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Yesterday, in an 8-1 decision, the U.S. Supreme Court struck down a statute that would have infringed on certain documentary makers’ First Amendment rights. Relating to the depiction of animal cruelty and killing on screen, the statute, by criminalizing such depictions, would have limited filmmakers’ abilities to cover any number of subjects ranging from hunting to our food industry to, ironically, animal abuse itself. The IFP New York was one of several organizations filing an amicus brief in support of the filmmaker filing the case, a documentarian named Robert Stevens who was sentenced to 37 months in Federal prison for including in his film acquired clips from a Japanese dog fight.

Attorney Michael Donaldson, an expert in copyright, clearance and rights issues (his Clearance and Copyright is a must-own for any producer) organized the supporting organizations, and his statement is below:

Today the U.S. Supreme Court struck down a statute on first amendment grounds that criminalized a lot of documentary filmmaking. Congress enacted a law to criminalize any depiction of any acts to animals in a film that results in the animals being killed or harmed, even if the activity on the screen is completely legal. Such a restriction would obviously cover hunting or fishing. The only requirement for prosecution was that the activity be illegal in the place that the film is possessed, exhibited, or sold. Even though the act exempted serious religious, political, scientific, educational, journalistic, historical or artistic, Chief Justice Roberts writing for an 8-1 court held the statute to be “substantially overbroad and therefore invalid under the First Amendment”

Three organizations of independent filmmakers stepped into the fray under the leadership of Los Angeles entertainment lawyer Michael C. Donaldson. The International Documentary Association, Film Independent, and IFP New York joined an Amicus Brief filed to help the Court understand the threat to documentary filmmakers. Donaldson said that the threat to documentary filmmakers across the country who might innocently include footage in their film that was legal when and where shot.

The case involved a documentary filmmaker by the name of Robert J. Stevens, who had included clips of a legal Japanese dog fight in a film he produced. The government did not argue that Stevens shot the film or was even present at the shoot. Since dog fighting is illegal in the United States, Stevens was arrested, tried, and sentenced to 37 months in federal prison – a term longer than Michael Vick received for actually participating in dog fights in the United States. Whatever one might think of Mr. Stevens and his films, the threat to filmmakers had to be removed.

Donaldson pointed out that the jury instruction advised that the exception only applies to images that are “significant and of great import.” “The bare reading of the words show how high the bar is set for filmmakers. Not only the film, but the images themselves, have to pass muster. Many an important documentary would be foreclosed. Others would not even be made because of filmmakers’ fear of prosecution,” Donaldson said.

The case was brilliantly argued before the Supreme Court by Patricia Millet from the Washington D.C. office of Akin Gump law offices. Donaldson was in attendance at the hearing in Washington and joined other counsel after for a lunch honoring Millet’s hard work as lead counsel.

Adam Liptak at The New York Times has more, including a discussion of the origins of the federal law, which was enacted in the Clinton administration primarily to combat the “crush video” industry, and whose unintended consequences included the prosecution of someone like Stevens. From Liptak:

The law was enacted mainly to address what a House report called “a very specific sexual fetish” — so-called crush videos.

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

The law, said Wayne Pacelle, the president of the Humane Society of the United States, “almost immediately dried up the crush video industry.”

But prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos.

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