January 28, 2009 5:54 PM

Animal Rights vs. the First Amendment

Posted by Zach Lowe

On Monday a federal judge in Ohio dismissed a case brought by several chicken breeders and sellers who sued the federal government, claiming its newly beefed-up ban on transporting any materials related to cockfighting (mostly sharp objects cockfighters attach to birds' legs) violates various First Amendment rights. 

The Humane Society of the United States brought in lawyers from Arnold & Porter and Waite, Schneider, Bayless & Chesley, based in Cincinnati and Columbus, to help on an amicus brief that turned out to be unnecessary. The judge said the breeders had no standing and ruled that, even if they did, the federal cockfighting ban couldn't be unconstitutional since all 50 states already have similar bans. But the matter shows how the movement to extend protection for animals is running up against First Amendment guarantees.

"The First Amendment is definitely the argument of choice right now," says Jonathan Lovvorn, vice-president and chief counsel of the Humane Society. (Lovvorn does not agree with the First Amendment arguments used in the major cases described below.)

The Humane Society's most aggressive move in this area was its decision in 2007 to sue Amazon.com and the United States Postal Service to try and stop both organizations from selling magazines that publish advertisement for items used in illegal cockfighting. (One such publication, Gamecock, has voluntarily withdrawn its catalog from Amazon, Lovvorn says.) Both Amazon and the postal service have cited the First Amendment in fighting the lawsuits; Amazon has said it has no intention of halting the sale and distribution of such magazines. The online bookseller has retained Laura Handman, cochair of the appellate practice group of Davis, Wright & Tremaine, on the case. Handman declined to comment, citing Amazon company policy, but her motion to dismiss says the First Amendment bans suits like the Humane Society's since the magazines are "pure editorial, political speech, not commercial speech." The motion says the Humane Society's claims could not withstand the strict scrutiny judges must give to speech restrictions. (Handman knows the First Amendment. We wrote last year about her successful defense of an Air America radio broadcaster who referred to the prison guards at Abu Ghraib as "killers.") The Amazon and Postal Service cases are pending.

There is also the infamous "crushing videos" case, in which the U.S. Court of Appeals for the Third Circuit threw out the conviction of a Virginia man found guilty of selling videos depicting dogfights. Dogfighting is, of course, illegal, but Congress tweaked some First Amendment experts in 1999, when it passed a law banning the distribution of almost any depiction of any form of cruelty, according to the New York Times. As the NYT points out, First Amendment theorists worry the ban could extend to videos of legal activities (say, bullfighting in Spain) sold in places where those activities are illegal.

The United States Solicitor General has asked the U.S. Supreme Court case to hear the government's appeal of the Third Circuit ruling. The government will have some powerful allies if the court agrees to take the cases: J. Scott Ballenger and Maureen Mahoney, two of the Latham & Watkins lawyers who represented the University of Michigan in Grutter v. Bollinger, in which the Supreme Court upheld the use of race as a factor in admissions. Ballenger and Mahoney are counsel to the Humane Society, an amicus party in the case. 

As Ballenger sees it, the Third Circuit made a mistake in saying the 1999 law failed the strict scrutiny test, which says that before it limits any type of speech, the government must find a "compelling interest" to do so and craft a law narrowly tailored to that particular type of speech. The Third Circuit ruled there was no compelling interest behind the law.

"We don't think the type of conduct shown in these videos is deserving of any more First Amendment protection than pornography," Ballenger says. "It deserves less."

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