As we mentioned earlier this month, the Supreme Court was due to hear the case of US v. Stevens in a case that could have wide-reaching ramifications for those who record their hunting adventures or enjoy outdoor media. On October 6, the Court did hear those arguments, and their questions may give us insight into a likely decision.
Many of the Court watchers observed that the government’s case did not seem to persuade the justices that the federal law against depictions of animal cruelty were indeed narrow enough to exclude activities such as hunting. The primary argument by the government that they would not prosecute those who make hunting videos was a pledge to show discretion in prosecutions. Justice Stephen Breyer questioned whether relying on such discretion would likely chill the speech of citizens.
You take these words, which are a little vague, some of them, “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” and you say that’s a standard that a judge or prosecutor will apply. And people have to understand it because they have to know what to do to avoid the risk of being prosecuted.
Now, as I have gotten out of these briefs, you then require people to apply that standard, not simply to the crush videos or to the dogfighting, but also to, as Justice Scalia pointed out, bullfighting, sheep hunting, bear hunting, deer hunting, fox hunting, humane slaughter, and for, I think somewhere I found, the stuffing geese for pate de fois gras.
All right, so there is a whole long — quail hunting. There’s a whole long list in here of things that people might want to do. They won’t know if it falls within this exemption. Nobody in every State wants to forbid these things. Sometimes they are, sometimes they are not. They won’t know whether or not they can make this particular film, picture, or other. That’s the overbreadth argument. (emphasis added)
After several justices pointed out that the presence of the word kill in the statute invites the overly broad interpretation of a ban on hunting media, the government tried to defend the law by saying that the term meant is “cruelly killed” as opposed to just kill. However, Justice Antonin Scalia was quick to point out that some people consider eating meat or the simple act of killing an animal, regardless of how humane the process might be, to be cruelty. Justice Breyer raised similar concerns about how citizens are to interpret the law given this vagueness and finally summed up what many hunters find to be the best solution:
Why not do a simpler thing? Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit. Now, that can be done. I don’t know why they couldn’t do it.
By the time the defense took the floor to make the case that the statute should be thrown out for overly broad prohibitions of speech as a violation of the First Amendment, the issue of prosecutorial discretion was still up for debate. This time, Justice Alito did point out that the statute has only been enforced once – in this prosecution of Stevens – in all of the 10 years that it has been federal law.
JUSTICE ALITO: If it’s the fact that during the ten years when this statute has been in effect there has been no decrease in hunting videos and hunting shows on TV, and all of the rest — the only perceptible change in the real world is that these — is that the market for crush videos dried up, at least until the Third Circuit’s decision, does that have any relevance?
MS. MILLETT: I don’t — I don’t think it does for this reason. People — and this gets a little bit to Justice Kennedy’s vagueness concern. People have a right to know how to — outside the courtroom how to conform their conduct to the law. If I got a call from the general counsel of Outdoor Channel or someone making hunting videos and they said, “Does this fall within this statute,” I wouldn’t have to come up with a strained factual scenario. I would say yeah, it falls squarely in, subject to a prosecutor or jury anywhere where you market in this country, deciding that it has serious — one of the adjectives — value. I would have to say that to that person, and that would be accurate legal advice.
Interestingly, some pundits believe that Justice Alito may be the only voice on the Court whose questions indicate he may not favor throwing out this law as too broad and unconstitutional.
Justice Scalia did follow up on the point and make the case that the current market for hunting videos shows that hunters were not concerned. However, the attorney for Stevens in this case points out the obvious – most of us had no idea this law existed as overly broad and is a clear ban on hunting videos and images.
JUSTICE SCALIA: It could be that the reason hunting videos are still out there is that the producers were quite confident that this Court would not allow them to be prohibited on the base of a statute such as this.
MS. MILLETT: One would hope, and I think quite frankly the NRA has been quite honest when it recently said you know, this — this is not an actively enforced statute. People were shocked to learn — to become aware of it.
Now maybe everyone’s supposed to know the existence of laws, but I think the reality is that once people looked at what this said, they became very, very, very concerned, and I think when you’re talking about a criminal prohibition here — this is not a civil suit, this is criminal prohibition with severe penalties. The penalties for speech are higher than most animal cruelty statutes. And the whole point of the criminal law is to deter conduct and to make people stay wide of the margins here, wide of the borders. (emphasis added)
Ms. Millett is accurate that most of us simply did not know that sharing out hunting videos and pictures was a felony – the same felony that initially landed a punishment of three years in federal prison for Mr. Stevens. Now that we do know, should this statute stand, the hunting media market would be forced to disappear. Sharing your hunt photos on a blog with paid advertising might trigger criminal charges that could cost you your freedom for years and gun rights for a lifetime.
That this law is being challenged should come as no surprise. In signing the law, then-President Bill Clinton acknowledged the constitutionality questions it raised. He also said in his signing statement that he would instruct the Department of Justice to limit prosecutions to cases of “wanton cruelty to animals designed to appeal to a prurient interest in sex,” i.e. so-called “crush” videos. However, as we have learned in this singular prosecution of the case, the Department of Justice, under a different administration, opted to apply this law to a dogfighting video that was recorded in areas where the act is legal. If the statute were to stand, the current anti-gun administration could easily begin charging hunters and the entire outdoor media community with federal felonies.
Now that the case has been heard, we could see a decision at any time. However, it will likely take a few weeks or months for the opinion to be released. At this stage, the Court will vote on the matter and assign a Justice to write an opinion in the case. Many drafts will be circulated among the Justices and their clerks for both an opinion and any dissenting opinions. When the Court is ready, they will release the decision and written opinions. Follow our Twitter feed @PAGunRights for the latest updates when the opinion is released.