Distinguishing bad pictures from bad acts

By Craig Green

This week, the Supreme Court heard oral arguments in what could be a landmark free-speech case, United States v. Stevens. Like most free-speech cases, Stevens involves expression that is easy to dislike.

While other important speech cases have dealt with racism, pornography, communism, and Nazism, Stevens involves videos of hunting and dogfighting. Like other forms of unpleasant or harmful expression, they deserve First Amendment protection despite their content.

The federal statute at issue in the case forbids the buying or selling of any image of an animal being intentionally injured or killed if the recorded conduct would be illegal here and now. Robert Stevens is a Virginia man who sold videos of dogfights that took place in Japan (where they are perfectly legal), of boar hunting with dogs, and of dogfights in the United States during the 1960s and '70s. Stevens never harmed any animal or supported dogfights, and most of the taped conduct was legal when it was recorded.

But none of that mattered to federal prosecutors. Stevens received a prison sentence for selling his videos that was longer than Michael Vick's sentence for conspiring to actually fight and kill dogs.

In this country, we usually punish bad acts, not bad pictures. It's illegal to shoot the president, but not to sell tapes of the Kennedy assassination. It's illegal to punch your neighbor, but not to buy fight-club videos. And although it's illegal to fight bulls or dogs or pigs, the First Amendment fully protects speech that describes or depicts those events.

Images of injured animals are not a new or rare phenomenon. Animals were harmed in the filming of many old movies, and some that are not so old, ranging from The Charge of the Light Brigade and Apocalypse Now to Conan the Barbarian and this year's Fast & Furious. Abused animals are also featured in animal-rights documentaries and fund-raising materials, sometimes in gruesome detail.

If Stevens loses his case, then it would be legal to buy, sell, or rent these movies and photographs only if prosecutors and juries think they have "serious value." The First Amendment does not entrust speech rights to such baseless, discretionary judgments. The risk is simply too great that images of harmed animals will be legal if they're used by politically acceptable speakers for politically acceptable purposes, but illegal and punished with jail time if used by outsiders with unpopular viewpoints.

Many Americans (including Stevens himself) have vigorously condemned dogfights, and dogfighting has been banned in every state and the District of Columbia. But videos of illegal hunting and dogfights are banned only under federal law, and that law is uniquely problematic.

Americans who believe dogfighting statutes are too lax have the right to protest them, and they are constitutionally free to buy or sell images of dogfights to raise funds. Likewise, Americans who believe Stevens' videos are unpleasant and should not be watched have a right to picket, protest, and buy or sell images of dogfights to support their cause.

Under the First Amendment, however, the right to buy and sell images of injured animals cannot depend on whether society likes the message that such images advance. If activists can use dogfighting pictures to oppose people like Stevens - as they most certainly can - then the federal government cannot constitutionally deny such images to Stevens and his clients.

Under the First Amendment, Americans are free to disagree about the value of dogfight videos, and we are also free to disagree about how our disagreements should be expressed. The core of that freedom rests on a simple difference between illegal dogfights on the one hand and constitutionally protected speech about dogfights on the other.

From vandalism to drag races to lynchings to countless other crimes, the law has drawn an important line between illegal acts and expressive images describing those acts. The only federal appeals court that has considered the statute in Stevens understood this difference perfectly, and it held that Stevens' conviction was unconstitutional. Let's hope that the Supreme Court will see that difference as well - and will reach the same result.