(CN) - Reinstating charges over the murder of puppies and other animals, the 5th Circuit said "animal crush" fetish videos are not protected free speech.
The ruling Friday reverses the dismissal
in Houston, Texas, of five charges against Ashley Nicole Richards, 23, and Brent Justice, 52, under the Animal Crush Video Prohibition Act of 2010.
Prosecutors allege a scantily clad Richards can be seen in approximately eight videos torturing and killing puppies, chickens and kittens.
In dismissing some counts last year, U.S. District Judge Sim Lake deemed the law too broad and unconstitutional. He refused to drop two remaining charges under federal obscenity laws.
A three-judge appellate panel in New Orleans reinstated the charges under the animal-crush law after finding the constitutional because it focuses on the "secondary effect" of limiting animal cruelty rather than the content of the speech.
"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," Judge Stephen Higginson wrote for the court. "Congress finds this combination deplorable and worthy of special punishment."
There is also reasonable tailoring in the law for the "significant interest" Congress has in preventing the secondary effects, the 14-page opinion states.
The words "wounded" and "killed" are not included, which troubled previous courts because they may not imply cruelty and could include activities such as hunting, according to the ruling.
Proof of obscenity is also required in the law, which spells out exceptions for veterinary or agricultural husbandry practices, as well as killing for food, hunting, trapping and fishing, the court found.
The law "thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals," Higginson wrote. "We hold [the law] is a permissible regulation of a subset of proscribable speech."
Richards has already pleaded guilty to three state counts of animal cruelty, the Houston Chronicle reported. She was sentenced to 10 years in state prison. Justice was also charged by the state with animal cruelty and remains in the Harris County Jail in lieu of $50,000 bail.