Animal Law and Legislation

Line Drawing

Law is about drawing lines. Over time, the lines shift. For instance, the lines between blacks and whites, men and women, gays and straights have, thankfully, moved dramatically in the past several decades. The time has come to question another line the law has drawn:  between the animals we love and those we eat or wear.

Questioning Business as Usual

There are encouraging signs that the legal lines between pets and farmed animals are being eroded. Following the lead of Florida, Arizona, Oregon and Colorado, last year California passed Proposition 2, which ensured that laying hens, pregnant pigs and calves raised for veal will have access to a minimum amount of space for at least part of each day. Last month the California Assembly passed a bill that would prohibit the sale of eggs from chickens confined to the battery cages made illegal in the state by Proposition 2, thus protecting California egg producers from competition from farmers in states without similar anti-cruelty provisions. The bill is now in the state Senate.

Another encouraging sign was a decision handed down last year by the New Jersey Supreme Court which unanimously rejected the New Jersey Department of Agriculture’s blanket determination that all “routine” animal husbandry practices were “humane,” such as docking the tales of cattle without anesthesia. The Court recognized that simply because a practice is common and accepted by the meat industry does not mean that it is exempt from anti-cruelty legislation. Apparently, our legal system is beginning to open its eyes and is taking a critical look at the inhumane practices that pass for business as usual.

One of These Things Is Not Like the Other

Of course, no state’s cruelty laws prohibit the killing of animals for food, but this huge exemption warrants examination: is it a line of convenience or of logic? In the U.S., many people are opposed to the slaughter of horses for food, while in other countries horse meat is commonly eaten. Indeed, the abhorrence of Americans to the slaughter of horses is so strong that Congress considered legislation last year to ban the practice (it stalled in the Senate). In many states, including California, it is illegal to sell horsemeat for human consumption. What, other than our emotional ties to the likes of Black Beauty and Mr. Ed, is the relevant difference between a horse and a cow? Is the perceived beauty of a species a sound basis for distinction? In my opinion it’s illogical and hypocritical to shed tears for the suffering of one species of animal, yet endorse the inhumane treatment of another species equally capable of experiencing pain. Other cultural and arbitrary examples abound—cows are sacred in India, and dogs are eaten in many parts of Asia, for instance.

Interestingly, in California it is a misdemeanor to sell, trade or give away “any animal traditionally or commonly kept as a pet or companion with the intent of using or having another person use any part of that carcass for food.” California Penal Code section 598b(a). The law accepts tradition in lieu of rationality. I wonder how many animal rights advocates would have to keep a pig or a chicken as a pet before it would meet the definition of “common”? Of course, the legislators were careful to include a blanket exemption for livestock, “agricultural commodities” and wildlife, which begs the question: If someone raises dogs on a farm with the intention of selling them for meat, then are they not, by definition, a farmed animal kept for use and profit (i.e., “livestock”) and thus exempt? When the law is guided by arbitrary discrimination instead of logic, the lines it draws cannot hold up to scrutiny.

An End to Injustice

My point, of course, is not that dogs, cats and horses should not be afforded the protection of the law, but rather, that the lines we draw should be drawn consciously and logically. Arbitrariness is a hallmark of injustice. Convenience, profit and tradition have been used to justify slavery, misogyny, and genocide, and they are currently being used to justify the mistreatment of animals. Hopefully, someday soon, we will hold ourselves to a higher standard—that of fairness, compassion, and logic—and afford all sentient beings the right to live free from unnecessary pain and suffering.

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Following her graduation from Boalt Hall in 1999, M. Renée Orth practiced business litigation in California with emphasis on employment, real estate and banking law. She now focuses on philanthropic efforts while indulging her passions for vegetarian cooking and traveling.

“Crush Films” at the U.S. Supreme Court

The Supreme Court agreed on Monday to hear the government’s appeal of a Third Circuit decision which struck down a 1999 federal law aimed at curbing videos depicting disturbing scenes of animal cruelty. In 1999, Congress enacted 18 U.S.C. § 48 aimed at ending the disturbing rise in the sale of “crush films” which, according to the legislative history, depict “women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos.”

Specifically, the legislation prohibits interstate commerce of depictions of animal cruelty, which is defined as the intentional maiming, mutilating, torture, wounding or killing of a living animal, but only if the conduct depicted would be a violation of state or federal law where the recording was created or distributed. Furthermore, there is an exception for material with serious religious, political, scientific, educational, journalistic, historical, or artistic value.

Robert Stevens was convicted of three violations of § 48 and was sentenced to 37 months in prison. Stevens’ conviction arose from his advertisement of three videos in Sporting Dog Journal, an underground publication featuring articles on illegal dog fighting: “Pick-A-Winna,” “Japan Pit Fights,” and “Catch Dogs.” The first showed footage from dog fights in the U.S. in the 1960s and 70s, the second showed more recent dog fights from Japan, and the last one showed pit bulls attacking wild boar and domesticated hogs.

Stevens challenged his conviction, claiming that § 48 violated his First Amendment right to free speech. In striking down § 48, the Third Circuit reasoned that “No matter how appealing the cause of animal protection is to our sensibilities, we hesitate—in the First Amendment context—to elevate it to the status of a compelling interest.” Put another way, the rights of people who sell animal snuff videos trumps society’s interest in preventing deliberate and malicious torture.

Echoes of Injustice, Past and Present

In law school, students are taught to “think like lawyers,” which, in many respects, means learning to analyze facts based on linear rules passed down by learned judges. A student commits these rules to memory and then, during exams, demonstrates his or her learning by applying these rules to specific facts so as to produce a result. In other words, we distill reality down to variables, plug these variables into equations and, voila, the outcome is supposed to be justice.

Unfortunately, as history teaches, the result is often far from just. Sometimes it is necessary to get out of the confines of this quasi-scientific approach to justice and take a good hard look at where it is taking us. Now is such a time.

The underlying rationale of the Third Circuit’s Stevens opinion pits the rights of animals to be free from cruel treatment against the rights of U.S. citizens to free speech. This sounds eerily familiar to another recent match-up, namely, the torture of non-U.S. citizens versus the security of U.S. interests. In both cases, juxtaposition of supposedly competing values ignores the fundamental reality of the situation: just as the torturing of a human being demeans the humanity of all human beings, so does the torture of a defenseless animal demean the value of all life. Ignoring these moral realities does more to undermine our national security and the rule of law in our society than would the harms we’re theoretically guarding against.

The myopic and warped views of the Third Circuit—and supporters of torture—are reminiscent of the backward reasoning the Supreme Court used in upholding segregation laws in Plessy v. Ferguson. In that decision—now universally condemned—, the Court said that if “the enforced separation of the two races stamps the colored race with a badge of inferiority … it is not by reason of anything found in the [segregation law], but solely because the colored race chooses to put that construction upon it.” Put another way, the Supreme Court told African-Americans that the insult of segregation was in their heads.

Today we read this passage with disbelief, the same disbelief that will, in the not too distant future, accompany a reading of the Third Circuit’s Stevens opinion.

Perhaps some readers will choose to be offended by my comparison of the lines we draw between groups of people and the lines we draw between people and animals. I would urge such people to consider the timeline of history and to see that the treatment of human beings and the treatment of animals follow the same trajectory. Recall, for instance, that both Christians and animals were maimed, tortured and slaughtered for entertainment in the Coliseum. The reality is that racism and speciesim are but two prongs of the same mistake. And discounting the suffering of other beings—be they human or non-human—is an error that we are, in fits and starts, overcoming.

Obscenely Disturbing

The First Amendment does not protect obscenity, which the Supreme Court has defined as something that appeals to the prurient interest, which is devoid of scientific, political, educational, or social value, and violates local community standards. In case “prurient” isn’t a word in your lexicon, it means “marked by, arousing or appealing to sexual desire.” In other words, if Robert J. Stevens’ videos had shown dogs mauling one another in the midst of an orgy of consenting adults, he might be in prison today. What does it say about our society that we rate the evils of sexual arousal well beyond those of profiting from and encouraging the torture of animals? It says it’s time to update our legal equations. I hope the Supreme Court agrees.

A human being is part of the whole, called by us ‘universe,’ a part limited in time and space. He experiences himself, his thoughts and feelings, as something separate from the rest—a kind of optical delusion of consciousness. This delusion is a kind of prison for us, restricting us to our personal desires and to affection for a few persons nearest to us. Our task must be to free ourselves from this prison by widening our circle of compassion to embrace all living creatures and the whole of nature in its beauty.

—Albert Einstein

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Following her graduation from Boalt Hall in 1999, M. Renée Orth practiced business litigation in California with emphasis on employment, real estate and banking law. She now focuses on philanthropic efforts while indulging her passions for vegetarian cooking and traveling.

Giving away the Farm

Bank bailouts, real estate bubbles, record unemployment―these are hard times requiring difficult sacrifices. But one cut in government spending would pay big dividends long into the future: end the flow of billions of tax dollars ($7.3 billion in 2005) to producers of grain for animal feed.

When soaring health care costs and an obesity epidemic are among the many challenges facing our country, why does our government promote meat consumption by artificially lowering feed grain prices? Big agri-business is at the trough, putting special interests ahead of our national interest. Efforts to reform agricultural subsidies have largely faltered in Washington, and Obama’s plan to cut direct payments to farmers doesn’t appear to stand much of a chance. According to House Agriculture Committee chairman Collin Peterson (Minnesota Democrat) Obama’s plan is “more than dead on arrival.” If the thought of billions of taxpayer dollars going to support big business nauseates you, then hold your nose, because there is another kind of waste implicated by the meat industry that will turn your stomach.

Waste of Another Sort

From a public health perspective one of the most disturbing environmental consequences of the meat industry is pollution from animal waste (yes, we’re talking feces here). Pig farms are among the worst offenders. The sheer numbers hint at the magnitude of the problem: in 2003, 101 million pigs were slaughtered for food in the U.S., and pigs produce about four times as much solid waste as the average person. Unfortunately, pigs don’t have the luxury of flushing toilets connected to sewage treatment plants. Instead, their waste is often stored in toxic, uncovered, “lagoons” containing ammonia, methane, hydrogen sulfide, carbon monoxide, cyanide, phosphorous, nitrates and heavy metals, plus a stew of microbial pathogens that can cause illness in humans, including salmonella, cryptosporidium, streptocolli and girardia.

Under the Bush administration, the meat industry benefited from lax enforcement of environmental regulations, but it also received a valuable parting gift from the outgoing President. Upon his departure, President Bush instituted a rule that exempts factory farms from federal laws requiring them to alert government officials when they release unsafe levels of toxic emissions into the surrounding community.

Feeling Sick? It May Be Something You Ate

Four of the leading causes of death in the U.S.―heart disease, certain types of cancer, stroke and diabetes―are linked to a diet high in meat and low in fruits, vegetables and whole grains. The cost of these diseases is estimated to exceed $33 billion a year. According to the USDA, in 2007 the average American consumed 222 pounds of meat―84 pounds more than the maximum intake of lean meat recommended by The American Heart Association. Simply put, if we are really interested in lowering health care costs, then lowering our level of meat consumption ought to be high on our list of priorities.

Industrial meat production further undermines public health by increasing bacterial resistance to antibiotics. According to the Union of Concerned Scientists more than 70% of antibiotics produced in the U.S. are used in animal production. The seriousness of the problem is made clear by the FDA which warns, “the world could be faced with previously treatable diseases that have again become untreatable, as in the days before antibiotics were developed.” (emphasis added) About 70% of bacteria that cause infections in hospitals are resistant to at least one of the drugs most commonly used to treat infections. We hear so much about the outrageous cost of prescription medications, but soon, thanks to the meat industry, we may be begging for effective antibiotics at any price.

Living in Denial of Killing

I have often heard people complain about those of us who champion the rights of animals by pointing to the human suffering in the world. My response is that these are not separate issues but rather different manifestations of the same underlying problem: human beings’ capacity to live in denial. As Leo Tolstoy observed, “As long as there are slaughterhouses there will be battlefields.” No doubt our species’ ability to tune out the otherwise unbearable miseries that surround us―famine, violence, illness―has been an important factor in our ancestors’ ability to survive. However, I believe our capacity for denial is no longer evolutionarily advantageous. Instead, it is now the source of the biggest threats to our survival.

If humanity is to rise to the challenges of global warming, population growth, pollution, and extreme poverty, to name just a few, it will require an epidemic of personal responsibility―of being, as Ghandi exhorted, the change we want to see in the world. Ending farm subsidies to growers of feed grain would be a small step in the right direction, but the more important lesson is to recognize the link between what we eat and other important public policy objectives.

Thankfully, choosing a vegetarian or even semi-vegetarian diet is a relatively simple way for every one of us, every day, to take personal responsibility for creating a better world.

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Following her graduation from Boalt Hall in 1999, M. Renée Orth practiced business litigation in California with emphasis on employment, real estate and banking law. She now focuses on philanthropic efforts while indulging her passions for vegetarian cooking and traveling.

Coercion vs. Persuasion

What is the best way to foment social change? Does legislation lead change, or does legislation follow on the heels of change that has already taken hold? For those who care about the plight of animals on this planet—even the human kind—the answers to these questions are of critical importance, since they suggest an effective means of creating a world that respects life in all of its wondrous forms.

In November, 2008, I attended a fundraiser for Proposition 2—a successful California initiative that enacted legal requirements for more humane treatment of farm animals—and met Wayne Pacelle, CEO of The Humane Society of the United States (HSUS). In response to a question concerning the cost to farmers of complying with the requirements of Prop 2, Mr. Pacelle explained that farmers would more than recoup the added expense, because consumers across the nation would be willing to pay more for humanely produced eggs and meat.

This response struck me. If the market will reward farmers for doing the right thing, then why do we spend millions of dollars to coerce them to act in accordance with their financial interest? Unfortunately, I did not have the opportunity to press the issue, but it got me thinking.

Information as the Key: A Modest Proposal

Individual freedom is a pillar of the liberal democracy that I believe is the key to a better future, and individual freedom requires that laws that coerce particular behavior ought to be avoided whenever possible. The hearts and minds of people are not won in the chambers of our legislatures; they are won in the “marketplace of ideas”, which the Internet has rendered increasingly efficient and vigorous.

Technology has incredible potential to convey the information that is necessary for consumers to make conscious choices with full knowledge of what is being done on their behalf. Such informational dissemination is where we ought to focus the pressure for new legislation: not on coercion, but on making information— in all its vivid, full-color horror–available to all.

Here’s a relatively straightforward proposal for how information could be used to produce an immediate and salutary effect: every package containing animal-derived products should include a URL that links to 24-hour, real-time, steaming video of the conditions of the animals being raised for food by the vendor supplying the product—including the gory footage of the animals’ demise. . . .

In light of the recent outcry over graphic footage obtained surreptitiously by HSUS at the Hallmark Meat Packing Co., of Chino, California, and the resulting recall of 143.4 million pounds of beef, such a law would likely meet with significant public support. Why, therefore, must we rely on the efforts of non-governmental organizations to uncover such outrageous conduct? We should not have to. The minimal cost of video technology and bandwidth makes the public surveillance of slaughterhouses, farms, and ranches a no-brainer. Indeed, given the dire economic condition facing the U.S., such an approach seems a cost-effective means of accomplishing much of the work left undone by ever-dwindling numbers of USDA inspectors.

Slaughterhouses Revealed

Public surveillance of the meat industry could be the 21^st Century’s equivalent to Upton Sinclair’s watershed work, The Jungle, which detailed the atrocious condition in U.S. meatpacking plants and led to public outrage that culminated in the passage of the Meat Inspection Act and the Pure Food and Drug Act of 1906.

Consumers may initially visit surveillance websites out of curiosity or out of concern for the health of their loved ones. However, the sight of the agony resulting from their purchases would undoubtedly give many reason to reconsider their dietary choices. Let an informed public— given full information concerning the ramifications of their decisions —drive the push for a more humane society with the power of their buying dollars.

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Following her graduation from Boalt Hall in 1999, M. Renee Orth practiced business litigation in California with emphasis on employment, real estate and banking law. She now focuses on philanthropic efforts while indulging her passions for vegetarian cooking and traveling.