By John L. Beath
Just prior to our June board meeting, another writers group alerted President Phil Bloom about an upcoming Supreme Court case that could affect the media, especially outdoor media. Thankfully, Bill Powell, our very talented legal council, knew about the case and had good advice for OWAA. As a side note, Powell has been involved with Supreme Court cases in the past.
The case U.S. v. Stevens is controversial in nature and involves videos depicting animal cruelty. Robert Stevens, from Virginia, was originally convicted in the Pennsylvania federal court under 18 U.S.C. Section 48 for “knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain.” The conviction came as a result of selling videos related to illegal dog fighting, something few U.S. citizens could agree with or support.
Stevens appealed his conviction arguing it violated the free speech clause of the First Amendment. The U.S. Court of Appeals for the Third Circuit reversed his conviction, ruling 18 U.S.C. Section 48 unconstitutional. The court reasoned that Steven’s dog fighting videos were protected speech and that the law did not serve a compelling governmental interest.
Now for the meat of the case, and the reason why so many media and hunting groups have signed on to Amicus (friend of the court) briefs for the Supreme Court case. The law is poorly written and many believe, as written, it could be used to prosecute anyone who markets hunting videos, photos or other “depictions” of animal cruelty,” as defined by any number of courts. As written, it could be ruled that a video of a deer taken with a crossbow, where legal, and sold in a state where crossbow hunting is not legal, could result in a felony violation and jail time. If the law is upheld, it would also prevent the reporting of illegal hunting or animal cruelty. Shows like “60 Minutes” reporting on dog fighting would be prevented from showing video footage, no matter how it was obtained.
♦ 18 U.S.C. Section 48
(a) Creation, Sale, or Possession.— 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.
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(c) Definitions.— In this section—
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including 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; and
(2) the term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any other commonwealth, territory, or possession of the United States.
After hearing about this case, the OWAA board of directors voted in June not to sign on to an Amicus brief because we first wanted to read the briefs offered by various concerned groups prior to adding OWAA’s name. Just prior to the July 24 deadline, Powell reviewed several briefs and shared his opinion with the OWAA Executive Committee. Upon very close review the Executive Committee voted unanimously to join a brief by the Reporters Committee for Freedom of the Press. This brief more accurately reflected the values of OWAA and was by far the most concise and accurate of the briefs reviewed.
Others who joined this brief include The New York Times, Society of Environmental Journalists, American Society of News Editors, MediaNews Group, National Press Photographers Association, National Public Radio, Newspaper Association of America, The Newspaper Guild and several other prominent groups. To read the Reporters Committee for Freedom of the Press Amicus brief, please go to: http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-769_RespondentAmCu14NewsMediaOrgs.pdf
To read more about this case, which will be heard in the fall, please visit: http://www.scotuswiki.com/index.php?title=United_States_v._Stevens ◊
John L. Beath is OWAA’s newest president and owner of Pacific Lure Communications. He is a writer/photographer and owner/editor of 14 Web sites and 10 online stores. He is also an Internet marketing consultant for several businesses. For more information about getting connected on the Internet, visit his site at www.webuildyourwebsite.net.