I just got around to reading this HuffPo piece by HSUS on the forthcoming animal cruelty case, U.S. v. Stevens. HSUS has made its fortune casually leaving vital details in its arguments. Like the fact that even though the raise money talking about local animal shelters, but they don’t actually care for abandoned animals or run your local humane societies. Or, in this case, that there are legitimate hunting interests that will be banned if their get their way in this court case.
Michael Markarian argues that NRA, along with Safari Club, POMA, and OWAA, are on the side of child pornographers. Oh yeah, and so is Eugene Volokh, apparently. These parties have intervened in the Stevens case because of legitimate First Amendment concerns regarding the depiction of hunting and fishing. See, the government and HSUS are claiming that the federal law being challenged only bans commercial videos and photos of clear animal cruelty. Markarian tries to claim that it’s really focused on “‘animal crush’ videos, where scantily clad women, often in high-heeled shoes, impale and crush to death puppies, kittens and other small animals, catering to those with a sexual fetish for this aberrant behavior” and dog fighting videos. Of course, that’s when he pulls out the argument that NRA leadership are out of touch with sportsmen.
The truth is there is nothing in the Depictions of Animal Cruelty Act that could possibly affect lawful sport hunting. Indeed the statute only criminalizes depictions of animal cruelty that are illegal, and it doesn’t cover lawful practices such as hunting. The law specifically exempts any material that has political, social, or artistic value — say, an outdoor column or hunting website — and only affects videos that are sold in interstate commerce for commercial gain. This is essentially the same test for stopping the production and sale of certain forms of human obscenity. No one is going to try to take away someone’s snapshots or home movies of their latest hunting excursion.
Of course the law doesn’t outlaw hunting itself. It just outlaws depicting hunting for any commercial purpose. An outdoor column probably qualifies for a press exemption, but a website may not if a blogger decides to run ads or actually try making money talking about and displaying photos of their hunts. More importantly, those popular hunting shows? Probably in violation.
As Eugene points out in his brief, the law says that if state laws are violated, the material becomes illegal under federal law.
Consider, for example, a photograph of a deer being shot by a hunter in Montana that is later sold in New York. Assume that New York limits deer hunting to specified days of the year and to persons who qualify for and actually possess a valid hunting license. If the deer was shot by a hunter who not only possesses a valid Montana license but could lawfully obtain a license in New York, and was shot on a day that is in-season in both Montana and New York, then—and only then—is the depiction immune from prosecution under Section 48. That same depiction, however, is subject to prosecution under Section 48 if the deer was shot by a hunter who was not licensed in Montana, was shot by someone who is licensed in Montana but would not qualify for a license in New York, or was shot on a day that although in-season in Montana is out-of-season in New York.
The fact that the depiction could be prosecuted under any of these scenarios shows that Section 48 is not “limited to depictions of illegal acts of extreme cruelty. Gov’t Br. 8. Whether the depiction is criminalized by Section 48 does not depend on whether the deer was subjected to extreme cruelty; the deer was treated identically in each instance. Nor does the criminalization of the depiction depend on the illegality of the conduct where it occurred; by its plain terms, Section 48 criminalizes depictions of acts that were legal in the State where they occurred if those same acts are illegal in another State where the depictions are sold. Thus, contrary to the government’s assertion, Section 48 reaches depictions of conduct that is neither extremely cruel nor illegal in “[a]ll 50 States and the District of Columbia.†Gov’t Br. 25.â€
But Markarian says that making such arguments in the case is akin to allowing people t0 “sell videos of people actually abusing children or raping women, and the same legal principles are at hand with malicious acts of cruelty.” Really? Showing a video of a hunter shooting a deer according to the laws of Montana is like a video of criminals raping a woman? Is that the kind of rhetoric that HSUS has been reduced to in trying to put a stop to hunting culture? It would appear so. I would say that it is HSUS that is out-of-touch with traditional values.
