The Mantra Of Animal Rights Activists: IF AT FIRST YOU DON’T SUCCEED, TRY, TRY AGAIN

Fox Rothschild LLP

Fox Rothschild LLP

Despite having failed to establish next friends standing in Naruto v. Slater, 2018 WL 1902414 (9th Cir. April 23, 2018), PETA recently filed another case based on next friends standing for alleged animal plaintiffs, 30 barn owls housed at John Hopkins University.  It was entirely predictable that PETA and other animal rights organizations would continue to file next friends standing cases.

In Naruto, PETA sued a photographer and his publishers for copyright infringement on behalf of a crested macaque, Naruto.  The Court, relying on Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004), found that there was no provision in the Copyright Act authorizing a suit in the name of an animal, and therefore PETA did not have standing to sue.

Similarly here, there is no provision in the Animal Welfare Act authorizing a suit in the name of an animal.  In fact, there is no private cause of action authorized by the Animal Welfare Act.

PETA will likely also try to rely on Article I, § 9 of the Constitution as a basis for its next friends standing.

But Clause 3 of this section provides for protection for “persons,”

Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. (Emphasis added).

Animal rights organizations have thus far failed to expand the definition of “persons” to include non human animals.

The final initial allegation PETA appears to rely on to overcome standing challenges is, as alleged

 . . . courts have recognized that the prohibition on bills of attainder is not limited to the infliction of punishments on humans,  Today, even inanimate corporations benefit from these Constitutional protections.

But as SCOTUS held in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 706-707 (2014), corporations are defined as “persons”

to provide protection for human beings.  A corporation is is simply a form of organization used by human beings to achieve desired ends.  An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another.  When rights, whether constitutional or statutory, are extended to corporations, the purpose is to
protect the rights of these people.

So standing will be front and center in the governments motion to dismiss this lawsuit.

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