How the First Amendment bolstered the animal rights movement

Blake Fox is a rising junior at Wesleyan University and a FIRE summer intern.

On April 17, 2024, an elephant named Viola escaped from the Carson & Barnes Circus while touring in Butte, Montana. Allegedly startled by a truck backfiring, Viola’s escape had her weaving through cars in Butte’s streets before entering the casino parking lot, where she was recaptured and returned to the circus after about 20 minutes. 

In response to Viola’s escape, protestors gathered outside the Carson & Barnes Circus’ next stop in Billings, Montana. They assembled and held signs calling for Viola’s release, including one that read, “Give them the final act they deserve + retirement.” 

“It’s just outdated. We need to move on,” said Kelly Navarro, one of the organizers, who also noted that there are “other circuses out there that are thriving” without the use of animals. 

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The First Amendment protects the rights of all individuals or parties to advocate for their cause regardless of the viewpoint — even if some see the speech as incorrect or even offensive. In addition, the Supreme Court has held that the First Amendment includes the rights to protest in public spaces and to criticize public figures. The protest against the Carson & Barnes Circus is not an isolated incident. For decades, animal rights activists have campaigned for their cause all over the country — and they have leveraged the power of the First Amendment to do it. 

The animal rights movement gained significant traction in 1975 with the publication of Peter Singer’s book “Animal Liberation: A New Ethics for Our Treatment of Animals.” This was followed by Gary Francione’s “Animals, Property, and the Law” in 1995, which offered some of the first legal analyses of animal rights. Notable events like the March for the Animals in 1990 in Washington, D.C. and the release of documentary films like “Blackfish” have further propelled the animal rights movement into public prominence. 

Unsurprisingly, those opposing animal rights activists’ message have often attempted to silence them. Perhaps the most notable example is the criminal prosecution and conviction of the seven animal rights activists behind the Stop Huntingdon Animal Cruelty movement, or the SHAC 7. The SHAC movement was an international movement in protest of Huntingdon Life Sciences, a research organization with laboratories in the United States and the United Kingdom that conducted experiments on animals, including for non-medical purposes.

In 2006, the SHAC 7 were convicted under the Animal Enterprise Terrorism Act, which criminalizes any action done “for the purpose of damaging or interfering with the operations of an animal enterprise,” and which “damages or causes the loss of any real or personal property.” 

But First Amendment scholars raised concerns that AETA is unconstitutional, arguing it is overbroad and has a chilling effect on First Amendment-protected activities such as peaceful protest. AETA does not differentiate between protected speech and unprotected conduct. An act like vandalizing a factory farm, which would result in financial losses, is unprotected. In contrast, the First Amendment protects organizing a protest on public property outside a factory farm. 

With its guarantees of freedom of speech and assembly, the First Amendment often acts as the great equalizer for movements dedicated to advancing social or political change. 

Yet under AETA, if protected advocacy results in financial losses for the corporations, the individuals could be prosecuted under the law. AETA does contain a savings clause, which says, “Nothing in this section shall be construed— ‘(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.” However, even with a savings clause, the law still creates a chilling effect upon speech because of the potential threat of criminal liability. 

Furthermore, the existence of a savings clause signifies that the legislators believe that the statute has components that could be construed to suppress speech. In May 2024, FIRE’s Executive Vice President Nico Perrino said about savings clauses: “[At] the very least, it creates a vagueness problem within the piece of legislation. It’s like you have this whole piece of legislation that chills speech, and then you put a line at the end and says it doesn’t chill speech.”

Government officials have continued to threaten the First Amendment rights of animal rights activists in recent years, but there has been some hopeful pushback. For example, “ag-gag” laws, which prohibit animal rights activists from documenting and publishing alleged abuse of animals, have been struck down in eight states — often on the grounds that the First Amendment protects recordings even if they are taken on private property.

FIRE has also long been involved in protecting the free speech rights of animal rights activists. In 2019, Truman State University initially denied recognition to the Animal Alliance club on the grounds of “reputational risk” because of the club’s association with the animal rights group People for the Ethical Treatment of Animals, and out of fear that there could be “emotional risk” to students. In a letter to school administrators, FIRE wrote: “Truman State can’t reject student groups just because it doesn’t like what they might say, or what others may say in response.” 

Two months later, Truman State reformed its club approval process and recognized the Animal Alliance.

During ongoing litigation in PETA v. Tabak, FIRE and the Electronic Frontier Foundation filed an amicus brief in support of animal rights activists after the National Institutes of Health blocked the activists’ social media comments criticizing experiments on animals. The NIH has used filters to block key terms such as “monkeys” and “PETA” and has argued that restricting these phrases will keep the comments topical. In the brief, EFF and FIRE argued that the NIH’s rule poses a risk of viewpoint discrimination. Tabak deals with the rights of animal rights activists to post on government-affiliated social media accounts, and also provides a potential avenue for the U.S. Court of Appeals for the D.C. Circuit to clarify the extent of these rights for all Americans.

Animal rights advocates sue after facing ongoing censorship and arrest for peaceful advocacy in Houston public park

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One advocate was arrested and handcuffed for two hours after peacefully demonstrating in a public park. FIRE is suing to protect the constitutional right to speak freely in public parks.

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FIRE is also defending the First Amendment rights of animal rights advocates who often visit public parks to share their message, in part by using handheld screens to show clips from the industrial farming documentary “Dominion.” But when those advocates visited Discovery Green, a public park in downtown Houston, park staff and city police demanded the activists leave, insisting the documentary clips are “offensive.” When one of the advocates confronted them with the fact the First Amendment protects advocacy in public parks, those staff and officers paid no mind. Instead, they shunned the Constitution and arrested the advocates. With FIRE’s help, the advocates have sued to protect their constitutional rights.

With its guarantees of freedom of speech and assembly, the First Amendment often acts as the great equalizer for movements dedicated to advancing social or political change. Historically, it is these protections that have given wings to movements such as Women’s Suffrage and the Civil Rights Movement. 

The animal rights movement is no exception. As the movement continues to grow, it too will rely on the same fundamental freedom to challenge the status quo.