Tuesday, July 21, 2009

Amicus Brief by POMA

For those following the Professional Outdoor Media Association's effort to combat U.S. v. Stevens (details below).


SUMMARY OF THE ARGUMENT
18 U.S.C. § 48 is overbroad and therefore unconstitutional. By its plain terms, the statute sweeps broadly: it criminalizes images “where an animal is wounded or killed” even if the underlying conduct, as with lawful hunting and fishing, is legal where it occurred. Under the statute, outdoor photographers and journalists who engage in their livelihood do so at their peril. These members of the media capture images of hunting and fishing for publication in the many outdoor sports magazines and other materials that are widely distributed and read throughout the United States. Their otherwise lawful conduct falls squarely within the zone of conduct that the statute criminalizes.


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8 comments:

PBurns said...
This comment has been removed by the author.
PBurns said...

This amicus is the biggest load of crap ever framed up. This law is TEN YEARS OLD and there has NEVER been a prosecution or even an attempt at prosecution for hunting photos. Ever. Not one.

To argue that video of DOG FIGHTING AND BATING is akin to hunting is stupid, silly, ignorant and poltical suicide for hunters.

I once asked someone taking a REALLY stupid case to the Supreme Court why they were doing it. And you know the reason? Because THEY WERE GOING TO BE GOING TO THE SUPREME COURT. This is "the show" for lawyer, and and who cares about long-term law, common sense, or even the facts of the case.

I have read more bullshit about this case on list-servs that I can stomach, and I HUNT WITH DOGS THAT BITE WILD GAME.

Am I scared of this law?

Not one damn bit.

Jesus H. Christ people, let's STOP defending dog fightING and animal baiting. This case is NOT about hunting, hawking, rabbit coursing or honest terrier work in any way. It is about fighting dogs and fighting other animals in closed pens. Whatever that is, it is NOT hunting.

Patrick
www.terrierman.com

Matt Mullenix said...

In the post you deleted, Patrick, did you tell us how you really felt?

:-D

smartdogs said...

Patrick wrote:

"This case is NOT about hunting, hawking, rabbit coursing or honest terrier work in any way. It is about fighting dogs and fighting other animals in closed pens. Whatever that is, it is NOT hunting."

A really good piece of legislation would state that more clearly and specifically. Vaguely written legislation my be promulagated with good intentions but once passed, it is far too easy for someone who has less than stellar intentions to use it to advance a personal agenda that has little to do with the original intent of the law.

PBurns said...

Actually, in the post that I deleted, I just had a typo. I have LOTS of those ;)

On the upside, I make up in low accuracy what I lack in speed. :)

I agree 100% that laws need to be clear. This law, however, really is. And how do we know? Two reasons:

1) There has never been a bad prosecution before (and there is not now in my opinion), and;

2) We can read the law. This last part is what no one is doing too much of.

It is up here >> http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000048----000-.html and it reads:

§ 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.
(b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
(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; 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.

In short, you would have to MAKE MONEY from the sale of video pictures that show TORTURE OR ILLEGAL ACTIVITY and in ADDITION, there would have to be NO SERIOUS JOURNALISTIC, EDUCATIONAL, religious, political, scientific, historical, or artistic value.

None?? Good luck with that prosecution of a few photos of a hunting trip. Journalism, art, and education alne have been shown to be astoundingly low standards. Feces smeared on a wall is called art (and show in museums!) while journalism has an even lower standard from what I can tell ;)

In fact, this law is so weak and vague that there is a very good chance that it can NEVER be enforced under ANY circumstance.

That said, it is demonstrably proveable that this law has NOT been abused in the past, is not being abused now, and is not directed -- in any way, shape or form -- to hunters, hunting magazanes, hunting web site, hawkers, working terriers, etc.

This law (to be blunt about it) is directed at people who jerk of while watching dog fights and kittene being tortured, and the legal history makes this pretty clear as it says so in so many words.

What I object to is our side (hunters) rising up and saying very loudly: "Hey, that's me they might be talking about." Because it's not. This is, in my opinion, one more contrived crisis cocked up by bored lawyers and direct mail groups run wild.

P

Matt Mullenix said...

"In fact, this law is so weak and vague that there is a very good chance that it can NEVER be enforced under ANY circumstance."

Should that be our standard for good law? I know you don't believe that.

By my reading of the same vague law, both my books in print represent depictions animal cruelty if they purchased in Hawaii or Puerto Rico or Guam, etc. They both contain numerous photographs "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed."

Of course, my intention as a falconer (and publisher) is not to "maim, mutilate, torture, or wound" animals, but the law of course goes further and speaks directly to my intention to represent the killing of animals with trained hawks, and to receive commercial gain for their sale (in this case, in Hawaii) where these activities are "illegal under Federal law or the law of the State."

So it's legal for me to photograph a kestrel killing a starling in Louisiana. But if I sell that photo in Hawaii, where falconry is illegal, I can be fined or jailed.

Of course, I can defend myself by claiming my book has "serious" value.

But I will be defending myself in court after having charges brought against me---Already quite a burden for writing a book!

Just because you claim this hasn't happened to date as a result of this law doesn't mean it might not yet. The possibility of that is what I see this professional association as rightly opposing.

And if for example that Hawaiian judge, charged with evaluating the "serious" nature of my falconry journalism refuses to grant legitimacy to an activity already illegal in his state, I am guilty.

This is not an impossible outcome under the law as written.

Patrick, as a writer of a book containing photos of animals killed by dogs, animals struggling against nooses and animals, at any rate, seriously being disturbed in their places of refuge, you might be as concerned as I am. Do you trust the good nature of everyone in this country so much? How about everyone in Hawaii or California?

smartdogs said...

I'm less worried about judges than I am about animal rights activists seeking both publicity and an opportunity to make an example out of someone whose behavior they perceive as cruel and inhumane. Frankly I'm surprised they haven't taken advantage of the law already.

If someone turns you in and you're charged - while a judge and jury may end up ruling in your favor, you've still got to hire an attorney to defend yourself - and that's generally a quite expensive and unpleasant experience. And it would still give the activist the fifteen minutes of fame he was looking for.

Changing section (c)(1) to omit the words "sale" and "possession" would remove that very large and potentially problematic loophole.

But then if we take those words out the law would only apply to cases when the act depicted was illegal when the video or photo was created ...and isn't it already illegal to conduct illegal activities and video tape them? Sorry Pat, I admit I have not looked into this - but aren't snuff films illegal? Wouldn't it be illegal to mug someone and video tape it? - Or to hold an illegal dog fight and tape it?

Why do we need a new Federal law making illegal activities 'more' illegal? Is this a hate crimes law designed to protect animals?

Anonymous said...

Matt, you cannot be fined or jailed as you intent was clearly educational. . . . b) Exception.— Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.
. . .I suspect even if you were attempting to educate about something that was illeagel where you took the pictures you would still only be liable for the illeagel act itself not any depictions of that act. I live in the "great" state of MA and am well aware of how regulations can take away more than they seem, but this is not one of those cases

Jacob L'Etoile