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Legislation to ban the making or selling of 'crush videos' can pass constitutional muster, experts say

May 26, 2010 |  7:18 pm

Rep. Elton Gallegly

WASHINGTON — Congress can overcome free speech protection for videos that show graphic violence against animals by writing a new law that bans the recordings, lawmakers and legal experts testified Wednesday.

Witnesses told a House Judiciary panel that the Supreme Court left the door ajar in April when, with one dissenting vote, it struck down a federal ban on so-called crush videos.

The videos appeal to a certain sexual fetish by showing women crushing to death small animals with their bare feet or high-heeled shoes.

Reps. Gary Peters (D-Mich.) and Elton Gallegly (R-Calif.) explained that separate bills they introduced would narrowly confine the illegal act to making or selling crush videos. Chief Justice John Roberts wrote that the 1999 federal law could have been read to allow prosecution of producers of hunting films.

Gallegly said that while all 50 states have laws against animal cruelty, state prosecutors have told him that prosecutions are almost impossible because crush videos don't show faces, dates or locations of the acts.

He said his bill "provides a tool in order to prosecute, by banning the sale" of the "crush videos."

Peters' legislation states that the act of crushing the animals would be illegal if done specifically to create the videos.

The videos virtually disappeared once the 1999 bill became law, the lawmakers said, but have returned after the Supreme Court ruling.

Three legal experts said it may be possible to craft a constitutional law by creating exceptions to free speech protections -- exceptions like those banning pornography and obscenity.

Nathaniel Persily, professor at Columbia Law School, testified a new law would need to make clear that hunting and agricultural videos are not covered.

He said, "The key question, it seems to me, is to what extent can you regulate illegal conduct by regulating depictions of it?"

J. Scott Ballenger, a Washington attorney, said the safest approach is to relate the videos to materials that meet the legal definition of obscenity.

"If obscenity can be banned, depiction of animal cruelty could be banned," he said.

Stephen Vladeck, a law professor at American University, added that relating the videos to bans on obscenity would make sense but cautioned, "It will have to be precisely drafted. You can't line them up perfectly."

RELATED ANIMAL LEGISLATION NEWS:
Assembly passes declawing-devocalization bill affecting California landlords and tenants
Georgia lawmakers weigh a ban of gas chambers as a means of euthanizing shelter pets

-- Larry Margasak, Associated Press

Photo: Rep. Elton Gallegly (R-Calif.) speaks about a House resolution on Iraq in 2002. Credit: Associated Press

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