Hounded, Cowed, & Badgered

A Stevens-proof ban on crush videos?

In April, the Supreme Court decided United States v. Stevens, its biggest animal law case since the Lukumi decision in 1993. The case involved a First Amendment challenge to a federal law designed to stop crush videos, pornography showing small animals being crushed to death. The government in Stevens ran with the statute and prosecuted a seller of dog fighting videos. The Supreme Court, on an 8-1 vote, held the statute was constitutionally overbroad.

The majority opinion faulted the law for reaching animal-related acts that are not defined  as "cruel." The law, as written, required use of a depiction of "animal cruelty," but defined cruelty to include any wounding or killing of an animal that violated federal or state law. The court imagined various scenarios where a depiction of a purportedly uncruel act (e.g., hunting without a license) would nonetheless violate the law. It found particularly troubling that a person could be convicted of possessing a video showing violence against an animal that was not in fact illegal in the possessor's state.

The Stevens court held out the possibility that a more targeted law--one "limited to crush videos or other depictions of extreme animal cruelty"--could pass constitutional muster. Now comes news that the House and Senate have passed bills aimed at crush videos that ... actually target crush videos.

I've put together a table comparing the language in the statue now, in the Senate bill, and in the House bill. The full texts of both versions are at Govtrack.us. Both bills do a better job of defining the depictions being banned, though the Senate does a better job still by not requiring the depicted abuse to also be a state or federal crime. Both contain findings that draw parallels to caselaw on obscenity and child pornography. Both in fact require the depiction to be obscene; given the descriptions in the case, I'd hope all crush videos would qualify.

I personally find it difficult to get excited about these bills. They target a tiny segment of the pornography market and a miniscule portion of the animal abuse in this country. How little Congress cares about animals is evident in one change between the House and the Senate bills. The House bill recognizes a compelling interest in "preventing animal cruelty," a good policy goal, if one rarely acted on. The Senate bill, however, finds a compelling interest only in "intentional acts of extreme animal cruelty." What of "mere" animal cruelty? Well, some arguably cruel practices are expressly excluded from the statute's reach by an exception for depictions (even obscene ones!) involving hunting, fishing, and agriculture.

The one bright spot I see in the legislation is in the Senate's definition of the offense. It criminalizes the sale, distribution, etc., of depictions of animals being abused in several specific ways (e.g., drowning, suffocation), but also includes a catchall for depictions of severe bodily injury against animals. Severe bodily injury is defines not once but twice in reference to existing laws against humans. The law incorporates the definition in 18 U.S.C. § 1365(h)(3), which contemplates the injury of "another person" and "any individual." Most strikingly, the Senate bill defines severe bodily injury to include "conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242." As the links show, these statutes define the federal crimes of aggravated and simple sexual abuse. The Senate bill thus implicitly recognizes that harm to nonhumans is of a similar kind as harm to humans.

The Senate bill is also notable for its definition of the animal being depicted. While the current law and the House bill cover "living animals," the Senate covers "non-human mammals, birds, reptiles, or amphibians." On the one hand, this definition excludes insects and fish; on the other, it acknowledges frankly that humans are animals of a sort. This language parallels some state definitions of "animal" which expressly exclude human beings. See this Maine statute.

10th Circuit upholds Utah intiative amendment

A Utah amendment which would impose a 2/3 majority requirement on the passage of wildlife-related initiatives has been upheld on appeal. The opinions in the case, Initiative and Referendum Institute v. Walker, split over two issues: whether the plaintiff animal advocacy groups have standing and whether the amendment violates plaintiffs' First Amendment rights. As the opinion explains, the amendment was passed after animal and wildlife advocates began organizing measures to protect cougars and bears.

The majority opinion holds that the plaintiffs have standing to sue but that the First Amendent was not violated. We continue to be perplexed by First Amendment jurisprudence, but will do our best to summarize the arguments on the merits. The court first rejected the claim that the amendment was political speech and thus subject to strict scrutinty, finding that such scrutiny has only been applied to restrictions on speech associated with the political process, not the political process itself. It further did not adopt the reasoning of Wirzburger v. Galvin, a recent First Circuit case where the plaintiffs successfully argued that the court should use intermediate scrutiny because the subject matter-specific limits on legislation implicate both speech and non-speech elements. The court argues that refusal to apply intermediate scrutiny is a vindication of "We the People," that, given the policy-like reasoning required in weighing a government's "substantial interest" in a piece of legislation, judicial scrutiny is inappropriate.

As the dissent in Initiative Referendum Institute points out, and as we have argued regarding measures in Arizona and Missouri, subject-specific supermajority requirements have their own "We the People" problem. Specifically, the passage of the Utah amendment (by less  of the voters than the supermajority which it imposes) means that future generations of advocates able to secure a majority in support of a wildlife measure may be stymied by the "dead hands of the past." Although it is heartening to believe that Utah hunters see the tide shifting against them, their success in passing this bill (by invoking "East Coast Special Interests") shows that belief might just be paranoia.

Also (5/23/06): The Salt Lake Tribune has a fine editorial which says it all: Stacked deck: Wildlife amendment is legal, but misguided.

Anti-activist bills pass in Arizona, Pennsylvania

HB 2130, which expands Arizona's hunter harassment offense, was recently signed into law, the Arizona Republic reports (opt out). The law before amendment broadly prohibited interference and disruption of hunting. The new law enumerates many instances of such interference, including the use of any "natural or artificial visual, aural, olfactory or physical stimuli" affecting hunted animals or hunters. This and much of the other language in the new law is from a New Jersey statute which was upheld as as constitutional in Binkowski v. State, 322 N.J. Super. 359 (App. Div. 1999) (in parts here). The new Arizona law notably does not have language prohibiting conduct "with the intent to dissuade" that has caused courts to invalidate provisions of other hunter harassment laws. It is possible that an as-applied challenge, with a helpful fact pattern, could be more successful than the facial challenge in Binkowski.

Meanwhile Pennsylvania has recently passed an "ecoterrorism" law which enhances penalties for otherwise criminal conduct when it occurs with the intent to interfere with a lawful activity involving animals, plants, or natural resources. (Beware, shoplifters of apples.) An open letter to Governor Rendell points out that the law is viewpoint-specific, that anti-abortion graffiti would not be punished as severely as anti-meat graffiti. The ACLU argues the law "would effectively permit one side of the debate over environmental issues or animal rights issues to fight freely, while limiting those on the other side of this debate."

Perhaps in recognition of this double standard, the new law expressly immunizes individuals from prosecution when they are exercising "the right of petition or free speech under the United States Constitution or the Constitution of Pennsylvania on public property ...  where the person is peaceably demonstrating or peaceably pursuing his constitutional rights." Sec. 3311(c.1) These are empty words, because the First Amendment does not need enabling legislation by a state to apply. We can only imagine how little prosecutor's offices will feel their hands are tied by this provision.

Suit argues veganism is religion

An incarcerated animal rights activist  is claiming that his vegan diet should be protected by a federal law which prevents the government from burdening the religious practice of people in government institutions, such as prisons. (Hat tip: Religion Clause.) The only treatment of this sort of issue that we know of is a case interpreting California's Fair Employment and Housing Act which holds the veganism is not a religion. The regulation in that case protected "beliefs, observances, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions." Friedman v. S. Calif. Permanente Med. Group, 102 Cal. App. 4th 39 (2002) (LexisOne). The test applied to this language has been criticized by Sarah Soifer as being overly deferential to institutional religions. Soifer notes that veganism both answers life's greater questions and involves a degree of discipline, namely "nearly endless formal signs of adherence." See Sarah Soifer, Vegan Discrimination: An Emerging and Difficult Dilemma, 36 Loy. LAL Rev. 1709 (2003) (pdf).

Targeting animal rights activists

The New Standard has a great piece by Catherine Komp on the recent prosecutions of activists in Oregon, California, and New Jersey for the commission (or conspiracy to commit) property crimes against industries and government agencies which exploit animals or the environment.  It also notes model legislation which criminalizes a variety of activities which "depriv[e] the owner of an animal or natural resource from participating in an animal or natural resource activity" or "[o]bstruct or imped[e] the use of an animal facility or the use of a natural resource." The legislation asks for anything animal industries could want to keep their activities away from public scrutiny, short of electronic monitoring of PETA members and an AR offender registry (oh wait, that second one's there). The ACLU is predictably quoted as saying that the so-called Animal and Ecological Terrorism Act targets specific viewpoints.

A comment in a recent Animal Law considers constitutional challenges to AETA and notes that optional language prohibiting "politically motivated" conduct opens the statute up to the claim that it discriminates on the basis of a viewpoint. The comment's author, Andrew N. Ireland Moore, notes, however, that without this language, "the statute has a much greater probability of withstanding constitutional scrutiny."  The article also does a good job of outlining other constitutional challenges to the legislation, summarizing relevant case law, like hunter harassment laws, and recounting the statute's record in state legislatures.

Komp's piece gives the last word to Stu Sugarman, a lawyer who represents Earth Liberation Front, about how the tag "terrorism" is being adopted by the backers of legislation targeting AR and environmental activists: "Terrorism is a magic word. It’s like child abuse or drunk driver. It immediately conjures up the image of a really bad person who we want out of society."

SHAC 6 trial starts tomorrow

The AP reports jury selection starts tomorrow in the prosecution of the SHAC 7 (now 6). They have been charged with conspiracy to animal enterprise terrorism, conspiracy to interstate stalking, and interstate stalking. See the original indictment here. The charges seem to be based solely on the fact that websites associated with the defendants reported direct action against various people associated with Huntingdon Life Sciences, a corporation which engages in animal testing. (SHAC stands for Stop Huntingdon Animal Cruelty.) The actions include overturning cars and throwing rocks through windows. Activists say HLS, to put it lightly, abuses animals. As a recent Mother Jones article notes, the defense will largely focus on whether the speech on SHAC website falls within the protections of the First Amendment.  (Animal Crackers, no friend of animals, points out that the article is a little softball.)

A piece at the Southern Poverty Law Center suggests that the website posts are "true threats" and thus not protected by the First Amendment. The analysis finds the government's linking of postings and attacks convincing, but, oddly to us (no First Amendment scholars) notes that the website's later posting after the attacks "fueled the fire."  This sort of speech would seem to implicate a far greater number of websites, e.g., those of local newspapers. As David Sugar asks, if the New York Times reports on a rape case, does this mean the Times is guilty of advocating rape?