Posted on 07/23/2009 2:02:06 AM PDT by Neil E. Wright
By Darren Warner
Imagine going to the video store to rent a copy of your favorite hunting show, only to find the shelves bare. When you ask the clerk where they are, he tells you that the films are now illegal and that you can’t buy or rent them anymore.
This may sound like something out of 1984, but in United States v. Robert J. Stevens, the U.S. Supreme Court will decide this fall if photos like the one above, or video that shows hunters shooting at game, violate a 1999 federal law (18 USC § 48) that bans depictions of animal cruelty.
If the law is upheld, it could mean unprecedented problems for the entire hunting, fishing and outdoor media industry.
“We have a history in this country of outdoor reporting of hunting and fishing, and this case could potentially eliminate hunting and fishing TV, and even your favorite outdoor magazine,” said Bill Miller, executive producer of North American Outdoors Television.
The Law
In 1999, Congress sought to do something about the sale of “crush videos,” or short films showing women crushing small animals with their bare feet or high heels. Crush videos appeal to a small segment of the population who find them sexually gratifying.
The result was a new law that bans images of animals being hurt, wounded or killed if the depicted conduct is illegal under federal or state law either (1) where the creation of the depiction occurs; or (2) where the depiction is sold or possessed. The law provides exemptions for images that have serious “religious, political, scientific, educational, journalistic, historical, or artistic value.” But it's up to a jury to decide what has “serious value.”
The intent of the law is to reduce animal cruelty by targeting those who make or sell crush videos, as well as images of cock fighting or dog fighting. Those who violate the statute are subject to a fine and up to five years in prison.
The law does not criminalize acts of animal cruelty themselves, only their depiction.
“There shouldn’t be a need for another law to prevent the distribution and sale of films on cock fighting, dog fighting and other things like that because laws already exist to address those crimes,” added Miller.
The ban means that taking, possessing or selling images of an animal being harvested is a federal crime if the material is sold or possessed somewhere in the U.S. where the hunting of that animal (e.g., mourning doves) or the type of hunting (e.g., crossbow) is illegal.
For example, “Hunting is illegal in the District of Columbia,” said Ryan Shores, one of the attorneys writing an amicus brief opposing the law on behalf of the NRA. “Under this law, if you sell a deer hunting video in D.C., then it’s a criminally punishable offense.”
“The statute is extremely vague and broad,” said Victor Perlman, legal counsel for the American Society of Media Photographers. “And you wonder how anyone can decide what falls within the law’s exceptions for images that have serious value.”
The law also prevents hunters from taking images of game being harvested.
“The potential implication is that a hunter who videotapes or takes a picture of a deer being harvested could potentially be judged to be in violation of the law,” said Chris Chaffin, president of the Professional Outdoor Media Association (POMA). “If that were to become the law of the land, then all communicators who make their living writing hunting stories and using harvest photographs could be put in the position of being felons for doing so.”
Imagine the delight of anti-hunting groups to find out about this law.
The Case
In January of 2003, Pennsylvania State Troopers and United States Department of Agriculture officials raided the home of Virginian Robert J. Stevens, a published author and documentary film producer. Officials broke down Stevens’ door at 5:30 a.m. and confiscated several films Stevens had made and sold. Stevens was charged with three counts of violating the depictions of animal cruelty law.
Stevens’ films document the history of pit bulls and how to properly train them for hunting purposes—legal in his state.*
At the trial, Stevens’ defense presented expert testimony that each of his documentaries has serious educational and historical value, so they are exempt from the law. After the judge instructed the jury that an exemption should only be considered if the work is “significant and of great import,” the jury took just 45 minutes to find Stevens guilty. He was sentenced to 37 months in prison. It was the first time someone had been tried and convicted of violating the federal law.
Stevens appealed the conviction, arguing that the law violates his First Amendment right to freedom of expression.
The government contended that depictions of animal cruelty are legally akin to obscenity and child pornography, and therefore not protected by the First Amendment.
The 3rd U.S. Circuit Court of appeals disagreed, overturning Stevens’ conviction. The court reasoned that there is no compelling interest in banning speech to compensate for the “under-enforcement of state animal cruelty laws.”
“Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm,” wrote U.S. Court of Appeals Judge Brooks Smith.
The case has severely damaged Stevens’ business and reputation. Although Stevens has no criminal record and is against animal cruelty, some media and private interest groups have characterized him as immoral and eccentric. For example, the Los Angeles Times stated, “Stevens is not someone I’d want around my children.” The Legal Satyricon described Stevens as a “rather unsavory fellow” and “a bit demented.”
Mr. Stevens, who is now 68 years old, also is the victim of selective enforcement of the law.
“Portions of Mr. Stevens’ films, which people gave to him, have been used by the Humane Society of the United States and Dateline® NBC to promote their interests, yet they haven’t been charged with a crime,” said Patricia Millett, Stevens’ attorney, who will present their case to the Supreme Court. “You can’t say that because conduct is outlawed somewhere, then images of it need to be outlawed everywhere – but that’s what the statute does.”
Now the case rests in the hands of the Supreme Court, and nothing less than the First Amendment-protected freedoms we enjoy are at stake.
“It’s very important to understand that just because you may not like something or you find it offensive, it does not mean that free speech should be suppressed,” explained Millett. “That’s part of the history of this country: we don’t leave it up to the government to say parts of free speech are off limits.”
What You Can Do
“The first thing people should do is write a letter or contact the NRA and thank them for their amicus brief that opposes this law,” suggested Millett. Then, contact POMA to show your support for the amicus curiae brief they’re writing that defends the free speech rights of hunters, anglers and those who enjoy outdoor magazines, TV, Web content and photography.
Check back to NRAhuntersrights.org for updates on the case as they occur.
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*One of the videos also contains scenes of how pit bulls are used in Japan for dog fighting, where it's legal. But Stevens strongly opposes dog fighting and focuses instead on the qualities that make the breed such good hunters and guard dogs.
Betcha they went in with a SWAT team. And the govt. wonders why people have lost respect for it.
Hey HUNTERS, remember how you had NO PROBLEM when they banned those "evil black guns" because they were going to leave you alone??? WELL GUESS WHAT!! NOW THEY'RE COMING FOR YOU!!!!
P I N G
Curious why it’s constitutionally protected to make films portraying cruelty to humans but illegal to make same of cruelty to animals.
Betcha they went in with a SWAT team. And the govt. wonders why people have lost respect for it.
SWAT probably shot the guy's dog before arresting him.
I'm pretty jaded and thought I had heard of about every twisted thing out there, but I guess not. There's some sick puppies in the world.
I remember saying back in 1999 that this law was going to be abused to go after hunters.
It is so typical. There is a huge hysteria about some made-up problem. In this case “crush videos”. How many people were seriously watching crush videos for sexual gratification? It’s not like this was a widespread problem.
But in rides Congress to the rescue, passing some ill-considered law to solve a problem that doesn’t exist. And now, ten years later, we have to contend with yet another idiotic federal power that has nothing to do with the original purpose.
As Napoleon said, “Never ascribe to malice that which can be adequately explained by stupidity.” But at some point, stupidity is not an adequate explanation. I think we passed that point with Congress long ago. I have come to the conclusion, in this case, that it is more likely that some malicious people in Congress, probably at the staff level, saw the hysteria over crush videos, and decided to use that hysteria to pass a law that they knew would be abused to ban hunting, eventually. The staffers then buffaloed the Congresscritters into voting for this garbage, and here we are.
Congresscritters don’t even bother to read legislation anymore. They just vote for what their staffers produce, when their leadership tells them to vote. Nobody understands anything, so it is the staffers and the lobbyists who control it all.
If I were ever elected to Congress, I would vote “NO” on any piece of legislation that I had not read and understood in it’s entirety. Otherwise I would run the risk of voting for something I did not like
If the courts uphold this junk. I’m going to post hunting pics on every web site I can find, every other hunter should do the same. It’s not as if they can come after all of us.
Keep in mind, an insect is a small animal.
So, would the video footage of Obama swatting the fly be criminal?
Would nature films where the lions eat the antelope be criminal?
This is just completely nuts.
Obviously this is happening in Europe or somewhere no? There is no way this could be happening in the USA. (that’s sarcasm)
When I was a lad, I squished a bug, and the little girl that saw me do it was all upset at my act of cruelty. She whined that the bug had a life and I took it away.
I learned about liberals at a very early age.
Bacteria are alive too. Every last one of us slaughter them by the millions every day.
Eighteen thousand varieties of homicide on TV every single day of the year, not to mention “reality TV” which depicts death and dismemberment in graphic footage, plus unlimited late-term abortions on demand everywhere in the nation, PLUS supermarkets filled to overflowing with every conceivable type of red meat and edible organ, and some utter dolt somewhere is sensitive to hunting photographs?????
What’s wrong with this picture?
I have never heard of this before. I remember the hysteria over the rush videos, but nothing more.
Secondly, I do not remember a story about the PA State Police arresting someone for making videos.
It goes to show you how much is going on out there that we do not know about.
“All animals are equal, but some animals are more equal than others.”
Plants have feelings too.
Yeah, at least that’s what they tell me.
One can only wonder how Justice Sotomeyor,that wise Latina judge,will vote in this case.
(End sarcasm)
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