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California Bill Aimed at Protecting Animal Researchers:

I blogged about some problems with the bill two weeks ago; there's now a revised version, but I'm afraid that it will probably make matters worse.

The new version narrows the proposal, from protecting the employees of a wide range of animal enterprises (including food sellers, agricultural enterprises, zoos, and agricultural fairs) to instead cover only employees of "an entity that lawfully uses animals or animal products for education or research in any exercise of a constitutional right to academic freedom." But the trouble is that there's no well-established meaning of "any exercise of a constitutional right to academic freedom," at least where use of animals and animal products is involved.

The courts have talked in the past about a constitutional right to academic freedom, but they generally haven't precisely defined it. It is pretty clear that professors' speech is protected against criminal punishment, civil liability, and in some instance even firing by public university administrators -- though even there it's not clear whether this is because of some "constitutional right to academic freedom" or because of the general First Amendment freedom of speech. But the courts have not generally focused on a right to use products in the course of research, whether animal products or otherwise.

It's not at all clear that there is any "constitutional right to academic freedom" covering the use in research of animals, or pharmaceutical substances, or weapons, or other products (as opposed to the use in research of speech that is itself protected by the First Amendment, such as survey questions, articles, books, and the like). If, for instance, California banned any experiments on primates, I'm pretty sure this would be quite constitutionally permissible; likewise if the University of California imposed such a limit on its faculty. The government would be restricting conduct because of its noncommunicative impact, and a court would likely conclude that the government has an adequate interest for this restriction (protecting primates); so even if there is a presumptive right to do research using nonspeech conduct -- itself not clear -- that right would be easily trumped by the government interest. So while the UC is an entity that lawfully uses animals or animal products for education or research, I'm inclined to doubt that its use of animals for education and research is in any exercise of a constitutional right to academic freedom.

Now perhaps because of this, courts would interpret the provision nonliterally -- but it's not obvious to me just what interpretation they would use, and in any case it seems to me a mistake to enact a bill that doesn't literally cover what you want it to cover, hoping that courts will eventually fix the problem.

Related Posts (on one page):

  1. California Bill Aimed at Protecting Animal Researchers:
  2. Prohibiting Publication of Others' Photos?
Pin Head (mail):
Gee, as a UC animal researcher, this really warms my heart, since I was losing so much sleep over the lack of state protection. If it turns out that there is no "consititutional right to academic freedom", then maybe we could add attacks on animal researchers to the list of hate crimes.

What would really help academic freedom is if the state didn't require filling out a 20 page form to every time you want to use animals and if we didn't have to take the 2 hour sexual harrassment course every two years. Does sexual harassment really change that much in two years? Maybe we could do an animal experiment to test it.
4.21.2008 8:57pm
John (mail):
I'm new to this. What protections do animal workers need that they don't have?
4.21.2008 9:11pm
Lego Place:
I am proud of my work and I do not need statutes to hide my name, work type, and address. What is the fuss? Aren't you proud of butchering animals to find out how much more money Philip Morris can make?
4.21.2008 9:41pm
jccamp:
EV,

I read your previous post and the '05 draft of the Stanford article. Aside from questions re: the CA bill at issue in the OP, is there any constitutionally compliant way for a person, say an abortion provider (although a number of other legally permissible situations also come to mind), who has a reasonable basis for fearing that revealing his home address or his photograph might lead to say, vandalism to his property or threats to his/her safety, to prevent such from being published?

if your answer is in the negative, is there no remedy for the citizen as above whose specific and very real rights (like, life and liberty) are being abrogated for the rights of the many, which possibly exist only in the hypothetical, at least until someone decides to picket, or attempt to shame, etc?

I'm trying to appreciate the big picture, but at least for that person who's worried with cause, this all appears very one-sided.

JC
4.21.2008 10:19pm
Fub:
So why not suggest the legislators change one word?

"an entity that lawfully uses animals or animal products for education or research in any exercise of a constitutional right to or academic freedom."
4.21.2008 10:51pm
Chris 24601 (mail) (www):
John took my joke. I was going to ask how much research animals are actually doing in California.
4.21.2008 11:51pm
LarryA (mail) (www):
I don't like laws that protect some people, but not others. "Equal protection" anyone? I really don't like laws that protect a very narrow range of people.
4.22.2008 2:32am
WHOI Jacket:
No, this won't pass, because people who firebomb laboratories and mail death threats to scientists are "good people" who are having "youthful indiscretions" and "don't really mean to hurt anybody".
4.22.2008 2:09pm
jccamp:
There are already laws in a number of states which forbid publication of similar information about, say, sex crime victims, juvenile arrestees or convicted felons, and law enforcement officers. Why should felons who happen to be under 18 have rights not afforded to, in this case, researchers who work with animals and can demonstrate some reasonable fear? Why should cops? Rape victims? The inconsistency is in not extending similar protections, I would suggest.

Sounds like a no-brainer to me. Just goes to show my lack of Constitutional aptitude.
4.22.2008 2:48pm
Eugene Volokh (www):
jccamp: Can you point us, please, to those laws, and to court decisions evaluating their constitutionality? I do know of a law banning the publication of the names of rape victims, which the Supreme Court struck down as unconstitutional in Florida Star v. B.J.F.; some similar laws banning the publication of the name of juvenile defendants were also struck down in cases that B.J.F. cited. But I'm always happy to hear of more cases on the subject.
4.22.2008 3:19pm
jccamp:
Just walked in, but I'll get on it. Back soon.

JC
4.22.2008 9:57pm
jccamp:
The USSC cited several issues with the FSS in Florida Star, i.e. the newspaper lawfully obtained the sexual battery victim's information from the police. In addition, the Statute as written in '84 ('85?) did not prohibit publication by anything by "mass media." The Florida statutes have been rewritten, as recently as 1996 to correct the issues raised in Florida Star. It is now a crime for any public official to release the information, and it is a separate crime "print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter"

As far as I am aware, the amended Florida Statutes are both constitutional and enforced.

More in a few.
4.22.2008 10:10pm
jccamp:
ooops. ...by anything but mass media...
4.22.2008 10:38pm
jccamp:
FSS Chapter 119.071 lists a host of exemptions to the publics records laws in Florida. As per the reasoning in Florida Star, it is now a crime for any public official or employee to reveal the info, and it is also a misdemeanor for any person to reveal the proscribed data, which generally repeats the prohibitions about victims of sex-based crimes, and then goes on to protect personal data about law enforcement, judges, prosecutors, parole &probation officers, guardians ad litem, and more. See subsection 4 (d) (1).

Most of this is fairly new, and may have not been challenged (or a binding decision rendered). Still on the books, and still enforced I think.

See 119.10 for penalties. The sole felony - I believe - refers only to revealing confidential or protected victim information for purposes of lawyer referral.
4.22.2008 10:41pm
jccamp:
I was making an assumption when I said "many states" or words to that effect have such laws. I think that would be accurate - but I don't know that absolutely to be true. My reasoning was that Florida is hardly a hotbed of jurisprudential novelty or invention. If we do it here, somebody somewhere else has done it first.

mea culpa.
4.22.2008 10:45pm
jccamp:
And, as for juvenile offenders in Florida, see FSS 985.04. Certain records of juveniles taken into custody for delinquent or criminal acts - with a number of exceptions - are again exempt from the Florida Public Records laws and may not be disclosed. Generally, exceptions involve juveniles bound over to adult court, repeat juvenile offenders...things like that. There may be more exceptions that restricted records, but the restrictions exist and are universally observed by news media.

The restrictions on some juvenile arrest records are so stringent that other police officers within the same department may not access juvenile fingerprint or photo records without a determination by a juvenile specialist that the request has some basis. For instance, law enforcement can't compare fingerprints from a crime scene to a multitude of juvenile records. Each comparison must be justified as why the individual (respective) juvenile is a suspect.
4.22.2008 11:06pm
jccamp:
And, although I did not cover it in my original post, health records are privileged almost universally - isn't that correct? I seem to recall during that TB traveller scare from a few years ago, that the potentially infectious air traveller who decided to fly home, and in the process possibly exposed the other passengers on the plane, the people in the terminals, etc, was not identified for several days or a week or more because of patient privacy issues.

Anyway, it appears that a person with some infectious disease, and who may engage in risky (to others) behavior, has the force of law protecting his/her name, address, photo, etc.
4.22.2008 11:16pm
jccamp:
I'm hardly a Constitutional scholar - and I without reservation cede that title to EV - but I'll do a fast search for this kind of issue in USSC decisions.

That I may be confusing my personal opinions with settled law is not only possible, but perhaps probable, but...there are in the least attempts to restrict via statute the dissemination of various personal data for protected persons, like covert CIA agents (to bring in another inflammatory issue).

I'm am sure that I oversimplify your arguments in the Stanford article, but Constitutionally protected acts, such as picketing a house or neighborhood, and/or attempting to shame or embarrass a person into changing behavior, when weighed against the right of an individual to feel safe within the home just seem to fall short. If behavior is not prohibited by law, like say performing abortions, why should the abortion doctor have to live like a fugitive because others have decided on their own that performing abortions is a capital offense.

On the obverse, why can't I have the right to picket the home or neighborhood of an active TB patient who goes about in public, or the publicize the photo of someone with HIV who has infected others from unsafe sex, in an attempt to shame him/her into modifying the objectionable behavior?

Couldn't you envision some circumstances that might include threats of violence, or say, the intimidation the family of someone engaged in lawful acts - such as above, or a researcher who works with animals as per the CA bill - that might include a prevailing governmental interest to prevent dissemination or publication of personal information?

Exceptions exist already. We're only debating which are valid.

I think.

Even if you demolish my arguments and expose me to all as a legal moron, I hope to enjoy the exchange.

JC
4.22.2008 11:44pm