Posted by Eugene Volokh:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245182801
My colleagues at Mayer Brown LLP and I are working on a pro bono
amicus brief in the U.S. v. Stevens case -- arguing in favor of
striking down the speech restriction -- and I wanted to ask readers
who know about state hunting regulation for some help.
The law being challenged is 18 U.S.C. � 48, which says:
(a) 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.
(b) Subsection (a) does not apply to any depiction that has serious
religious, political, scientific, educational, journalistic,
historical, or artistic value.
(c) 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; and
(2) the term �State� means each of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and any other commonwealth, territory, or possession of
the United States.
As you can see, the law applies (among other things) to depictions of
conduct that is legal where it took place but illegal where it was
distributed. Thus, for instance, if bullfights are illegal in
California but legal in [1]Spain, commercially distributing in
California photos of a Spanish bullfight would be a federal felony,
unless the depictions have "serious value."
I'm looking for examples of
1. "conduct in which a living animal is intentionally maimed,
mutilated, tortured, wounded, or killed"
2. that is likely not to seem particularly outrageous to most
Justices, and
3. that (unlike bullfighting bans) is legal in many states but banned
in a few (or even in quite a few).
Say, for instance, that hunting with bows and arrows is banned in only
a few places, say New Jersey, and legal in many others, such as
Montana. (I'm just pulling a hypothetical out of the air; I don't know
whether it's real, but I just wanted to concretely illustrate my
query.) This would mean that photos of a hunter wounding or killing a
deer with an arrow in Montana couldn't be commercially distributed
nationwide -- including via the Internet -- because any distribution
in New Jersey would be a federal felony, unless the New Jersey jury
concludes the photos have serious value (something that may often be
quite hard to be sure about up front). That would be the very sort of
example I'd like to see.
Other good examples would be if only a few states ban the killing of
some animal, or ban some methods of killing, or ban the killing of
female game animals but not males, or ban the taking of fish that are
smaller than some size, while many other states allow this. Naturally,
this is just a small part of what we're likely to argue in the brief.
But I was hoping I might have readers' help with this. If you can
point me to some such laws, I'd be much obliged.
References
1.
http://www.hsus.org/hsi/confronting_cruelty/bullfighting/bullfighting-fiesta-brava-in-mexico.html
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