Nonhuman animals and the Constitution: Vegan Summerfest, My Upcoming Seminar, and More
From tomorrow afternoon through Sunday, I'll be attending Vegan Summerfest, held on the campus of the University of Pittsburgh at Johnstown. As I noted last year, this is an annual conference I've been attending fairly consistently for nearly two decades now. In that post from last year, you can find descriptions of talks I've given in the past. This year, I'm giving three and a half brand new talks. I say three and a half because three of them are solo talks, while the fourth is a session I'm jointly running with philosopher Mylan Engel. (In the program, that fourth talk is listed under Professor Engel's name only because he submitted the proposal, so, even though I was named therein, the computer thought it was a solo performance.)
Below, I provide the description from the program of each of my talks and then say a bit more about the first one, putting it in context with a seminar I'll be offering at Cornell Law School in the fall. In a follow-up post tomorrow, I'll preview the other two and a half sessions. Let's begin with the descriptions for each talk.
Free Speech for Animals: Do laws banning depictions of animal cruelty violate the First Amendment? Do “ag-gag” laws that bar activists from farms and slaughterhouses abridge freedom of the press? What about laws forbidding the use of words like “milk,” “meat,” and “cheese” in vegan product names? We’ll explore how humans can use free speech to be the voice for nonhuman animals.
Human Rights for Nonhuman Animals: The 1948 Universal Declaration of Human Rights has played a critical role in efforts to combat grave injustices, including torture, genocide, and enslavement. But why should rights against such practices be restricted to human beings? Let’s explore whether, and if so, how, “human rights” can be a basis for securing rights for non-human animals.
Animal Activism for Introverts: As a vegan, you can greatly enhance your impact by persuading others to join our movement. But what if you’re an introvert? You’re uncomfortable at rallies, tabling, or posting provocative memes on social media. Do you just have to “get over it?” We’ll workshop means of spreading the message that won’t give you a panic attack.
Ask an Ethicist (jointly with Mylan Engel): Got a question about animal rights, environmental ethics, or ethical veganism that you’ve always want to ask a professor who teaches animal ethics or animal law? Ever gotten a really tough question about the ethics of eating that you weren’t sure how to answer? Join us for this question-generated open discussion concerning the ethics surrounding animal rights and veganism. We’ll provide answers that can help you better advocate for ethical veganism.
Now, to say a bit more about that first talk and a related topic. As should be evident from the description, the title of the talk, "Free Speech for Animals," is a play on words. Taken one way, the title suggests that nonhuman animals themselves have a right to freedom of speech. However, the examples all involve speech by humans. It is speech for--only in the sense of on behalf of--animals.
Let's start with that first question in the description: Do laws banning depictions of animal cruelty violate the First Amendment? Many readers will recognize that this question alludes to the 2010 Supreme Court case of United States v. Stevens, in which the Supreme Court said yes, such laws do violate the First Amendment. Governments may forbid cruelty to animals but they may not forbid depictions thereof. The case invalidated a federal law that imposed criminal penalties on anyone who knowingly “creates, sells, or possesses a depiction of animal cruelty,” if done “for commercial gain” in interstate or foreign commerce.
The Stevens case is notable as a doctrinal matter for its dubious assertion that the only unprotected categories of speech are those that were "historically" unprotected. In his terrific book What's Wrong with the First Amendment?, my late colleague Steve Shiffrin skewered the Roberts Court for this invention. Prior cases rooted the categorical exceptions in judgments about the value of different forms of speech, he argued, deriding the approach of Stevens and related cases as invoking "frozen categories." I mostly agree with this critique.
That said, for the purposes of a panel at a vegan-oriented conference, I'm less interested in the Supreme Court's First Amendment doctrinal maneuvers than I am in discussing the implications for the animals. In a case like Stevens and virtually every other constitutional case in which animal interests are involved, those implications arise indirectly. Courts in the United States have rejected claims that nonhuman animals have any constitutional rights of their own. To be sure, individual judges have sometimes concluded otherwise. Perhaps the most stirring examples are the dissents of Judge (now Chief Judge) Wilson and Judge Rivera in the New York Court of Appeals case in which the Nonhuman Rights Project argued that Happy the Elephant was entitled to a writ of habeas corpus. But so far, at least, jurists who have argued for constitutional (or equivalent) rights for nonhuman animals have either been reversed by higher courts or writing in dissent.
The interests of animals typically arise in litigation in one of two ways. In some cases, legislation or regulation protecting the interests of nonhuman animals is challenged as infringing the rights of humans. Stevens is an example. Having concluded that depictions of animal cruelty do not comprise a proscribable category of speech, the Court found the challenged law overbroad because it went well beyond the government's interest in preventing cruelty to animals. The Court didn't exactly apply strict scrutiny, but it did something roughly similar. However, it did not say whether it thought there is a compelling interest in protecting nonhuman animals from cruelty. Only Justice Alito--who dissented in Stevens--said there is.
Although I am a frequent critic of Justice Alito, I think his Stevens dissent is first-rate. It echoes the concurrence in the judgment of Justice Blackmun (joined by Justice O'Connor) in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. There, Justice Blackmun agreed with the majority that a law singling out ritual animal sacrifice for special disadvantage was discrimination against religion in violation of the Free Exercise Clause but wrote separately to say, among other things, that the application of a general anti-cruelty law would present a different case and that the "goal of protecting animals from cruel treatment . . . is not a concern to be treated lightly."
In both Stevens and Lukumi, the First Amendment was wielded against the interests of animals. In each case, the animals lost, although neither case decided that protecting animals against cruelty is not a compelling interest. Thus, it is possible that in some future case the Court could so hold. Meanwhile, there are other ways in which the interests of animals might be pitted against constitutional rights. The most obvious is through environmental legislation like the Endangered Species Act, which aims to preserve populations of endangered species but does so in part by protecting particular members of those species from certain kinds of harm. The courts have never suggested that such laws don't serve compelling interests.
On the other side, constitutional rights can be asserted by persons acting in the interests of animals mostly by asserting their own rights. Investigators and journalists seeking access to farms and slaughterhouses who challenge ag-gag laws (which I described here) or purveyors of vegan foods objecting to oppressive labeling laws assert that such laws violate their right to speak. In so doing, they wish to speak and/or act on behalf of animals. Litigation against such laws has been moderately successful, especially when it fits neatly into the more broadly libertarian framework of American free speech law.
What about assertions of rights by animals themselves through lawyers purporting to represent those animals? U.S. courts have frequently invoked Article III standing doctrine to make such cases difficult to bring, but constitutional law in some other countries grants legal rights to nonhuman animals, bodies of water, and the environment. To be sure, no country treats nonhuman animals as beings with full rights. Inspired nonetheless in part by some of the progress we have seen but also working from first principles, John Adenitire and Raffael Fasel argue for a more secure place for nonhuman animals in their new book, Animals and the Constitution: Towards Sentience-Based Constitutionalism.
If you want a flavor of what Adenitire and Fasel propose, I highly recommend their recent interview with Mariann Sullivan on The Animal Law Podcast. They will be guests (via Zoom) for one of the sessions of a seminar I'm teaching in the fall titled Animals and the Constitution. Here's the course description:
Are non-human animals "persons" for constitutional purposes? If corporations are, why not chimpanzees and elephants? Even if not persons, can animals have Article III standing? Do state-level animal welfare laws violate the Dormant Commerce Clause? Do laws restricting access to factory farms and slaughterhouses violate the First Amendment? This seminar will explore these and other questions about the constitutional status and treatment of non-human animals.
I'm hoping to test out a few of the issues to address in the seminar during tomorrow's session at Summerfest. Depending on how this session and my others go, I might report back in a future post.