United States v. Richards

• Decision Date: 13 June 2014
• Docket Number: No. 13–20265.,13–20265.
• Citation: 755 F.3d 269
• Parties: UNITED STATES of America, Plaintiff–Appellant v. Ashley Nicole RICHARDS; Brent Justice, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

755 F.3d 269

UNITED STATES of America, Plaintiff–Appellant

v.Ashley Nicole RICHARDS; Brent Justice, Defendants–Appellees.

No. 13–20265.

United States Court of Appeals, Fifth Circuit.

June 13, 2014.

Prior Version Recognized as Unconstitutional

18 U.S.C.A. § 48

John Michael Pellettieri, Esq. (argued), U.S. Department of Justice, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellant.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher (argued), Assistant Federal Public Defender, Federal Public Defender's Office, Joyce A. Raynor, Esq. (argued), Houston, TX, for Defendants–Appellees.

Scott M. Hendler, Rebecca Ruth Webber, Hendler Law Firm, P.C., Austin, TX, Virginia Coleman, Cambridge, MA, James Scott Ballenger, Latham & Watkins, L.L.P., Jonathan R. Lovvorn, Humane Society of the U.S., Washington, DC, S. Amy Spencer, Latham & Watkins, L.L.P., New York, N.Y., Daphne L. Pattison, Silverman Law Group, Houston, TX, for Amicus Curiae.

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, ––– U.S. ––––, 131 S.Ct. 1207, 1219, 179 L.Ed.2d 172 (2011); Texas v. Johnson, 491 U.S. 397, 404–405, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Yet when hurtful expression involves violence,² and dislikable 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, 130 S.Ct. 1577, 176 L.Ed.2d 435 (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 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, 130 S.Ct. 1577, 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 serious bodily injury (as defined in section 1365⁵ 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.—

( l )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.

(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, 130 S.Ct. 1577 (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, 130 S.Ct. 1577 (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, 93 S.Ct. 2607, 37 L.Ed.2d 419 (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 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...