Andrew Tauber and Craig Canetti of Mayer Brown LLP and I worked on this amicus brief on behalf of the National Coalition Against Censorship and the College Art Association, and I thought I’d pass it along in case some of our readers are interested. Here’s an excerpt from the Summary of Argument:
The government contends that the criminalization of “depiction[s] of animal cruelty” effected by 18 U.S.C. § 48 is constitutional because it outlaws only a narrow category of expressive material emanating from the “netherworld of animal cruelty” that is forbidden in this country. But in fact, as we will show through practical examples throughout this brief, Section 48 criminalizes, and thus chills, numerous forms of protected expression in the service of a government interest — the prevention of animal cruelty — that, by the government’s own admission, already is comprehensively served by State and Federal statutes that directly target the objectionable conduct.
I. By its plain terms and in its practical application, Section 48 extends far beyond “depictions of illegal acts of extreme cruelty.”
A. In fact, Section 48 criminalizes any depiction (intended to be placed in interstate commerce for commercial gain) that shows an animal being wounded or killed by a person acting in violation of any Federal or State law, including laws intended to conserve natural resources, ensure public safety, or regulate the use of dangerous weapons. The statute thus criminalizes depictions of people engaged in acts ranging from hunting with weapons (such as crossbows) that are allowed in some States but not in others, to hunting out of season, to bullfighting.
B. The government’s confidence that depictions having “serious value” will not be subject to prosecution under Section 48 is misplaced. The history of conceptual and avant-garde art, for example, is replete with instances in which the public scorned work later deemed to be groundbreaking and influential.
C. The inadequacy of the protection purportedly afforded by Section 48’s “serious value” exception is compounded by the fact that the statute does not require that the value of a depiction of animal cruelty be assessed in the context of the entire work in which it appears. Viewed in isolation and without context, a depiction of violence to an animal might easily be judged to have no “serious value,” although the larger work within which it is embedded possesses such value.
As written, the statute poses a particular threat to participants in the stock photography industry, who do not create, sell, or possess their images for any “serious religious, political, scientific, educational, journalistic, historical, or artistic” purpose (18 U.S.C. § 48(b)), but rather for an exclusively commercial reason, namely, for sale to third-parties.
Stock images depicting violence to animals — for example, images of bullfighting, cockfighting, and dogfighting — thus fall squarely within the ambit of Section 48 yet enjoy no protection under the “serious value” exception.
II. Section 48 does not define the statutory term “serious value.” As a result, criminal liability under Section 48 depends on prosecutors’ and jurors’ subjective, ad hoc assessments of whether a depiction of animal cruelty has such value. That unavoidable subjectivity invites not only inconsistent application of the law, but viewpoint discrimination as well.
III. Section 48 chills protected expression. Criminal liability under Section 48 encompasses anyone who, for commercial gain, “knowingly creates, sells, or possesses” a work containing a depiction of animal cruelty. 18 U.S.C. § 48(a). The reach of the statute thus extends to the many layers of participants involved in the production, distribution, and display of artistic and other works, such as motion pictures, magazines, photographs and video art. If just one necessary but risk-averse participant in the process decides, out of an abundance of caution, not to join in the production, distribution, or display of a work that includes statutorily defined depictions of animal cruelty for fear that it might subsequently be found by a prosecutor or jury to lack “serious value,” the dissemination of protected expression could be deterred. That danger flows directly from the absence of any criteria in Section 48 to guide the application of the “serious value” exception, which makes it impossible for any of these participants to determine prospectively and with any reasonable certainty whether a particular work will be found by a prosecutor or jury to violate Section 48.
You might notice that parts of the brief are based on responses to this bleg of mine. My apologies for not giving credit to the commenters — had this been a law review article rather than a brief, I would have certainly given credit where credit is due.
I should note that I’m a part-part-part-time Academic Affiliate for the Mayer Brown firm, and worked on this case in that capacity.