Unhappy Animal Right Activists Come From California...
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PETA, Cows & Sovereign Immunity
"Happy Cows ", as the advertisement goes, "Come from California." This is what the Milk Producers Advisory Board would like us to believe because they want us to buy California dairy products; mainly "Great Cheese". This is not a public service announcement, kids, telling us just how nice it is here in sunny California for our happy bovine friends. It's an AD.
So, as you can imagine, People for the Ethical Treatment of Animals (The ACLU of the animal realm) has a problem with this and they've filed suit in San Francisco County Superior Court, alleging that the MPAB's "Happy Cows" advertising campaign is false and misleading. "Far from enjoying the idyllic existence depicted in the ads, PETA's suit charged, most California dairy cows spend their lives in dry dirt lots while being repeatedly impregnated and then eventually slaughtered." (Please see linked article)
How happy, in reality, do you suppose these cows to be?
Apparently, though, the issue in the case did not turn on whether or not the cows are happy but rather on whether or not the MPAB is a "person" within the meaning of the law. It's a public entity and not a natural person, nor a corporation, nor a firm, partnership, joint stock company, association or other organization of persons.
Apparently, it's a sovereign.
PETA has suggested that the only reason to exempt MPAB from operation of this law is to protect it from interference with the exercise of its sovereign powers. This makes pretty good sense, right? Since when is it within the sovereign power to engage in unfair business practices?
However, the panel of the California 1st District Court of Appeal disagreed with PETAs contention that this advertisement fell outside the scope of sovereign powers.
"[W]e have no hesitancy in concluding there would indeed be an 'infringement of sovereign power' for the [board] to be subject to suit under the [unfair-competition law] for the content of one of its promotional campaigns," the panel said.
I am just a lowly law student but I have to wonder; is this the correct test? The infringement of sovereign power test? And if so, I must ask... Shouldn't we apply it to Executive Power as well? (I think that having to defend a tort law suit while also sitting as president probably counts as interference)
If the application of sovereign immunity is appropriate any time the contemplated action might be an 'infringement of sovereign power', then it's difficult to imagine when we might be able to curtail the wrongful acts of the sovereign. Let's assume, for the purposes of this argument, that the "Happy Cows" campaign would be unlawful if it were offered by corporate cheese producer Cheddars R Us. In this hypothetical PETA would prevail, the advertisement would be enjoined and Cheddars would have to get a new ad campaign.
But the exact same advertisement, although unlawful when produced by Cheddar, would remain "at large", deceiving the public-- not because it was an essential part of the operation of the sovereign but because It's Good To Be The King. The test, as articulated by the panel of the California 1st District Court of Appeal boils down to "If it will bother the King then we will not allow it, no matter whether the King was right or wrong or engaged in important King activities". How, otherwise, does enjoining the unfair ad infringe on sovereign power?
And since when is acting like a private market participant even within the sovereign power?
As a Monday morning quarterback, I wonder if PETA failed to properly frame the issue. The question ought to be whether or not engaging in deceptive advertising is a sovereign power at all.
And in light of this decision I have a promotional suggestion for Pakistan (In conjunction with Nike but we'll use the sovereign state primarily) ~
Soccer Balls come from "Happy Kids" and Happy Kids come from PAKISTAN!
While we're at it, let's hit chocolate & cigarettes as well.