“The NRA condemns animal cruelty; however, hunting and depictions of hunting are not animal cruelty. This excessive law would have imposed felony penalties for creating, possessing or selling mainstream hunting images. Therefore, we are pleased that the Supreme Court ruled against this overbroad law,” said Chris W. Cox, executive director of NRA’s Institute for Legislative Action. “Indeed, NRA publications like American Hunter, the largest-circulation all-hunting magazine in the world, could have been in jeopardy if this law was upheld.” (Read the full NRA-ILA statement.)
This federal statute defines “depiction of animal cruelty” as “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.” That’s right, your American Hunter could break this law by simply mailing an issue containing a bear-hunting article to someone in Florida, a state with no bear season.
The statute passed through the U.S. Congress and was signed by President Bill Clinton.
The Third Circuit Court of Appeals overturned the conviction as unconstitutional based on the First Amendment, but the government appealed to the U.S. Supreme Court, which heard the case in September 2009. The government argued it had a “compelling interest” to prevent people from profiting from animal cruelty. The federal prosecutors said they’re just after people who sell things like “crush” videos, in which women, with their faces unseen, are shown stomping rabbits or puppies to death with spiked-heel shoes. By using such horrific examples, the government attorneys were trying to make this into a case about animal cruelty, even though Stevens was never charged with a single act of animal cruelty.
To understand why, you need look no further than the statute’s exemption: “Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical or artistic value.” So, if the conviction had been reinstated, the federal government would have the legally vague authority to determine “value.” They could then use this moral mandate to jail people they don’t approve of, such as hunters and trappers who video their pursuits or some moron who makes a home video of a dog on a trampoline and puts it on YouTube. This is why this case—U.S. v. Stevens—was about the 1st Amendment, not animal cruelty; after all, animal cruelty is already illegal in all 50 states.
Anti-hunting extremist organizations, such as the Humane Society of the United States (HSUS), were the primary advocates for the deliberately overreaching language in Congress and its defenders in Court. HSUS’s intentions should have been apparent from the beginning. Before becoming president of the organization, Wayne Pacelle said, “The definition of obscenity on the newsstands should be extended to many hunting magazines.” And, this is precisely what the law did.
“American hunters and sportsmen are our country’s true conservationists. It is offensive that those who work hardest for the preservation efforts of wildlife in this country are grouped with those who commit actual animal cruelty,” concluded Cox. “Fortunately, the Supreme Court chose the First Amendment over Pacelle’s radical agenda, and the overruling of this law prevents the unwarranted punishment of ethical hunters and outdoor media in the United States.”
Unfortunately, some U.S. Attorneys seem to side with Pacelle. It seems these federal attorneys don’t agree with Evelyn Beatrice Hall’s famous statement: “I disapprove of what you say, but I will defend to the death your right to say it.”
The U.S. Supreme Court, however, showed it doesn’t want to shackle the First Amendment. With Chief Justice John Roberts writing for the majority, the Court ruled: “The Government … proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs….’ As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Instead of allowing some bureaucrat or attorney in the U.S. Department of Justice to determine if you can be prosecuted for selling a hunting video, in which you broke no laws, the high court found that the First Amendment protects your right to share your law-abiding hunting, trapping or dog training activities.
The U.S. Supreme Court went so far as to rule that if the statute were allowed to stand: “The only thing standing between defendants who sell such depictions and five years in federal prison—other than the mercy of a prosecutor—is the statute’s exceptions clause. Subsection (b) exempts from prohibition ‘any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.’ The Government argues that this clause substantially narrows the statute’s reach: News reports about animal cruelty have “journalistic” value; pictures of bullfights in Spain have ‘historical’ value; and instructional hunting videos have ‘educational value.’” But allowing the government to determine the “value” of your free speech would allow censorship of anything the government didn’t deem to be politically correct.