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A Supreme Question

Do we have the free speech to write about and show videos of hunting or should the government have the power to prosecute us as it sees fit?

Last October the U.S. Supreme Court heard oral arguments on a freedom-of-speech case that will affect this magazine, "American Hunter Television" and all other depictions of hunting that are sold or distributed. The case is U.S. v. Stevens. This constitutional fight began when the federal government used a 1999 statute designed to combat the sale of animal-cruelty depictions to prosecute Robert Stevens for selling films that show pit bulls being legally used to hunt wild boars and dogfight footage shot in Japan (where dog fighting was then legal).

Stevens was convicted and sentenced to three years in prison; however, a federal appeals court overturned the conviction because it declared the federal law violated the First Amendment. The law's vague language gives the government the ability to bar the creation, sale or possession of any depiction of animal cruelty; in fact, the statute potentially criminalizes the intentional "killing" of any animal, including game killed by hunters-hence, the First Amendment violation. This is the question the Supreme Court agreed to answer.

Anti-hunters love the law; in fact, Michael Markarian, the EVP/COO of The Humane Society of the United States, an anti-hunting group, said, "The truth is there is nothing in the Depictions of Animal Cruelty Act that could possibly affect lawful sport hunting."

But that's not true, says Stefan Tahmassebi, NRA Deputy General Counsel. "The statute makes it a 5-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 5-year sentence. The law does make exceptions for works of ‘serious education, journalistic or artistic value,' but a jury in San Francisco or Washington, D.C., may see no value at all in any hunting video."

Arguing on behalf of Stevens, Patricia Millett indicated that a "properly drawn statute," aimed only at certain videos, might be constitutionally valid. But she said, "Congress has a job to write with a scalpel and not a buzz saw in the First Amendment area."

The Supreme Court justices concentrated on the First Amendment question. For example, when speaking to the government's attorney, Neal Katyal, Justice Stephen Breyer commented, "You take these words, which are a little vague ... and you say that's a standard that a judge or prosecutor will apply. And people have to understand it because they have to know what to do to avoid the risk of being prosecuted. Now, as I have gotten out of these briefs, you then require people to apply that standard, not simply to the crush videos or to the dog fighting, but also to ... bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter and for, I think somewhere I found, the stuffing geese for pâté de fois gras."

When further pressed Katyal was forced to parry the point by saying, "Hunting is generally not considered animal cruelty."

But Justice John Stevens said, "But hunting with a bow and arrow, and some depictions of hunting are pretty gruesome."

Katyal replied, "That's correct. And to the extent that it is something that resembles the terms of the statute, the language of which is ‘maimed, mutilated, tortured, wounded, or killed.'"

At which time Justice Antonin Scalia pointed out the word "kill" has a definition that is not vague; indicating, as it stands, that this law could result in the prosecution of anyone who sells a hunting video.

So now we wait for the high court to decide if we have the free speech to write about and show videos of hunting or if the government should have the power to prosecute us as it sees fit. We'll let you know what they decide.

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