September 2009

Downrange: 09/09

A Threat to Two Amendments

Over on, I read about a case to be heard by the Supreme Court of the United States which might result in felony charges and jail time for any person, outlet or entity that shows or sells depictions of hunting activities. You might think that this is just a media guy whining about the 1st Amendment not protecting his Andres Serrano jars. But welcome to the world today! Depending on the outcome of United States of America v. Robert J. Stevens, if you post images of you and your favorite AR-15 on Facebook and something in the image isn’t legal

Todd Woodard

Todd Woodard

everywhere, you might get fitted for a pair of S&W bracelets.

The facts in Stevens are these: Robert J. Stevens of Virginia was convicted of criminal charges for producing and selling films about dogs, specifically pit bulls. 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. But the government appealed, and the case is now being heard by the Supreme Court of the United States.

The Third Circuit struck down a federal law banning "depictions of animal cruelty." 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 if that picture is sold or possessed somewhere in the United States where hunting (or the particular type of hunting, i.e., handguns) is prohibited.

As the court of appeals explained, the law now makes it a federal felony to buy an image 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.

The government, which appealed, and the Humane Society, which is pushing this issue hard, are trying to paint this as a case about dog fighting, since that incites peoples’ emotions. It’s about the 1st Amendment.

Of particular concern to hunters is the fact that 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. Stevens’ films were made to document the strength, endurance, and similar features of pit bulls to support his argument (made at length in his book) that pit bulls make great hunting dogs, protection dogs, and schutzhund (strength contest) dogs.

If Stevens loses, the depiction of any hunting photography or drawings might be outlawed. And would photos of shooters be far behind? GT

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