So here’s more “crazy Internet jurisdiction stuff” – with a nice First Amendment overlay, to boot. Federal law (who knew?) makes it a crime to sell depictions of animal cruelty:
18 USC § 48. Depiction of animal cruelty
(a) Creation, sale, or possession. Whoever 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, shall be fined under this title or imprisoned not more than 5 years, or both.
. . .
(c) Definitions. In this section–
(1) the term “depiction of animal cruelty” means any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State . . .
A website based in Puerto Rico, www.toughsportslive.com, is challenging the law on First Amendment grounds. Our own Eugene Volokh is quoted in the NY Times story as holding the opinion that the statute is probably unconstitutional — and I agree. The statute makes it illegal to depict conduct if the conduct is illegal in the State in which the depiction is created, sold, or possessed — even if the conduct being depicted took place somewhere (like Puerto Rico) where it is legal. Speech that concerns conduct that is illegal in Virginia or Rhode Island cannot be banned consistent with the First Amendment – can it?
And beyond the First Amendment question — what if the website server, and all of the conduct depicted, came from a country (let’s say Thailand) in which the conduct depicted (cock-fighting) is legal? Could a US court entertain an action against the website operator? [Alert readers will notice that this is the mirror image of the action recently filed in an Italian court against Google executives, discussed here].
Putting aside the question of whether a US judgment can be enforced against the foreign website, would the Thai website be violating 18 USC 46? By its terms, it looks like the answer is ‘yes’ — if cock-fighting is illegal under, say, Virginia law, and if the depictions are ‘possessed’ in Virginia, the statute appears to criminalize the creation/possession/sale of the image.
But I’d argue that the statute does not apply at all. The conduct in question, and which is depicted in the image, is not “cock-fighting,” it’s “cock-fighting in Thailand.” And cock-fighting in Thailand is not illegal under federal law (because federal law does not apply to any conduct in Thailand), nor is it illegal under the law of any State (same).
And if you’ve read this far and find these issues of interest, hopefully you won’t be too annoyed if I say, again: you should really read my book. The implications for the future of the Net in cases like this are profound, and we need to figure out how to deal with them in a sensible way.
DavidP