On October 6th, the U.S. Supreme Court heard arguments in U.S. v. Stevens, a case that has more implications for the First Amendment than the Second—but one in which NRA and other sportsmen’s groups nonetheless were compelled to get involved because of its potential to criminalize hunting photography and videos.
The case arose over the conviction of 68-year-old Robert Stevens of Virginia, who received a 37-month prison sentence from a federal court in western Pennsylvania for making and selling videos on training pit bulls for hunting. His conviction was later overturned and the statute struck down by the 3rd U.S. Circuit Court of Appeals. The government is appealing that decision to the Supreme Court.
U.S. v. Stevens brings to national focus a 10-year-old law with good intent. In short, the Depictions of Animal Cruelty Act (18 USC Section 48) criminalizes the creation, sale or possession of photos or videos that depict intentional maiming, torturing or killing of an animal. More specifically, the law under which Stevens was charged and convicted was primarily meant to prohibit the sale of “crush videos”—short films showing women crushing small animals with their feet that some disturbed individuals find sexually gratifying.
In his arguments representing the government, Deputy Solicitor General Neal Katyal cited crush videos and made a number of references to dogfighting and even to child pornography, in attempts to liken such content to videos like Stevens’.
But the video Stevens made and sold had nothing to do with such content, said one of his attorneys, Bob Corn-Revere, in an interview with NRAnews.com.
“I think what we need to understand is what this case is about. It goes to the heart of the First Amendment,” said Corn-Revere. “Mr. Stevens is not a dog fighter. He is not a dog-fight promoter. I think if you look at the videos that Mr. Stevens was convicted for—but later that conviction was overturned—you won’t find the horrific images that they describe in their brief or even in today’s argument. What you’ll find in those arguments are descriptions of crush videos—which have nothing to do with what Mr. Stevens is involved with.”
Complicating the case is a deliberate attempt by the Humane Society of the United States to persuade people that the law—used to convict Stevens for making a hunting video—somehow does not apply to hunting. “The truth is there is nothing in the Depictions of Animal Cruelty Act that could possibly affect lawful sport hunting,” said the group’s EVP/COO Michael Markarian.
Not true, says Stefan Tahmassebi, NRA Deputy General Counsel. “The statute is outrageous and overly broad. It has serious implications for any publisher of hunting activity. The statue makes it a five-year federal felony to create, sell or possess any depiction, including photographs or video, in which an animal is wounded or killed. What happens in hunting? An animal is killed. Even if the activity is lawful in one state, selling the depiction in a jurisdiction where it is prohibited could result in a five-year sentence. New Jersey is a good example. A video of bear hunting in a state where it’s legal could not be sold in New Jersey, where bear hunting is prohibited, and the maker could be convicted.
“The law does make exceptions for works of ‘serious education, journalistic or artistic value,’“ Tahmassebi continued. “But a jury in San Francisco or Washington, D.C. or Los Angeles may see no value at all in any hunting video.”
NRA filed an amicus brief in the case, holding that the law as currently written goes far beyond animal cruelty—already illegal in all 50 states and already opposed by NRA—and potentially criminalizes the thriving market for hunting media. As currently written the law is so broad that it could be left to a jury to decide if common images of hunting, fishing and trapping—such as those seen in thousands of magazines, videos and websites—are legal or illegal.
Arguing on behalf of Stevens, Patricia Millett indicated that a “properly drawn statute,” aimed only at fetish videos, might be constitutionally valid. But she said the Court should not rewrite the law for Congress. “Congress has a job to write with a scalpel and not a buzzsaw in the First Amendment area,” she said.
While a decision from the court may take months, there were at least some hopeful signs as to the outcome:
• Deputy Solicitor General Katyal tried to persuade justices that hunting imagery did not fall within the parameters of the statute. Justice Antonin Scalia seemed to disagree. Scalia cited 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 concrns 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. Katyal backpedaled, saying, “So, there may be certain hunting examples that fall within it (the law).”
• Chief Justice John Roberts said, “You have organizations like PETA that use these videos to generate support for their efforts to ban certain conduct. Why couldn't Mr. Stevens' videos be seen as an effort to legalize the same conduct?”
• As the justices discussed whether the law was too broad, and could apply to hunting, Justice Stephen Breyer asked, “Why not do a simpler thing? Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit. You are worried about dogfighting; write a statute that focuses on that.”
Safari Club International filed its own amicus brief, as did the American Civil Liberties Union and even National Public Radio, which, in one broadcast, pointed out that there are films similar to or worse than Stevens’ on HSUS’s own website, (which the group uses to generate support for its anti-hunting agenda).
The Professional Outdoor Media Association (POMA), which represents hundreds of professional outdoor writers, photographers and videographers, also filed an amicus brief.
Commenting on the potential impacts of this case, Laurie Lee Dovey, Executive Director of POMA, said, “The Humane Society of the United States, 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.”
