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Alaw's long arm could tap hunters and anglers on their shoulders


While it seems incredible that a discussion capable of reviving the image of Jeffrey Dahmer could have an impact on things like your enjoyment of "Field and Stream" magazine or even "Woods-N-Water News," the possibility is there. And once again we are reminded of the vigilance and rigor with which we must defend our hunting and fishing rights in the 21st century. For while the issue at hand, a case currently being heard by the U.S. Supreme Court, ("U.S. v. Robert J. Stevens," #08-769), is clearly a question of one's First Amendment rights, a "wrong" decision by the court could allow the ramifications to seep down to the lowest levels where lurks the Humane Society of the United States (HSUS), always willing to apply another coat of snake oil in its fight to outlaw things like hunting, fishing, and even the ownership of domestic animals.

First, some background, and I should warn you: Some gruesome details follow.

In 1999, Congress passed the "Federal Depiction of Animal Cruelty Law." On Friday, Oct. 2, 2009, speaking on the Bob Edwards Show on XM Public Radio, attorney and court-watcher Tom Goldstein said this law grew out of an understanding during the Clinton years that a market for "Crunch Videos" had developed in the United States.

"In these dark fetish films," says the HSUS, "kittens, rabbits, and other small furry animals are tortured by leggy women wearing stiletto-heeled shoes, and then crushed to death." These are films, says the HSUS, "in which animals are killed for the viewer's sick gratification."

In a statement released on Oct. 6, U.S. Rep. Elton Gallegly (R-CA), one of the original sponsors of the Animal Cruelty Law, maintains that, "the Jeffrey Dahmers of the world - the Albert 'Boston Strangler' DeSalvos, Ted Bundys, David 'Son of Sam' Berkowitzes and Ted 'Unabomber' Kaczynskis - began their killing sprees by cruelly inflicting pain on animals. "You are not allowed to cry 'fire' in a theater; you are not allowed to possess or distribute child pornography. You shouldn't be able to create and distribute videos that glorify the senseless killing of defenseless animals."

On the National Public Radio's (NPR) "Morning Edition" show of Oct. 6, sprinkling his comments with quotes from an earlier Supreme Court case (Chaplinsky v. New Hampshire, 1942) Wayne Pacelle, President of the HSUS, further argued that such images belong in the same category as child pornography, thus beyond the protection of the First Amendment: "The courts have recognized that 'certain well-defined and narrowly limited classes of speech' play no 'essential part of any exposition of ideas and are of such slight social value' that they may be regulated based on their context consistent with the First Amendment."

In 2005, Robert Stevens of Virginia was convicted of felony charges and sentenced to more than three years in federal prison for selling two documentary films and one hunting film he crafted about pit bull dogs.

The conviction was overturned by the Third Circuit Court of Appeals, which said the federal law against "depictions of animal cruelty" was unconstitutional. The HSUS pressed the government to appeal the case, and that's why it's being argued in front of the Supreme Court.

Attempting to sell this case as one of an animal cruelty, not of free speech, Pacelle said, "This is not speech. This is commercial activity of a sickening and barbaric type, and the peddlers of this smut should find no safe harbor for it in the First Amendment."

Furthermore at its website, the HSUS says, "We call this kind of treatment of animals wrong. It isn't speech, but conduct. And it isn't free - it's suffering paid in full by animals who never harmed anyone.

"We think those who profit from selling images of this torture of animals should not be shielded by something as noble as the United States Constitution and its Bill of Rights."

In his statement, Rep. Gallegly mentioned another component of the law, one that should draw sportsmen and women to further attention. The law, he explains, makes it illegal to depict those images "if such conduct is illegal under federal law or the law of the state in which the creation, sale, or possession takes place."

According to the Professional Outdoor Media Association (POMA), which as an "amicus curić" has filed a "brief in opposition," the government's case "has the potential to make it a felony to sell or publish images of hunting, fishing, trapping, and virtually anything else that's ruled as a 'depiction of animal cruelty.'"

That means it would be illegal for magazines or newspapers to be sold in Michigan if they included images of dove or sandhill crane hunting or grayling fishing, for example. Let's say I am fortunate enough to be able to head Out West to hunt sharp-tailed grouse. I wouldn't be able to publish photos of the experience because sharptails are not legal targets in Michigan. Catching and releasing a fish could be determined to be animal cruelty. These examples can go on ad nauseum.

POMA executive director Laurie Lee Dovey attended the Supreme Court session and reports that "Testing the wide net cast by the language of the law, hunting-related questions were debated. Deputy Solicitor General Neal Katyal often stated hunting imagery did not fall within the parameters of the statute. Justice Antonin Scalia seemed to disagree. Scalia concentrated on the language in the statute that says, '... a visual or auditory depiction ... in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.'

"'Kill is kill,' Scalia told Katyal, plainly indicating concerns about the legal actions of hunters.

Katyal responded with a statement citing cruel killing versus hunting. Scalia countered with a question about an accidental low shot on an animal by a hunter, which he said was completely legal. Justice John Paul Stevens also asked about bow-and-arrow hunting.

Katyal backpedaled, admitting that some hunting scenarios would be questionable.

Such built-in subjective determinations of what is "serious and important" and what is "questionable" reek of the old "I'll know it when I see it" statement of Justice Potter Stewart in 1964 in his opinion on obscenity.

Such variables lead POMA to conclude, "The result, accordingly, is that all depictions of animal killings that might be unlawful somewhere in the U.S. are now presumptively federal felonies."

At its website HSUS concludes that this law "put a stop to the spread of a horrifying business."

But what happens when the HSUS decides to put its considerable political muscle, multi-million-dollar budget, and truth-twisting mechanisms into play to convince America that hunting and fishing images are also part of a "horrifying business"?

"The outcome could be devastating to all journalists and specifically to the traditional outdoor sports of hunting, fishing and trapping," says POMA.

One way to eliminate an activity is to erase it from the public's attention. And no matter what it might say to the contrary, the HSUS wants eventually to use this law as a way to eliminate hunting and fishing from your hunting and fishing periodicals.

Tom Carney
November 03, 2009

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