Let it be said that there are officially sexual fetishes that, should you engage in them, make you a really really bad person: crushing. (h/t).
I’ve never heard of this before, but the New York Times describes it as follows (trigger warning):
A decade ago, Congress decided it was time to address what a House report called “a very specific sexual fetish.” There are people, it turns out, who take pleasure from watching videos of small animals being crushed.
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” the report said. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”
Yes, folks, there are people out there who get off on women stomping puppies and kittens to death. I’m generally a live and let live kind of gal, and I don’t really care all that much what you do in your bedroom, but I’m willing to draw the line at stomping on small animals.
More interesting, though — or at least more interesting to nerds like me, who find Constitutional law more compelling than stories about naked chicks crushing kitties — are the First Amendment issues caught up in Congress’s outlawing of “crushing” videos. See, “crushing” itself was already illegal in all 50 states, but it was nearly impossible to prosecute anyone for it, because the videos rarely showed the woman’s face and were difficult to trace. So Congress went a step further and in 1999 outlawed the depiction of crushing, and most depictions of cruelty to animals, making crush-porn illegal.
Last month, the United States solicitor general asked the Supreme Court to hear the case. “Depictions of the intentional infliction of suffering on vulnerable creatures,” the brief said, “play no essential role in the expression of ideas.” The First Amendment, the brief went on, is therefore irrelevant to the case.
Interestingly, most of the cases that have been brought under this law have depicted dog-fighting, not crush-porn. But crush porn essentially disappeared from the market after 1999; since a Third Circuit court ruled that the law banning animal cruelty videos is unconstitutional, the videos have sprung up again. To complicate things further, it doesn’t matter if the act was legal where it was filmed; the standard is that if the act of cruelty is illegal where the video is bought or sold, the law is being violated. So a video of bullfighting in Spain (or dog-fighting somewhere dog-fighting is legal) is illegal to sell in the United States.
Basically, the “crush” law places depictions of animal cruelty in the same category that we place depictions of child pornography, where we say that depictions of the crime have absolutely no free speech value; or alternately, where the potential for harm is so great that it justifies this kind of reach. Amy Adler, who I had as a professor at NYU, has written about the exceptionalism of child pornography laws extensively, and I’d recommend checking out her stuff for a deeper understanding of the constitutional issues involved here. The other legal scholars who the reporter speaks to also seem to think that the law will be struck down.
It will be interesting to see what this would mean for U.S. pornography law in general. Child pornography laws may be troubling to First Amendment absolutists (of which I usually consider myself one, or at least close), but most people seem pretty content to leave them be. Animal cruelty, though, is another issue.
The question is where we draw the line when it comes to banning the sale of videos depicting certain crimes, and where First Amendment rights begin and end. Child pornography laws make sense to me for a lot of reasons, though I think the line gets much blurrier when we’re dealing with child porn that doesn’t involve “real” children. Free speech isn’t absolute, and banning child porn seems like a very basic limitation to set. Yes, there is always the “slippery slope” arguments, but as a society we can and do set limits — child porn is, in my opinion, limited fairly (though defining what is “pornographic” and “obscene” is always a challenge, even with child pornography). Those limits are being pushed in this animal cruelty case.
The Court could say that the level of pure harm and lack of consent inherent to animal abuse videos are enough to warrant them utterly meritless. But the First Amendment doesn’t just protect speech that we like, and I suspect that this law will be found unconstitutionally over-broad. That doesn’t mean that abusing animals will be legal, but it will mean that I could buy a video of that abuse if I wanted. Which is fucked, but fucked-up outcomes are unfortunately what you get when you have a free society populated by a lot of people — some percentage of them are going to be cruel people who enjoy watching horrible things. As a society, we can of course criminalize the horrible acts themselves; but criminalizing the depiction of those acts is another story.
Of course, then again, we do outlaw depictions of child pornography. I’m actually mostly ignorant when it comes to the details of our laws on porn that depicts illegal and actually harmful acts — videos of actual sexual assaults, for example — but I’m guessing that most of it is illegal, since you can’t consent to being in that kind of pornography. Animals obviously can’t consent either, but “consent” isn’t a standard for the treatment of animals under the law. Animals can’t consent to being killed for food or kept as pets, but we legally do both things to them anyway. So I don’t think a consent model would fit here.
Animal cruelty is illegal for good reason. Videos of animal cruelty are disgusting. And I desperately want to think of a reason why outlawing these videos should pass constitutional muster.
But I can’t. I just hope that, regardless of the Supreme Court’s decision here, law enforcement starts cracking down on cruelty to animals — especially cruelty for profit, like dog-fighting. Congress also has the option of re-writing the law to target crush porn specifically; if they take other depictions of animal cruelty out of it and focus only on obscenity-related cruelty, I would guess that the law would have a better chance at standing.
Of course, if Congress is really concerned with animal cruelty, they could also take a look at their local factory farming practices, which I’m pretty sure aren’t tidy and painless. But I won’t hold my breath.