Ban on Photography of Animal Cruelty Struck Down

Two important pieces of legal news for photographers today.

U.S. v. Stevens

The Supreme Court today overturned a law that made photographs of animal cruelty illegal. The defendant, Stevens, was the first to be convicted under a federal law that banned the creation, sale, or possession of a depiction of animal cruelty.

Much like child pornography laws, the law was designed to target the market for videos of animal cruelty, because it is often difficult to determine the person who committed the underlying cruel acts. Designed to allow law enforcement to go after “crush” videos, which appeal to a disgusting fetish for the crushing of small animals, the law in this case was applied to a video of dog fights.

The problem with the law, as evidenced by the fact that it was used against a dog fight video (not that I am any fan of that either), was that it was way too broad, and could potentially impact journalists, as well as others exercising their First Amendment rights. There was an exception for any depiction that has “serious journalistic value,” but the term “serious” excluded too much, and there was no exception for entertainment. The NPPA joined the Reporters Committee for Freedom of the Press in filing an amicus brief.

The Supreme Court ruled that the law explicitly punished expression based on the content. Although speech restrictions based on content are allowed in a few exceptions, namely, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, and some specific narrowly tailored areas, this was not one of them, and the court declined to create a new category.

In attempting to bring videos of animal cruelty to the level of child pornography, the government proposed the following test for adding new areas of exception to the First Amendment : “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

Justice Roberts responded, “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.” The court declined to carve out a new exception to the First Amendment for animal cruelty.

Finding that the law was far too much of a limitation on the First Amendment, Roberts said, “We read §48 to create a criminal prohibition of alarming breadth.”

There are some great lines in the opinion, including, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

Animal rights fans, take heart. The court did “not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

You can read the entire opinion, and the dissent, here. There is also a good analysis of the ruling on the SCOTUS blog.

Ken Light v. Current TV

Also important for photographers is the ongoing case of Ken Light, a San Francisco photographer who took Current TV to small claims court for “unfair competition,” after they violated his copyright. Light originally won the case, but Current TV appealed it and the court threw the case out. The reason- it was basically a copyright violation and small claims courts do not have jurisdiction over copyright, only federal court does.

I am aware of some cases where a copyright violation was successfully taken to small claims court as a breach of contract or failure to pay an invoice, but it is always a risk as the federal courts have exclusive jurisdiction over copyright claims.

There is a wonderful story about the case, and the legal history of “in-line linking” on the NPPA website. I recommend it.

UPDATE: The New York Times calls the ruling a “major and muscular First Amendment ruling“

Media companies saying “No Thanks,” for the hand-outs

One of the dangers of “official” photographers, is when they are used as a replacement for admitting the media.

The media doesn’t like this, but for years, there was not much in the way of response.

Things are changing. More and more, I have seen media companies refusing to run “handout” photos when they are offered as a replacement for media access.

Recently, the media was kept out of a meeting between President Obama and the Dalai Lama. Response was strong.

The Associated Press declined to distribute the handout photo, instead offering the following Photo Advisory:

AP Photo Advisory: The AP will not be distributing an official White House photograph of today’s meeting between President Obama and the Dalai Lama. The AP declines to accept or use handout photos when we feel access would have been possible by the media, either as a group or through a pool photo arrangement.

The New York Times and the Washington Post also stated that they would not publish the hand-out photos.

The impact of a media blackout used to be more significant. But since the Obama White House has it’s own photo distribution system (via a Flikr Photostream) it doesn’t have to rely on the AP, or even newspapers, to get its images across.

There are several good sources for this story:

Associate Press release about the Dalai Lama and Obama meeting.

Washington Times article about the Dalai Lama handout photo.

Columbia Journalism Review article on the handouts trend.

White House Flikr photo stream.

White House News Photographers Association position on handout photos.

Constitutionality of Strip Club “Pole Tax”

If you are a First Amendment fan, you might enjoy watching the oral arguments from a case heard by the Supreme Court of Texas. They are available via video feed here.

The issue: is the imposition of a tax on strip clubs (specifically a $5 tax for each person at a nude dancing club where alcohol is served), a violation of the First Amendment rights of the clubs?

There is also an article on the case here.

Why is this a First Amendment and issue for strip clubs? Because of the dancing.

Newark Cameraman assaulted by police is suing.

In general, I don’t do cartwheels when I hear about lawsuits. But this one makes me happy. A TV photographer in New Jersey has filed a lawsuit against a police officer who arrested him while the photographer was filming a peaceful demonstration. Apparently the only thing violent about this demonstration was the officer’s clash with the photographer.

This video shows the original event. Can you say “settle now.”

Dear Police of America: Stop violating the constitutional rights of journalists. We are journalists and we will get really good evidence.

It’s photo week at the Supreme Court of the United States

Photographers should be paying attention to the Supreme Court this week…

Tasini continued…

Oral arguments were heard today in Reed Elsevier v. Muchnick. This case is connected to our old friend Tasini v. New York Times, which some say started the whole rights grabbing trends of the modern day newspaper contract. While this case won’t really have as much of an impact on photographers, it is interesting because of the connection. It involves the authority of the court over copyright cases and settlements when the rights holders haven’t registered their copyright. It also involves an enormous class of journalists. Here is a summary of the oral arguments (note to self: research why people keep hyphenating “freelancer”) and here is a transcript of the oral arguments.

If the court rules that a federal court cannot approve a settlement involving rights-holders who have not registered, it seems inevitable that this will affect the Google Books settlement.

The Dog-fight Video Case

In another case that is important to photographers, the U.S. Supreme Court heard oral arguments Tuesday about whether or not a law that bans visual depictions of cruelty to animals is a violation of the First Amendment.

U.S. v. Stevens is the first case ever to be prosecuted under a federal law that bans any “depiction of animal cruelty” if such cruelty is illegal in the place where the depiction is created, sold or possessed.

It has been many years since the Court found that the government interest in preventing child pornography was so great that it overrode any First Amendment rights of the child pornographer, a rather appropriate finding. By making the expressive act illegal, the motive for the abuse is diminished. Child pornography involves abuse of a child and the photography itself is abusive. The law is clearly narrowly tailored and serves a compelling government interest.

This law is not so well orchestrated. For example, the defedant, Stevens, was not involved in any animal abuse, he merely edited together footage that he obtained from others.

While well intentioned (many attacks on the First Amendment are), I think this law is certain to be struck down. First of all, I don’t believe that our government truly has a compelling interest in preventing cruelty to animals. If it did, much of the way our nation produces meat would be illegal (yes, I am a vegetarian). Second, the law is in no way narrowly tailored. There are many possibilities of perfectly legal activity that could get a person caught up in this law. And there are loopholes that would make illegal a video or photograph of something that was legal where it occurred (say bullfighting in Spain). I once photographed a ritual sacrifice of a sea turtle in a Fijian village. It was gross. It was brutal and cruel. But it was important to document. Those pictures could get me in trouble with the feds under this law.

If you don’t believe me, just take a look at the list of hypotheticals the justices posed to the attorneys in this case. The article in the New York Times says it all.

The transcript, full of hypotheticals, is here.

An article about the NPPA signing an amicus brief urging the court to hold the law unconstitutional is here.

One of my favorite things to listen to is a Nina Totenberg report on Supreme Court arguments. Her review of this weeks oral arguments is available here.

Colbert on NPPA and Photography in Train Stations

For years, I have been involved in fighting attempts to ban photography in public places like train stations. Yet photographers continue to be harassed and we continue to have to make a fuss.

Recently, a case caught the attention of the Colbert Report and the following video ran last night (Feb. 2). The absurdity of our point comes across clear as day. The shout out to NPPA (and the bloody lettering to go with it) made my day.

The good news is that NPPA has gotten Amtrak to agree to review and update its police guidelines in regards to photography. But that, of course is not as funny as what happened to set it all off.

Vodpod videos no longer available.

more about “Colbert Reports on Photography in Tra…“, posted with vodpod

Notes from the Lame Duck Session

A couple of interesting things happened in Lameducklandia today.

– Approval of the auto bailout. Booo.

– Condemnation of the Mumbai attacks. Duh. Would people have thought otherwise?

– Extension of the broadcast authority timeline (related to the digital tv transition)

– S.J. Resolution 46 ensures that the Secretary of State (Hillary Clinton) will have the compensation that was in effect on Jan. 1, 2007. I assume this is an attempt to get around the constitutional problem of having her serve in an appointed position for which she voted on a raise. I’m not sure that it solves the problem, technically, but it does address the spirit of the problem

“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time…” (emoluments being salary/ compensation)

This is not the first time this conflict has come up. And it has been ignored before, or rather, dealt with by reverting to the pre-raise salary.

But the fact of the matter is that the Constitution doesn’t have the words, “unless they do x,y,z….”

The congress may be trying to solve this problem by legislating, however you can’t leglislate your way out of the constitution.

But I told my husband that I had one solution… that it doesn’t apply to Clinton because the constitutional clause clearly says, “he”. I wonder if that would work. ;o)

A post on the Daily Kos explains the whole dilemma very well.

Ironically, it is only a $4,000 raise, surely chump change for someone like Clinton, especially considering that she had her eyes on a different job.

And then again, it is only the Constitution. Seems like the judiciary is the only branch of the government that is even pretending to follow it these days anyhow (and frankly even they abandon it when it suits them).