ASNE also joined thirteen other media organizations and companies on a brief filed in the United States Supreme Court by the Reporters Committee for Freedom of the Press in United States v. Stevens. This is the first major First Amendment case the court has heard in some time that has a direct effect on the newspapers. You may have heard — or will hear — this case described as “the dog fighting videos case".

In fact, it is much more than that. It is the appeal to the Supreme Court of the first criminal conviction arising from 18 U.S.C. § 48, a law passed in 1999 that provides for up to 5 years in prison for anyone who “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.” The law defines a depiction of animal cruelty as any visual or auditory depiction of a living animal being intentionally wounded, maimed, mutilated, tortured, or killed if such conduct is illegal either under federal law or in the state or locality where the possession, creation or sale of the material takes place. There is an exception for material that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.

The law was originally passed to criminalize "crush videos," which are visual depictions of women stepping on insects and small animals, an image that apparently appeals to a certain segment of society's sexual fetishes. Of course, you can already see where this law could be applied to much, much more. For instance, bullfighting is legal in Spain. If a US tourist takes a photo of bullfighting in Spain, that's fine, because the photo was created where the animal cruelty is legal. However, the sale or possession of the photo in the United States violates the law, because bullfighting is illegal in the United States. Publishing that photo would be illegal as well, unless the exception for serious religious, political, scientific, educational, journalistic, historical, or artistic value applies.

The original defendant, Robert Stevens, is the first person tried under this law. He is a fan of pit bull dogs. He has written a book praising them and was prosecuted for selling three videos about pit bulls to federal agents that contain scenes of pit bulls fighting each other or hunting other animals. Note that dog fighting was not the main topic of these films. They were documentary videos educating potential owners about how to train pit bulls to be hunting dogs or accomplish other tasks. In stressing that many of the dogs' positive work qualities are the same ones which make them strong fighting dogs, the documentaries contain about five minutes' (across all three videos) worth of scenes containing pit bull fights. Stevens was convicted under 18 U.S.C. § 48 and sentenced 37 months in prison and three years of supervised release.

The United States Court of Appeals overturned the conviction as unconstitutional by a vote of 10-3, at which point the government appealed to the Supreme Court. Our brief is one of several amicus briefs filed in support of Stevens (with an equal number filed against him). It largely sticks to the importance of news coverage of animal cruelty and the need for photo and video images to accomplish this. In fact, that is the first argument set forth in the brief. That first section recounts the many instances in which even very graphic videos and photos have appeared in television or newspaper stories on animal cruelty. It asserts that these videos and photos are often the only real evidence that distinguishes the “fine line between the use and abuse of animals.”

The brief also notes that many photos or videos of activities that are not animal cruelty in any sense of the word might be criminalized under this law. This includes basic, everyday things such as hunting or fishing — the easiest example being a photograph of an angler with a fish that is outside the legal limits of what can be caught and not released and ranges into other areas such as legal bullfighting and the Running of the Bulls in Pamplona, Spain.

The next section deals with the “exemption” offered for journalistic use of these photos and videos, arguing the that definition is significantly vague and, at the same time, does not reach enough protected uses of these photos. This is primarily due to the requirement that the photo or video be looked at individually, rather than looking at it in the context of the entire story. Crucially, for our purposes, the brief argues in favor of editorial independence here:

There is an added interest in avoiding governmental interference with the manner in which a news story is covered. American courts are loath to “intru[de] into the function of editors” by interfering with “the exercise of editorial control and judgment,” in part because “[i]t has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

It also argues that requiring “serious” religious, political, scientific, educational, journalistic, historical, or artistic value makes the exemption (and the law) both vague and overbroad in its reach. The argument in this section can be neatly summarized in two sentences: “Such a narrow and subjective exemption is especially problematic for the news media, because courts studiously refrain from deciding what “serious” journalism (or journalism of “serious and great import") might be. Indeed this Court repeatedly has refused to treat news and entertainment differently in the First Amendment context, noting that “[t]he line between the informing and the entertaining is too elusive for the protection of that basic right,” because “[w]hat is one man's amusement, teaches another's doctrine.”

The brief finishes by speculating on other areas of speech which might be impacted in the future by virtue of the “balancing” test contained in the law.