By Glen Wunderlich Outdoor Columnist Member Professional Outdoor Media Association
A challenge to individual First Amendment protections under the U.S. Constitution is headed for a showdown in the U.S. Supreme Court this fall in U.S. v Robert J. Stevens. Mr. Stevens of Virginia was convicted of criminal charges for producing and selling films about dogs. Stevens’ conviction was overturned as a result of a Third Circuit Court of Appeals decision that said the law relied upon to convict Stevens was unconstitutional. Stevens may still go to prison and your right to watch hunting and fishing shows on television, or to read about them in printed media may end, as well, if the government succeeds in its quest to skewer him.
Whether the case has been suppressed or ignored by the media is ironic in that the guarantees of the First Amendment form the basis of free speech no matter how much we, as Americans, may disagree with how the messages are being conveyed.
Of particular concern to those in the hunting and fishing industry is the fact Stevens’ prosecution rested on his film “Catch Dogs”, which showed how dogs are trained to help catch prey (wild boar, etc.).
There is no allegation that Stevens engaged in dog fighting or any acts of animal cruelty. Nor is it even alleged that the images depicted in his films were illegal when taken. Furthermore, he did not take the images himself, but edited together films taken by others — films that were recorded in Japan, where the conduct is perfectly legal, and from historic films from the 60s and 70s in rural America.
No doubt, the latter two films contain extensive images of dog fighting. But Stevens is not a dog fighter – he opposes dog fighting – but loves the qualities in Pit Bulls that make them fighters. The outcome of the verdict could be devastating to all journalists and specifically to the traditional outdoor sports of hunting, fishing and trapping.
The Third Circuit struck down a federal law banning “depictions of animal cruelty.” 18 USC 48. The statute does not ban acts of animal cruelty themselves (and so this case is not about such actions). It bans images of animals being hurt, wounded or killed if the depicted conduct is illegal under federal law or illegal under the state law either (i) where the creation of the depiction occurs, or (ii) where the depiction is sold or possessed.
That means that a picture taken of the killing of an animal during a hunt (perfectly lawful where it occurred) could be a federal felony crime if that picture is sold or possessed somewhere in the United States where hunting (or the particular type of hunting, i.e., crossbow) is prohibited.
As the court of appeals explained, the law now makes it a federal felony to buy a picture of deer hunting in Shiawassee County or an image shot by a journalist of a hunter or angler taking a shot at a legal game animal or catching a fish — if that action is unlawful anywhere in the U.S.
Of little consequence, the law creates an exception if a jury finds that the images have “serious” value. The government defined “serious” as “significant and of great import.” The result accordingly is that all depictions of animal killings that might be unlawful somewhere in the U.S. are now presumptively federal felonies, with the only hope of protection being that a jury in San Francisco (or wherever an eager prosecutor wants to go) agrees that the images are “significant and of great import” – whatever those weasel words mean.
The government and Humane Society, which is pushing this issue with all its might, are trying to portray this as a case about dog fighting, because of the emotional appeal it stirs in many. Hogwash! It’s about the First Amendment!
When it comes to legal hunting, I am a realist, knowing full well that wildlife must be managed; we have made it so with our ever-encroaching and irreversible lifestyles into their territories.
As long as hunting is legal, I will be a strong proponent of any activity that can manage game in a manner that is actually more humane than that of Mother Nature’s own cruel reality. Depicting it should not be a crime and that’s why I have signed on to an Amicus Curiae brief, along with fellow journalists, in opposition to our current government’s will.
The very fact that this matter has progressed to this stage is further evidence that our country continues on its path away from the virtuous nature of our Founding Fathers’ wisdom. If the government wins this one, free speech will cost plenty.
