Open Season: Do Laws Against Animal Crushing Videos Violate Free Speech?

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Update: Federal prosecutors have dropped the remaining two obscenity charges and have filed a notice to appeal the five counts under the Animal Crush Video Prohibition Act Meanwhile, state prosecutors have refiled animal cruelty charges against Richards and Justice, who remain in Harris County Jail. For more information, click here.

Never mind what you see; it's what you hear that gets you first.

A shrill whine from the cat, no doubt frustrated by the fact that its rear paws are duct-taped together. The front paws are also taped but separated; it all keeps the cat in place, right there on clean yellow tiles.

Sitting in a simple wooden chair, clad in black bra, short-shorts, and heels, smoke from her cigarette curling up past the yellow masquerade mask shielding half her face, is Cruel Meshalette. Or, as she's known in the federal indictment, Ashley Nicole Richards. On her necklace is a cross.

An R&B song plays. Richards, 21 years old when this video was shot, flaunts her assets. The person operating the camera quick zooms to Richards's face as she exhales smoke.

"Now look at what we have here," Richards says at about a minute in. "A nice pussy. Nice, nice, nice, nice....are you calm yet?"

Richards lays down a heel on a fold of fur. It's not clear how old the immobilized cat is. Not a kitten, but small all the same. A white body, with a black tail, black rings around its eyes. Black ears. And utterly, completely helpless.

She says: "What am I on? Am I on something? Am I on something? Bitch, am I on something?"

The noises the cat makes sound like part pain, part anger, part fear.

Then, the knife.

It's a type of knife called a kris: Asian in origin, with a wavy blade that, in this instance, looks to be about six inches. Richards now kneels by the cat and runs the blade flat across the cat's side, like she's brushing it. Then she rotates the blade and presses it against the cat's hind quarters, like she's going to cut. The cat goes nuts.

She says: "You sure can squirm."

The cat moves its head back, trying to bite Richards's hand.

"You don't want to go that route," she warns. "Shut the fuck up." She pins the cat's neck to the floor with her knee.

In this eight-minute-and-16-second clip, the cat does not die, nor is it even cut. It's all foreplay. The long, slow mutilation comes later. And the sounds that come with it defy description.

In July 2012, someone finds this video and tips off People for the Ethical Treatment of Animals.

That group then forwards it to the Animal Beta Project, a loose afiliation of animal-welfare activists and online sleuths. Thanks to some brilliant detective work, the ABP identifies within 48 hours not only the city in which the clip was shot but Richards herself. They send the info back to PETA, which notifies the Houston Police Department.

The cops go to a house on Locke Lane, in west Houston, and arrest Richards and her roommate, 51-year-old Brent Wayne Justice, who are charged with animal cruelty. They believe Justice was the cameraman. Police seize computers, which they say contain other videos. Richards's and Justice's fates are now in the hands of Assistant Harris County District Attorney Belinda Smith, a veteran animal cruelty prosecutor. Seems like a slam dunk.

But then prosecutors from the U.S. Attorney's Office step in. They want a piece. This could very well be the first prosecution in the nation under a 2010 statute criminalizing so-called "crush" videos. The Animal Beta Project and animal-welfare organizations like the Humane Society of the United States laud the feds. The Harris County District Attorney's Office drops the charges and hands over the case.

Richards and Justice are charged with five counts under the 2010 statute, which carry a maximum of 45 years in prison. For good measure, prosecutors also tack on two counts of obscenity independent of the crush statute.

Then something happens that none of these groups anticipated: U.S. District Court Judge Sim Lake tosses the crush video counts on First Amendment grounds. He finds that the 2010 law — just like the one it supplanted — is overbroad and unconstitutional. (However, both Richards and Justice remain in jail while awaiting trial on the surviving obscenity charges.)

The Harris County District Attorney's Office declined comment. A spokeswoman for the U.S. Attorney's Office stated in an e-mail, "We respect the court's ruling and [are] considering our legal options."

What should have been a proud moment, and a message to other producers of these videos, backfired. Big. As of this writing, it appears that if you want to produce and sell videos showing the torture and death of cats and dogs in Texas, you are immune to federal prosecution. It's open season.

In 2010, the United States Supreme Court upheld a lower court's ruling that a law criminalizing the depiction and distribution of animal cruelty was so broad as to violate the First Amendment.

The law was meant to clamp down on the production and sale of "crush" videos, in which animals are tortured and killed for viewers' sexual excitement, as well as dogfighting videos. But a majority of justices believed the statute made a huge, unconstitutional leap by staking out a new area of regulated speech. Writing for the majority, Chief Justice John Roberts called the statute "a criminal prohibition of alarming breadth."

Legislators went back to the drawing board and amended the statute, tailoring it to prohibit not "depictions of animal cruelty" in general but more specifically "animal crush videos," which the statute defined as "any photograph, motion-picture film, video or digital recording, or electronic image that depicts actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury..." The revised statute also required that the content be "obscene."

And there it sat on the books, untested, just waiting for the right case.

Enter Ashley Richards and Brent Justice.

It appears that, by the time the new statute was enacted, Richards and some friends were selling dollar-a-minute "soft" crush streaming videos on a crush-fetish site — taunting crawfish, goldfish, crabs — speaking provocatively to the camera before squishing the creatures with their stripper-heels. (These creatures are not protected by the crush law.)

They called themselves the Ebony Crush Gurls — "the sexiest, cruelest, and deadliest gurls on the web." In addition to Ashley/Meshalette, there was a rotating cast of characters that included Tatianna, Miss Jazzy, Impeccable and Miss Scorpio.

The Animal Beta Project believes the soft crush videos were a soft-sell — a way to lure prospective clients for more grisly fare. This is also evident in a widely circulated clip called "I Love 2 Kill," the link of which includes the following copy: "Hi, its me Meshalette, aka MsSexykiller...I love to kill, I don't know why...This is for all my fans with a fantasy of a sexy black goddess...As a country girl I grew up killing and slaughtering to survive...Now I must survive by me makin ur fantasy cum true.....Send me an email with ur fantasy!!!!"

Richards had been honing her dominatrix shtick in various online massage ads, which sometimes carried Justice's phone number. On a site called Escort Introductions, Richards billed herself as Mistress Mishelette, "a controlling Intelligent, evil and strict Femdom goddess who enjoys the exchange of power between me and my slaves...I'm very cruel evil and sadistic, so don't be fooled by my sweet innocent looks and beauty." (Richards also advertised on backpage.com, a classified-ad site once owned by the Houston Press's former parent company.)

The exact nature of their relationship is murky, with both of them telling different stories to law enforcement. A 2011 arrest report from the Waco Police Department, from when Richards allegedly assaulted a police officer, lists Justice as her stepdad.

Both appear to come from fractured family units. As of this writing, Richards has one brother in county jail and another on death row. Her stepmother and biological father told the Press they had no idea she was in jail. They asked the Press how they could contact her.

Other family members — one of whom is pictured in one of Richards's massage ads — proved difficult to reach.

Justice's family members were also hard to reach or reluctant to talk. However, his 24-year-old daughter, Larrissa, told the Press that Justice was a good, supportive father. Her parents separated when she was about 15, and she always wanted to stay with him, despite her mother's objections.

Father and daughter remained close for some time; she says Justice was living with her when he met Richards. She says they met through a phone- or online-chat system, and it didn't take long before Richards moved in. Larrissa says she never got along with Richards, and after the new couple moved into their new place, Larrissa hardly spoke with her father again — something she blames mostly on Richards.

"My dad, he gets a little girl-crazy," she says. "Like, if the girl say, 'Sit,' he'll sit; the girl say, 'Stand,' he'll stand."

Although she attended his December 2012 detention hearing, she didn't speak with him. And while the police investigator's descriptions of the crush videos turned her stomach, she didn't think he deserved the 45-year-plus sentence the prosecutors were gunning for. After all, he wasn't the one actually killing the animals, and by that time, he had spent close to four months in jail.

Larrissa says she never saw the videos and was shocked to hear that her dad could allegedly be involved in the mutilation of cats and dogs; the only thing she'd been aware of were videos she says her father made and sold with a previous girlfriend in which the woman stomped on grapefruits and the occasional crawfish.

Justice's attorney, Assistant Federal Public Defender Philip Gallagher, declined comment.

Richards's attorney, Joyce Raynor, said the content of her client's videos does not meet the legal definition of obscenity.

"This is a case in which we know for sure that the federal government should have never taken up in the first place," she said. "We hope to vindicate Ms. Richards as soon as we possibly can."

According to a Houston police officer who testified at the duo's December 2012 detention hearing, neither had a history of steady employment. Outside of the odd massage, Richards claimed to make ends meet by babysitting and cutting hair.

Justice once ran a shuttle service for freshly released prison inmates, but work dried up when he lost his commercial driver's license. By the time he met Richards, he had racked up convictions for disorderly conduct, auto theft and aggravated assault of a police officer. Justice seemed to have a real problem with cops.

When a robbery suspect was shot by a police officer outside his apartment complex in 2011, Justice told a KTRK reporter that he witnessed the shooting and, contrary to the officer's story, the suspect didn't have a gun. Justice followed this up with a written complaint. According to police and the Animal Beta Project, Justice was already making crush videos at that apartment complex.

He is, in fact, wearing the same shirt in the KTRK interview that he wears in the Facebook profile bearing the alias "Terrence Johnston." His profile pics show him assuming what is supposed to be a regal pose in front of the same fireplace in the same room where police say some of the videos were made.

Justice also tried to turn Richards's arrest in Waco into a payday: He sued the city and police department. Acting as his own attorney, he accused officials of violating his constitutional rights and demanded $6.75 million in damages. Plus interest. (In an application to waive court costs filed with the suit, Justice wrote that he had no savings or income and relied on his brothers and father for food and rent.)

As "Terrence Johnston," Justice had dozens of young female Facebook friends living in Africa. According to investigator Suzanne Hollifield, Justice had been e-mailing a woman in Ghana about making crush videos. They referred to each other as husband and wife. He sent her pictures of his penis. He told her he owned a business and had a financial adviser.

"I am here to share knowledge," he wrote on his alias profile, "and to offer hope and encouragement to those who are strong and determined to succeed."

December 5, 2012.

Hollifield, who has spent the last two of her 18 years with the Houston Police Department as an animal ­cruelty investigator, takes the stand to testify in Justice's and Richards's detention hearing. She reads her summary of videos made by the couple, called "Puppy 1" and "Puppy 2." It's ­written in cop-style: just the facts. Detailed but ­detached.

"Ashley Richards fed a gray dog from her hand in the kitchen. She also gave the dog water from a container. Richards put her hand on the dog's neck and raised the dog's front paws in the air. Richards showed a meat cleaver to the camera. Richards asked the dog if it was scared.

"During the video, Richards touched her burning cigarette on the dog's skin several times. Each time, the dog jerked and moved. Richards bound the dog's mouth with tape and bound the dog's paws with rope. The dog tried to remove the tape from its mouth. Richards put on a pair of high heels, and she stepped on the dog's front right paw, and the dog cried and moved....

"The dog struggled to escape. Richards pushed the dog to the floor. She used a meat cleaver she obtained from the kitchen counter and chopped the dog's back leg....

"Richards told the dog, 'I like the way you bleed.' The dog cried. While Richards held the dog's body to the floor with her left knee, Richards chopped the top of the dog's neck with a meat cleaver. A leg wearing tan pants appeared on the left side of the screen. The individual wearing the tan pants placed a black knife on the left — on the kitchen floor — that was within Richards's grasp.

"While restraining the dog, Richards grabbed the black knife and used the knife to saw off the underside of the dog's neck. The dog bled and struggled. Richards severed the dog's head from its body and then held the head in the air. Richards continued to saw the dog's body with the knife.

"Richards pulled the dog's guts and organs out of the dog's body. Richards stomped on the severed dog's head. She urinated on the dead dog in the video."

Five days after Hollifield read this into evidence, the Harris County District Attorney's Office dismissed all animal cruelty charges against Justice and Richards.

Hollifield testified that Richards admitted she was "Cruel Meshalette" but denied that Justice was involved.

Hollifield also testified that, on occasion, some customers would provide their own animals for customized videos.

Just to make it clear to the court that the couple were not thieves, Gallagher got Hollifield to agree that "there's no evidence that she did anything to them that was not authorized or expected by the people who provided them....They expected these animals to be destroyed. They weren't expecting property back."

Like other customers, these willing suppliers of property usually first contacted Richards through her e-mail on the "Ebony Crush Gurls" site, Hollifield testified.

"They would discuss what type of video that the customer wanted," she said. "They would dictate what type of animal."

After a PayPal or Western Union transfer, Richards would send a link to the video through a file-sharing service. In all, Hollifield testified to finding 45 videos.

When the case hopped from state to federal court, folks at the Animal Beta Project were pleasantly surprised. They assumed the state would have first crack, but no matter — from their perspective, the federal case was just as much a no-brainer. After all, according to Hollifield, Richards had already admitted to being in the videos; Justice was identified as being the cameraman in at least one video, thanks to a birthmark on his arm; e-mails stored on the couple's computers showed their business transactions; and, not least of all, there were the videos themselves.

"We were so surprised how quickly the law enforcement — Houston PD and...the DA's Office — took this and ran with it," ABP spokesman John Green told the Press. "And we were like, 'Wow, why can't every case be like this?'"

Then came Judge Lake's ruling.

In tossing out the five crush-law counts against Justice and Richards, Lake wrote that the obscenity requirement in the statute really just amounted to Congress trying to sneak a new definition of obscenity in through the back door.

Courts have ruled that, in order for there to be an obscenity finding, material must "portray sexual conduct in a patently offensive way." But, Lake wrote, "the acts depicted in animal crush videos may be 'patently offensive' under community standards, but under no set of community standards does violence toward animals constitute 'sexual conduct.'"

Likewise, Lake shot down prosecutors' argument that the statute was valid because it prohibited speech under a concept called "speech integral to criminal conduct." This exception to First Amendment rights was carved out in a 1982 U.S. Supreme Court decision upholding a New York law banning the sale or distribution of child pornography.

The court ruled, "The most expeditious, if not the only practical method of law enforcement, may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising or otherwise promoting the product."

Because of the particular importance of protecting children from abuse, the Supreme Court has refused to extend the "dry up the market" rationale to other areas, and Lake followed suit.

"The court does not view the protection of animals from pain or death as a government objective equivalent to the protection of children from abuse," he wrote.

In describing the statute, Lake opined that "Congress has written a law to proscribe speech that seems to straddle a line between obscenity and speech integral to criminal conduct, but cannot be fairly categorized as either one."

For members of the Animal Beta Project, the ruling was a kick in the gut.

An ABP member who uses the pseudonym Alex Delarge and whose eye for detail helped the group identify Richards in the first place tells the Press, "All of us just went, 'How can this happen?' I'm shaking as I talk about it, because I've seen some things doing this job for a couple of years now...We all say that that case stands out as far and away the worst thing I think we'll ever see, really."

But Geoffrey Stone, a University of Chicago law professor and an expert on First Amendment issues, says Lake's decision was firmly on point.

"Crush videos aren't really obscenity — that's not what they are," Stone tells the Press. "They don't depict sexual conduct in any way in which normally we would recognize that."

And, he adds, any comparison to the Supreme Court's 1982 child pornography ruling is only "superficially analogous."

"The truth is that we are in fact cruel to animals constantly in our society and we don't take that interest very seriously," Stone says. "We don't take it seriously when we're hungry. We don't take it seriously because we like to hunt animals just for the fun of it, and all of a sudden, we take it seriously when people want to make movies."

Conversely, he says, Richards and Justice could not have successfully mounted a First Amendment defense against state animal cruelty charges.

"I don't know why [the DA's Office] didn't pursue the case," he says. "You can certainly pursue both of them. I can't imagine why the state officials dropped it."

Not surprisingly, Jonathan Lovvorn, a lawyer with the Humane Society of the United States who helped craft the revised crush statute, disagrees with Lake's ruling.

"If this material doesn't fit the court's view of obscene or sufficiently sexual in nature to be obscene, then you escort the defendant out of the courtroom; you don't strike down the statute," he says. "It's a failure of the case rather than the statute."

Having successfully gotten rid of the bulk of the charges against their clients, Justice's and Richards's attorneys have asked for a hearing to release the couple from custody while they await trial.

The hearing is set for May 16.

Although Richards had the pending criminal charge out of Waco at the time of her arrest in Houston, she did have some positive things going on.

On August 10, 2012, less than a week before her arrest, she posted the good news on Facebook: She had received a certificate from a local advocacy group that "engages the historically disengaged in underserved neighborhoods." The document acknowledges Richards's completion of an eight-week leadership training course that would ostensibly help her "continue to organize and build strong communities for social change and equality."

Two weeks earlier, she wrote about a near-death experience that brought her closer to God.

She'd been driving down Highway 6, doing between 70 and 75 miles an hour, when, out of nowhere, a deer jumped in front of her car. The car killed the deer, but, Richards wrote, there was "no damage to my car nor me...Yahweh is Good!!"

She added, "People dont walk from anything like that [sic]. It was nothing but the Most High."

For Richards, it was a sign. In sparing Richards's life, God sacrificed one of his creatures.

Everything was going to be all right.

craig.malisow@houston press.com

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