United States v. Ashley Richards

Case: 13-20265 Document: 00512662694 Page: 1 Date Filed: 06/13/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-20265 FILED

June 13, 2014

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellant

v.

ASHLEY NICOLE RICHARDS; BRENT JUSTICE,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

The First Amendment restrains government to “make no law . . .

abridging the freedom of speech.” U.S. Const. amend. I. Speech, as expression,

“arcs toward the place where meaning may lie,” 1 and when that meaning is

hurtful or dislikable—meaningful, perhaps, to the bigot, or the flag burner—

courts must be vigilant to affirm First Amendment protection. See Snyder v.

Phelps, 131 S. Ct. 1207, 1219 (2011); Texas v. Johnson, 491 U.S. 397, 404–405

(1989). Yet when hurtful expression involves violence, 2 and dislikable

1 Toni Morrison, Nobel Lecture (Dec. 7, 1993), in Nobel Lectures, Literature 1991-

1995 (Sture Allén ed., 1997).

2 See Virginia v. Black, 538 U.S. 343, 362–63 (2003); Watts v. United States, 394 U.S.

705, 707–08 (1969); Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 616–17 & nn.24–25

(5th Cir. 2004).

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expression involves obscenity, 3 First Amendment doctrine acknowledges also

the truth that language is “a living thing over which one has control, . . . an act

with consequences.” 4

In 2010, the Supreme Court struck down Congressional legislation,

codified at 18 U.S.C. § 48 (1999), which made it a crime to knowingly create,

sell, or possess “a depiction of animal cruelty,” declaring the statute to be

overbroad under the First Amendment. United States v. Stevens, 559 U.S. 460

(2010). Responsively, Congress revised § 48 to make it a crime to knowingly

create, sell, market, advertise, exchange, or distribute an “animal crush video”

that (1) depicts actual conduct in which one or more non-human animals is

intentionally crushed, burned, drowned, suffocated, impaled, or otherwise

subjected to serious bodily injury and (2) is obscene. 18 U.S.C. § 48 (2010).

Thereafter, Defendants-Appellees Ashley Nicole Richards and Brent

Justice were charged with, inter alia, four counts of creating and one count of

distributing animal crush videos. In these videos, Richards is the person

“performing,” while Justice is the person behind the camera. Generally, the

videos portray Richards binding animals (a kitten, a puppy, and a rooster),

sticking the heels of her shoes into them, chopping off their limbs with a

cleaver, removing their innards, ripping off their heads, and urinating on them.

Richards is scantily clad and talks to both the animals and the camera, making

panting noises and using phrases such as “you like that?” and “now that’s how

you fu** a pussy real good.”

Richards and Justice were charged in Texas court with felony cruelty to

animals. Texas v. Justice, Harris County, Cause No. 1357897 (2012); Texas v.

Richards, Harris County, Cause Nos. 1357859, 1357860 (2012). A subsequent

3 See Miller v. California, 413 U.S. 15, 24 (1973); United States v. Ragsdale, 426 F.3d

765, 779–81 (5th Cir. 2005).

4 Morrison, supra note 1.

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federal indictment charged Richards and Justice with (1) four counts of

creation and one count of distribution of animal crush videos, in violation of 18

U.S.C. § 48; (2) one count of engaging in the business of selling or transferring

obscene matter, in violation of 18 U.S.C. § 1466(a); and (3) one count of

production and transportation of obscene matters for sale or distribution, in

violation of 18 U.S.C. § 1465.

Richards and Justice filed a motion to dismiss the federal indictment on

the ground that § 48 is facially invalid under the First Amendment. The

district court dismissed counts one through five, concluding that

§ 48 is facially invalid because it proscribes speech that is not within an

unprotected category—specifically the speech is neither obscene nor incidental

to criminal conduct—and is not narrowly tailored to serve a compelling

government interest. The government timely appealed, arguing that on its face

§ 48 proscribes only unprotected speech and is not overbroad. For the reasons

that follow, we REVERSE and REMAND.

I.

In Stevens, 559 U.S. at 482, the Court was clear that it did not take

measure of a statute limited to crush videos or other depictions of extreme

animal cruelty, but instead held that § 48, as then written, was substantially

overbroad. As noted, Congress promptly revised and narrowed the statute to

read as it has been applied against Richards and Justice. In that present form,

the statute reads, in full:

(a) Definition.—In this section the term “animal crush video” means any

photograph, motion-picture film, video or digital recording, or electronic

image that—

(1) depicts actual conduct in which 1 or more living non-human

mammals, birds, reptiles, or amphibians is intentionally crushed,

burned, drowned, suffocated, impaled, or otherwise subjected to

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serious bodily injury (as defined in section 1365[5] and including

conduct that, if committed against a person and in the special

maritime and territorial jurisdiction of the United States, would

violate section 2241 or 2242;[6] and

(2) is obscene

(b) Prohibitions.—

(1) Creation of animal crush videos.—It shall be unlawful for any person

to knowingly create an animal crush video, if—

(A) the person intends or has reason to know that the animal crush

video will be distributed in, or using a means or facility of,

interstate or foreign commerce; or

(B) the animal crush video is distributed in, or using a means or

facility of, interstate or foreign commerce.

(2) Distribution of animal crush videos.—It shall be unlawful for any

person to knowingly sell, market, advertise, exchange, or distribute

an animal crush video in, or using a means or facility of, interstate or

foreign commerce.

(c) Extraterritorial application.—Subsection (b) shall apply to the knowing

sale, marketing, advertising, exchange, distribution, or creation of an

animal crush video outside of the United States, if—

(1) the person engaging in such conduct intends or has reason to know

that the animal crush video will be transported into the United States

or its territories or possessions; or

(2) the animal crush video is transported in the United States or its

territories or possessions.

(d) Penalty.—Any person who violates subsection (b) shall be fined under

this title, imprisoned for not more than 7 years, or both.

(e) Exceptions.—

(1) In general.—This section shall not apply with regard to any visual

depiction of—

(A) customary or normal veterinary or agricultural husbandry

practices;

(B) the slaughter of animals for food; or

(C) hunting, trapping, or fishing.

5 18 U.S.C. § 1365 defines “serious bodily injury” as “bodily injury which involves—(A)

a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious

disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ,

or mental faculty.” 18 U.S.C. § 1365(h)(3).

6 18 U.S.C. § 2241 criminalizes aggravated sexual abuse, and 18 U.S.C. § 2242

criminalizes sexual abuse, both of which require causing another to engage in a sexual act.

Thus, by referencing these two sections, § 48 proscribes bestiality.

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(2) Good-faith distribution.—This section shall not apply to the good-

faith distribution of an animal crush video to—

(A) a law enforcement agency; or

(B) a third party for the sole purpose of analysis to determine if

referral to a law enforcement agency is appropriate.

(f) No preemption.—Nothing in this section shall be construed to preempt

the law of any State or local subdivision thereof to protect animals.

18 U.S.C. § 48 (2010).

II.

“This court reviews constitutional challenges to federal statutes de

novo.” In re U.S. for Historical Cell Site Data, 724 F.3d 600, 603 (5th Cir. 2013)

(citing United States v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998)). “To succeed

in a typical facial attack [a plaintiff must] establish that no set of

circumstances exists under which [the statute] would be valid, or that the

statute lacks any plainly legitimate sweep.” Stevens, 559 U.S. at 473 (internal

quotation marks and citations omitted). “[A]s a general matter, the First

Amendment means that government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.” Stevens,

559 U.S. at 468 (internal quotation marks and citation omitted). “[H]owever,

the First Amendment has permitted restrictions upon the content of speech in

a few limited areas,” including obscenity, defamation, fraud, incitement, and

speech integral to criminal conduct. Id.

The government argues first that § 48 is facially constitutional because

it is limited by its terms to speech that is obscene. The Supreme Court

established its enduring test for obscenity in Miller v. California, 413 U.S. 15,

24 (1973). “The basic guidelines for the trier of fact must be: (a) whether the

average person, applying contemporary community standards would find that

the work, taken as a whole, appeals to the prurient interest; (b) whether the

work depicts or describes, in a patently offensive way, sexual conduct

specifically defined by the applicable state law; and (c) whether the work, taken

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as a whole, lacks serious literary, artistic, political, or scientific value.” Id.

(internal quotation marks and citations omitted).

Animal crush videos, to fall within § 48, must be “obscene.” 18 U.S.C. §

48(a)(2). Although the statute does not define the term obscene, the Supreme

Court has made clear that:

We do have a duty to authoritatively construe federal statutes

where a serious doubt of constitutionality is raised and a

construction of the statute is fairly possible by which the question

may be avoided. If and when such a serious doubt is raised as to

the vagueness of the words obscene, lewd, lascivious, filthy,

indecent, or immoral as used to describe regulated material in

[federal statutes], we are prepared to construe such terms as

limiting regulated material to patently offensive representations

or descriptions of that specific hard core sexual conduct given as

examples in Miller v. California.

United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 130 & n.7

(1973) (internal quotation marks and citations omitted). Following that

instruction, the Court, this circuit, and other circuits have held that federal

statutes that use but do not define the word “obscene” incorporate the Miller

definition. See Ashcroft v. ACLU, 535 U.S. 564, 581 n.11 (2002) (“Although

nowhere mentioned in the relevant statutory text, this Court has held that the

Miller test defines regulated speech for purposes of federal obscenity statutes

such as 47 U.S.C. § 223(b).”) (citing Smith v. United States, 431 U.S. 291, 299

(1977)); Hamling v. United States, 418 U.S. 87, 105 (1974) (construing federal

statute that criminalizes the mailing of “obscene” matter to incorporate the

Miller definition); United States v. Rudzavice, 586 F.3d 310, 314–15 (5th Cir.

2009) (upholding federal statute that prohibits the interstate transfer of

“obscene matter” to someone under 16, reasoning that courts construe

“obscene” to be consistent with Miller) (citing Reeves v. McConn, 638 F.2d 762,

763–64 (5th Cir. Mar. 1981)); see also United States v. Dean, 635 F.3d 1200,

1205 & n.4 (11th Cir. 2011) (noting that section of federal statute that

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criminalized only material that “is obscene” would satisfy all three Miller

prongs); United States v. Schales, 546 F.3d 965, 971–72 (9th Cir. 2008)

(upholding federal statute that required material to depict a minor engaging

in sexually explicit conduct and be obscene, reasoning that “obscene” requires

that the government satisfy Miller).

Where one construction of a statute would raise “serious constitutional

doubts,” it is “incumbent upon [courts] to read the statute to eliminate those

doubts so long as such a reading is not plainly contrary to the intent of

Congress.” United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994).

Acknowledging this principle, Richards and Justice nonetheless argue that the

legislative history shows that Congress intended to write its own definition of

obscenity into § 48. The district court looked to the Findings section of the Act

and the House Report to conclude similarly that Congress intended a definition

of obscenity that excludes the Miller “sexual conduct” requirement. The district

court relied on Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2742

(2011), where the Supreme Court held that a California law that prohibited

the sale or rental of violent video games to minors was a content-based speech

restriction and failed strict scrutiny. Because “violence is not part of the

obscenity that the Constitution permits to be regulated,” the Court found that

the games did not fall within the obscenity exception. Id. at 2735.

In Brown, however, the statute included a definition of the proscribable

material that mimicked the Miller language but left out the “sexual conduct”

requirement. See Brown, 131 S. Ct. at 2732–33. Here, by contrast, § 48 simply

uses the word “obscene.” Moreover, the legislative history is, unsurprisingly

for a deliberative body, variable, hence debatable. On the one hand, the

Findings state that “many animal videos are obscene in the sense that the

depictions, taken as a whole—(A) appeal to the prurient interest in sex; (B) are

patently offensive; and (C) lack serious literary, artistic, political or scientific

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value.” Pub. L. No. 111-294, 124 Stat. 3177, § 2(6)(A)–(C) (2010). The House

Report states that “witnesses concurred that Congress can ban interstate and

foreign commerce in depictions of acts of illegal animal cruelty that appeal to

the prurient interest, are patently offensive, and lack serious literary, artistic,

political or scientific value.” H.R. Rep. No. 111-549, at 5 (2010). On the other

hand, the Findings also reference the fact that the Supreme Court has long

held obscenity to be an unprotected category of speech and the fact that certain

depictions of animals cruelty appeal to a “specific sexual fetish.” Id. at § 2(4)

& (5). Additionally, Senator Leahy stated that “in response to the Stevens

decision, the House overwhelmingly passed a narrower bill banning animal

crush videos on obscenity grounds” and that “[i]n drafting the substitute

amendment to the House bill, [the Senate was] careful to respect the role that

courts and juries play in determining obscenity. In any event, it will be up to

the prosecutor to prove and the jury to determine whether a given depiction is

obscene, because obscenity is a separate element of the crime.” 156 Cong. Rec.

S7653 (2010). Furthermore, the House Report notes that “witnesses also

agreed that crush videos could be constitutionally prohibited in line with the

obscenity doctrine formulated by the Supreme Court in Miller v. California.”

H.R. Rep. No. 111-549, at 5 (2010). The Report notes also that courts have

applied Miller to sadomasochism and that “[a]lthough obscenity may generally

apply to materials that depict or describe a more obviously sexual act, case law

shows that obscenity can also cover unusual deviant acts.” Id. at 5 & n.13. The

Report cites to Hamling for the proposition that “Miller and its progeny firmly

established the term ‘obscene’ as a legal term of art.” Id. at 5 & n.11. Finally,

written testimony submitted to the Senate Judiciary Committee indicates that

Congress considered this issue. See Prohibiting Obscene Animal Crush Videos

in the Wake of United States v. Stevens: Hearing Before the S. Comm. on the

Judiciary, 111th Cong. 24–25 (2010) (statement of J. Scott Ballenger, Partner,

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Latham & Watkins LLP) (“H.R. 5566 does not spell out the full constitutional

standard for obscenity under Miller . . . . But neither do the rest of the federal

obscenity statutes; they all simply use the word ‘obscene,’ and the Supreme

Court has repeatedly held that criminal statutes using that word will be

understood as incorporating the necessary constitutional limitations.”).

These few examples suffice to instruct us not to look to variable and

debatable legislative history to render unconstitutional a statute that

incorporates a legal term of art with distinct constitutional meaning. See

Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1266 (2011) (“Those of us who make

use of legislative history believe that clear evidence of congressional intent may

illuminate ambiguous text. We will not take the opposite tack of allowing

ambiguous legislative history to muddy clear statutory language.”); United

States v. Pruett, 681 F.3d 232, 242 (5th Cir. 2012) (“[C]ourts applying criminal

laws must generally follow the plain and unambiguous meaning of the

statutory language, and only the most extraordinary showing of contrary

intentions in the legislative history will justify a departure from that

language.”) (internal quotation marks and citation omitted). “It has long been

a tenet of First Amendment law that in determining a facial challenge to a

statute, if it be ‘readily susceptible’ to a narrowing construction that would

make it constitutional, it will be upheld.” Virginia v. Am. Booksellers Ass’n,

Inc., 484 U.S. 383, 397 (1988) (citing Erznoznik v. City of Jacksonville, 422 U.S.

205 (1975)). We hold that § 48 incorporates Miller obscenity and thus by its

terms proscribes only unprotected speech.

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III.

Richards and Justice argue, as they did in district court, that even if

§ 48 is limited to Miller obscenity, it nonetheless is facially unconstitutional

because it violates the rationale set forth in R.A.V. v. City of St. Paul, 505 U.S.

377, 395 (1992). 7 There, the Supreme Court struck down a city ordinance that

proscribed fighting words that insulted or provoked violence based on race,

color, creed, religion, or gender. See id. at 381. The Court held that, although

the ordinance was limited to fighting words, it applied only to fighting words

that addressed “one of the specified disfavored topics.” Id. at 391. Thus, the

ordinance was “facially unconstitutional in that it prohibits otherwise

permitted speech solely on the basis of the subjects the speech addresses.” Id.

at 381. 8 Richards and Justice correspondingly argue that § 48 violates the First

Amendment because it proscribes only a narrow category of obscenity based on

its content—the causation of serious bodily injury to an animal.

The Court in R.A.V. articulated several exceptions to its rationale. First,

“[w]hen the basis for the content discrimination consists entirely of the very

reason the entire class of speech at issue is proscribable, no significant danger

of idea or viewpoint discrimination exists. . . . A State might choose to prohibit

only that obscenity which is the most patently offensive in its prurience—i.e.,

that which involves the most lascivious displays of sexual activity.” R.A.V., 505

7 Richards and Justice have not challenged the statute as overbroad. Indeed, during

oral argument they disavowed any claim of substantial overbreadth. See Stevens, 559 U.S. at

473; Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973) (“[T]he overbreadth of a statute

must not only be real, but substantial as well.”).

8 Compare R.A.V., 505 U.S. at 401 (White, J., concurring in the judgment) (“It is

inconsistent to hold that the government may proscribe an entire category of speech because

the content of that speech is evil, but that the government may not treat a subset of that

category differently without violating the First Amendment; the content of the subset is by

definition worthless and undeserving of constitutional protection.”), with id. at 387 (“[T]he

First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content

discrimination’ limitation upon a State’s prohibition of proscribable speech.”).

10

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U.S. at 388. Second, “[a]nother valid basis for according differential treatment

to even a content-defined subclass of proscribable speech is that the subclass

happens to be associated with particular secondary effects of the speech, so

that the regulation is justified without reference to the content of the . . .

speech.” Id. at 389 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48

(1986)). “A State could, for example, permit all obscene live performances

except those involving minors.” Id. Third, “[t]o validate such selectivity (where

totally proscribable speech is at issue) it may not even be necessary to identify

any particular ‘neutral’ basis, so long as the nature of the content

discrimination is such that there is no realistic possibility that official

suppression of ideas is afoot.” Id. at 390.

Section 48 regulates a content-defined subclass based on its secondary

effects and is justified without reference to the content of the speech. See id. at

385. “The principal inquiry in determining content neutrality . . . is whether

the government has adopted a regulation of speech because of disagreement

with the message it conveys. The government’s purpose is the controlling

consideration. A regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect on some

speakers or messages but not others.” Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989) (internal citations omitted). The plain language and the history

and revisions of § 48 suggest that there is no realistic possibility that official

suppression of ideas is afoot. See R.A.V., 505 U.S. at 390. Nevertheless, even

assuming, for the sake of argument, that the creators and distributors of

animal crush videos, like Richards and Justice, intend to advance a distinct

message, perhaps about barbarism, § 48 is justified with reference not to the

content of such a message but rather to its secondary effects—wanton torture

and killing that, as demonstrated by federal and state animal-cruelty laws,

society has deemed worthy of criminal sanction. See 156 Cong. Rec. S7653-54

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(2010) (“The other element that occurs in animal crush videos and which

warrants a higher punishment than simple obscenity is that it involves the

intentional torture or pain to a living animal. Congress finds this combination

deplorable and worthy of special punishment.”). 9

The appropriate inquiry for a regulation that targets the secondary

effects of speech is whether it “is designed to serve a substantial governmental

interest and allows for reasonable alternative avenues of communication.” See

Renton, 475 U.S. at 50 (citing Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984)). Cases have reiterated that the government has a

significant interest in combatting secondary effects such as public health,

safety and welfare; societal debasement; the promotion of violence; and other

serious criminal activity. See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 296–

98 (2000); Fantasy Ranch Inc. v. City of Arlington, Tex., 459 F.3d 546, 561 (5th

Cir. 2006). Furthermore, the Court has explained, even in the context of

compelling-interest analysis, that a long history and substantial consensus, as

seen in state and federal legislation, are indicative. See New York v. Ferber,

458 U.S. 747, 757–58 (1982); Burson v. Freeman, 504 U.S. 191, 211 (1992);

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S.

105, 119 (1991). Most states had passed some form of anticruelty laws by the

end of the 19th century. See Margit Livingston, Desecrating the Ark: Animal

9 Under this secondary-effects theory, § 48 also is justified with reference to the harm

that the underlying animal cruelty causes. See Elena Kagan, Regulation of Hate Speech and

Pornography After R.A.V., 60 U. Chi. L. Rev. 873, 891 (1993) (citing Ferber and arguing that,

in the wake of R.A.V., “the Constitution may well permit direct regulation of speech, if

phrased in a viewpoint-neutral manner, when the regulation responds to a non-speech

related interest in controlling conduct involved in the materials’ manufacture” and that “it

would appear the government may prohibit directly the dissemination of any materials whose

manufacture involved coercion of, or violence against, participants”); see also Frederick

Schauer, Harm(s) and the First Amendment, 2011 Sup. Ct. Rev. 81, 103–104 (2009); John

Tehranian, Sanitizing Cyberspace: Obscenity, Miller, and the Future of Public Discourse on

the Internet, 11 J. Intell. Prop. L. 1, 6 (2003).

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Abuse and the Law’s Role in Prevention, 87 Iowa L. Rev. 1, 25–56 (2001). Today

all states have laws that criminalize acts of cruelty similar to those listed in §

48. See generally Stevens, 559 U.S. at 500 (appendix of state anticruelty

laws). 10 This demonstrates a consensus that this “conduct is so antisocial that

it has been made criminal.” United States v. Williams, 553 U.S. 285, 292 (2008).

Federal statutes and regulations also proscribe cruelty to animals. See, e.g., 7

U.S.C. § 1902 (“No method of slaughtering or handling in connection with

slaughtering shall be deemed to comply with the public policy of the United

States unless it is humane.”); Animal Welfare Act, 7 U.S.C. §§ 2131–2159

(stating that purpose is to “insure that animals intended for use in research

facilities or for exhibition purposes or for use as pets are provided humane care

and treatment”); 25 C.F.R. § 11.446 (making it a misdemeanor to commit

cruelty to animals on Indian lands). Moreover, in enacting § 48, Congress found

that the clandestine manner in which animal crush videos are made makes it

difficult for states to enforce laws that criminalize the underlying conduct. See

Pub. L. No. 111-294, 124 Stat. 3177, § 2(9)–(10) (2010). 11 We conclude similarly

10 See, e.g., La. Rev. Stat. Ann. § 14:102(B)(1) (West 2009) (“Any person who

intentionally or with criminal negligence tortures, maims, or mutilates any living animal,

whether belonging to himself or another, shall be guilty of aggravated cruelty to animals.”);

Miss. Code Ann. § 97-41-1 (West 2011) (“[I]f any person shall intentionally or with criminal

negligence override, overdrive, overload, torture, torment, unjustifiably injure, deprive of

necessary sustenance, food, or drink; or cruelly beat or needlessly mutilate; or cause or

procure to be overridden, overdriven, overloaded, tortured, unjustifiably injured, tormented,

or deprived of necessary sustenance, food or drink; or to be cruelly beaten or needlessly

mutilated or killed, any living creature, every such offender shall, for every offense, be guilty

of a misdemeanor.”); Tex. Penal Code Ann. § 42.092(b)(1) (West 2007) (“A person commits an

offense if the person intentionally, knowingly, or recklessly: tortures an animal or in a cruel

manner kills or causes serious bodily injury to an animal.”).

11 In his dissent in Stevens, 559 U.S. at 495–96, Justice Alito found that “the

Government [ ] has a compelling interest in preventing the torture depicted in crush videos.”

Cf. Judith N. Shklar, Putting Cruelty First, 111 Daedalus 17, 17–18 (1982) (“Cruelty, as the

willful inflicting of physical pain on a weaker being in order to cause anguish and fear,

however, is a wrong done entirely to another creature. . . . Cruelty, like lying, repels instantly,

because it is ‘ugly.’ It is a vice that disfigures human character.”).

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that Congress has a significant interest in preventing the secondary effects of

animal crush videos, which promote and require violence and criminal activity.

Furthermore, § 48 serves that interest in a reasonably tailored way.

Section 48(a)(1) no longer includes the words “wounded” and “killed,” which

troubled the Court in Stevens because they might not imply cruelty and could

apply to depictions of activities such as hunting. See 18 U.S.C. § 48(a)(1);

Stevens, 559 U.S. at 474–75. Going further, § 48(e)(1) excepts depictions of

customary or normal veterinary or agricultural husbandry practices; the

slaughter of animals for food; or hunting, trapping, or fishing. 18 U.S.C. §

48(e)(1). Most importantly, as described earlier, by requiring proof of obscenity,

§ 48(a)(2) limits § 48(a)(1), which describes the proscribed acts of cruelty. See

id. at (a)(2); H.R. Rep. No. 111-549, at 10 (2010) (noting that § 48 excludes

depictions of activities such as hunting “even though the plain sweep of the

statute does not cover these activities”). Section 48 thus is narrow and tailored

to target unprotected speech that requires the wanton torture and killing of

animals. See Wisconsin v. Mitchell, 508 U.S. 476, 487–88 (1993); see also

Connection Distrib. Co. v. Holder, 557 F.3d 321, 328–30 (6th Cir. 2009) (en

banc); Valley Broad. Co v. United States, 107 F.3d 1328, 1331 n.3 (9th Cir.

1997). We hold that § 48 is a permissible regulation of a subset of proscribable

speech. 12

IV.

We hold that on its face § 48 is limited to unprotected obscenity and

therefore is facially constitutional. We REVERSE the district court’s judgment

and REMAND for proceedings consistent with this opinion.

12 We do not reach the government’s alternative argument that § 48 is facially

constitutional because it proscribes only speech that is incidental to criminal conduct under

the reasoning of New York v. Ferber, 458 U.S. 747, 749 (1982).

14