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Free Speech Groups Fight Dangerous Challenge to First Amendment

By Jim Milliot -- Publishers Weekly, 7/28/2009

A number of free speech groups have banded together to fight what they are calling the most severe threat to the First Amendment in 25 years. The groups, through a friend of the court brief filed by the Media Coalition, are hoping to overturn the conviction of a Virginia man who was sentenced to three years in prison for creating several videos that included scenes of dogfighting. Robert Stevens was found guilty under a federal statute that prohibits the creation, sale or possession of ‘a depictor of animal cruelty‘ with ‘the intention of placing the depiction in interstate or foreign commerce for commercial gain.‘ The law, which includes an exemption for works that have ‘serious‘ value, was passed in 1999 to prevent the sale of so-called ‘crush‘ videos that feature small animals being crushed by women’s feet.

In arguing that Stevens conviction be overturned, the Media Coalition brief says that the statute is overly broad and could be applied to any depiction of an animal being injured, including books and magazines about bullfighting. Furthermore, the law gives judges and juries wide discretion in determining just what ‘serious‘ value is. Stevens’ dogfighting video was sold by a number of online retailers, including Amazon and Barnes & Noble.com. In finding Stevens guilty, the judge said that while the video may have been a documentary ‘it lacked great import.‘ The conviction was overturned by the Third Circuit which found the statute unconstitutional; the Justice Department appealed the Circuit ruling and oral arguments are scheduled for the Supreme Court October 6.

Chris Finan, president of the American Booksellers Foundation for Free Expression. one of the groups that joined in filing the brief, said that while ABFFE and the other groups support enforcement of laws against cruelty to animals, ‘this statute bans speech, not dogfighting. Even worse, the argument the government is using to justify the law makes the case the biggest threat to free speech in a generation.‘ According to Finan, the danger lies in the possibility that the Supreme Court use the case to change the way speech is regulated in the country by placing a value on speech by balancing the social value of a work against the potential to cause harm. David Horowitz, executive director of the Media Coalition, observed that, ‘The First Amendment is most necessary when unpopular speech is at issue. If the government is allowed to decide whether your speech has low value, what’s next on the list of materials to be banned?‘

In addition to ABFFE, the AAP, the PEN American Center and the Independent Film and Television Alliance supported the brief.