Note: This post is just a very lightly edited copy of the notes I used for my presentation at the 2018 Animal Rights National Conference (complete with what now everyone will know are my scripted jokes).
Four main takeaways from this talk:
- Laws are only as good as their enforcement
- Industrial animal agriculture is illegal
- Rescuing animals is not
- I am not your lawyer and you should not rely on anything I say as legal advice (and frankly by the time I’m done, you might think I’m not a very good lawyer anyway…). And relatedly, today I’m just representing myself and not speaking on behalf of any group
Everything you think you know about animal law is wrong
- You’ve been told that there are no meaningful laws that exist to protect farmed animals
- You’ve been told that any standard industry practice is perfectly legal–from ripping off piglets’ testicles without painkillers to grinding up baby birds to confining them in cages that are so small that they can’t even spread their wings
- You’ve been told that we are criminals, that we are terrorists, for rescuing animals from extreme violence and neglect
- This is exactly what the industry wants you to believe
It’s time to flip the script
- Animal rescue is not criminal. Animal agriculture is.
- In this country we already have laws that protect farmed animals from cruelty
- We already have laws that protect the environment from being drenched with sewage
- We already have laws that protect people from being poisoned by contaminated products
- We already have laws that protect people from being lied to by corporate America
- And the ag industry routinely violates every single one of these
- These companies knowingly and needlessly subject animals to extreme suffering
- They knowingly dump millions of pounds of feces on our lands
- They know their products are contaminated with diseases, even ones resistant to antibiotics, and they sell them to us anyway
- And they know their products are not humane, they know they are not natural, they know they are deceiving the public and they do it anyway
- And there are laws on the books that explicitly grant you the rights to go on to farms and provide food and water to neglected animals and there are age-old legal doctrines that have the potential to protect your rights to rescue animals from abuse
Animal cruelty statutes
- Show of hands: who here has talked to a friend or a family member or a stranger about the way animals are treated in agriculture?
- And who has told someone that everything the industry does to animals is legal or that there are no laws that protect them from standard industry practices, no matter how cruel?
- This is the conventional wisdom. It’s one of the first things I learned in my journey in becoming an animal activist. But it’s a myth.
- To be clear, there is certainly some truth there. There are no federal laws that protect animals on farms. And most of the big animal ag states explicitly exempt “customary” farming practices from anti-cruelty laws.
- But guess what? California doesn’t. New York doesn’t. Minnesota doesn’t. And many other states don’t either.
- All of these states have huge ag industries
- California’s law
- Every person who overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal…or fails to provide the animal with proper food, drink, or shelter or protection from the weather is…guilty of a crime;
- “‘Torture’ is defined not in its ordinary language sense, but includes any act or omission “whereby unnecessary or unjustified physical pain or suffering is caused or permitted.” …
- So now I’m going to ask for another show of hands.
- Raise your hand if you think most people you’ve talked to about animal agriculture would agree that cutting off a piglet’s testicles without painkillers is an unjustifiable mutilation
- … if keeping animals in a cage so small that they can’t turn around for their entire lives would constitute unjustifiable physical pain or suffering
- … if it is cruel to grind baby birds alive
- Not just animal activists that think this. In a recent ag-gag decision, a federal judge in Utah recently described the maceration of baby chicks in the egg industry (a standard agricultural practice) as a gruesome practice that demonstrated the importance of undercover investigations.
- So if unjustifiable cruelty is illegal and there’s no exemption for standard industry practices, and the vast majority of people think that all these standard industry practices are unjustifiably cruel, why aren’t the CEOs of Tyson and Smithfield and McDonalds and Whole Foods thrown in jail when they get off the plane in San Francisco or New York City? Why aren’t these companies considered criminal enterprises in these states?
- Guess what the courts have had to say about the answer to this question?
- Any guesses?
- Basically nothing.
- The fact is that no prosecutor has ever had the guts to stand up to industry and even try to prosecute these companies for standard farming practices
- The companies say that they are engaging in standard industry practices. The state departments of agriculture say, “yep nothing to see here.” And the animal science professors and the veterinarians say these practices are necessary to produce affordable food for consumers. And the prosecutors say that “I hardly have enough time to prosecute murderers and bank robbers—I certainly don’t have time to prosecute people for hurting farm animals, and especially not when its for normal practices, and definitely not when it involves a giant industry that will bankroll my opponent in the next election cycle”
Top law professors largely agree
- Cass R. Sunstein (literally the most cited law professor in the world)
- “If horses and cows are being beaten and mistreated at a local farm…protection will come only if the prosecutor decides to provide it. Of course prosecutors have limited budgets, and animal protection is rarely a high-priority item. The result is that violations of state law occur every day.” …
- “prosecution occurs only in a subset of the most egregious cases; there is a great deal of difference between what these statutes ban and what in practice is permitted to occur… They express an aspiration, but one that is routinely violated in practice, and violated with impunity.”
So what can we do?
- When I first learned about this—when I first learned that prosecutors had the ability to destroy a system of industrial animal torture and they just chose not to exercise it—I asked myself: how the hell do these people sleep at night?
- Then it dawned on me. The answer is that we let them.
- We, the animal rights movement, have watched these prosecutors ignore literal torture on an unimaginable scale, and we’ve thrown up our hands and said “oh, I guess it’s not illegal after all”
- That is the nail in coffin for these animals. If we don’t argue that this treatment is illegal. If we don’t pressure our government to take action, who will?
- We have eliminated the cruel fur industry in San Francisco. We have ended the abusive wild animal circus industry in New York. I believe we can elect prosecutors who will prosecute the obscenely cruel practices that the animal agriculture industry relies upon for its existence. And soon after that, I believe we will abolish animal agriculture entirely.
- The other side of the coin to all of this is how we think about people who rescue animals without permission from the government
- For most of my time as an activist, I thought these people were heroes who were breaking the law for the greater good.
- Today, I see things differently. Today, I see these animal rescuers as engaging in conduct that is legally protected by the doctrine of necessity
- In California, an act must meet six criteria in order to be protected by the necessity defense. But three are most important to discuss:
- 1) The act charged as criminal must have been done to prevent a significant evil; (2) there must have been no adequate alternative to the commission of the act; (3) the harm caused by the act must not be disproportionate to the harm avoided;
- Going through them in turn, I think 1, the show of hands before demonstrated that most people think the ag industry is engaging in significant evil in its treatment of animals.
- There is no adequate alternative: as we’ve discussed, the police and prosecutors have shown they are unable or unwilling to take action and many of the world’s top law professors have recognized this fact.
- In addition to Cass Sunstein who I quoted earlier, Laurence Tribe, (probably the most respected constitutional law scholar in modern history) has written that “existing state and federal statutes depend on enforcement by chronically underfunded agencies and by directly affected and highly motivated people–and that’s just not a sufficiently reliable source of protection.”
- the harm caused by the act must not be disproportionate to the harm avoided. Again, I think the show of hands makes this clear.
- Interestingly, the law in both New York and California explicitly codifies a necessity defense for entering places where neglected animals are confined to provide them with food and water
- New York: If animal in confined without necessary food and water for more than twelve successive hours, “it shall be lawful for any person, from time to time, and as often as it shall be necessary, to enter into and upon any pound in which any such animal shall be so confined, and to supply it with necessary food and water, so long as it shall remain so confined; such person shall not be liable to any action for such entry, and the reasonable cost of such food and water may be collected by him of the owner of such animal”
- There is A LOT of legal risk, involved in engaging in rescue, or in entering farms to feed animals without permission. These are all novel legal arguments. Even though the last statute I read explicitly states that entering such places is lawful, I am not aware of any cases that these laws have actually been tested and upheld
- This is an argument to push the boundary of the law, most judges and prosecutors would not agree today. But this is our job as activists
- Law and the prosecutors and the jury pools really vary from state to state. That means the risks really vary as well.
- Also the risks vary significantly from person to person. The risks are VERY different for citizen vs. non-citizen, a black person vs a white person, a poor person vs. a rich person.
- Engaging in this sort of work might not be for everyone. You have to decide if it is right for you. There are so many ways to bring value to this movement, and this high risk work is just one of them
The law doesn’t just exist on paper
- I’ll close with this: for the vast majority of our country’s history it was obvious that same-sex couples didn’t have the right to get married. And then one day, it wasn’t so obvious any more. And then it was the law of the land
- There was never any formal constitutional amendment that made this change, but the law radically transformed
- The law doesn’t just exist on paper. It exists in the hearts and minds of the people.
- As advocates, our job to find ancient principles of justice embedded in our law and our culture, and make the case for how truly living up to those values requires a revolutionary shift in our treatment of the marginalized
- we need to stop allowing the industry or prosecutors to have the final say on what the law is
- We need to get out there with a bold vision that rescuing animals from the abusive ag industry is not only the right thing to do, but that it these violent and abusive corporations that are the real criminals
- We need to get out there and rescue animals with pride knowing that our conduct is supported by fundamental values enshrined in our law.
- We need to get out there and rescue them again, and again and again, until every cage is empty.