Confusing Gluttony for Gandhi

Animal Legal Defense Fund v. LT Napa Partners LLC, No. A139625 (D1d5 Mar. 5, 2015)

Kind of a head-scratcher. Defendant allegedly served foie gras in violation of California’s ban by pretending it offer it as a “gift” in connection with other ordering other food. Plaintiff sued for violation of the ban. Defendant filed an anti-SLAPP motion, arguing that its actions were expressive activity protected by the statute because they were undertaken with the intention of protest against the foie gras ban. The trial court denied it.

The court of appeal assumed for the sake of argument that the protest motivation of the defendant meant that the conduct arose from protective activity. That, frankly, is tough to understand, because it’s not a hard question. Marching and organizing in protest of unjust laws is protected activity; just disobeying laws you disagree with, even if your intent is to express your disagreement, is not. Did Ollie’s Barbecue get First Amendment protection because they didn’t agree with court-ordered integration? Could the the Heart of Atlanta Motel invoke the First Amendment because it didn’t want to serve black customers? Did the University of Mississippi commit an act of civil disobedience when it wouldn’t admit James Meredith? No.

The moral force of the civil rights movement was to break unjust laws and get punished for it because the punishment itself illustrated the sheer injustice of the law. This kind of sums it up. Refusing to comply with a duly enacted law that you don’t agree with while trying to get away with it doesn’t make you Gandhi. Particularly when the injustice you see is that you can’t eat something you think tastes good because the democratic process has determined that its manner of production is too cruel to be worth it.

I get avoiding hard cases. But this one wasn’t hard, at least on the first prong. Courts need to stand up for the rule of law. If unjust laws are unconstitutional, they don’t get enforced. But if they are valid, there is no constitutional protection for refusing to obey them. And if the disobedience doesn’t involve speech or petitioning, the anti-SLAPP statute shouldn’t get dragged into the mix.

Here, that was particularly the case because the merits on the second prong—on which the court bases its decision—are kind of wobbly. As the court notes at the beginning of its opinion, a federal district court recently held that the foie gras ban was preempted by an obscure federal poultry marking statute and enjoined the state from enforcing it. That court, admirably, admitted that it was a really close question. But the court here does not address the issue at all. It holds only that plaintiff showed that defendant likely violated the law, presumably valid. 

So I’m left kinda confused why the court would duck a pretty clear resolution on prong #1 while resting its holding on not-too certain prong #2 basis.

Affirmed.