those aspects of child pornography 

aren’t applicable here. 

Mr. SCOTT. And if the video is not inherently protected, I mean, 

if it is not—if it is not—if you are not talking about protected 

speech, where do we—what hook do we use to prohibit the depiction? 

Mr. PERSILY. Well, that you were trying to get at the—you are 

saying if the underlying act was not criminal, or if it was? 

Mr. SCOTT. You do not have to commit a crime to produce these 

videos if you produce it in a State where it may be legal, and there 

is no ongoing harm that you can talk about. And that was a hook 

on the child pornography. 

Mr. PERSILY. That is right. 

Mr. SCOTT. If the hook is that we dry up the industry by drying 

up the videos, and there is a strong—we would have to show that. 

Have we shown it? 

Mr. PERSILY. That is right. I think that what you are hinting at 

here is that it is extremely difficult to use the child pornography 

example in the context of animal cruelty both because of the differences in the factual situations, but also that this exception to 

general content-based speech limitations that deals with speech integral to criminal conduct is a real slippery slope in that it is clearly the case that you can’t ban the depictions of all criminal conduct. 

And the question is, well, what subset of criminal conduct could 

you do? And the child pornography cases are more than mere 

criminal conduct. There are all kinds of other interests that are 

being served by those bans. And then the question is, well, are the 

States’ interests here similar enough to those to then fit into the 

exception? 

But if you can’t do it under that line of cases, then you have to 

go, I think, along the lines of banning it according to the obscenity 

cases. 

Mr. BALLENGER. Can I offer a slight amendment? I think we are 

underselling the analogy to the child pornography cases a little bit 

here. Justice Alito makes a very powerful argument in his dissent 

in Stevens, which the majority of the Court doesn’t really reach 

and disagree with in all its particulars, that there are very close 

analogies here; that the market, for instance, for dogfighting videos 

plays a very important role in the ongoing dissemination and propagation of the dogfighting industry. People sell these videos and 

disseminate these videos in order to prove that their dog has, you 

know, won a requisite number of fights to be considered a grand 

champion and be able to command, you know, $100,000 purses in 

subsequent bouts. 

So you really can strike a blow at the underlying criminal activity by drying up the market for these depictions here in a way that 

was true in the child pornography cases, but isn’t true, for instance, of convenience store videos of robberies, right? You could 

eliminate every convenience store video of a robbery in the world, 

and it probably wouldn’t do anything to dry up the market for robbery. But that is not true here. 

76 

Mr. SCOTT. I think you pointed out that that was in a dissent for 

which the other eight did not agree. 

Mr. BALLENGER. Well, they didn’t reach those issues. 

Mr. SCOTT. Okay. Professor Vladeck? 

Mr. VLADECK. I will just add, I am largely in agreement with my 

colleague. All I would say is that I think—as you point out, Mr. 

Chairman, they didn’t reach it, but I don’t think this Court was 

particularly taken by the analogy, and your argument transcript, 

I think, reflects to some degree that they saw that there are fairly 

significant differences despite the analogies that Mr. Ballenger alluded to. There are entirely nonobjectionable uses of crush videos, 

I think, was what came out in the argument by animal rights 

groups who use them as advocacy pieces, by journalists who would 

use that as sort of parts of documentaries. So I think this is why 

the closer this is to obscenity doctrine, I think the safer the law 

will be, because the Court really just seemed very reluctant to add 

to the really sui generis child pornography category. 

Mr. SCOTT. The gentleman from California. 

Mr. LUNGREN. Let me try a slightly different direction. That is, 

the three of you have all agreed that the Court was—about the 

overbreadth of the statute before it, that it could apply to other 

things. Is there a way in which we could have a more specific, narrow definition of what is the animal cruelty that is to be objected 

to—that is to be the object of the statute? Or do we not deal with 

the overbreadth question by narrowing the scope of the definition 

of animal cruelty? And if, in fact, you can move in that direction, 

what suggestions would you have to a more narrowly designed definition of animal cruelty? 

Mr. PERSILY. Well, you would have to, you know, take the Miller 

test and put it into the law, because that does narrow the potential 

applications. And so that is more narrow than the previous legislation and even describing it as regulating acts that are cruel. The 

Court said that the previous statute did not limit itself to extreme 

animal cruelty. At a minimum, that is the kind of thing that 

should be in the statute as well. And this was despite the fact that 

there was legislative history suggesting that that is what it was 

supposed to be targeting. 

Again, also you have to make sure that while having the Miller 

exception there, that anything with more than de minimis—or you 

have to specify that something that has de minimis or a little more 

de minimis value, artistic, scientific, et cetera, value, is something 

that would be protected and would be exempted by the statute. So 

it is both in describing the speech that is regulated here and is also 

specifying what is exempted. 

Mr. LUNGREN. I always wondered about that last part, about the 

more than de minimis artistic value and so forth, whether that just 

suggests that the person wants to create it, and they then construct a story around it. 

Mr. PERSILY. And that is the problem. And that is what is going 

to happen. 

Mr. LUNGREN. So you have longer videos with—no, no. I am serious about that. 

Mr. PERSILY. That is why obscenity prosecutions are so rare 

these days, I mean, because the test as taken as a whole, right, 

77 

and the difficulty is you could always point to some artistic value 

at some point in the movie, and that is the exception that often 

saves the defendants. 

Mr. LUNGREN. But I do know it when I see it. Can we write it 

that way? 

Thank you, Mr. Chairman. 

Mr. SCOTT. The gentleman from Tennessee. 

Mr. COHEN. Thank you, Mr. Chairman. 

I don’t know if the gentleman from California has ever seen it. 

It is an admission against interest. 

Mr. LUNGREN. No, no. I was lying on the description. 

Mr. COHEN. Have you all had an opportunity to read the two 

laws that are before us? I have had some personal business I had 

to attend to. Have you all commented on—you have already done 

that. So for my edification, Mr. Ballenger, which of the two do you 

think is a better one to go forward? 

Mr. BALLENGER. Well, I haven’t studied the language of the current proposals carefully. 

Mr. COHEN. Good admission. It is honest. 

And have the other professors studied these carefully? 

Mr. PERSILY. Each of them has problems, but each is also targeting a different problem. The scope of the speech that is regulated under each law is very different. If you want to make it more 

narrowly tailored, you are going to have to sort of combine the laws 

in some respects in order to get at some of these problems. And 

again, it depends on whether Congress is interested in regulating 

animal cruelty videos generally or a specific subcategory of them. 

And one bill goes after a specific subcategory, and another one goes 

more broadly. 

Mr. VLADECK. I agree. I mean, the Peters bill, I think, has the 

slightly broader definition, but the more specific requirements. So 

including the previous discussion that Chairman Scott and I had 

about how—there is a requirement that the depiction be created 

with the purpose—the act of animal cruelty take place with the 

purpose of creating the depiction. The Gallegly bill, in contrast, 

doesn’t have those specifics, but focuses on a narrower class of conduct. 

I agree. I think there are positive additions to both pieces of legislation that could probably be put together for perhaps the most 

workable bill. 

Mr. COHEN. That is why we have a brilliant Chairman, because 

he will do that before the markup, and I am sure he will consult 

with you all and put them together in some manner that is just 

fascinating and brilliant and something that all of the animal people will absolutely be appreciative of. I look forward to the Chairman’s work. 

Today we were talking about child pornography. I thought if you 

depicted something as being a child, even if the person or the depiction—the child was older than 16, or it was a depiction of a 

sketch and it really wasn’t a child, I thought that still would fall 

under the child pornography laws. Am I wrong? 

Mr. VLADECK. It would fall within the scope of the statute, but 

the Supreme Court, I believe, in Ashcroft v. Free Speech Coalition 

specifically held that that is unconstitutional to the extent that it 

78 

is not actually a child, because then the actual conduct is not child 

pornography even if the person thinks—even if the creator of the 

depiction thinks it is. 

Mr. COHEN. But it continues the market, the idea of a market, 

which continues the desire for the person who has this need for 

this gratification to seek out this type of a medium, which puts the 

children in jeopardy. It is the same thing with the animals. Anything that contributes to creating and continuing the market I 

would think would come within the sphere of conduct that you 

could control, limit, prohibit so as to protect the species or the interests involved. 

Mr. VLADECK. I mean, I think this is just where the Court has 

been clear that the First Amendment really doesn’t—although if we 

all sat down and sort of thought about it carefully, we might think 

that this is the most logical way to do it. Sometimes the First 

Amendment requires approaches that are suboptimal. 

Mr. COHEN. Thank you, Mr. Chairman. I look forward to your 

bringing all of this together in a very clear manner that will protect all. 

Mr. SCOTT. We will see. 

Other questions? 

The gentleman from California. 

Mr. LUNGREN. No, thank you. 

Mr. SCOTT. I would like to thank our witnesses for your testimony today. Members may have additional questions, which we 

will forward to you and ask that you respond as promptly as you 

can so the answers can be made a part of the hearing record. The 

record will remain open for 1 week for the submission of additional 

materials. 

Are there additional materials? 

Without objection, the Subcommittee stands adjourned. 

[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.] 

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