Hunting Magazines and Shows to Remain Legal

posted on April 20, 2010

The U.S. Supreme Court struck down a federal animal-cruelty law that was so broadly written it could criminalize the distribution of hunting videos and magazines under many circumstances. The 8-1 ruling in U.S. v. Stevens is a big win for the National Rifle Association and hunters across America. A brief submitted by the NRA was cited in the majority’s opinion.

“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.”

In United States v. Stevens the U.S. Supreme Court ruled that Section 48 of Title 18, United States Code, is unconstitutional. The high court ruled that the statute is “overbroad, and therefore invalid under the First Amendment.” Robert Stevens, a renowned author and expert on pit bulls, was convicted in a federal court in Pittsburgh in 2004 and sentenced to more than three years in a federal prison after he’d published a book titled Dogs of Velvet and Steel: Pit Bulls as well as DVDs on pit bulls that showed footage of dogfights filmed by others decades ago in the U.S. and Japan. The U.S. Justice Department argued that Stevens, a resident of Virginia, was guilty of breaking Section 48 of Title 18, United States Code, which states, “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.”

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.

Stefan Tahmassebi, NRA Deputy General Counsel, added, “This case went far beyond the intent of animal cruelty laws, which already exist in every state, and jeopardized various forms of legitimate and popular hunting media—videos, magazines, websites, photography, etc. It is a significant victory for First Amendment rights.”

Recognizing how U.S. v. Stevens jeopardized the rights of all hunters to share images of their sport, as well as the hunting-media industry in which it is a major presence, NRA forcefully weighed in with amicus curiae (friend of the court) brief, prepared and filed by the law firm of Hunton & Williams.

Clearly NRA’s defense of hunters’ rights proved useful, because Chief Justice John Roberts’ majority decision cites the NRA brief two times. Information from the NRA helped the Court to determine that the popular hunting-media industry “… exceeds the estimated demand for crush videos or animal fighting depictions by several orders of magnitude.” The brief also helped to refute government attorneys’ arguments that the statute’s exemption (“Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical or artistic value.”) would ensure that the traditional distribution of hunting images would be shielded from prosecution.

Justice Samuel Alito was the only justice who didn’t concur. But his dissenting opinion only disagreed with the scope of the decision. He didn’t want to throw out the entire statute. He instead argued for judicial restraint by simply narrowing the scope of the statute to what the U.S. Congress had originally determined it to read, not to what some U.S. attorneys decided it meant.


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