From today's OUTDOOR WIRE:

"Use a scalpel, not a buzz saw," was advice offered to Congress yesterday during Supreme Court arguments regarding the Federal Depiction of Animal Cruelty Statute.

The ten year old law was written to outlaw "crush videos" -dominatrix videos in which women crushed small animals with bare feet or stiletto heels, but opponents argue the law is drawn so broadly as to negatively impact everything from investigations into animal cruelty to television shows featuring hunting.

In fact, conviction of Virginia filmmaker Robert Stevens for a series of videos depicting pit bulls in fights and other activities is the reason the case is before the high court.

Stevens was prosecuted under the statute, convicted and sentenced to more than three years in prison. In an appeal, Stevens argued the law was too-broad and violated his constitutional right of free speech. A federal appeals court agreed, overturning the conviction and his three-year sentence.

The Obama administration appealed that decision, and is asking the court to reverse that lower-court decision and find in favor of the statute.

In the arguments, Deputy Solicitor General Neal Katyal made the case that Congress had exempted hunting, educational and journalistic depictions from the law. Because of that supposed exemption, he argued, the court should not wipe out the law entirely, instead allowing the courts to decide on a case-by-case basis whether videos are prohibited.

"Why not do a simpler thing," Justice Stephen Breyer asked, "Ask Congress to write a law that actually aims at the frightful things they were trying to prohibit."

Justice Samuel Alito also asked whether the court should focus on the potential prosecution of hunters. Or, he asked, should we "look at what's happening in the real world?"

That line of questioning has some attorneys and observers "guardedly optimistic" that the court might rule against the statute, overturning Stevens' conviction and simultaneously allaying the fears of a group of opponents that included mainstream and outdoor media and the American Civil Liberties Union.

That optimism was bolstered when Justice Antonin Scalia asked how the word "kill" might be narrowed in the existing statute. After all, he reasoned, "kill can't be narrowed - killing is killing."

Professional Outdoor Media Association (POMA) Executive Director Laurie Lee Dovey was in the media section with a variety of interested parties filing briefs for both sides of the matter. In addition to being awed by the whole process, Dovey told me she was "amazed" at seeing Justice Scalia talking about hunting and fishing from what was obviously first-hand experience.

For Safari Club International's Litigation Counsel Doug Burdin, his guarded optimism was based on a wealth of hunting-related questions and recognition that in some cases, such as bullfighting, what is legal somewhere else is not legal here. That, he says, "tees up the issue" as did supposed exemptions for science and education. As Justice Scalia asked "what if the video isn't for educational purposes, but purely for entertainment?"

Or, as Justice Sandra Sotomayor asked, "What's the difference between this video (Steven's videos) and David Roma's documentary expose about pit bulls and dogfighting?" Those videos, Sotomayor said, "were far more gruesome."

Chief Justice John Roberts also took aim at the exemptions, saying that prosecution under the statute as written would depend on the views of the speaker. "You have organizations like PETA that uses these videos to gain support for their efforts to ban certain conduct. Couldn't Mr. Stevens' videos be seen as an effort to legalize the same conduct?"

As Justice Scalia said, "Child pornography is obscenity as far as I'm concerned, traditionally not covered by the First Amendment. This is something quite different. What if I am an aficionado of bullfights, and I think they ennoble both beast and man, and I want to persuade people that we should have them? I would not be able to market videos showing people how exciting a bullfight is."

In response, the government offered that in debating the law, Spanish bullfighting was described as "educational and artistic."

Continuing that line, Justice Breyer chided the government for their parsing of the language: "Look what you've done," he said, "you've taken these words, which are a little vague - serious educational, scientific, artistic -and you apply them not just to crush videos but to everything from dogfighting to fox hunting and stuffing geese for pate de foie gras, and sometimes quail hunting. In some states these things are legal, and in others they are not and people won't know what is legal and what is illegal."

Justice Breyer seemed to agree with that position, suggesting that this statute should be sent "back to the drawing board" so Congress could create a narrowly written statute that defined the problem and then addressed it.

"It was awe-inspiring to see them in action," Dovey said, "the whole process showed the best qualities of our justice system. I'm really proud of what I saw - and of the POMA Board of Directors deciding to make a stand on this case."

Apparently the halls of the Supreme Court brings out the best behavior in everyone in attendance. Sitting next to Dovey during the arguments was another interested spectator, Wayne Pacelle of the Humane Society of the United States. According to Dovey, Pacelle "didn't stick around long" after the proceedings. Instead, she observed wryly, "he rushed outside and took over the cameras" of the many media in attendance.

No decision will be forthcoming on the case until early next year, but - as always - we'll keep you posted.

--Jim Shepherd

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Tony,

Thanks for the posting!!!
I'll be tracking it.

Don

Don,

I'm following it closely, as well, since the outcome could affect me and many others in the outdoor media industry. That's why our executive director of POMA-- a group I helped organize a few years ago -- was in attendance.

A couple other article/releases:

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Outdoor Wire

Supreme Court Hearing Wildlife Image Arguments Today

Later this morning, the United States Supreme Court will hear arguments in the matter of U.S. v. Stevens (No. 08-769). The case involves a 1999 law designed to prevent cruelty to animals. The argument, however, concerns a definition of cruelty that has been characterized - accurately - as "overbroad" in its application.

In 2004, a Virginia documentary video producer, Robert Stevens, received a three-year prison sentence from a Pennsylvania district court for selling videos that contained scenes of hunting with dogs. The 1999 law was the basis for the conviction. It was later overturned on appeal.

When the court gavels into session, government attorneys will ask that the Supreme Court carve out a new exception to the Constitution's free-speech mandate. Those attorneys will argue that the exception is in a "noble cause" - preventing cruelty to animals.

For the record, the law was drawn in response to what was, at that time, a growing underground video industry: crush videos. In those sexual-fetish videos dominatrix women were stepping on and killing small animals ("crush"). At the time of its passage, "crushers" were estimated to be a million-dollar market-and growing.

Congress being Congress, that narrow law was broadened to include a variety of acts under the heading of "animal cruelty".

The last time the Supreme Court was asked to create an exception to free speech of this magnitude, it ruled that child pornography did not deserve free speech protections.

Author and documentary producer Robert Stevens was convicted of breaking the law after selling three videotapes of pit bulls to undercover agents. His three-year sentence was tossed after a federal appeals court said the law violated the First Amendment.

Granted, the videos showed pit bulls in action. In one, they're catching wild boars during hunting trips. A second showed dogfighting in Japan (it's legal there) and the third included dogfighting footage shot here in the 1960s and 1970s. The videos, Stevens argued in his defense, weren't done to advocate dogfighting, but to demonstrate the aggressiveness of the breed.

So the court will decide if the government overstepped its authority with the 1999 law barring "the creation, sale, possession of any depiction of animal cruelty with the intent to distribute and sell it."

Solicitor General Elena Kagan argues in her brief that the statue outlaws only a narrow category - "bloody spectacles of vicious animals forced to fight to the point of exhaustion or death". The law also forbids dog-hog fights and cockfights, activities Kagan argues are "far removed from the free trade in ideas that the First Amendment was designed to protect."

In her brief on behalf of Stevens, attorney Patricia Millett disagrees, saying "The notion that Congress can suddenly strip a broad swath of never-before-regulated speech of First Amendment protection and send its creators to federal prison, based on nothing more than an ad hoc balancing of the 'expressive value' of the speech against its 'societal costs' is entirely alien to constitutional jurisprudence and a dangerous threat to liberty."

Not surprisingly, the outdoor media is opposed to such a law, fearing that a Supreme Court ruling against Stevens could broaden to include hunting videos or images.

The American Society of Media Photographers, North America Nature Photographers, Pennsylvania Outdoor Writers Association, the Southeastern Outdoor Press Association, Texas Outdoor Writers Association and several hundred industry members and media have joined the Professional Outdoor Media Association in an amicus curiae brief in opposition to the law.

In a separate friend-of-the-court brief supporting Stevens, the National Shooting Sports Foundation (NSSF) said the federal criminal statute was "unconstitutionally overbroad, because it criminalizes free speech protected by the First Amendment. [The statute] was enacted to combat animal cruelty. NSSF abhors animal cruelty and the unethical taking of game. The broad language of the statute, however, criminalizes lawful speech and, in the process, chills lawful commerce in that speech."

On the surface, the law looks noble enough - after all, none of us favors cruelty to animals. Unnecessary suffering of an animal is the antithesis of ethical hunting. But today's creeping encroachment of the government into all aspects of our lives makes even a seemingly well-intentioned law a reason for concern.

"The National Shooting Sports Foundation and its over 4,500 member companies oppose animal cruelty, which is illegal in every state, and stress that hunting scenes are not representative of criminal behavior. Hunting is a legitimate, licensed activity, and responsible hunters respect the animals they pursue and utilize," said Steve Sanetti, president of NSSF. "Such images assist novices with basic hunting and field dressing techniques and provide education about wildlife conservation and safe and ethical hunting."

If a law is designed solely to stop a specific act, it should be limited in its scope, language and intent.

Otherwise, the bycatch of a broadly-thrown net, while unintentional at the outset, may be significant and costly.

We'll keep you posted.

--Jim Shepherd

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This is a NSSF press release:

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NEWTOWN, Conn.-With the U.S. Supreme Court slated to hear arguments tomorrow in the United States v. Stevens, No. 08-769, the National Shooting Sports Foundation encourages the court to support the First Amendment rights of all media to show images of hunting and fishing.

The case centers around a 1999 federal statute used to prosecute a Virginia man on animal cruelty-related charges that because it is so broadly written could similarly be used to prosecute anyone who publishes images of hunting or to prosecute retailers for stocking and selling books, DVDs or art depicting hunting scenes.

"The National Shooting Sports Foundation and its over 4,500 member companies oppose animal cruelty, which is illegal in every state, and stress that hunting scenes are not representative of criminal behavior. Hunting is a legitimate, licensed activity, and responsible hunters respect the animals they pursue and utilize," said Steve Sanetti, president of NSSF. "Such images assist novices with basic hunting and field dressing techniques and provide education about wildlife conservation and safe and ethical hunting."

In the 2004 case, the defendant was initially convicted, but the decision was later overturned by the Third Court of Appeals, which struck down the federal statute as a violation of the First Amendment.

In a friend-of-the-court brief supporting Stevens's position, NSSF said the federal criminal statute "is unconstitutionally overbroad, because it criminalizes free speech protected by the First Amendment. The statute was enacted to combat animal cruelty. NSSF abhors animal cruelty and the unethical taking of game. The broad language of the statute, however, criminalizes lawful speech and, in the process, chills lawful commerce in that speech."

Many outdoor media groups such as the Professional Outdoor Media Association, Outdoor Writers Association of America and American Society of Media Photographers, along with sportsmen and conservation groups such as the National Rifle Association and Safari Club International, have also filed friend-of-the-court briefs.

Demonstrating its anti-hunting position, the Humane Society of the United States has filed an amicus brief for the government.

Read the NSSF brief and this news story for further background on the case.

About NSSF

The National Shooting Sports Foundation is the trade association for the firearms industry. Its mission is to promote, protect and preserve hunting and the shooting sports. Formed in 1961, NSSF has a membership of more than 4,000 manufacturers, distributors, firearms retailers, shooting ranges, sportsmen's organizations and publishers. For more information, log on to www.nssf.org.

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Report of POMA's executive director:

WASHINGTON, D.C. - Hunting communications were a central focus of the United States Supreme Court on Tuesday as the Justices heard arguments in the case U.S. v. Stevens, 08-769.

At issue in the case is a 1999 federal law that makes it a crime to create, sell or possess videos and other depictions of cruelty to animals. The case arose over the conviction of a Virginia man, Robert Stevens, who received a three-year prison sentence from a Western Pennsylvania court for selling videos that included scenes of hunting with dogs. The Third Circuit Court of Appeals overturned the conviction, stating it was in violation of Steven's First Amendment rights.

In addition to working with the Washington, D.C., Jones Day Law Firm to file an amicus curiae brief on behalf of its members, the Professional Outdoor Media Association (POMA), headquartered in Johnstown, Pa., coordinated a larger group of amici from a wide range of constituencies, including numerous large organizations and more than 600 individual journalists, outdoor industry professionals and sportsmen.

POMA Executive Director Laurie Lee Dovey was in the courtroom to hear the arguments.

"The Justices were highly engaged," Dovey said. "Clearly, their queries were focused on testing the limits of the First Amendment. The questions were direct and at times extreme.

"Patricia Millett, the plaintiff's attorney, represented Mr. Stevens, the hunting and fishing industry and traditional outdoor sports journalists at the highest level," Dovey added. "Patricia understands how the statue could criminalize the communication and promotion of legal hunting and fishing activities. She directly argued the overreach and chilling effects of the existing statute."

Testing the wide net cast by the language of the law, hunting-related questions were debated. Deputy Solicitor General Neal Katyal often stated hunting imagery did not fall within the parameters of the statute. Justice Antonin Scalia seemed to disagree. Scalia concentrated on the language in the statute that says, "... a visual or auditory depiction ... in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed."

"Kill" has one meaning, which is kill," Scalia told Katyal, plainly indicating concerns about the legal actions of hunters. Katyal responded with a statement citing cruel killing versus hunting. Scalia countered with a question about an accidental low shot on an animal by a hunter, which he said was completely legal. Justice John Paul Stevens also asked about bow-and-arrow hunting or hunting with knives. Katyal backpedaled, saying, "So, there may be certain hunting examples that fall within it (the law).


Justice Ruth Bader Ginsburg looked at another aspect of the law, the separation of the filming of a criminal act and participation by a photographer in a criminal act. The abuse of the dog and the filming of the act are different, she said. The abuse would go on with or without the photographer. The comparison being made was to image-makers in child pornography cases - where the photographer is an actual participant in the criminal act.

In response to questions by Justice Stephen Bryer about Congress simply writing a statute that actually aims at the "frightful things they were trying to prohibit," Millett agreed Congress must use a scalpel, not a buzz saw, when crafting statutes that restrict free speech.

Justice Samuel Alito posed the most difficult hypothetical of the day to Millett. He asked if the First Amendment would cover "a human sacrifice channel". The discomfort in the courtroom was palpable.

Taking a few moments to collect her thoughts, obviously taken aback by the extreme nature of the Justice's example, Millett responded.

"I don't want to watch this channel, and people should fight with their wallets and their votes and not support these things," she said. "But, under the First Amendment, if the only rationale Congress is giving is we are here to shield your eyes for you, we will make this censorial decision, it has got to find some basis to think that was never freedom of speech under the First Amendment, in the way that obscenity was. You don't get to make it up as you go along. We are interpreting a constitution."

The United States Humane Society, which pushed the original prosecution of Robert Stevens, claimed this case was and is about animal cruelty. POMA, National Rifle Association, Safari Club International, National Media Coalition, American Society of Media Photographers, National Press Photographer's Association and dozens of other groups, which filed amicus curiae briefs in the case, strongly disagreed. They defined U.S. v. Stevens as a First Amendment case that could have potentially devastating consequences on journalists and Americans' right to information.

A decision could come sometime after the first of the year, but the Court's final deadline is July 1, 2010.


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The Statute - 18 U.S.C. § 48

(a) Creation, Sale, or Possession.- Whoever knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5 years, or both.
(b) Exception.- Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.- In this section-
(1) the term "depiction of animal cruelty" means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and
(2) the term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.