The Volokh Conspiracy
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Suit Over Houston Park's Restriction on Displaying Videos of Animals Being Killed and Otherwise Unpleasantly Treated
From FIRE's press release (and you can read the Complaint here):
Today, the Law & Religion Clinic at the University of Texas and the Foundation for Individual Rights and Expression filed a lawsuit against the City of Houston, several Houston police officers, and Discovery Green Conservancy after police officers arrested an animal rights advocate for refusing to give up his First Amendment right to free speech in Discovery Green, a public park described as the "crown jewel of public spaces in downtown Houston."
The management of Houston's public Discovery Green Park was concerned that passers-by might be "offended" by the advocates' message. The officers' actions were a clear violation of the advocates' First Amendment right to speak freely in a public park —a park where peaceful protests happen regularly….
Several times during summer 2022, Dubash and Harsini went to Discovery Green to host a series of educational events. They held a television screen playing excerpts from a documentary about the mistreatment of animals, and they only spoke to people who engaged with them.
However, almost every time they demonstrated, park management and security asked them to leave, claiming that passers-by could be "offended" by their message. And so they complied. But the last time, Daraius stood his ground, calmly explaining to park management and security, "You still have to abide by the First Amendment because [the park] is publicly owned."
The park management's response? "Right. But we also choose, [and] we don't feel the content is appropriate."
When two Houston police officers arrived, Daraius again calmly explained his First Amendment rights. Yet the officers still arrested Daraius and handcuffed him to a chair in the park security office for more than two hours until he was taken to the county jail and charged with criminal trespass. The district attorney dismissed the charge….
The protesters were showing "video clips … taken from the documentary film Dominion":
The film features overhead shots of cramped pig stalls, pest-ridden duck living quarters, close-up shots of caged egg-laying chickens, and electrical prodding of cattle. In all, it covers the treatment of around two dozen types of animals….
The specific content of the videos—which show lawful, industry-standard practices like macerating baby male chicks (killing male chicks at birth who offer no economic value), or using farrowing or gestation crates (keeping pregnant pigs in small cages where they can only sit or stand, but not turn around)—causes some passersby to inquire what is being depicted.
(I've written about this broad issue in my Gruesome Speech article, primarily focusing on restrictions on showing gruesome images of aborted fetuses but also noting the connection with certain images of how animals are treated.) Some more allegations about the arrest incident:
[Park] Production Coordinator Floyd Willis … [told] Mr. Dubash: "I guess the problem before is like, what, the content of the videos."
The security guard added: "The problem before was the content of the videos. We did talk about that before. And I mean, Brian has asked me multiple times to come and talk to him … It's what he shows. So that's the only problem that Discovery Green has."
Willis reiterated that content ban to Mr. Dubash: "I, we're good with like, if you want to talk to people but, we're not comfortable with the TVs … the content on those."
Willis revealed Discovery Green Conservancy's criterion in administering a public park on the City's behalf is simply what it deems "appropriate."
Willis acknowledged Mr. Dubash's point that "you still have to abide by the First Amendment because [the park] is publicly owned."
But Willis ultimately stated: "Right. But we also choose, we don't feel the content is appropriate."
Notably, neither security nor police stated that the speech was unprotected. And on a half-dozen occasions, Mr. Dubash accurately noted that obscenity is limited to sexually explicit content….
[Later, o]ne security guard reiterated the video was not allowed because "it's chickens getting slaughtered." …
Officer Douglas assured Mr. Dubash that he was aware of the First Amendment's free speech protections.
But he then stated that "if you are showing offensive material he [i.e., Discovery Green management] does not like, you can't be here." …
Officer Douglas reiterated that the content was the problem, telling Mr. Dubash that his problem was "someone stabbing a goat or cow in the neck to kill them. That seems offensive." …
