Nonhuman Rights Project Statement on Naruto v. Slater (the “Monkey Selfie” case)
April 24, 2018—New York, NY—As the only civil rights organization in the US working through the common law to secure legal rights for nonhuman animals, the Nonhuman Rights Project is not surprised by, and is disappointed in, key aspects of the 9th Circuit Court of Appeals’ opinion issued yesterday in PETA’s Naruto v. Slater case.
PETA alleged that Naruto, a crested macaque monkey, possessed a copyright that was infringed by wildlife photographer David Slater. It is clear to us that, by definition, Naruto could not possibly possess a copyright or even the right to file a lawsuit unless he were recognized as a “person.” Yet PETA failed to present appropriate facts and legal argument to demonstrate to the Court that Naruto was indeed a “person” who had the capacity to possess any legal right at all. This was a fatal flaw. PETA’s 2012 Tilikum lawsuit, brought on behalf of several orcas at SeaWorld, had the same fatal flaw, as we publicly pointed out at the time.
The Naruto case is an example of how difficult it can be to gain legal personhood and win legal rights for a nonhuman animal. As we note below, both the majority and the concurring judges made shocking errors of fact and law. However, it was the responsibility of the plaintiff to employ tactics and strategies that make it easier for the court to find in its favor.
Our mission and work are based on the fact that personhood is the foundation of any litigation that seeks to gain legal rights for nonhuman animals. Standing is not the issue, though litigants and even courts, in Naruto and elsewhere, often confuse “standing” with personhood.
A “person” is a legal term of art for an entity who has the capacity for legal rights. It is not a biological or taxonomic classification, but a classification grounded in public policy and moral principle. In order to have legal rights of any kind—constitutional, statutory, or common law—an entity must have the capacity for legal rights; she must be a “person.” A person is a “rights container”: while personhood does not itself convey rights, it is a fundamental pre-requisite for them. On the other hand, a plaintiff’s standing merely requires a finding that the defendant injured a person in a way that violates her rights.
PETA apparently failed to recognize that by litigating in federal court, it was demanding that the court interpret the United States Constitution and at least one United States statute and procedural rule to provide for the personhood of Naruto. But that was unlikely to happen given the legislative history of that constitutional or statutory provision.
That is why the NhRP does not litigate under substantive statutes or constitutional provisions, but solely under the common law. This is the law that judges themselves make and therefore can themselves change in light of evolving scientific research, public policy and morality, and human experience—in state, not federal, court. Federal courts have almost no common law jurisdiction, except in very limited areas, while state courts do.
Moreover, lawyers and judges must clearly understand that there are different kinds of rights, and that some kinds of rights are more appropriate for nonhuman animal personhood litigation than others. We intentionally litigate only the immunity-rights (as opposed to the claim-rights) of our nonhuman animal clients. These are the most fundamental kinds of legal rights, such as the right to bodily liberty so as not to be detained against one’s will. More importantly, those who understand what an immunity-right is know that the holder of an immunity-right need not have the capacity for reciprocal legal duties (even some of the courts that have heard our cases have gotten this wrong). On the other hand, a claim-right, such as breach of contract, and a power-right, such as the right to file suit, may require that the rights-holder have the capacity for legal duties.
PETA asserted that Naruto had a claim-right under the copyright statute. But PETA presented no appropriate evidence that Naruto was a “person” who could have any right, much less a claim-right. This opened PETA up to the fatal assertion of all three judges that to have a property right (a kind of a claim-right) a nonhuman animal must have the capacity for corresponding duties.
Finally, it is vital that those bringing nonhuman animal civil rights cases treat their nonhuman animal clients the same way they would treat human clients: always as ends in themselves and never as a means to another’s end, even if that undermines the purpose of the litigation as a test case. This we have viewed as our utmost responsibility since we took on our first nonhuman animal clients in 2013.
The judges themselves also made serious errors. They claimed that the 2004 Ninth Circuit case Cetacean Community v. Bush had granted federal Article III standing to cetaceans. This claim entailed a serious misreading of the case, which only served to create a straw man the court could repeatedly criticize as having been wrongly decided.
The court also claimed implicitly and repeatedly that the word “person” is synonymous with “human being,” when that has never been true, is not true today, and will never be true. For centuries many humans beings, including slaves, women, children, Jews, and fetuses were not “persons,” but “things,” while around the world courts and legislatures have characterized a chimpanzee, a bear, a national park, a river, a Hindu idol, a mosque, the Amazon rain forest, and other nonhumans, as “persons.”
Just as troublingly, without any evidence before it whatsoever, the concurring opinion in Naruto claimed that we can never know the interests of any nonhuman animals because they can’t communicate in our language, while we can apparently always know what the interests of even the most incapacitated human beings are even though they may not be able to communicate in our language. Putting to one side the fact that some nonhuman animals can indeed communicate in our language, this statement is simply an admission of the judge’s ignorance about the complex cognition of a large number of nonhuman animal species, combined with his bias against the idea that any nonhuman animal could ever be so cognitively complex that we could readily understand their interests. If we can presume that human beings desire liberty, as his concurring opinion rightly acknowledges in its discussion of habeas corpus, so can we presume that autonomous nonhuman animals desire it. This is why we routinely place before judges more than one hundred pages of affidavits from world-renowned scientists to demonstrate our clients’ autonomy and corresponding interest in their own liberty.
Such judicial ignorance fused with judicial bias has a terrible history in the United States, having been used over many decades to oppress people of color, Chinese people, non-heterosexuals, women, and others. Just as we are not surprised by the outcome of PETA’s litigation, we are disappointed by these aspects of the 9th Circuit’s opinion.
To learn more about the Nonhuman Rights Project’s nonhuman rights litigation, visit this page.
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About the Nonhuman Rights Project
Founded in 1996 by attorney Steven M. Wise, the Nonhuman Rights Project (NhRP) works to secure legally recognized fundamental rights for nonhuman animals through litigation, advocacy, and education. Our mission is to change the legal status of at least some nonhuman animals from mere “things,” which lack the capacity to possess any legal right, to “persons,” who possess such fundamental rights as bodily integrity and bodily liberty and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them. Our current plaintiffs are members of species who have been scientifically proven to be autonomous: currently, great apes, elephants, dolphins, and whales. We are working with teams of attorneys on four continents to develop campaigns to achieve legal rights for nonhuman animals that are suited to the legal systems of these countries. We filed our first cases in December of 2013, and our work is the subject of the 2016 Pennebaker Hegedus/HBO documentary film Unlocking the Cage, which has been seen by millions around the world.
About NhRP President Steven M. Wise
Steven M. Wise began his mission to gain rights for nonhuman animals in 1985. He holds a J.D. from Boston University Law School and a B.S. in chemistry from the College of William and Mary. He has practiced animal protection law for four decades and is admitted to the Massachusetts Bar. Professor Wise taught the first class in “Animal Rights Law” at the Harvard Law School and has taught “Animal Rights Jurisprudence” at the Stanford Law School, as well as the University of Miami, St. Thomas, and John Marshall Law Schools, and is currently teaching “Animal Rights Jurisprudence” at the Lewis and Clark Law School and Vermont Law School. He is the author of four books: Rattling the Cage – Toward Legal Rights for Animals; Drawing the Line – Science and the Case for Animal Rights; Though the Heavens May Fall – The Landmark Trial That Led to the End of Human Slavery; and An American Trilogy – Death, Slavery, and Dominion Along the Banks of the Cape Fear River. His TED TALK from the TED2015 Conference in Vancouver, Canada was released in May of 2015, and has over one million views.