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The battles in a courtroom can seem difficult to understand. That is, in my view, an intentional complexity. Powerful people and institutions have designed our legal system [ [link removed] ] in a way that prevents most ordinary people from feeling capable of changing it. But what has unfolded in the last week in court has been even worse: efforts by powerful people to not just frustrate, but destroy, the movement for animal rights. These court cases show how powerful people are attempting to scare us, starve us, and smear us — but also how we can respond effectively to these challenges.
The first and most well-known case was in Merced County, involving my friends Alexandra Paul and Alicia Santurio, who rescued two dying birds from a Foster Farms slaughter truck and are being criminally charged for their action. By charging these women, the industry is trying to scare us.
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On Tuesday, Feb 21, we had hours of argument on key issues that will be raised in their trial on March 7. The prosecution attempted to argue that the defendants posed a “danger” to society — and thus deserved not just punishment for their “crimes” but should not be entitled to present evidence in court, e.g., relating to the conditions at Foster Farms.
And things were not looking good, at first. The judge in the case, Commissioner David Foster, said early in the argument, “Foster Farms is not on trial.” Those eerie words reminded all of us what unfolded just a few months ago in Utah, when Judge Wilcox said over and over, “Smithfield is not on trial.” It seemed, at times, the court was intending to scare Alexandra and Alicia to give up their defense. “You will be punished,” the system was saying to them. “So give up now.”
The attempt to scare Alexandra and Alicia, however, is not limited to just those two defendants. So many others have been intimidated, in ways both small and large, into silencing themselves in the face of legitimate atrocities. Heck, even some of the most distinguished figures in modern America — media legends like Ezra Klein [ [link removed] ] and distinguished scholars such as Cass Sunstein [ [link removed] ] — have written about the fear they felt in “coming out” as animal rights advocates. And you can’t blame them. When taking photographs, providing care for animals, or even asking questions can lead to criminal charges, how can you possibly expect people to not be afraid?
The answer, quite simply, is to be prepared and informed. The most powerful impact of a scare tactic is that it creates uncertainty. We have the ability to take on extraordinary risks. (The Civil Rights Movement mobilized hundreds of thousands of people in the face of lynchings and fire bombings, for example.) But this is only possible when we understand those risks. Uncertainty is an emotional amplifier; it makes the danger of risk seem exponentially worse. This is why it is often scarier to “not know” whether a bump on your body is cancer, then to know for sure that it’s cancer and you’re doing to die. (My family experienced this firsthand, in the month before my mom was officially diagnosed with brain cancer. The uncertainty terrified us even more than the ultimate diagnosis.)
Alexandra and Alicia are able to take on this case, and share the story of animal rights in unprecedented ways, because they are well informed about the risks. They are both seasoned activists who are part of a grassroots network that has faced dozens of similar charges. And they are represented by lawyers, including me, who understand how this system operates. That takes much of the uncertainty — and therefore the fear — out of the system. And the result of their confident approach to the case is that we have won unprecedented victories in court, already, including a ruling on Tuesday that Foster Farms is obligated to hand over evidence of diseased chickens to the defense team. The judge, while initially reluctant to rule in our favor, was convinced by our extensive legal preparation that he had a legal obligation to allow certain evidence into court. That is not just crucial to our legal strategy but to the entire political objectives of the movement for animal rights. (More on this next week.)
Of course, not everyone can have seasoned lawyers at their back, when they’re being intimidated. What we can all do, however, is be prepared for that risk. Knowing that you will face intimidation, and accepting that fact, is more than half the battle.
The second case this week was one involving Diestel Turkey Ranch, a civil case in which the industry is attempting to starve the movement of resources. The massive factory farm, which was at one point one of only 3 meat suppliers to Whole Foods that achieved the highest 5+ animal welfare rating, sued me in my individual capacity for removing two dying birds from their farm in 2015. While the judge awarded them $1 for each of the two turkeys — which frankly was an exaggeration of the animals’ actual economic value — she also awarded Diestel over $130,000 in attorneys’ fees and costs. Most disturbingly, this was all done behind the closed doors of her chamber, without giving me any notice, opportunity to be heard, or even a trial. While there is no threat of imprisonment in the case, Diestel is hoping that, by going after my and DxE’s finances, they can starve us of the ability to do future work.
Many of you may have faced something similar. It could be as trivial as the ridiculous upcharge for plant-based milks at coffee stores like Starbucks. It could be something more systemic, such as the dairy industry’s efforts to prevent plant-based milk companies from calling their products “milk.” But the goal is the same: prevent us from creating change by denying us access to the resources, whether financial or linguistic, we need to succeed.
The key to overcoming this challenge, in my view, is to fight from fertile ground; it’s hard to starve us when we’re on land that is abundant. For example, the battle over plant-based milks was losing for many years under the Trump Administration. We could have continued fighting, on ground that was not going to give us much, but the moment the Trump Administration was replaced, the battle over what can be called milk changed, too. Just yesterday, the FDA announced [ [link removed] ] that it would recommend that plant-based milks be called “milk,” too.
In the Diestel case, for many years, we fought on the relatively barren ground of “due process” — the idea that our rights were violated by a judgment without a trial. But due process challenges can be difficult, especially when they involve novel situations. Judges, even in liberal areas of the country, don’t like to venture too far into new territory. When I offered argument at the hearing yesterday about the fundamental unfairness of the proceeding, accordingly, I got almost nowhere. In contrast, when I argued the case in “jurisdictional” terms — that is, assering that the court had no power to issue a ruling in the first place — I finally got some traction. I still expect that we will lose the case. But the lesson by this case is a sound one. When powerful people or institutions are trying to starve you of the things you need, try to move the battleground to a place where you have more resources behind you. That fertile ground will allow you to survive even the most vicious of attacks.
The third and final case, involving Berkeley Rent Board Commissioner Solomon Alpert, is perhaps the most important and insidious: smear campaigns. I’ve written previously about how vegans are less popular than almost any group in America, with the exception of drug addicts. [ [link removed] ] Smear campaigns don’t directly impact our courage, or our resources. But they undermine both indirectly, by attacking our integrity, which is the most fundamental personal and social resource of the animal rights movement.
Alpert, as a hired gun for the incumbent political machine in Berkeley, has long attacked animal rights activists with the most vile and wild smears. But the smears descended to a new low when, in the months before the Nov 2020 Berkeley mayoral election, in which I was running against incumbent mayor Jesse Arreguin. In an effort to stop a rising campaign that inspired more donations than the incumbent, Alpert began to say to people, “Wayne runs a cult and has sexually assaulted people.” I was stunned when I heard this allegation was being made, and even more stunned when many people — with no evidence — began to believe it. While canvassing, on multiple occasions I had people screaming abusively at me that I was a predator, in some cases following me down the street! We lost many volunteers, and probably even more support, because of the allegations. Perhaps most importantly, Berkeley lost an opportunity to have real conversations about the future of the city. I struggled for a long time over the decision — and I still think, from a personal perspective, it is a mistake — but I ultimately decided to bring legal action [ [link removed] ] against Alpert for his lies.
Because what was true of our campaign is true of the movement at large. So many of us, merely for being vegan, have been attacked or undermined in the most insidious ways. What is happening to Tracy Murphy in New York is another example. For merely giving food, water, and shelter to two stray cows, Tracy has not just been charged with serious crimes but has had her reputation destroyed by false allegations that she is a dangerous criminal who will maraud her neighbors’ property (and even their children). Perhaps the most devastating impact of these smears is the impact it has internally within the animal rights movement. When smear campaigns are effective, they divide (and allow to be conquered) the movements that would otherwise have the power to challenge them.
There are many approaches we can take in response, but perhaps the most important lesson I’ve learned over the years is get offline. Smears and rumors have their greatest impact in the wild and unfiltered world of the internet. No one can tell who, or what, to trust. But when real human beings interact with other real human beings offline, we get much better results. For example, in the Berkeley mayoral campaign, by far the most important antidote to the smears spread by people like Alpert was for people to get to know me, and others in the campaign, personally. Virtually all the people I actually got a chance to talk to quickly understood that Alpert’s allegations were lies.
Similarly, while smears of the sort Alpert spread have caused division in the movement, that has not occurred when movement connections are based on real offline, relationships. It should not surprise you that virtually all of DxE and my most angry critics, such as Carol Adams, have never met me personally — and, usually, like Carol, are completely unwilling to even talk. In contrast, when figures in the movement have shown willingness to discuss things in person, we’ve been able to overcome the demoralizing impacts of smear campaigns. For example, Bruce Friedrich and I are on polar opposite sides of the movement ecology for animal rights — and have had intense debates at national conferences — yet we have not just a flourishing working relationship, but a strong friendship. I attribute that to Bruce’s willingness to meet people offline. (Many years ago, he kindly offered to allow me to stay at his house, when I was traveling through DC to give a talk.)
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There’s a lot more that could be said on these subjects. But in just a few days, the Foster Farms trial, in Merced, CA, will begin, so I’ll end things with this. When powerful people try to scare us, starve us, or smear us, we can’t let that stop us from trying to create change. And, if we understand effective strategies for challenging those tactics, we won’t.
I’ll see you all in Merced (in person, or virtually) on March 7. [ [link removed] ]
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