[Congressional Record (Bound Edition), Volume 156 (2010), Part 13] [Senate] [Pages 18140-18142] [From the U.S. Government Publishing Office, www.gpo.gov]ANIMAL CRUSH VIDEO PROHIBITION ACT OF 2010 Mr. REID. Mr. President, I ask that the Chair now lay before the Senate the House message to accompany H.R. 5566. The Presiding Officer laid before the Senate the following message from the House of Representatives: H.R. 5566 Resolved, That the House agree to the amendment of the Senate to the bill (H.R. 5566) entitled ``An Act to amend title 18, United States Code, to prohibit interstate commerce in animal crush videos, and for other purposes.'', with the following House amendment to Senate amendment: [[Page 18141]] In lieu of the matter proposed to be inserted by the amendment of the Senate, insert the following: SECTION 1. SHORT TITLE. This Act may be cited as the ``Animal Crush Video Prohibition Act of 2010''. SEC. 2. FINDINGS. The Congress finds the following: (1) The United States has a long history of prohibiting the interstate sale, marketing, advertising, exchange, and distribution of obscene material and speech that is integral to criminal conduct. (2) The Federal Government and the States have a compelling interest in preventing intentional acts of extreme animal cruelty. (3) Each of the several States and the District of Columbia criminalize intentional acts of extreme animal cruelty, such as the intentional crushing, burning, drowning, suffocating, or impaling of animals for no socially redeeming purpose. (4) There are certain extreme acts of animal cruelty that appeal to a specific sexual fetish. These acts of extreme animal cruelty are videotaped, and the resulting video tapes are commonly referred to as ``animal crush videos''. (5) The Supreme Court of the United States has long held that obscenity is an exception to speech protected under the First Amendment to the Constitution of the United States. (6) In the judgment of Congress, many animal crush 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 value. (7) Serious criminal acts of extreme animal cruelty are integral to the creation, sale, distribution, advertising, marketing, and exchange of animal crush videos. (8) The creation, sale, distribution, advertising, marketing, and exchange of animal crush videos is intrinsically related and integral to creating an incentive for, directly causing, and perpetuating demand for the serious acts of extreme animal cruelty the videos depict. The primary reason for those criminal acts is the creation, sale, distribution, advertising, marketing, and exchange of the animal crush video image. (9) The serious acts of extreme animal cruelty necessary to make animal crush videos are committed in a clandestine manner that-- (A) allows the perpetrators of such crimes to remain anonymous; (B) makes it extraordinarily difficult to establish the jurisdiction within which the underlying criminal acts of extreme animal cruelty occurred; and (C) often precludes proof that the criminal acts occurred within the statute of limitations. (10) Each of the difficulties described in paragraph (9) seriously frustrates and impedes the ability of State authorities to enforce the criminal statutes prohibiting such behavior. SEC. 3. ANIMAL CRUSH VIDEOS. (a) In General.--Section 48 of title 18, United States Code, is amended to read as follows: ``Sec. 48. Animal crush videos ``(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 serious bodily injury (as defined in section 1365 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); 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 into 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 and normal veterinary or agricultural husbandry practices; ``(B) the slaughter of animals for food; or ``(C) hunting, trapping, or fishing. ``(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.''. (b) Clerical Amendment.--The item relating to section 48 in the table of sections for chapter 3 of title 18, United States Code, is amended to read as follows: ``48. Animal crush videos.''. (c) Severability.--If any provision of section 48 of title 18, United States Code (as amended by this section), or the application of the provision to any person or circumstance, is held to be unconstitutional, the provision and the application of the provision to other persons or circumstances shall not be affected thereby. SEC. 4. PAYGO COMPLIANCE. The budgetary effects of this Act, for purposes of complying with the Statutory Pay-As-You-Go Act of 2010, shall be determined by reference to the latest statement titled ``Budgetary Effects of PAYGO Legislation'' for this Act, jointly submitted for printing in the Congressional Record by the Chairmen of the House and Senate Budget Committees, provided that such statement has been submitted prior to the vote on passage in the House acting first on this conference report or amendments between the Houses. Mr. REID. Mr. President, I ask unanimous consent that the Senate concur in the House amendment, the motion to reconsider be laid upon the table, and any statements relating to this matter be printed in the Record. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. LEAHY. Mr. President, today, the Senate passed the Animal Crush Video Prohibition Act of 2010. I thank Senators Kyl, Merkley and Burr for their leadership on this important legislation, which bans the creation, sale and distribution of obscene animal crush videos. We worked together on a bipartisan basis to ensure that the bill respects the first amendment and the role of our court system, while at the same time giving law enforcement a valuable and necessary tool to stop obscene animal cruelty. Earlier this year, in United States v. Stevens, the Supreme Court struck down a Federal statute banning depictions of animal cruelty because it held the statute to be overbroad and in violation of the first amendment. Animal crush videos, which can depict obscene, extreme acts of animal cruelty, were a primary target of that legislation. Several months ago, in response to the Stevens decision, the House overwhelmingly passed a narrower bill banning animal crush videos on obscenity grounds. The Senate Judiciary Committee regularly looks at questions raised by Supreme Court decisions and the first amendment, and the House bill was referred to the Senate Judiciary Committee for consideration. The version of the bill passed today reflects a carefully crafted compromise between the House and Senate that strikes the right balance between the first amendment and the needs of law enforcement, while adhering to the separation of powers enshrined in our Constitution. There are a few well-established exceptions to the first amendment. The United States has long prohibited the interstate sale of obscene materials, and the Supreme Court recognized this exception to the first amendment in 1957. Earlier this year, the Judiciary Committee held a hearing focused on the obscene nature of many animal crush videos. We heard testimony from experts who confirmed that many animal crush videos depict extreme acts of animal cruelty which are designed to appeal to a specific, prurient, sexual fetish. Indeed, these animal crush videos are patently offensive, lack any redeeming social value, and can be banned consistent with the Supreme Court's obscenity jurisprudence. Courts and juries play an important role in determining what is obscene, and I worked hard with Senator Sessions, and the bill sponsors, to make sure that the law passed today respects the role of both. The United States also has a history of prohibiting speech that is integral to criminal conduct. The acts of animal cruelty depicted in many animal crush videos violate State laws, but these laws are hard to enforce. The animal cruelty is often committed in a clandestine manner that allows the perpetrators to remain anonymous. The [[Page 18142]] nature of the videos makes it extraordinarily difficult to establish the jurisdiction necessary to prosecute the crimes. Given the severe difficulties that State law enforcement agencies have encountered in investigating the underlying conduct, today Congress has taken an important step towards combating the crimes of extreme animal cruelty that obscene animal crush videos depict. I have long been a champion of first amendment rights. As the son of Vermont printers, I know firsthand that the freedom of speech is the cornerstone of our democracy. This is why I have worked hard to pass legislation like the SPEECH Act, which protects American authors, journalists and publishers from foreign libel lawsuits that undermine the first amendment. Today's success demonstrates that Congress can work on a bipartisan basis to pass legislation that is the focus of many competing interests. I commend the coalition that worked hard, alongside the Humane Society and first amendment experts, to strike the proper balance between the needs of law enforcement and the first amendment, and I am pleased that, once the President signs this bill into law, obscene animal crush videos will no longer threaten animal welfare. ____________________