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,"
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
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.
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:
18 U.S.C. § 48 (2010).
"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
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:
United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 130 & n. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (internal quotation marks and citations omitted). Following that instruction, the Court, this circuit, and other circuits have held that federal statutes that use but do not define the word "obscene" incorporate the Miller definition. See Ashcroft v. ACLU, 535 U.S. 564, 581 n. 11, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ("Although nowhere mentioned in the relevant statutory text, this Court has held that the Miller test defines regulated speech for purposes of federal obscenity statutes such as 47 U.S.C. § 223(b).") (citing Smith v. United States, 431 U.S. 291, 299, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977)); Hamling v. United States, 418 U.S. 87, 105, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (construing federal statute that criminalizes the mailing of "obscene" matter to incorporate the Miller definition); United States v. Rudzavice, 586 F.3d 310, 314-15 (5th Cir.2009) (upholding federal statute that prohibits the interstate transfer of "obscene matter" to someone under 16, reasoning that courts construe "obscene" to be consistent with Miller) (citing Reeves v. McConn, 638 F.2d 762, 763-64 (5th Cir.1981)); see also United States v. Dean, 635 F.3d 1200, 1205 & n. 4 (11th Cir.2011) (noting that section of federal statute that criminalized only material that "is obscene" would satisfy all three Miller prongs); United States v. Schales, 546 F.3d 965, 971-72 (9th Cir. 2008) (upholding federal statute that required material to depict a minor engaging in sexually explicit conduct and be obscene, reasoning that "obscene" requires that the government satisfy Miller).
Where one construction of a statute would raise "serious constitutional doubts," it is "incumbent upon [courts] to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress." United States v. X-Citement Video, Inc., 513 U.S. 64, 78,
In Brown, however, the statute included a definition of the proscribable material that mimicked the Miller language but left out the "sexual conduct" requirement. See Brown, 131 S.Ct. at 2732-33. Here, by contrast, § 48 simply uses the word "obscene." Moreover, the legislative history is, unsurprisingly for a deliberative body, variable, hence debatable. On the one hand, the Findings state that "many animal videos are obscene in the sense that the depictions, taken as a whole — (A) appeal to the prurient interest in sex; (B) are patently offensive; and (C) lack serious literary, artistic, political or scientific value." Pub.L. No. 111-294, 124 Stat. 3177, § 2(6)(A)-(C) (2010). The House Report states that "witnesses concurred that Congress can ban interstate and foreign commerce in depictions of acts of illegal animal cruelty that appeal to the prurient interest, are patently offensive, and lack serious literary, artistic, political or scientific value." H.R. Rep. No. 111-549, at 5 (2010), 2010 U.S.C.C.A.N. 1224, 1228. On the other hand, the Findings also reference the fact that the Supreme Court has long held obscenity to be an unprotected category of speech and the fact that certain depictions of animals cruelty appeal to a "specific sexual fetish." Id. at § 2(4) & (5). Additionally, Senator Leahy stated that "in response to the Stevens decision, the House overwhelmingly passed a narrower bill banning animal crush videos on obscenity grounds" and that "[i]n drafting the substitute amendment to the House bill, [the Senate was] careful to respect the role that courts and juries play in determining obscenity. In any event, it will be up to the prosecutor to prove and the jury to determine whether a given depiction is obscene, because obscenity is a separate element of the crime." 156 Cong. Rec. S7653 (2010). Furthermore, the House Report notes that "witnesses also agreed that crush videos could be constitutionally prohibited in line with the obscenity doctrine formulated by the Supreme Court in Miller v. California.) H.R. Rep. No. 111-549, at 5 (2010), 2010 U.S.C.C.A.N. 1224, 1277. The Report notes also that courts have applied Miller to sadomasochism and that "[a]lthough obscenity may generally apply to materials that depict or describe a more obviously sexual act, case law shows that obscenity can also cover unusual deviant acts." Id. at & n. 13. The Report cites to Hamling for the proposition that "Miller and its progeny firmly established the term `obscene' as a legal term of art." Id. at 5 n. 11. Finally, written testimony submitted to the Senate Judiciary Committee indicates that Congress considered this issue. See Prohibiting Obscene Animal Crush Videos in the Wake of United States v. Stevens: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 24-25 (2010) (statement of J. Scott Ballenger, Partner, Latham & Watkins LLP) ("H.R. 5566 does
These few examples suffice to instruct us not to look to variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning. See Milner v. Dep't of Navy, ___ U.S. ___, 131 S.Ct. 1259, 1266, 179 L.Ed.2d 268 (2011) ("Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language."); United States v. Pruett, 681 F.3d 232, 242 (5th Cir.2012) ("[C]ourts applying criminal laws must generally follow the plain and unambiguous meaning of the statutory language, and only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language.") (internal quotation marks and citation omitted). "It has long been a tenet of First Amendment law that in determining a facial challenge to a statute, if it be `readily susceptible' to a narrowing construction that would make it constitutional, it will be upheld." Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)). We hold that § 48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech.
Richards and Justice argue, as they did in district court, that even if § 48 is limited to Miller obscenity, it nonetheless is facially unconstitutional because it violates the rationale set forth in R.A. V. v. City of St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
The Court in R.A.V. articulated several exceptions to its rationale. First, "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is prescribable, no significant danger of idea or viewpoint discrimination exists.... A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience — i.e., that which involves the most lascivious displays of sexual activity." R.A.V., 505 U.S. at 388, 112 S.Ct. 2538. Second, "[a]nother valid basis for according differential treatment to even a content-defined subclass of prescribable speech is that the subclass happens to be associated with particular secondary effects of the speech, so that the regulation is justified without reference to the content of the ... speech." Id. at 389, 112 S.Ct. 2538 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). "A State could, for example, permit all obscene live performances except those involving minors." Id. Third, "[t]o validate such selectivity (where totally prescribable speech is at issue) it may not even be necessary to identify any particular `neutral' basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot." Id. at 390, 112 S.Ct. 2538.
Section 48 regulates a content-defined subclass based on its secondary effects and is justified without reference to the content of the speech. See id. at 385, 112 S.Ct. 2538. "The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal citations omitted). The plain language and the history and revisions of § 48 suggest that there is no realistic possibility that official suppression of ideas is afoot. See R.A.V., 505 U.S. at 390, 112 S.Ct. 2538. Nevertheless, even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 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. See 156 Cong. Rec. S7653-54 (2010) ("The other element that occurs in animal crush videos and which warrants a higher punishment than simple obscenity is that it involves the intentional torture or pain to a living animal. Congress finds this combination deplorable and worthy of special punishment.").
Furthermore, § 48 serves that interest in a reasonably tailored way. Section 48(a)(1) no longer includes the words "wounded" and "killed," which troubled the Court in Stevens because they might not imply cruelty and could apply to depictions of activities such as hunting. See 18 U.S.C. § 48(a)(1); Stevens, 559 U.S. at 474-75, 130 S.Ct. 1577. Going further, § 48(e)(1) excepts depictions of customary or normal veterinary or agricultural husbandry practices; the slaughter of animals for food; or hunting, trapping, or fishing. 18 U.S.C. § 48(e)(1). Most importantly, as described earlier, by requiring proof of obscenity, § 48(a)(2) limits § 48(a)(1), which describes the proscribed acts of cruelty. See id. at (a)(2); H.R.Rep. No. 111-549, at 10 (2010), 2010 U.S.C.C.A.N. 1224, 1232 (noting that § 48 excludes depictions of activities such as hunting "even though the plain sweep of the statute does not cover these activities"). Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals. See Wisconsin v. Mitchell, 508 U.S. 476, 487-88, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993); see also Connection Distrib. Co. v. Holder, 557, F.3d 321, 328-30 (6th Cir.2009) (en banc); Valley Broad. Co v. United States, 107 F.3d 1328, 1331 n. 3 (9th Cir.1997). We hold that § 48 is a permissible regulation of a subset of proscribable speech.
We hold that on its face § 48 is limited to unprotected obscenity and therefore is facially constitutional. We REVERSE the district court's judgment and REMAND for proceedings consistent with this opinion.