THE BLOG
09/30/2015 01:54 pm ET Updated Dec 06, 2017

No Good Deed Goes Unpunished

Why PETA's lawsuit against a wildlife photographer harms animal rights activists, the animal rights movement, and ultimately, the animals themselves.

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In the last 12 years, People for the Ethical Treatment of Animals has killed 31,250 animals, including healthy kittens and puppies. They have taken animals from people after promising to find them homes, only to kill them within minutes in the back of van--a donor funded death squad on wheels--and dump their bodies unceremoniously into a garbage can. They have stolen and killed people's beloved pets. They have called for the round up and killing of community cats. They have embraced a large scale slaughter of pit bulls, calling for all shelters in all cities and towns across America to ban their adoption. They have fought shelter reform legislation to save the lives of animals in shelters. They have celebrated when No Kill shelters announced they planned on killing again. And they have defended poorly performing, regressive, and even abusive shelters, telling legislators not to listen to animal lovers intent on reforming them.

For those who have read my articles in the Huffington Post, the blogs on my website, or any of my books, none of this is news. But my criticism of PETA has always been limited to these most grievous issues. I've never written about some of PETA's other campaigns that do not involve the killing of dogs, cats, rabbits, and other animal companions but to which I have also, though privately, objected. Not wanting to be dismissed as a crank or a gadfly when it comes to PETA or in any way be aligned with animal exploitation industries or individuals who also criticize PETA but for entirely different reasons than my own--a perception I fear would threaten to dilute the effectiveness and singularity of my message about their killing--I've focused exclusively on the immediate mortal threat PETA poses to thousands of animals every year and those of the abusive shelters they often defend, and nothing more.

When it has come to campaigns such as those promoting PETA President Ingrid Newkirk's last will and testament which asks that her body parts be turned into consumer goods and the rest of her be cooked and eaten, or their announcement that they were going to start a porn channel where women use vegetables as sex toys, or their condemnation of video games which involve animated, barrel throwing gorillas or the cyber killing of already dead "hell hounds" (while PETA employees are themselves stealing and killing real ones), or any of the PETA campaigns designed not to help animals but merely to garner press coverage for PETA, I've held my tongue. Though I believe these campaigns and others that are equally media hungry harm more than they help animals by alienating people and promoting a muddled understanding of the simple and straightforward philosophy of the animal rights--an ideology that is best and simplistically summed up as embracing the oft-cited "Golden Rule"--PETA's approach too often makes our most noble and imperative cause seem bewildering, even comical, and worthy of casual dismissal, to the great detriment of animals in crucial need of serious and results-oriented advocacy on their behalf.

As an animal rights advocate and vegan for more than two and a half decades who has worked as an animal law attorney, a No Kill shelter director and humane officer, a rescuer, a Deputy District Attorney prosecuting animal cruelty cases, a feral cat advocate, and as the author of several books on animal rights issues, my experience over that time has involved watching PETA not only launch a series of sensationalist, counterproductive campaigns, but watching it cannibalize the movement it claims to be a part of as well.

Money given to PETA by a generous, concerned public with the belief that their donations will be leveraged to help animals are used not only to fund the salaries of employees who kill animals as well as the lethal drugs they use to do it, but to fund a legal department that threatens litigation against any animal lover who dares to publicly speak out in defense of the rights of animals killed by PETA. And while these threats have thus far proven to be mere saber-rattling to discourage its critics with no follow through (after all, PETA understands that not only is what its detractors are claiming true, but they fear the public disclosure of information about that killing that they would be forced to make public through the discovery process), there is one lawsuit they have recently filed that is so egregious and antithetical to the cause of animals rights, a case that so tragically captures the rot that is at the very heart of PETA's corrupted mission, that I cannot let this opportunity to highlight their hypocrisy go unchallenged.

To worldwide press coverage, PETA recently filed a lawsuit in Federal Court against David Slater, a wildlife photographer, over photos taken in Sulawesi, an island in Indonesia, of a macaque monkey. The photos are popular and world renown "selfie" photographs taken when Slater traveled to the island, set up the camera, took some photos, and then allowed the macaque to press the shutter and take photos of himself.

PETA argues that the monkey and not the photographer should get the proceeds of a published wildlife photo book and they've asked a court to give both the copyright for the images, as well as the proceeds from the sale of those photographs, to the monkey instead of Slater. Because the monkey does not have a bank account, PETA has further asked the court to give the money to them, where they will keep it and use it on behalf of the macaque and his fellow macaques on the island.

Some have expressed support for the lawsuit because they see it as a cleverly disguised backdoor to achieving personhood for a group of primates, or at least a way to move in that direction. It is not.

A sincere lawsuit in favor of personhood for a group of non-human animals would involve neurological evidence of human-level sentience, adherence to law without embellishment and sound policy without sensationalism, and a fact pattern that raises important issues that warrant legal intervention. Thurgood Marshall, arguably the most brilliant and strategic lawyer of our time whose meticulously chosen cases laid the groundwork for successful civil rights litigation and eventually the unanimous Supreme Court decision Brown vs. Board of Education which overturned segregation, focused on the right plaintiff, the right fact pattern, good evidence, including clinical studies, and a legal reputation for citing case law honestly. Using this same approach, a case for personhood can and no doubt one day will be thoughtfully filed and eventually, won, using dogs, pigs, or primates including quite possibly macaques.

For example, in his New York Times OpEd "Dogs Are People, Too," Dr. Gregory Berns writes, "The ability to experience positive emotions, like love and attachment, would mean that dogs have a level of sentience comparable to that of a human child." His research, showing striking similarities between humans and dogs in regions of the brain associated with positive emotions, is shared by other scientists. Not only has the pioneering work of some biologists shown that animals also have complex systems of justice and order their lives for purposes of maximizing both survival and happiness, but that they also feel a strong sense of loss as a result of death just like we do.

And this, writes Dr. Berns, "suggests a rethinking of how we treat dogs."

[R]ecent rulings by the Supreme Court have included neuroscientific findings that open the door to such a possibility. In two cases, the court ruled that juvenile offenders could not be sentenced to life imprisonment without the possibility of parole. As part of the rulings, the court cited brain-imaging evidence that the human brain was not mature in adolescence. Although this case has nothing to do with dog sentience, the justices opened the door for neuroscience in the courtroom.

Perhaps someday we may see a case arguing for a dog's rights based on brain-imaging findings.

Accordingly, Dr. Berns posits that neuroscience warrants changes in how we view and treat dogs, namely that the law should not regard dogs as property, but as legal persons, and that puppy mills, vivisection and dog racing should be banned.

Alternatively, Emory University professors reviewed clinical research on pig behavior and in an article in the International Journal of Comparative Psychology, reported that pigs are gregarious by nature, highly social, have a robust memory, can read human facial cues, are empathetic, altruistic, have unique personality traits that overlap that of humans, can retrieve a frisbee, play with a ball, sit, fetch, and jump when asked, and are highly motivated by food. In other words, they are just like dogs. In fact, they can move a modified joystick (no easy undertaking given the lack of opposable thumbs) and are aware that it impacts what is happening on a screen. And that makes them not just as smart as dogs, but even smarter.

And, of course, there is the pioneering work of the Nonhuman Rights Project which back in April, scored an important victory on behalf of chimpanzees used for experimentation. As Science magazine noted,

In a decision that effectively recognizes chimpanzees as legal persons for the first time, a New York judge today granted a pair of Stony Brook University lab animals the right to have their day in court. The ruling marks the first time in U.S. history that an animal has been covered by a writ of habeas corpus, which typically allows human prisoners to challenge their detention...

(In response to the media coverage, however, the court subsequently amended its order and struck out the words "writ of habeas corpus.")

None of these approaches are used in PETA's lawsuit. As animal Rights lawyer Laurence Tribe of Harvard Law School correctly writes, it,

[T]rivializes the terrible problems of needless animal slaughter and avoidable animal exploitation worldwide for lawyers to focus so much energy and ingenuity on whether monkeys own the copyright in selfies taken under these contrived circumstances.

It also has the potential to set bad precedent as bad cases establish bad law, which then create barriers for the success of future cases.

But PETA is not interested in precedent, rigor in campaigns or using donor funds to actually solve problems for animals, nor do they care if they trivialize "problems of needless animal slaughter" and "animal exploitation" since they themselves actively engage in a needless animal slaughter and are exploiting the macaque in this case. Aside from asking that they retain the proceeds from the sale or licensing of the images which itself undermines their credibility with a court because it smacks of self-dealing, they are doing this for the same reason they have waged other campaigns and filed other equally hopeless lawsuits: press coverage.

As part of an expose on PETA's killing, I interviewed 10 PETA staff members, including managers. A repeating pattern in those interviews was how PETA rewarded staff members who came up with farfetched campaigns that would get PETA the press coverage it craved, regardless of how trivial they were. These campaigns often came at the expense of others that Ingrid Newkirk considered unsexy even if those others would have a measurable, lifesaving impact. Nothing was too crazy to pitch and often the crazier the pitch, the more likely it would earn effusive praise from Newkirk.

The result: public condemnation for barrel throwing monkeys in video games or the filing of a lawsuit for copyright of a monkey "selfie" go to the top of the PETA "to do" list, while campaigns that would actually help monkeys--such as one designed to end the use of macaque slave labor in the Indonesian coconut industry by calling for a boycott of consumer goods that use coconuts harvested in this way--don't happen.

In Wildlife Personalities, the photobook containing the famous macaque selfie at the heart of PETA's lawsuit, and other equally beautiful and arresting photographs of animals, Slater asks us look at animals as individuals, often as "intelligent as a human child with the same feelings," having unique personalities who share important traits with humans and who are deserving of "the dignity we afford ourselves." "What do we share with wildlife?" he asks. The answer, in his words and photography, is our humanity. In a word, everything.

Let us embrace empathy for animals, he says. Let us cease persecuting them, he asks. We must recognize "that animals have personality and should be granted rights," he pleads to us while across the world, macaques and other primates are being exploited and harmed by humans: as mother macaques are shot so that their babies can be shackled by the neck and used to pick coconuts, as primates are imprisoned for entertainment or tortured in laboratories. With photographs that speak a thousand words in their defense, David Slater is asking us--showing us--why these things must stop; demanding that macaques and other animals be afforded the dignity they deserve and the freedom from exploitation that is their birthright as members of "Earth's greater family."

Isn't his an effort worthy of celebrating, rather than undermining? Doesn't the promotion of animal rights in the most parsimoniously eloquent and universally understood language there is--photography--embody the very ethos so many people mistakenly believe PETA exists to promote?

For those of us who have been laboring for years to save thousands of animals annually from PETA's death squads, who have struggled to reform abusive shelters or pass animal protection laws and have been actively opposed by PETA, and who believe that the suffering and killing of non-human animals is far too urgent and serious an issue to warrant PETA's often superficial and puerile tactics, we know too well that their answer to that question is "no." Now added to our ranks is yet another dedicated animal lover--having reported to the Associated Press that he was "very saddened" by PETA's lawsuit because he considers himself an advocate for animal rights--who is learning the hard way that when it comes to PETA, no good deed for animals goes unpunished.