The Volokh Conspiracy
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No First Amendment Right to Force Government to Provide Live Feed of Macaques in Government Lab
From People for Ethical Treatment of Animals, Inc. v. Nat'l Inst. of Mental Health, decided last week by Judge Paula Xinis (D. Md.):
According to PETA, the Elisabeth Murray lab, under the aegis of Defendants, conducts "torturous and useless" experiments on rhesus macaques ("macaques") related to improving human mental health treatments. This suit, however, does not challenge Defendants' treatment of the macaques.
Despite the Complaint's broadside attack on animal research generally, PETA brings a narrow claim that Defendants have denied PETA's August 2024 request for installation of a 24-7 audio visual live feed (the "live feed") of the macaques who are currently housed at the laboratory, in violation of PETA's First and Fifth Amendment rights. PETA's August 2024 request demanded that the live feed "contain audio to hear the macaques' vocalizations and clear video sufficient to see the macaques' body postures, gestures, facial expressions, and other observable communications while in their cages, in the presence of laboratory staff, when being collected and prepared for experimentation, and while being experimented on." PETA's singular justification for demanding the live feed is its purported First Amendment right to "listen" to the macaques' "speech" and "communications." …
In addition to a separate administrative law basis, the court also dismissed the claim for lack of standing, reasoning:
PETA's claimed injury to its First Amendment right to "listen" is not, as pleaded, a legally protected interest sufficient to confer standing. Although the First Amendment "protects both a speaker's right to communicate information and ideas to a broad audience and the intended recipients' right to receive that information and those ideas," the narrower claimed right to "receive speech" requires the plaintiff "show that there exists a speaker willing to convey the information to her," and that "the listener" maintains "a concrete, specific connection to the speaker."
Nowhere does PETA establish any authority whatsoever for the extraordinary proposition that the macaques' sounds and movements constitute protected speech to which a companion right-to-listen exists. Rather, PETA relies on a legion of inapposite law concentrating on the public's right to receive human speech. But PETA gives the Court nothing that comes close to establishing a constitutional right to receive "non-human primate" sounds or behaviors.
Nevertheless, PETA argues that the macaques can "communicate" their sufferings in complex ways. But PETA does not explain how it has a "specific connection" to the macaques, as speakers, beyond the general averments that the macaques have the capability of communicating to humans. Thus, even if the Court hypothetically accepts that macaques are "willing to convey" information to PETA with a form of constitutionally recognized speech, PETA has failed to articulate a "concrete" and "specific connection" to the macaques such that PETA has suffered a legally protected interest in listening to the macaques sufficient to confer standing….
Defendants noted that PETA could submit a FOIA request "for any existing audiovisual recordings of the macaques," but PETA argued that "FOIA will not 'satisfy PETA's First Amendment right to receive communications directly' from the macaques."
S. Nicole Nardone represents the government.
