Animal Crush Porn, Revenge Porn, and Secondary Effects

A few days ago, the Fifth Circuit issued an opinion in United States v. Richards upholding the Animal Crush Video Protection Act (ACVPA) of 2010.  At Constitutional Law Prof Blog, Ruthann Robson has a comprehensive analysis of the opinion. Here, I want to offer a few preliminary thoughts about the possible implications of a particular piece of the court’s analysis.

In Richards, the Fifth Circuit ruled that depictions of animals tortured and killed for sexual gratification are not a protected form of speech, thereby reinstating the criminal convictions of a couple who videotaped the deaths of animals. As the Fifth Circuit summarized, the videos depicted defendant Ashley Nicole 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 f*** a pussy real good.”

Defendant Brent Justice recorded these activities on video. Both Richards and Justice were charged under the ACVPA as well as various other criminal statutes.

One noteworthy feature of the decision is its reliance on “secondary effects” doctrine. The Fifth Circuit first held that the ACVPA incorporates obscenity doctrine and thus proscribes only unprotected speech. It then went on to refute the objection that the ACVPA impermissibly regulates a content-defined subcategory of obscene speech. It states that the regulation is “based on its secondary effects and is justified without reference to the content of the speech.” But the court does not stop there, explaining that “even assuming, for the sake of argument, that the creators and distributors of animal crush videos . . . intend to advance a distinct message, perhaps about barbarism,” the statute “is justified with reference not to the content of such a message but rather to its secondary effects — wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.”

Secondary effects doctrine is often maligned, and courts have applied the doctrine in a relatively limited set of circumstances. As Eugene Volokh has explained, “[t]he tendency of speech to offend people is not treated as a secondary effect, and neither is the tendency of speech to cause harms that flow from such offense — for instance, potential fights, policing costs needed to prevent fights, and injury to foreign diplomats’ dignity caused by protests outside their embassies” (emphasis in original; citations omitted). Most prior applications of the secondary effects doctrine have involved zoning restrictions for adult businesses. For example, in City of Los Angeles v. Alameda Books, Justice O’Connor’s plurality opinion upheld a zoning restriction on the concentration of adult businesses in a particular area because the city reasonably relied on “a study reveal[ing] that areas with high concentrations of adult establishments are associated with high crime rates.” Justice Kennedy, concurring in the judgment, explained that “[a] zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.” Although the secondary effects doctrine has not been widely applied, Alameda Books remains good law. And the Court has never limited the doctrine to the zoning of adult businesses: indeed, it considered the doctrine’s application to pure political speech in Boos v. Barry, although it ultimately rejected the claim.

If the Fifth Circuit’s reasoning in Richards is upheld by the Supreme Court or remains on the books in that jurisdiction, we might ask whether the decision has implications for the First Amendment analysis of statutes criminalizing non-consensual pornography, more commonly termed “revenge porn.” Along with my colleagues Ian Farrell and Justin Pidot, I have previously argued that some statutes, such as the one recently passed in Colorado, survive constitutional scrutiny.

Perhaps secondary-effects analysis provides a way to think about the concern that statutes criminalizing non-consensual pornography are impermissibly content-based. One might argue that a “secondary effect” of non-consensual pornography is that its dissemination inherently violates consent — that is, it violates an agreement that the pictures would not be shared beyond a trusted partner — and that respect for consent is a value that the government wishes to protect and promote. Indeed, both state and federal governments have a long track record of promoting respect for consent via criminal statutes in many different contexts, ranging from the rape laws on the books in every state, to the criminal penalties associated with certain violations of HIPAA, to the criminal penalties available for some disclosures of Social Security numbers.

To make the analogy more clear: just as the ACVPA is justified because it targets the “secondary effect” of “wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction,” one might argue that statutes criminalizing non-consensual pornography are justified because they target the “secondary effects” of violating consent that, as demonstrated by a wide range of federal and state laws, society has deemed worthy of criminal sanction.

Of course, as Justice Kennedy explains in Alameda Books, “a city may not regulate the secondary effects of speech by suppressing the speech itself.” But criminalizing non-consensual pornography doesn’t suppress pornography: it’s hard to imagine a serious argument that the government has stifled the freedom to engage in sexually explicit speech given the vast quantity of pornography on the Internet. Rather, non-consensual pornography raises content-neutral concerns about the distribution of material without consent, and it’s this lack of consent that the government has targeted by criminalizing such distribution.

Perhaps Richards hints at the relevance of secondary effects analysis to non-consensual pornography. Perhaps not. But at a minimum, Richards emphasizes that First Amendment doctrine is not carved in stone. It continues to evolve as society changes and new situations arise. No court had applied secondary effects doctrine to animal crush pornography until last Friday. We won’t know for sure whether the same doctrine might apply to non-consensual pornography unless and until a court addresses the question.