Sunday, July 26, 2009 3:12:45 PM
Why Should This Photo Be Illegal?
Why Should This Photo Be Illegal?
By Darren Warner
Imagine getting a great photograph of your hunting partner shooting at a pheasant, then finding out it’s illegal to possess that photo.
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 http://NRAhuntersri ghts.org for updates on the case as they occur.
http://www.nrahunterrights.org/Article.aspx?id=2170
Why Should This Photo Be Illegal?
By Darren Warner
Imagine getting a great photograph of your hunting partner shooting at a pheasant, then finding out it’s illegal to possess that photo.
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 http://NRAhuntersri ghts.org for updates on the case as they occur.
http://www.nrahunterrights.org/Article.aspx?id=2170
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