Photo Attorney

Jul 22, 2009

Is Taking, Selling or Publishing Images of Hunting, Fishing, or Trapping Illegal?

The Professional Outdoor Media Association (POMA) and others are concerned that the ramifications of the government's case against Robert J. Stevens will result in making it a felony to take, sell or publish images of hunting, fishing or trapping. Stevens, a resident of Virginia, was convicted of knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain, in violation of 18 U.S.C. ยง 48.

Law enforcement officers bought from and indicted Stevens for three videotapes. The first two tapes, entitled "Pick-A-Winna" and "Japan Pit Fights," shows 1960s and 70s footage of organized dog fights that occurred in the United States and involved pit bulls, as well as footage of more recent dog fights, also involving pit bulls, from Japan. The third video, entitled "Catch Dogs," shows footage of hunting excursions in which pit bulls were used to "catch" wild boar, as well as footage of pit bulls being trained to perform the function of catching and subduing hogs or boars. The footage in all three videos is accompanied by introductions, narration and commentary by Stevens, as well as literature that was written by Stevens.

The Court of Appeals for the Third Circuit overturned the conviction, finding that the statute for which Stevens was convicted violates free speech. The Court noted that:
The legislative history for Section 48 indicates that the primary conduct that Congress sought to address through its passage was the creation, sale, or possession of "crush videos" (films that cater to fetishists who gain sexual gratification from watching women torture and kill small animals by stepping on them). . . . The government interests identified in the House Committee Report in support of Section 48 . . . is . . . in "regulating the treatment of animals.' . . . [to] discourag[e] individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings. . . . " [Accordingly,] we will strike down 18 U.S.C. Section 48 as constitutionally infirm because it constitutes an impermissible infringement on free speech.

In a footnote of the Court's opinion, the Court noted that "18 U.S.C. Section 48 might also be unconstitutionally overbroad. The Government is too quick to conclude that a reading of the statute that covers a wide variety of ostensibly technical violations like hunting and fishing will not lead to prosecutions. . . . If a person hunts or fishes out of season, films the activity, and sells it to an out-of-state party, it appears that the statute has been violated."

The Government has appealed the Third Circuit's holding to the U.S. Supreme Court. POMA has filed an Amicus Curiae Brief and has a website to give updates on the case. POMA argues that the statute:
is overbroad and therefore unconstitutional. By its plain terms, the statute sweeps broadly: it criminalizes images "where an animal is wounded or killed" even if the underlying conduct, as with lawful hunting and fishing, is legal where it occurred. Under the statute, outdoor photographers and journalists who engage in their livelihood do so at their peril. These members of the media capture images of hunting and fishing for publication in the many outdoor sports magazines and other materials that are widely distributed and read throughout the United States. Their otherwise lawful conduct falls squarely within the zone of conduct that the statute criminalizes.

The phrase, Amicus Curiae, means "friend of the court" and the brief is filed by "someone who is not a party to the litigation, but who believes that the court's decision may affect its interest." William H. Rehnquist, The Supreme Court, page 89. As explained by Rule 37 of the Rules of the Supreme Court, "an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court."

A variety of other groups have filed Amicus Briefs, as well, including: International Society for Animal Rights, American Law Professors, Humane Society of the United States, Animal Legal Defense Fund, and the Center on the Administration of Criminal Law. The oral arguments before the Court will be held on Tuesday, October 6, 2009. It should be an interesting day and we hope that outdoor photographers' rights won't be impinged.

Thanks to Lisa Snuggs for submitting this topic.