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September 15, 2009

"Crush Video" Investigation Evidence for Federal Law

Today, at an HSUS press conference previewing the U.S. Supreme Court’s examination of the federal Depiction of Animal Cruelty Act, I was brought to tears as I watched outtakes of several animal crush videos we obtained during an investigation earlier this year. I don’t think I’ll soon shake the images from my head.

Specifically, we released results of a month-long online and email investigation that uncovered the re-emergence of the animal crush video industry, in the wake of the U.S. Court of Appeals for the Third Circuit striking down the federal ban on the interstate sale of videos depicting extreme cruelty. The footage, which I will not post here because it is so deeply troubling, showed the burning of a kitten in a small cage and a rabbit and the stomping of kittens, rabbits, and mice. It was just a small sample of what our investigators obtained.

More than a decade ago, and before the Depiction of Animal Cruelty Act was enacted, there were an estimated 2,000 separately produced animal crush videos selling on the Internet, for $15 to $300 each. We recognized immediately that this had nothing to do with the expression of ideas, but it was instead a thriving underground industry built around the most extreme and unimaginable acts of cruelty. We worked hard in the Congress to pass legislation to attack the problem, and helped to enact a federal law in December 1999.

Because the videos typically do not show anyone’s face and do not reveal the names of the people who produce them, the perpetrators of these abhorrent acts were generally able to evade prosecution. The law was enacted to eliminate the financial incentive driving production of the videos.

With the new law in place, the industry withered, and all but vanished in the period of a couple of years, based on our monitoring efforts. The people who committed such vile acts apparently retreated into whatever darkened dens they live in. Dogfighters continued to peddle their videos, however, and there were several successful prosecutions under the federal law, including that of dogfighting impresario Robert Stevens, who was convicted in 2005 of violating this law. He challenged the constitutionality of the law before the Third Circuit, and that court overturned his conviction and struck down the entire law in July 2008. In December, the U.S. Solicitor General filed a cert petition requesting review of the Third Circuit’s decision. On April 20, the Supreme Court agreed to review that decision, and oral arguments are to be heard on Oct. 6—the first animal protection case before the nation’s highest court in 15 years.

With the Third Circuit's ill-considered ruling, the noxious crush video industry has revived and crawled back into view since last July, with crippling results for animals. The crushing videos uncovered proved to be readily available for purchase, and it’s all documented in a 28-page report we released today. The password-protected part of one website had a total of 118 videos for sale of small animals, including rabbits, hamsters, tortoises, quail, chicken, ducks, frogs, snakes, and even cats, being tortured (including being burned, drowned and having nails hammered into them) and crushed. Videos ranged in price from $20 to $100. Undercover investigators also established contact with another crush website and were offered for sale 12 crush videos featuring rabbits at an average price of $50.

This is not speech. This is commercial activity of a sickening and barbaric type, and the peddlers of this smut should find no safe harbor for it in the First Amendment.

The courts have recognized that “certain well defined and narrowly limited classes of speech” play “no essential part of any exposition of ideas, and are of such slight social value as a step to truth” that they may be regulated based on their content consistent with the First Amendment. These classes of speech include fighting words, speech that incites imminent criminal activity, obscenity, offers/solicitation to engage in illegal activity, and child pornography. Video depictions of cruelty should be added to this limited set of activities that are not protected.

We are pleased that the Solicitor Generals for both the Bush and Obama Administrations have pushed this case forward. And we are heartened that 26 state Attorneys General have filed a friend of the court brief urging the Supreme Court to reverse the Third Circuit’s ruling, with not a single Attorney General taking the opposite stance. But it’s going to be a tough case, and groups ranging from the ACLU to the NRA and the Safari Club International have weighed in on the opposite side. Their attacks against this anti-cruelty law are ill-advised and unsound, and their work gives great comfort to animal-abuse industries that deserve only unflinching condemnation.

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