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On April 20, 2010, the US Supreme Court struck down, on First Amendment grounds, a federal statute (18 U.S.C. § 48 ) that criminalized the commercial sale, dissemination, and possession of depictions of animal cruelty, as well as of acts showing the wounding or killing of animals. The decision in United States v. Stevens endorses rights of free expression, especially as they relate to the sale and distribution of images. In summer 2009, CAA joined with the National Coalition Against Censorship (NCAC) in filing a friend of the court brief that urged the court to strike down the law.

The Stevens case involved an appeal of a conviction on charges that the defendant had sold videos of dog fighting. The court’s 8–1 decision (only Justice Samuel Alito dissented) held that the law was overbroad because it swept in the commercial sale and use of images clearly protected by the First Amendment, including acts of hunting that were lawful in one state but unlawful in another, as well as various other activities in which animals may be wounded or killed. The court noted that its decision only protects the depictions of activities involving animals, and does not affect the criminalization of cruelty to animals.

As NCAC and CAA emphasized in their brief, CAA in no way supports cruelty to animals. Although the statute allowed for exceptions, for representations that had “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” CAA was concerned that this exception would allow courts to make decisions whether a challenged work had such value. So, for example, while one court may agree that an animal-rights video that documents atrocious conditions in a factory farm is political speech and therefore legally permissible, another court, unaware of particularly aesthetic approaches, may see an artist’s sale of a work dealing with the same imagery as outside the exception and thus prohibited by the statute. In addition, CAA was concerned that if the court had held § 48 constitutional, that would set a precedent for Congress to expand the categories of speech that are not protected by the First Amendment, potentially including various types of artistic speech.

CAA filed its brief not only because § 48 had a potential direct affect on artistic creation of works that use animals, as well as the reproduction of those works and of other images depicting animals, but also because the possibility that other categories of speech could be criminalized could result in limiting the expression of CAA members as artists and teachers. The US Supreme Court endorsed the position taken by CAA in its brief.

The Art Newspaper recently reported on the decision. You may also read more about CAA’s position on US v. Stevens and download a PDF of the NCAC and CAA brief.