Free Speech Challenge in Supreme Court

Hawker, digger, long-dogger and outdoors writer Teddy Moritz forwarded this news of a case to be heard by the Supreme Court. It regards the editor and seller of a hunting dog video who was convicted on federal law prohibiting “depictions of animal cruelty;” his conviction was later overturned on 1st Amendment grounds, but US prosecutors are taking the case to the highest court for a ruling. From the summary:

“The Third Circuit struck down a federal law banning “depictions of animal cruelty.” 18 USC 48. 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.”

The video depicts “catch dog” training, featuring pit-bull type dogs hunting wild hogs and also domestic pigs, and it includes historical video of Japanese dog fighting. The product was edited from pre-existing footage (no new footage shot) with a voiceover to illustrate training points. So the subject matter is certainly controversial, and I’m sure the visuals are rough. But we are talking here about a depiction, not an action.

The charges are based on an existing law passed to prohibit the sale of videos depicting the torture of animals in a sexual context (evidently there’s a market for that). The prosecution is inviting the court to add “depictions of animal cruelty” (defined more broadly than the above context) to the very short list of unprotected classes of speech, as is the case with child pornography. With the opportunity to reference dog fighting, hog hunting, torture videos and child pornography laws all in one case, prosecutors have a lot to work with here.

At stake may be the freedom and livelihood of everyone involved in hunting and trapping media, every state game agency, retail outlet, publishing house, hook and bullet writer, etc., to include myself as author of two books in print full of text and photographs of active falconry. In fact, the existing law may already apply to many media products, if their content includes depictions of activities “illegal under federal law or illegal under the state law either where the creation of the depiction occurs, or where the depiction is sold or possessed.”

For example: one of my books contains a picture of the use of a classic falconry noose trap (a bal-chatri), a humane and practical device for the legal live-trapping of raptors for falconry. Such traps were temporarily outlawed in Washington State when a broadly-written anti-trapping law was passed there a few years ago. An exception to the law had to be included to permit trapping for falconry.

Although falconry traps are obviously not intended to “hurt, wound or kill” birds, falconry itself entails killing animals; it is hunting! Commercial falconry videos certainly exist. I own several and have shot my own footage, plus photos for personal use and for sale. The difference (in terms of its elements and visual impact in a video depiction) between catch dogs holding a wild hog and, say, Harris hawks catching a jack rabbit, is probably negligible to the non-hunter.

Here’s an interesting question: While hog hunting with dogs is legal in Hawaii, falconry is not (it’s the only non-falconry US state, having no suitable native raptors and strict environmental law for imports). For all I know, someone in the Aloha State has a copy of one of my books, purchased online from my Wyoming publisher and sent via US Mail. Could that fact lead federal prosecutors to his door? Or to mine?

9 thoughts on “Free Speech Challenge in Supreme Court”

  1. A few points:

    1. This case is NOT not about hunting of any kind. Two of the videos were entirely about dog fighting. The third video was not about hunting — it was about baiting a domestic farm pig which was in a pen when it was attacked and viciously killed by pit bulls. Let's not confuse hunting with THAT kind of crap, eh?

    2. Let's not embrace the frame being put out here. In fact, let's overtly REJECT it. There is no real threat to hunting and fishing in this country. There are fewer restrictions now than there ever have been in my life time. We can hunt with crossbows in most states. Falconry restrictions are being eased. Deer takes are nearly unlimited in much of the country. Sunday hunting laws are slowly coming down. Public hunting lands are being dramatically expanded. Black powder was allowed to expand wildly even when inline guns could not really claim to be smoke poles. Etc, etc.

    That said, there ARE dangerous ideas and people out there — the folks that want to confound dog fighting and baiting with real hunting. Let's not help them out!

    The legal briefs here are pretty clear as to what these videos were about. Read the court record. The summaries that describe these videos as being "about hunting" or "about dogs" are NOT describing what these videos are about.
    Let's not repeat the lie that these videos are about hunting or about dogs. They are about dog fighting and the baiting of domestic farm stock by pit bulls. Let's put out a correct record. In so doing, we show what we ARE about — and what we are NOT about.

    It is a simple fact that the fellow who put these tapes together (in order to sell them for a profit) does not hunt. He is a dog-fighter and a dog-fighting romantic. Let's not confuse his load of cowardly crap with real hunting. Above all, let us explain what real hunting is about.

    And yes, let us explain what it is ALL about. I have no problem doing that, and I hunt with dogs. You have no problem doing that, and you hunt with hawks and falcons.

    For example: Why do we move so quickly to dispatch? Because we want to protect our dogs and birds! And because we want to end suffering as quickly as possible. Pit bull thugs who turn their massive dogs on to a domestic pig in a pen are doing the opposite of what we do. It is prolonged cruelty with no concern at all for the welfare of the dog or the pig. In short, it is NOT hunting. Let us say that again, and again, and again.

    If we explain what hunting is — and how this crap is not hunting — we are the Humane Society and PETA's nightmare, because they want to blur those lines and will try to use this case to do that. I will not help them. I hope no one else will.

    Finall, let's remember who is on the Supreme Court. Both sides of the aisle hunt and fish. Do you really think "Boom-boom" Scalia is going to do anything to restrict real hunting? Do you think "Orvis Girl" Ginsberg is going to restrict fishing? I don't. The Supreme Court is not an unknonw entity when it comes to hunting and fishing — they hunt and fish.

    Another point to make is that the Supreme Court has not expanded First Amendment protections in 25 years and I seriously doubt it's going to start with this.


  2. Patrick I'm glad you wrote in and agree with you. It is not me, certainly, who would blur the lines between hunting and fighting.

    Nontheless it's true that the distinction I make is one of qualities. The "quantities," if you will, are otherwise similar: animals chasing and catching–holding, killing–other animals.

    You don't imagine that HSUS will give much credit to those who run to the catch and dispatch quickly, do you? They'd contend we sicked our animals (your terrier, my hawk or whippet) on the quarry just the same as Uncle So-and-so in the pit-bull video.

    But that's the existing battle. We're fighting that one all the time.

    This seems to me a new front, and one that constitutes a threat to my livelihood as well as my avocation. Yours too, as an author and blogger, should any state in the Union happen to ban killing animals with terriers.

    I read the court record and I wasn't comforted.

  3. One of the things that would, logically, be banned if the court went the wrong way on this would be "depictions of animal cruelty" used in order to educate or advocate against animal cruelty.

    So an anti-dog-fighting video could not use videotapes of dog fights that were seized by police, for example.

    It's not about hunting or fishing. It's about free speech. Free speech cases are pretty much never about speech that "nice people" agree with.

  4. Heather that crossed my mind in this sense: PETA and HSUS "sell" such images by using them alongside requests for donations. They know the old formula well: No pain, no gain.

    The AR direct mail industry (that Patrick skewers so well) exploits images of animal death and suffering to fill its coffers. Whatever moral high ground they claim is nullified by the groups' published budgets, which routinely indicate self-promotion (not animal welfare) as their chief product.

    Some flesh peddlers trade in our pleasure or ghoulish prurience, others in pity. Both exploit us for profit.

  5. Matt – I would not worry about you book in hawaii or your book either Henry. If you go to any of the big book stores you can find pit bull books that contain photos of dog fighting. If Barnes and Noble will sell it then there is no problem in that regard.


  6. The law would not affect anything done with a serious educational purpose – only things done for the sake of gratuitous cruelty. If you're truly concerned that anything you've produced or purchased was done so simply to enjoy the cruel treatment of the animal, then you need a counselor, not a blog site.

  7. Zac, I think B&N would quickly fall in step with whatever direction the law comes to indicate. They would pull any book off their shelves. I don't see major national chain stores as putting up principled resistence. If I'm wrong about that, someone fill me in?

    Anonymous: Who determines which purpose is seriously educational? That's the question.

    Your answer is, essentially, that "innocent people have nothing to fear," which has never been much comfort to the presumed guilty! Perhaps, just to be on the safe side, we should all be quiet or write under fake names?

  8. I agree with Patrick. The AR people have a tactic that they use over and over, and politicians seem to bite and get reeled in more times than not.

    This is the "create a crisis" tactic. So you invent a problem that, when 'solved', advances your agenda. With a little media support and a lobbyist to find a gullible politician you can sit down and write your own legislation.

    Here is a short list of 'problems' that have been trotted out in California over the past couple years…

    PROBLEM: Rampant dog over population means thousands killed in shelters! Answer – mandatory spay and neuter state wide. Please ignore the fact that shelter deaths have dropped steadily and dramatically since the late 1970's without spay and neuter laws. (See AB1634 and SB250)

    PROBLEM: Chickens are being exploited for their eggs! Answer: mandate bigger cages that cost so much to implement that egg farmers will shutdown their operations. (this law already passed…)

    PROBLEM: Cruelty towards circus elephants! We need a specific law to deal with this, even though there are maybe half a dozen circus elephants in the state, and that they are already covered under existing animal cruelty laws. Nevertheless, we got a new law…

    PROBLEM" Puppy mills! Puppy Mill, in AR speak is any commercial breeder. Already regulated, they deserve 'special; attention'.

    PROBLEM: Backyard breeders! In AR speak, this is anyone breeding dogs that is not covered by 'Puppy Mills' above. You just know that these are drug selling bikers breeding pit bulls, doncha? Need a new law!

    The list is frikkin' endless. Get used to it, HSUS ain't gonna stop on their own, and the politicians are either needing money and political support, or they are ignorant enough to try to fix all these 'problems'.

    The law under discussion is all about free speech. If this goes ahead, it is a very small step to banning hunting books and films, dog training books, National Geographic specials, etc. Inane.


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