The question of free expression arises in federal court actions initiated by animal fighting practitioners
The First Amendment has been used as a shield by perpetrators of animal cruelty for decades. In recent federal court proceedings, cockfighters claim that staged battles between animals are a protected expression and religious exercise guaranteed by the First Amendment.
Freedom to Exercise Religion
A cockfighting enthusiast, who described himself as Pastor of Holy Fight Ministries, filed a civil suit alleging violation of freedom to exercise religion after his arrest to try to thwart criminal prosecution. The U.S. District Court for the Middle District of Louisiana denied his request for a restraining order against Louisiana’s Attorney General, the parish sheriff, and the prosecuting District Attorney, on both procedural grounds and for the evidence provided by the District Attorney that illustrated the crime scene as more of a commercial operation than a religious one (“the photos depicted a cockfighting arena littered with discarded food and alcohol containers; a handwritten betting ledger; ‘cockhouse’ fees and membership rules; rooster corpses; and other indicators of a commercial cockfighting operation.”). The primary motive of the gathering, it’s clear, was to gamble and profit from the gladiator-like spectacle and not to worship.
The pastor argued, “[i]f the use of peyote, a Schedule I drugs [sic], is permitted…then it stands to reason that an exception should be carved out…for the Plaintiffs and their congregation [to engage in cockfighting] to practice their faith.” There may be some merit to the argument that laws should carve out exceptions for religious practices, but only for honestly-held religious beliefs. A long-standing religious tradition and a recognized facet of Native American culture, peyote use was codified in federal law as an exception in 1994 by the American Indian Religious Freedom Act Amendments.
No such law exists for protection of cockfighting. In fact, animal fighting prohibitions have been codified by Congress and all state laws as illegal, with no religious exceptions. No one has been persuaded by the argument that cockfighting is an exercise of religion – not the federal judge in the Louisiana proceeding, dozens of state legislatures, or Congress – and no one has demonstrated successfully that cockfighting is a sincerely held religious belief. In 2018, United States v. Cruz, 17 Cr. 300 (GWG) (S.D.N.Y. Feb. 15, 2018), the court found that cockfighting is not a sincerely held religious belief, noting that the defendant’s belief that he has “God given” dominion over animals was more philosophical in nature and lacked a specific religious tenet or beliefs. In this case with the pastor, the basis for his beliefs are the same as that of the defendant in Cruz. The pastor alleges that man has divine dominion over animals, and that cockfighting in his parish is a manifestation of the fight between good and evil. Although here the pastor’s cockfighting beliefs has a specific religious tenet, as the judge found, the tenet seems more commercial than holy.
If the court had granted the pastor’s motion, the court would most likely proceed to review this case under the Louisiana’s Preservation of Religious Freedom Act. The Act codified the strict scrutiny test, the most stringent and highest standard of judicial review, to analyze free exercise claims. Under the Act, when a law burdens a person’s exercise of religion, the government must demonstrate that the law is both (1) in furtherance of a compelling governmental interest, and (2) the least restrictive means of furthering that compelling governmental interest. La. Rev. Stat. § 13:5233.
The pastor argues that under this strict scrutiny test, the Louisiana cockfighting ban statute is overly broad. He claims he does “not seek to perform any act that might affect any legitimate governmental interest, such as concerns with hygiene, animal cruelty, noise, or nuisance,” and that he seeks “only to perform the cockfighting ceremony their religion requires in the privacy of their church by completely sanitary methods.” First, this claim is fundamentally wrong. The Louisiana statute banning cockfighting is one in a set of state statutes prohibiting animal cruelty, including animal abuse and dogfighting. La. Rev. Stat. § 14:102, et seq. By banning cockfighting, the government is furthering a compelling interest to eliminate animal cruelty. Second, the pastor seems to believe “sanitary methods” cockfighting disqualifies two knife-wielding animals fighting to the death as animal cruelty. There is no less restrictive way for the government to advance its interests in animal cruelty by regulating the sanitary methods of cockfights. Cockfighting at its core is violent practice that results in injury or death to the combatants. Even if no knives or gaffs were affixed to the birds’ leg, roosters conscripted to fight and placed in a pit could inflict serious injury with their natural spur; it would just mean the fights would last longer. Furthermore, if a religious exception were carved out for cockfighting, enforcement of the law on non-religious cockfighting would be undermined. It’s reasonably foreseeable that cockfighting religious organizations would begin sprouting up, especially in Louisiana, which is the last state to ban cockfighting in the U.S. Thus, even if the pastor somehow convinces the court that cockfighting is a sincerely held belief, the Louisiana cockfighting ban would pass the strict scrutiny test.
Freedom of Expression and Assembly
Since Section 12616 of the 2018 Farm Bill applied all federal prohibitions against animal fighting to the territories, challenges have come from cockfighting interests in some of these jurisdictions.
Puerto Rico-based cockfighters, now appellants before the U.S. Court of Appeals for the First Circuit case, failed to present a convincing First Amendment argument at the United States District Court for the District of Puerto Rico. There, Judge Gustavo Gelpi struck down the cockfighters’ two arguments that (1) Section 12616 “facially targets conduct,” unduly burdening their right to speech and fails the test for protected expression, and (2) Section 12616 violate their right to free association by preventing them from “perpetuat[ing] their culture through assembly and cockfighting.” Club Gallistico De P.R. Inc. v. U.S., CIVIL NO. 19-1481 (GAG) (D.P.R. Oct. 28, 2019).
Judge Gelpi found that Section 12616 does not violate First Amendment rights of freedom of expression and association, because first, cockfighting, or “a live-bird fighting venture,” is not an expressive or non-expressive protected conduct, which even if it were, it would not be protected because of Congress’ long standing legislative aim of rejecting animal violence. And second, cockfighters are free to gather to discuss cockfighting and to artistically express it through depictions. However, gathering to engage in criminal activity is not a protected right of assembly under the First Amendment.
Reeling from Judge Gelpi’s sound ruling, the appellants now argue to establish a fundamental requirement to qualify for the First Amendment’s protection – that cockfighting is an “expressive or non-expressive protected conduct.” Several seminal cases have established what could be considered expressive or non-expressive protected conduct. In United States v. O’Brien, 391 U.S. 367 (1968), the Supreme Court ruled that burning a draft card is considered expressive conduct, although an unprotected one, because the government has an important government interest unrelated to the suppression of free expression, to properly administer Congress’ broad and sweeping powers to raise armies, in penalizing those who destroy draft cards. In Texas v. Johnson, 491 U.S. 397, 404 (1989), the Court found flag burning as a protected expressive conduct, because it was “sufficiently imbued with elements of communication,” or in other words, whether “an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.” Today, expressive conduct has and continues to be invoked by people charging there is systematic racism in the application of our laws. Former NFL quarterback Colin Kaepernick famously took a knee during a rendition of the national anthem, and in the NBA, players with the Lakers and Clippers took a moment on their knees, arms linked, in solidarity wearing Black Lives Matter shirts before an opening game. These players are not arguing football or basketball is a form of free expression, but they are arguing that taking a knee or speaking through other types of politically intentional conduct is protected expression.
Cockfighters have the right to express their views about their sport, and they may air their views at a cockfighting arena, on the steps of a legislative building, or in the newspaper or on a radio. If they burned a betting slip, the U.S. flag, or refused to stand for the national anthem in protest of federal laws against cockfighting, the expression of those views would be judged from a legal context based on prior court rulings on expressive conduct. But there is no rational basis for them to argue that cockfighting itself is an example of expressive conduct that qualifies for constitutional protections. Cultural right has never been a guaranteed constitutional right, and historic enjoyment of cockfighting does not ground their argument that cockfighting is an expressive conduct under the First Amendment.
The cockfighters also argue that Congress destroyed the purpose behind assembly and the basis for existence as a cockfighting group, and hence, violates their right to assemble. The premise that Congress destroyed the purpose behind assembly is false. Section 12616 does not prevent Puerto Ricans from gathering to discuss, organize, and to advocate for cockfighting. The cockfighters cite Roberts v. United States Jaycees, 468 U.S. 609 (1984) to emphasize that preserving cultural diversity is one of the many purposes of the First Amendment’s freedom of assembly. However, what they forget to cite is this:
The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
Id. at 623. Under this familiar test, cockfighting cannot exist in conjunction with the compelling government interest to prohibit animal fighting in any shape or form, all across the United States, including the territories.
Puerto Rico’s elected officials have been largely defensive of cockfighting interests. They may have no moral problem with this kind of animal treatment, and therefore find it acceptable. But it’s clear they are prioritizing, in their amicus pleading, the economic value of cockfighting to people involved. (Governor Wanda Vazquez signed a bill to keep cockfighting alive because she’s worried about “abandoning the 27,000 employees of an industry that generates about $18 million a year” – economic and job numbers that vary wildly depending on which lawmaker or cockfighters is invoking them). This is an enterprise integrated with gambling, sale of the progeny of winning fighting birds, and the enjoyment of watching the birds battle. Having the power of the purse, Congress is on firm ground when it choses to enact laws related to a commercial enterprise like cockfighting. Moreover, Section 12616 of the 2018 Farm bill is constitutional partly because it furthers the compelling government interest in eliminating animal cruelty.
Thus far, the federal courts have in effect sided against the cockfighters in a long string of decisions since Congress ramped up its efforts to stamp out animal fighting in 2002. In this case, Governor Vazquez knows it’s just a matter of procedure and time before the law she signed authorizing the cockfighters to ignore the federal law is invalidated by the courts.
My thought in this court battle is this: place your money on the United States in the challenge to our federal laws against animal fighting. Religious freedom arguments are unlikely to succeed given jurisprudence on America’s 200-year-long history of lawmaking to stop organized animal fighting.
Thomas Yoon is an attorney at the Center for a Humane Economys. Prior to his role with the Center, Thomas was a litigation associate at Douglas & Boykin, PLLC. He graduated with a B.A. in Sociology from the University of Virginia and a J.D. from The George Washington University Law School. He is barred in the District of Columbia and New York.