Four months after a federal judge dismissed charges against a Houston couple who created animal torture videos because the statute was unconstitutional, federal prosecutors have filed an appeal arguing that the judge ruled in error.
Crush videos "are unprotected under the First Amendment for the same reasons that child pornography was deemed unprotected," prosecutors claim in their brief, filed in the Fifth Circuit Court of Appeals last week.
"As with child pornography, it is necessary to dry up the market in animal crush videos, which have little if any social value, in order to effectively prevent the criminal acts that necessarily occur when the videos are produced," prosecutors claim.
The brief challenges U.S. District Court Judge Sim Lake's ruling that the Animal Crush Video Prohibition Act of 2010, which federal prosecutors used to charge Ashley Nicole Richards and Brent Wayne Justice, was overbroad. Lawyers for Richards and Justice did not deny that the couple produced and sold videos of Richards torturing puppies and kittens; only that the statute used to charge them violated their First Amendment rights.
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But the appeal argues that the 2010 statute has "a very limited reach" that "prohibits the creation and distribution of material depicting severe abuse to live animals in a manner intended to appeal to the sexual interests of individuals with a particular sexual fetish. The statute's prohibitions extend only to a narrow band of speech that is unprotected under the First Amendment."
The San Francisco-based Animal Legal Defense Fund, represented by Austin attorney Scott Hendler, is also scheduled to file an amicus brief in support of of prosecutors.
The ALDF has already submitted a transcript of a professor's 2010 testimony before Congress on the prohibition of crush videos "in the wake of" the statute that preceded the current crush statute. Kevin Volka, chair and professor of psychology at the California Statute University-Channel Islands argued that "crush videos are sexual in nature," bolstering prosecutors' contention that crush videos meet the legal requirements to be considered obscene.
Richards and Justice remain in Harris County Jail, where they're being held on animal cruelty charges.