Posted by Eugene Volokh:
Amicus Brief in *U.S. v. Stevens* Depictions-of-Animal-Related-Crimes First
Amendment Case:
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248789317
Andrew Tauber and Craig Canetti of Mayer Brown LLP and I worked on
this [1]amicus brief on behalf of the National Coalition Against
Censorship and the College Art Association, and I thought I'd pass it
along in case some of our readers are interested. Here's an excerpt
from the Summary of Argument:
The government contends that the criminalization of �depiction[s]
of animal cruelty� effected by 18 U.S.C. § 48 is constitutional
because it outlaws only a narrow category of expressive material
emanating from the �netherworld of animal cruelty� that is
forbidden in this country. But in fact, as we will show through
practical examples throughout this brief, Section 48 criminalizes,
and thus chills, numerous forms of protected expression in the
service of a government interest -- the prevention of animal
cruelty -- that, by the government�s own admission, already is
comprehensively served by State and Federal statutes that directly
target the objectionable conduct.
I. By its plain terms and in its practical application, Section 48
extends far beyond �depictions of illegal acts of extreme cruelty.�
A. In fact, Section 48 criminalizes any depiction (intended to be
placed in interstate commerce for commercial gain) that shows an
animal being wounded or killed by a person acting in violation of
any Federal or State law, including laws intended to conserve
natural resources, ensure public safety, or regulate the use of
dangerous weapons. The statute thus criminalizes depictions of
people engaged in acts ranging from hunting with weapons (such as
crossbows) that are allowed in some States but not in others, to
hunting out of season, to bullfighting.
B. The government�s confidence that depictions having �serious
value� will not be subject to prosecution under Section 48 is
misplaced. The history of conceptual and avant-garde art, for
example, is replete with instances in which the public scorned work
later deemed to be groundbreaking and influential.
C. The inadequacy of the protection purportedly afforded by Section
48�s �serious value� exception is compounded by the fact that the
statute does not require that the value of a depiction of animal
cruelty be assessed in the context of the entire work in which it
appears. Viewed in isolation and without context, a depiction of
violence to an animal might easily be judged to have no �serious
value,� although the larger work within which it is embedded
possesses such value.
As written, the statute poses a particular threat to participants
in the stock photography industry, who do not create, sell, or
possess their images for any �serious religious, political,
scientific, educational, journalistic, historical, or artistic�
purpose (18 U.S.C. § 48(b)), but rather for an exclusively
commercial reason, namely, for sale to third-parties.
Stock images depicting violence to animals -- for example, images
of bullfighting, cockfighting, and dogfighting -- thus fall
squarely within the ambit of Section 48 yet enjoy no protection
under the �serious value� exception.
II. Section 48 does not define the statutory term �serious value.�
As a result, criminal liability under Section 48 depends on
prosecutors� and jurors� subjective, ad hoc assessments of whether
a depiction of animal cruelty has such value. That unavoidable
subjectivity invites not only inconsistent application of the law,
but viewpoint discrimination as well.
III. Section 48 chills protected expression. Criminal liability
under Section 48 encompasses anyone who, for commercial gain,
�knowingly creates, sells, or possesses� a work containing a
depiction of animal cruelty. 18 U.S.C. § 48(a). The reach of the
statute thus extends to the many layers of participants involved in
the production, distribution, and display of artistic and other
works, such as motion pictures, magazines, photographs and video
art. If just one necessary but risk-averse participant in the
process decides, out of an abundance of caution, not to join in the
production, distribution, or display of a work that includes
statutorily defined depictions of animal cruelty for fear that it
might subsequently be found by a prosecutor or jury to lack
�serious value,� the dissemination of protected expression could be
deterred. That danger flows directly from the absence of any
criteria in Section 48 to guide the application of the �serious
value� exception, which makes it impossible for any of these
participants to determine prospectively and with any reasonable
certainty whether a particular work will be found by a prosecutor
or jury to violate Section 48.
You might notice that parts of the brief are based on responses to
[2]this bleg of mine. My apologies for not giving credit to the
commenters -- had this been a law review article rather than a brief,
I would have certainly given credit where credit is due.
I should note that I'm a part-part-part-time Academic Affiliate for
the Mayer Brown firm, and worked on this case in that capacity.
References
1.
http://www.ncac.org/images/ncacimages/08-769%20bsac%20National%20Coalition%20Against%20Censorship.pdf
2. http://www.volokh.com/posts/1245182801.shtml
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