October is, of course, linked with the spooky and scary. That's proving true for ASNE members who find themselves running from dangers resembling the typical case of horror movie villains: killer animals, vampires, zombies, even the simple unsettling nothingness of the unknown. All threatening to rip newsgathering apart limb from limb, kill publication of important stories, and generally disembowel the First Amendment. Frightening stuff, I assure you.

Who can forget that rabid St. Bernard trapping a poor asthmatic boy in a car? It was vividly terrifying — enough so to keep me from wanting a dog until my early teens. But who thought that videos of dogs attacking each other could become one of the major First Amendment cases of the year? The good news is that I don't see United States v. Stevens posing any real threat to news organizations. In fact, after attending the oral arguments in that case, it seems like the justices gave a nice old belly rub to the news media.

We've mentioned the case in the past because ASNE joined several media organizations and companies on an amicus brief drafted by the Reporters Committee for Freedom of the Press. Our great fear was that the Supreme Court would overturn the media-favorable ruling of the United States Court of Appeals of the Third Circuit, which had declared 18 U.S.C. 848 unconstitutional. That law, originally intended to prohibit "crush videos" — sexual fetish videos that feature women in sharp pointed, high heeled shoes crushing small animals to death - was passed in 1998. It allows criminal penalties 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." Animal cruelty is defined 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."

Just one person has been prosecuted in the decade since it was passed. Robert Stevens' only crime was to sell three videos that include footage of pit bull fights. The videos were shot overseas, in countries where dog fighting is legal. Furthermore, Mr. Stevens actually loves pit bulls. These videos were being used to demonstrate how the characteristics that make pit bills excellent fighters should also make them valued as excellent working dogs.

We can see — and also have already described to you — how this law could be misapplied. Sure, there is an exception in the law that states that it does not apply to images or videos that have "serious religious, political, scientific, educational, journalistic, historical, or artistic value". But the law makes no provision that the work as a whole be considered, only the image or video in question. So there is considerable prosecutorial discretion left for application to even a legitimate news story exposing animal cruelty or an opinion piece speaking out against animal cruelty

As I wrote in a summary of the oral arguments for my law firm's blog, our fears are largely unfounded. The justices never really questioned the law's clear inapplicability to legitimate news stories. The word "journalism," or some variation thereof, is only mentioned five times in 73 pages of transcript. Indeed, the Court did not even seem to question whether Mr. Stevens' prosecution for a more overtly commercial purpose violates the First Amendment. Instead, a Court that is known to favor "as applied" challenges (carving out those instances in which the law cannot be applied to the speech at issue but leaving the rest intact) to "facial" challenges (striking the law down entirely because it can never be applied in a constitutional manner), really focused on the latter. The key question appeared to be whether the Court needed to base its judgment on real life applications of the law only or whether it should consider the many hypothetical situations in which the law could be — but has not yet — been applied inconsistently with the First Amendment.

Either way, a majority of the Court seemed unconvinced that this was little more than a significantly overbroad law with a savings clause written in. The justices seemed equally unwilling to bootstrap the law to safety through that one clause. Since this is a legal column, not one-on-one legal advice tailored to a specific set of facts, don't take what I'm going to say next as binding legal advice, but if you have a reporter/photographer begging to go to Japan to do a story on the future of legal whale hunting, go ahead and press "purchase" for those plane tickets and tell them to write and photograph the heck out of it.