Criminal Records

Stevens' conviction demonstrates how the ban on depictions of animal cruelty can send people to prison based on jurors' subjective reactions to a film. Stevens says he does not endorse dogfighting but used footage of it -- shot in Japan, where the sport is legal, and in the United States more than three decades ago -- to illuminate the history and behavior of pit bulls. Defense experts testified that the videos, which are far tamer than images routinely used by animal rights activists to rally support for their cause, have substantial educational, historical and scientific value.

The prosecution's experts disagreed, quibbling over matters such as the length of certain scenes and Stevens' decision to illustrate poor training by showing a dog attacking a domestic pig. In 2006, the U.S. Court of Appeals for the 3rd Circuit overturned Stevens' conviction, ruling that Congress had violated the First Amendment by making a man's liberty hinge on such unpredictable, arbitrary judgments about the value of his speech.

The appeals court noted that "the statute potentially covers a great deal of constitutionally protected speech," including images of bullfighting in Spain (since the recorded conduct need only be illegal where it is possessed or sold) and of hunting or fishing out of season.

Similarly, in a brief asking the Supreme Court to uphold the 3rd Circuit's ruling, several journalism organizations that worry about the law's impact on coverage of animal-related issues say it "appears to be a felony for anyone in Oregon to possess depictions of legal, licensed crossbow hunting in Washington." Wrinkles like that could imperil the entire genre of hunting and fishing videos.

Solicitor General Elena Kagan suggests the Justice Department will avoid such bizarre results by applying the statute judiciously. But Stevens' prosecution, which goes beyond the avowed intent of Congress, shows the department cannot be trusted to do so. If the First Amendment means anything, it means freedom of speech should not depend on prosecutorial discretion.