Posted by David Post:
Cockfighting, the First Amendment, and Internet Jurisdiction:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234538993
So here's more "[1]crazy Internet jurisdiction stuff" - with a nice
First Amendment overlay, to boot. Federal law (who knew?) makes it a
crime to sell depictions of animal cruelty:
18 USC ยง 48. Depiction of animal cruelty
(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. . . . (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 . . .
A website based in Puerto Rico, www.toughsportslive.com, is
challenging the law on First Amendment grounds. Our own Eugene Volokh
is quoted in [2]the NY Times story as holding the opinion that the
statute is probably unconstitutional -- and I agree. The statute makes
it illegal to depict conduct if the conduct is illegal in the State in
which the depiction is created, sold, or possessed -- even if the
conduct being depicted took place somewhere (like Puerto Rico) where
it is legal. Speech that concerns conduct that is illegal in Virginia
or Rhode Island cannot be banned consistent with the First Amendment -
can it?
And beyond the First Amendment question -- what if the website server,
and all of the conduct depicted, came from a country (let's say
Thailand) in which the conduct depicted (cock-fighting) is legal?
Could a US court entertain an action against the website operator?
[Alert readers will notice that this is the mirror image of the action
recently filed in an Italian court against Google executives,
discussed [3]here].
Putting aside the question of whether a US judgment can be enforced
against the foreign website, would the Thai website be violating 18
USC 46? By its terms, it looks like the answer is 'yes' -- if
cock-fighting is illegal under, say, Virginia law, and if the
depictions are 'possessed' in Virginia, the statute appears to
criminalize the creation/possession/sale of the image.
But I'd argue that the statute does not apply at all. The conduct in
question, and which is depicted in the image, is not "cock-fighting,"
it's "cock-fighting in Thailand." And cock-fighting in Thailand is not
illegal under federal law (because federal law does not apply to any
conduct in Thailand), nor is it illegal under the law of any State
(same).
And if you've read this far, hopefully you won't be too annoyed if I
say, again: you should really [4]read my book. The implications for
the future of the Net in cases like this are profound, and we need to
figure out how to deal with them in a sensible way. DavidP
References
1.
http://volokh.powerblogs.com/archives/archive_2009_02_08-2009_02_14.shtml#1234283121
2. http://www.nytimes.com/2007/07/11/us/11roosters.html?_r=1
3.
http://volokh.powerblogs.com/archives/archive_2009_02_08-2009_02_14.shtml#1234283121
4.
http://www.amazon.com/gp/product/0195342895?ie=UTF8&tag=inseaofjefsmo-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0195342895
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