Legal Docket: Animal rights in the courtroom

JENNY ROUGH, HOST: It’s Monday the 26th of August.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher.

Time now for Legal Docket. Last term, the U.S. Supreme Court if not talking to the animals, was talking at least about them in a case involving the pork industry.

ROUGH: The case touched on a state law meant to stop the practice of confining pigs to teeny tiny pens.

These are enclosures so small, the pigs can’t even lie down or fully turn around. In other words, an animal-welfare law. And that’s our focus today: animal rights in the courts.

RICK CUPP: Cetaceans, which are dolphins, killer whales, orcas. Or chimpanzees, or other great apes. Or elephants. A lot of lawsuits.

That’s Rick Cupp. He’s a law professor at Pepperdine University in Southern California. He says litigation in animal-law cases is exploding across the nation. And they can get rather … creative.

CUPP: You have the Monkey Selfie case.

EICHER: Really?

ROUGH: Yes, but that’ll have to wait. First, we need to talk about how the professor developed expertise in this area.

CUPP: I got involved in animal law issues because I'm an animal lover.

EICHER: In the 1990s, he was a single guy teaching law students about torts, not flourless cake, but wrongful acts that lead to civil liability.

So teaching torts and taking care of his dog at home.

CUPP: And because I was single, you know, the dog was with me all the time, more than any human being was. And so my dog was my closest companion.

The name of his closest companion was Shasta, a mixed breed. One day, he read a news story about someone whose dog had been killed by a clearly negligent person.

CUPP: And they got a settlement of $30,000 for their emotional distress that they suffered due to their pet being killed. And it really got me thinking because…

On one hand, he could understand. He’d be crushed if his dog had been killed that way. On the other hand, he didn’t think laws allowing emotional distress damages for the loss of a pet was a good idea for our legal system or our society.

ROUGH: As a Torts professor, he knew emotional distress damages were typically allowed only for the wrongful death of a spouse or a child, a family member.

But the law doesn’t see animals that way.

CUPP: Animals are a form of property, a very unique form of property.

EICHER: Although we may think of pets as family—

CUPP: If we start saying, “Yeah, but we'll give it to your pet,” then we're sort of putting a human/pet relationship above a fiancée relationship, or a best friend relationship.

Most courts agree with Professor Cupp. For injury to animals, the law tends to limit damages to market value, something that can be objectively calculated—the difference, say, between a mutt, loveable though he may be, and a high-end breed you spend big dollars to train as a show animal, or even a working animal.

ROUGH: But that’s only the beginning of animal-law cases. Other times, First Amendment issues pop up.

Many states have laws forbidding a person to use deceptive tactics to gain access to an agricultural operation, for example, a cattle company or a chinchilla farm.

The courts are split, but some animal activists have successfully defended their actions by raising claims of free speech.

EICHER: The argument being that the First Amendment protects their right to lie their way in, take video footage, and expose the operations of a farm.

CUPP: They're saying that we are engaged in speech by sharing these videos of the terrible way you're treating the animals.

Or we’re engaged in speech when we tell others to sneak into mink farms and set them free.

CUPP: By the way, it usually doesn't work out well for the mink when they get set free.

ROUGH: Now seems like the right time to circle back to the Monkey Selfie case.

You’ve probably seen this online: the smiling macaque. You can even google “monkey selfie” and see it.

The backstory here is that a wildlife photographer was working on a conservation story. The sound of the camera shutter piqued the interest of the macaques. So the photographer says he set up his equipment on a tripod with a cable release hoping a macaque would take a picture. He waited to see what would happen.

EICHER: And the rest is history. Sure enough, Naruto the monkey began to squeeze the remote.

CUPP: And the monkey looked kind of surprised and curious at the same time. And the picture, the whole frame is just the monkey's face. And it became a hit.

The photographer made money selling the photograph. But the animal rights group PETA filed suit under the federal Copyright Act. PETA claimed—

CUPP: Wait, the artist behind the creation here for copyright purposes was the monkey.

ROUGH: This case actually made it all the way to the Ninth Circuit Court of Appeals. But the court didn’t buy it. Among many problems, it said PETA’s claim that it was filing the suit as a guardian just didn’t fly.

CUPP: As a guardian, you’ve got to be acting in the subject's best interest. And the court wasn't absolutely sure that was in that individual monkey's best interests. There was all kinds of no, no, no, no, no, you know, from the federal court.

ROUGH: Alright, well, none of the cases we’ve talked about so far center on a common type of litigation in animal law: using a novel legal theory about unlawful imprisonment.

Many of these cases are brought under a well-grounded legal concept:

CUPP: The writ of habeas corpus, it literally means in Latin, bring the body before the court. And it's traditionally used when someone has been imprisoned, and there's an argument that the imprisonment is unlawful or wrongful.

EICHER: Like lawsuits against state university research labs. Or—in one case from 2022—the Nonhuman Rights Project. This group sued the Bronx Zoo on behalf of an Asian elephant by the name of Happy.

It claimed Happy was unhappy and sought the pachyderm’s release from what it claimed was illegal custody on the part of the Zoo.

Professor Cupp summed up the plaintiff’s argument this way:

CUPP: We're not saying that elephants should have the right to vote, you know, or the right to drive cars or something like that. What we're saying is that they should have a right against being imprisoned wrongfully in an area that's not the most appropriate fit for them.

ROUGH: Instead, they should be set free. Not on the streets of Manhattan, of course, but in an elephant sanctuary.

But the court held the elephant isn’t a legal person with the liberty rights protected by the writ of habeas corpus.

EICHER: And this is key: personhood. Along these same lines, PETA filed a case in the Southern District of California and named as plaintiff a group of killer whales.

Tilikum, to be precise, and four orca friends. So Tilikum, Katina, Corky, Kasatka, and Ulises there they were parties in a lawsuit claiming involuntary servitude. And the slaver here—as the argument went—was Sea World, which forced them to live in small pools and work for free.

CUPP: There was an argument that Tilikum is very smart. Tilikum has lots of autonomy. And so the Thirteenth Amendment's prohibition against slavery should apply.

So not only personhood, but legal standing. Two very big assumptions.

Let’s tackle standing first. And here are the first three basics: one, the plaintiff has to show he’s suffered an injury, second, by the defendant, and third that a court can do something about it.

ROUGH: Yes, but we’re not quite done. Because when talking about humans, a person who is incapacitated can still have standing to sue through a guardian. For example, those lacking high intellectual capacity, say a small child or someone suffering a medical condition.

PETA tried to build on this: why can’t standing apply to an animal intelligent enough to know it’s in a cage? PETA argued—

CUPP: —equality principles say it's just not fair to allow the human to have that standing and not to give it to the more capable animal.

The court threw out the case against Sea World.

It didn’t buy the standing argument nor the Thirteenth Amendment argument. The court held it simply doesn’t cover nonhuman animals.

CUPP: Slavery has always been applied to humans. Creative argument. But no, sorry, Tilikum is not a human, so can't bring a Thirteenth Amendment claim.

EICHER: The slavery argument is far-fetched and insulting when you think about it. But the question of recognizing animal rights due to “legal personhood” status does come up a lot.

And that argument isn’t quite so far-fetched.

After all, the law does recognize corporations as persons. So, why not animals?

Cupp explains there’s a big difference. Humans come together to create corporations. Corporations are proxies for human interests and obligations. Not so with animals.

ROUGH: But the argument goes much deeper. Cupp points to the fact that humans have moral agency and accountability. Animals don’t.

He gives this example. A true story—and fair warning—it’s awful:

CUPP: A chimp at the LA Zoo picked up another chimp's baby and just smashed its skull against some rocks, killed the baby outright. Nobody knows why.

Humans might decide to separate that chimp from other chimps.

CUPP: But nobody's going to say, “Let's get the LA County District Attorney going on this case to figure out if a criminal murder prosecution should be brought.” We don't think of chimps as having sufficient moral agency to be accountable within our legal system. We see them as outside of that system.

That’s not to say the law shouldn’t evolve. Cupp argues animal welfare laws are important not because animals have identical rights, but because humans have moral responsibilities.

CUPP: And by the way, one big responsibility we have is if animals are capable of suffering, we've got a responsibility to make good laws to protect those animals. But it's a big turn in the wrong direction from my perspective to say, “Let's call the animals people, too.” My biggest concern is for the most vulnerable humans.

EICHER: Children. The elderly. The unborn. Humans with cognitive limitations.

Much of the animal personhood wars center on autonomy and intelligence. Cupp says it’s dangerous to start comparing animal intelligence to human intelligence and then tying that to legal status and protections.

CUPP: We've got a terrible history in the United States with the eugenics movement, you know, that came from the idea that we should be sort of Social Darwinists. … I'm just very concerned that it could take us back to, the problems we've had in the past and maybe much more severely.

ROUGH: So far, courts have resisted granting animals legal personhood status. And Cupp says that’s consistent with our nation’s history.

CUPP: Which was people who had that Judeo-Christian ethic of God making humans morally responsible, being different from the animals because we are responsible for right and wrong.

Humans are made in God’s image. And His word says to consider the birds of the air, watch the ants, and ask the animals so they can teach us that all life is a gift from God.

And that’s this week’s Legal Docket.

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