by Sherry F. Colb
In my column for this week, I discuss a lawsuit brought by the animal protection organization "Compassion Over Killing" (COK) against a dairy conglomerate. The lawsuit alleged price fixing because the dairy conglomerate was paying small farmers to have their dairy herds slaughtered, thereby artificially inflating the price of dairy by cutting the supply. The lawsuit settled, with the dairy conglomerate having to pay rebates to consumers of dairy during the relevant period. In my column, I question the wisdom of the lawsuit, if the goal of COK is to help animals. In this post, I want to explore the two different ways in which a lawsuit that is nominally about protecting the interests of humans (e.g., to lower prices) could, in theory, also further the interests of animals.
One way in which a lawsuit filed on behalf of humans could help animals is if the interests of the humans and the animals in the case are well-aligned. This might happen, for example, if there were a suit that complained about the shredding of male baby chicks that happens routinely as part of the egg industry on the grounds that such conduct causes emotional distress to the humans bringing the lawsuit. In such a hypothetical case, a victory would put an end to the cruel practice of feeding baby chicks into a wood chipper (although it is unclear whether the result would simply be the killing of the baby chicks in some other way, since they are surplus--economically garbage--within the industry). Though the suit might in name be brought to further humans' interests, then, the result could be to further both the humans' and the animals' interests.
As I suggest in my column, the lawsuit against the dairy conglomerate for paying for the slaughter of small farmers' dairy herds did not meet this criterion of finding human and animal interests aligned for purposes of the harm complained of. But there may be other cases (such as the hypothetical one I described above) in which animal and human interest are aligned. Indeed, part of the premise of the animal rights movement is that we neither need nor benefit from the slaughter and harm inflicted on animals to produce animal-based food (and clothing) and that we could live equally healthy (or healthier) and equally happy (or happier) lives by consuming non-animal-based foods (and wearing non-animal-based clothing) instead.
There is a second way in which litigation nominally brought on behalf of humans could help animals. And that is by raising consciousness. PETA (People for the Ethical Treatment of Animals) has sometimes brought lawsuits that it expected to lose as a way of shedding light on what happens to animals in humans' care. In one case, PETA brought a lawsuit alleging that the orcas at Sea World were being kept in a state of slavery in violation of the Thirteenth Amendment. Given our current doctrines, PETA undoubtedly expected to lose its lawsuit, but in the process of bringing it, there would predictably be a great deal of publicity. Such publicity could let people know of the horrible ways in which orcas are treated both in their acquisition from the wild and in their lives within SeaWorld, so different from the free lives they would have enjoyed outside of captivity.
I am not sure that PETA's lawsuit was the best way to shed light on the plight of orcas at SeaWorld. Bringing a lawsuit under the Thirteenth Amendment foreseeably offended many people who are not ready to think about human slavery and animal slavery together. Part of the problem is that some may regard the equivalence as suggesting that the people who were in fact enslaved prior to passage of the Thirteenth Amendment--African Americans--are somehow like nonhuman animals. Because part of the propaganda of slavery included this sort of comparison (intended to demean the status of African Americans), one must be very careful about drawing the slavery analogy lest one alienate many of the very people who might have been most sympathetic to the cause of animal rights.
In addition to the worry about offending people (which PETA does not appear to worry about nearly enough), the invocation of the Thirteenth Amendment in connection with a theme park that many are inclined to view as benign would predictably strike many people as humorous. That too is something worth avoiding, because viewing the claim that orcas are like enslaved persons as a funny claim will not raise consciousness about the lives of orcas in any sort of positive way. (SeaWorld did recently announce an end to its orca captive breeding program--but didn't release its orcas into sea sanctuaries. It is possible the PETA lawsuit contributed to the bad publicity that led to that decision, although the film Blackfish undoubtedly played a larger role.)
One could imagine, however, bringing a lawsuit that productively raises consciousness about the horrific conditions in which animals are kept in captivity, whether those animals are orcas or the dairy cattle whose lives were in theory on the minds of COK when it brought its lawsuit against the dairy conglomerate. In my view, such a lawsuit would have to avoid not only the pitfall of offending people by insensitively drawing triggering analogies between animals and oppressed humans. It would also have to avoid triggering laughter and derision as well.
I do not have in mind an ideal lawsuit for these purposes, but I do wish to acknowledge that such a lawsuit could be bound to fail and still be productive if it brought to light some of the terrible things that happen to animals kept in captivity. I think my main criterion for such a lawsuit would be that the practice challenged in the lawsuit should be something that is routinely done to animals rather than something exotic or unusual. What people need to learn is that there is no "kind" way to exploit animals, that the ordinary, normal, and routine ways in which people utilize animals to create food and clothing is astonishingly cruel and completely unnecessary.