Free Speech, Animals and Pornography

By Mike Dorf

Tomorrow (Wed., May 16), I'll be a panelist at a UCLA Law School conference, Animals and the Law: Multiple Perspectives.  The conference is free and open to the public.  Here I'll preview my prepared remarks for the panel on which I'll be speaking, First Amendment: Implications for Animals and Animal Law.  The other panelists are Claudia Haupt of G.W. Law School and Seth Kreimer of Penn Law School.  DoL contributor and my fellow Cornell Law Professor Sherry Colb will be moderating.  What follows is a rough summary of where I plan to go in my remarks.


Assessing the implications of the First Amendment for animals and animal law is somewhat difficult because we have relatively few data points, but the main materials are not especially encouraging.  On one hand, two years ago, in United States v. Stevens, the Supreme Court invalidated a federal law--enacted in response to so-called "crush videos"--that criminalized commercial creation, sale or possession of depictions of illegal cruelty to live animals.  On the other hand, the federal Animal Enterprise Terrorism Act (AETA) and state "Ag Gag" laws forbidding undercover access to facilities that exploit and kill animals, make it challenging for animal rights and animal welfare activists to uncover and expose practices that, if widely depicted and discussed, could be the catalyst for change.  Taken together, these authorities suggest that the First Amendment will shield those who want to harm animals but not those who want to protect animals.

But that dismal juxtaposition may be too facile.  Although I believe the Stevens opinion is far from ideal, it does suggest that a sufficiently narrowly drawn law could forbid crush videos.  Congress took the hint when, in the wake of Stevens, it enacted (and President Obama signed) the Animal Crush Video Protection Act of 2010, which forbids the deliberate creation or distribution in interstate commerce of obscene crush videos.

Meanwhile, on the other side, there are serious questions about the constitutionality of the AETA and Ag Gag laws.  The AETA is currently the object of a facial challenge by animal rights and animal welfare activists asserting that it is unconstitutionally overbroad and vague, insofar as it applies to, and/or chills, constitutionally protected protest.  The government responds in a motion to dismiss that the activists lack standing and that, in any event, AETA does not apply to them because of its rule of construction, which advises that the Act does not "prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution."  The plaintiffs in turn reply that such a provision cannot save a facially unconstitutional law, because if it could, Congress could insulate any law from a constitutional challenge by appending the boilerplate caveat that the law should be construed constitutionally.  The district court hears oral argument on the government's motion to dismiss later today.

Regardless of how the courts ultimately rule on the validity of the AETA, it is clear that the animal exploitation industries and their allies in government are determined to use legal restrictions to disrupt the efforts of animal rights and animal welfare activists to uncover and publicize their practices.  Dara Lovitz's book, Muzzling a Movement, provides fairly extensive documentation.

Does the law, as constrained by the First Amendment, permit the animal rights and animal welfare movements to be muzzled?  The leading case appears to be the Fourth Circuit's 1999 ruling in Food Lion Inc. v. Capital Cities/ABC.  Although limiting the damages available in that case, the court upheld the application of state laws that forbade undercover reporters from posing as employees to gain access to a supermarket for the purpose of discovering and publicizing its unsanitary practices.  The Fourth Circuit applied Supreme Court precedent that authorizes the application to reporters (and other researchers) of general property, contract, and tort laws, so long as the press is not treated worse than other members of the public.  Such laws can be powerful tools in suppressing the sorts of undercover investigation that have heretofore been used to call attention to how animal products are made.

Accordingly, it appears that the First Amendment will likely be interpreted to permit laws that substantially impede the efforts of animal rights and animal welfare advocates to expose and publicize practices in the animal exploitation industries.

Thus, perhaps my dismal assessment was right after all.  The 2010 crush video law will do very little for animals--and might even be counterproductive: As both Professor Colb and I have noted, a statute that forbids crush videos to satisfy sexual appetites even as the law permits the slaughter of billions of animals to satisfy gustatory appetites, sends the signal that the latter appetites--which are far more common and thus cause far more animal suffering--are acceptable.  (Gary Francione, who will be speaking on a different panel at the conference, previously made the same point about Michael Vick.)  Thus, the fact that First Amendment law might permit the enforcement of the 2010 crush video law is worth precious little to the animal rights and welfare movements.

Meanwhile, my analysis of Food Lion suggests that properly drawn Ag Gag laws and either AETA or a somewhat narrower version of AETA (in the event the challenge to the current law succeeds), could do real damage to activists' ability to uncover new documentation of how animal products are made.  So it looks like heads-they-win-tails-we-lose for the animal rights/animal welfare movements when it comes to the First Amendment.

And yet I remain skeptical of the second half of that equation because I do not believe that there is a substantial need for more footage of cruelty to farmed animals and laboratory animals.  Anyone with an internet connection who wants to see such footage can easily find and watch hours and hours of it already.  Yes, I can imagine a time some years from now when people in the animal exploitation business say that the old videos no longer reflect the reality, but really, unless they allow genuine access to their operations, who would believe them?

Just about everybody who wants to believe them, that's who.  People who consume animal products either don't care about what happens to the animals that are used to produce those products or they tell themselves that the animals are well treated, regardless of overwhelming evidence to the contrary.

In contemplating how advocates for animals might go about changing hearts and minds, I tend to think that the most useful First Amendment story is a roughly analogous one about sex equality and pornography.  In the 1980s, the City of Indianapolis adopted a (non-criminal) pornography prohibition that defined pornography as
the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:  (1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.
The U.S. Court of Appeals for the 7th Circuit struck down this ordinance in the Hudnut case, and the Supreme Court summarily affirmed that ruling on appeal.  I haven't the space here to do the ordinance or the decision striking it down justice, so I'll simply focus on one salient feature of the case.  Catharine MacKinnon, who was a lead author of the Indianapolis ordinance, argued that pornography "works" by associating the notion that women are sexual objects with sexual pleasure, thus bypassing the reasoning brain and appealing to the groin.  The appeals court rejected this argument even as it accepted the premise arguendo; much protected speech works by appealing to sub-rational faculties, the court noted.

For present purposes, I'd like to bracket a number of interesting questions about how the First Amendment does, and should be understood to, limit regulation of pornography and obscenity.  Instead, I want to focus on the psychological core of MacKinnon's insight: That men who are conditioned by sexual pleasure to believe in the subordination of women are unlikely to be deprogrammed out of that disposition by mere arguments.

One can make a parallel point about subordination of non-human animals: People who are conditioned to believe that the killing and exploitation of non-human animals is both normal and necessary by their nearly-constant consumption and other use of animal products, will not be very receptive to arguments that their behavior is wrong, even if those arguments include graphic video images of animals suffering.  They will tell themselves that the videos are unrepresentative of the places from which their own food comes or they will simply tune out.  The point is not that people who enjoy eating meat, eggs and cheese are bad, any more than that men who are sexually aroused by images of naked "[w]omen . . . presented as sexual objects who enjoy  . . . humiliation" are bad.  Rather, in both instances, the target audience will simply be resistant to messages that aim to change their behavior so long as their existing attitudes are strongly reinforced by experiences of pleasure--whether sexual or gustatory.

Hudnut reads the First Amendment to mean that lawmakers may not rely on the causal role of pornography in reinforcing sexist attitudes as a ground for prohibiting it.  To paraphrase Justice Brandeis in the Whitney case, that leaves open the fitting remedy of speech that undermines such attitudes.  One version of the feminist case against pornography would say that this is an impossibility because pornography inherently objectifies women.  But note that the Indianapolis ordinance in Hudnut itself did not rest on that assumption; the ordinance specifically targeted violent and humiliating erotica, not all erotica.  And certainly some self-described "third-wave" feminists have embraced the possibility of erotica that respects female agency.

Who has the better of this argument is not my concern here.  I simply raise the issue to note that there is an open question about whether there is such a thing as pro-equality erotica that could be produced to compete with anti-equality pornography on a level playing field of speech that appeals to the sub-rational libido.

Whatever the answer to that question, animal rights activists find themselves in an unambiguous position, for we do have a means of competing in the appeal to the stomach: The creation, dissemination, and promotion of appetizing vegan food and attractive alternatives to wool, leather and other animal-based clothing.  So long as a majority of the public regard such alternatives as unrealistic, they will resist messages aimed at inspiring them to change their behavior or to support animal welfare laws that do much more than provide marketing opportunities for the purveyors of "happy meat" and "cage-free eggs."

There are First Amendment issues raised by the activities in which I believe the animal rights movement ought to be most engaged, because the marketing of vegan products as healthy, tasty, and environmentally-friendly alternatives to animal products will sometimes involve drawing contrasts with animal products.  And those contrasts can then lead to litigation brought by animal exploiters under state "food disparagement" laws.  Even if the defendants ultimately prevail, the mere possibility of a lawsuit can exert a substantial chilling effect.  For example, Oprah Winfrey ultimately prevailed against charges by Texas cattlemen that she had defamed their product, but since then she has been reticent on the subject of beef.

Food defamation laws are vulnerable to attack under the relatively expansive protection for free speech we see in the line of cases descended from NY Times v. Sullivan.  Corporations like McDonald's ought to count as the sorts of "public figures" that must prove "actual malice" (defined as reckless disregard for the truth) in order to prevail in defamation actions.  Yet state food disparagement laws typically allow liability on a lesser showing, thereby making it much harder for a defendant to prevail on a motion to dismiss.

It's worth noting that the European Court of Human Rights ruled in 2005 that liability to McDonald's for defamation under UK law was inconsistent with the European Convention on Human Rights.  Although the ECHR rooted its holding in the procedural unfairness to the defendants--two volunteer leafletters for Greenpeace--the opinion grounded some of the procedural arguments in the Convention's protection for freedom of expression.  European free speech law generally provides less protection against defamation than does U.S. First Amendment law, so the outcome in the ECHR suggests that the prospects for a challenge to state food disparagement laws in the U.S. Supreme Court are reasonably good.

Accordingly, if I were the head of the law division of an animal rights advocacy organization, I would devote a substantial portion of my budget to challenging food disparagement laws--and thus to ensuring the ability of activists to effectively promote vegan alternatives to animal products.  Doing so, it strikes me, would fulfill what the late William Kunstler described as the principal function of a cause lawyer: Not to change the world through law but to provide legal protection for the activists who aim to change the world directly.