Supreme Court Hears Arguments in First Amendment Case

In what many consider to be one of the most important free speech cases to be argued in 25 years, the U.S. Supreme Court is reviewing a ban on depictions of animal cruelty that critics argue could be applied broadly to encompass everything from popular movies and documentary films to books and images posted by animal welfare groups.

"The government is asking the Supreme Court to create the first new exception to the First Amendment in over 25 years," said David Horowitz of Media Coalition. "If this law were upheld, a bookstore owner could face five years in prison for selling Hemingway's Death in the Afternoon, any travel books about Spain that included pictures of bull fights, or many hunting magazines and books."

On Tuesday, October 6, the court heard arguments in the case of U.S. v. Stevens. In 2004, Robert J. Stevens, 68, a Virginia resident and author, was sentenced to 37 months in prison by a federal court in Pennsylvania for selling videos that showed pit bulls fighting and training to hunt wild boar. Much of the footage in his videos is more than 30 years old or comes from foreign countries where dogfighting is legal. Stevens, whose published work praises pit bulls as pets and hunting dogs, is not accused of organizing dogfighting; he has publicly opposed the practice.

The Third Circuit Court of Appeals overturned Stevens' conviction in 2008, ruling that the law was unconstitutional. In doing so, the appeals court pointed out that the law criminalizes speech that is protected by the First Amendment. "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 court said.

In July, the American Booksellers Foundation for Free Expression (ABFFE) joined the Association of American Publishers, the Freedom to Read Foundation, and other members of Media Coalition in filing an amicus brief urging the Supreme Court to affirm the lower court ruling that the law is both unconstitutional and unworkable.

Media Coalition noted that the Obama administration's interpretation of the law creates a new and unique exception to the First Amendment for the first time in 25 years and gives federal officials substantial power to decide whether certain words and images are worthy of First Amendment protection.

While an opinion in the case is not expected for several months, a new media update from the Reporters Committee for Freedom of the Press [1] noted that that during Tuesday's oral arguments the Supreme Court justices "signaled their concerns about the constitutionality of the law."

"It was encouraging to hear that Justice Ginsburg cited the case of American Booksellers Association v. Hudnut during the argument," said ABFFE President Chris Finan. "This was the Supreme Court case in 1986 that overturned Indianapolis' 'feminist' anti-pornography law. It demonstrates the important role that booksellers have played and must continue to play in defending free speech."

At issue in U.S. v. Stevens is a 1999 federal law that makes it a crime to create, sell, or possess videos and other depictions of cruelty to animals. The statute defines depictions of animal cruelty as "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 wounded or killed, if such conduct is illegal under Federal law or the law of the State." Violators are subject to up to five years in prison for each count as well as unspecified fines.

In its brief, the Obama administration talks about the law in the context of gruesome dogfighting videos and sexual fetish "crush videos," in which women step on small animals. But, the Media Coalition said, "The government fails to acknowledge, the law was written much more broadly and could cover everything from real cockfighting scenes in the 2009 film Fast and Furious to documentaries about animal welfare, such as Death on a Factory Farm, which show explicit images of harm to animals."

"We await a decision from the Supreme Court which likely will take months," said Media Coalition's Horowitz. "The law was struck down by the Third Circuit Court of Appeals so there is no risk to retailers while we await the decision of the Court." --David Grogan [2]