The Case of Banning the Truth in a Public Park | First Amendment, Animal Agriculture & Free Speech

It was Greil, right? I asked him two seconds ago how to pronounce his name. Um, and they're gonna be discussing this First Amendment case that is currently pending before the Fifth Circuit.

And it really, uh, it really gets right to the heart, at least in my mind. It gets right to the heart of, of whether what we do to animals is so horrible we shouldn't ever be allowed to show it to people or tell them about it. I mean, I think that's really what's at, at least for me, that's what's going on here.

It's a fascinating case. Um, just a quick reminder before we get there about the Our Hen House podcasts. Rising Anxieties comes out on Tuesdays, The Hen Report on Thursdays, the long form interview, including this one on Fridays. Bonus for Flock members comes out on Monday. We're a podcast. We're on YouTube.

Please subscribe, please like, please, please, uh, listen. Now let me introduce our guests. Sara Berinhout is an attorney with FIRE, the Foundation for Individual Rights and Expression, and John Greil co-teaches the Law and Religion Clinic at the University of Texas Law School. So we've got the real experts here and he is also a, an active trial level and appellate litigator.

Welcome to you both.

Sara Berinhout: Thanks so much for having us.

John Greil: Really excited to be here.

Mariann Sullivan: I am excited as well. Sara, can you just start, you know, actually a lot of our listeners may be familiar with the work of Faraz Harsini and his organization, Allied Scholars for Animal Protection. He's been on the podcast and I highly recommend that interview with him. But this is a, this was a little different than the work he did there.

So could you just tell people who he is and what he and his companions, who include co-plaintiff Daraius Dubash, were doing on the day in question?

Sara Berinhout: Yeah, absolutely. So, um, as you alluded to, Daraius Dubash and Dr. Faraz Harsini, um, are, you know, pretty well-known animal rights advocates. They are, uh, active volunteers and leaders in this international animal advocacy organization called Anonymous for the Voiceless. And this organization, it, it operates, um, across the country. Um, but one of their kind of primary events is something that they called Cube, called Cubes of Truth. Um, and these involve, you know, a series of Anonymous for the Voiceless volunteers going to public spaces, um, you know, around the country, public parks, public sidewalks, and so forth. And one volunteer will wear, um, what sort of colloquially called a Guy Fawkes mask.

These are the masks you saw on V for Vendetta. They've become kind of international symbol of, of, uh, anonymous protest. Um, and that volunteer will hold a monitor, uh, screen, um, displaying muted documentary footage, uh, showing, you know, actual and widespread industrialized farming practices. Um, and then other volunteers who are, you know, not wearing masks, not holding monitors, will, you know, stand by and, and engage with any kind of interested passersby, answer their questions, explain what it is that they're seeing. Um, and so, you know, they, they engage in these events, like I said, in, you know, public areas around the country, all around Texas. And so between two, uh, 2021 and 2022. Daraius, um, and Faraz were leading these events in Houston's premier public park. It's called Discovery Green. Um, on four separate occasions, they were, uh, asked to leave the park by the park's security, um, sometimes accompanied by local law enforcement. And on that fourth occasion, um, Daraius Dubash, you know, having just spoken with an attorney about their attempts to, to advocate in Discovery Green and being reassured that this is a public park, you have every right to exercise your First Amendment, uh, rights in that park. Um, you know, very respectfully, very courteously, pushed back and, and explained, you know, we have a right to be here and if we are not under arrest, then we intend to remain. Um, Daraius was arrested. He was forced to spend the night in jail, um, and Faraz Harsini was made to leave the park under threat of arrest. and that's where we got involved.

Mariann Sullivan: And John, can you tell us a, a bit, since, since you're covering the religion half of this, we don't often have First Amendment cases that cover the whole, the whole deal, but you're covering the religious part of this argument, so can you, and that specifically refers to Daraius. Can you tell us something about his motivations for participating in this effort and other efforts for animals?

John Greil: Right. So although Dr. Harsini is an atheist, Daraius does what he does because of his Hindu faith. And he practices a Vidant stream of Hinduism that practices living out the principle of ahimsa, which I think is more familiar as nonviolence to western ears. But it's not limited to humans, it extends to animals.

It has for thousands of years. And so he does what he does in order to push non-violence into the world. And under our religious doctrine, actions that are taken for religious motivations are the practice of religious exercise. Um, you know, in the, in the Catholic tradition, which is where I am, there's this line from St. Francis of Assisi who says, uh, "Preach the gospel every day. And if necessary, use words." And the way that Daraius both converts and practices ahimsa, is through Cubes of which he realized were the most effective way to change hearts and minds about the way that animals are treated in industrial practices.

Mariann Sullivan: All right. That sets us up with, with the information about, about these plaintiffs. Sara, can you tell us a little bit more? You mentioned that this is a public park, but that turns out to be a question that is under some debate, extensive debate, um, and, and which the city is very much, uh, hanging on to. So can you tell us a little bit about this park and its somewhat complicated governance?

Sara Berinhout: Yes. So yeah, and, and you're absolutely right. This is where things get a little bit complicated. So there's, and I, and just to kind of clarify, there's, there's no question that Discovery Green is a public park, but because it is operated by a private conservancy, we have this question of whether or not there is state action in this case. Um, so with that clarification, just to back up a little bit, so this, this park was, um, created, you know, almost 20 years ago by the city of Houston. All of its, um, creation documents specify over and over that it is, you know, created with public funds for the purpose of providing a public park for the people of Houston. Um, and, uh, you know, as I mentioned, it's operated by a private conservancy and this conservancy was established for the sole purpose of operating, um, and overseeing this park and the city of Houston, um, directly and also indirectly through a, a, a public, um, park corporation. And I mean, I apologize for bringing in so many parties.

It is part of the, you know, one of the things that makes this case a little bit more complicated, um, but you know, directly and indirectly the city granted the private conservancy exclusive rulemaking authority in Discovery Green. And so this, you know, the speech prohibition that's sort of, you know, at issue in this case. Um, this, this prohibition on displaying muted documentary footage, um, and as the, um, as the defendants describe it, you know, footage showing, um, uh, abuse and violence towards animals, and that's their characterization, which is really quite fascinating. Um, you know, all of this is attributable to the conservancy, but again, that prohibition was enacted and is enforced pursuant to authority that was granted to it by the city. Um, and the city, again, you know, funds the conservancy's operation, so the private security guards that the conservancy used to enforce this prohibition. Um, or, you know, it comes from funding provided by the city. So one of the most important questions that this case raises is whether or not, you know, this private conservancy acting on behalf of the government, um, and not just overseeing a public park, but actually regulating free speech in that park, um, whether or not that is state action.

Because if it's not, which is what, you know, the district court below held, that's a pretty big gaping hole in our, you know, um, constitutional law scheme. Um, it means that, you know, local governments across the country can effectively evade their First Amendment obligations in public spaces simply by delegating rulemaking authority to private third parties.

Mariann Sullivan: Yeah, it really does. Uh, they, they almost act as if there's a simple answer to this, but it, it, it, it's really a crazy idea that they can just keep it as a public park, keep it open to the public, act as if this is the city of Houston. Oh, it is the city of Houston's, part of the city of Houston's gift to the, to the citizens or whatever. and, but, but that they don't have to follow, uh, the Constitution. Um, which of course, and, perhaps we should make clear right now, because I find there's an awful lot of confusion on this. The First Amendment applies to government actors. Correct?

Sara Berinhout: Right,

Mariann Sullivan: People do not know. I'm, I imagine a lot of our listeners know that.

But it's, does it astound you? How many people think that, that we're all bound by the First Amendment? Can you just explain that a little bit? I mean, I've kind of said it, but uh, can you expand on it a little bit?

Sara Berinhout: That's, and that's exactly right. So the, the First Amendment binds government actors, um, not private individuals. And so that, that's why this question matters so much because if this is simply private action, you know, no difference. For instance, from, you know, my inviting people over to my house for dinner and kicking them out because I don't like where the conversation has turned, um, you know, they would not have a viable First Amendment claim against me. Um, and so if that's what this is, if this is private action, then there is no viable constitutional claim whatsoever. Then the, the, you know, the conservancy, their private security guards, they can choose who, who can and cannot speak, um, in Houston's premier public park.

Um, and you know, one of the arguments that was raised by, um, an amicus organization in this case, a friend of the court organization, um. And for anyone not familiar with that term, these are just, you know, organizations or individuals who are not parties to the case, but they write into the court and say, you know, we believe that you should rule one way or another. Um, and we were very lucky, we had a, you know, very, very strong showing of support from various amicus organizations. And one of the arguments, um, that was raised is that, you know, public parks across the country are currently operated, um, and overseen by private conservancies. It's a growing trend in this country. And just a couple examples include the National Mall in DC you know, our country's most important public park, and the notion that their private security guards could exclude speakers, um, because they don't like their speech or find it inappropriate is just, it's ludicrous.

Mariann Sullivan: So has the park been used for protests or things similar to protests in the past? It's Is this an unusual situation or is this, is there a policy that there are no kinds of protests or, or have other groups been, been allowed to protest in the park?

Sara Berinhout: Yeah, it's, it's a great question. So, you know, we, um, uh, we allege in our complaint and, and we cite to quite a few news articles and other public sources establishing that not only is, you know, it a venue for protest activity, it's, it's been the venue for some of Houston's, um, most large scale protest activity, including Black Lives Matter protests, um, anti NRA protests, tea party protests. Um, and you know, these protests have involved signs displaying all kinds of, you know, uh, um, you know, arguably gruesome imagery, things like that. So this is certainly not unique. What, what happened here was just that we had the security guards who, um, felt there was something unique about, about the imagery here.

Mariann Sullivan: Yeah. So that, I mean, that establishes it. It was, it was about this particular type of protest and, and the content really, the quote unquote, the content of it. But now I'm, now I'm deciding the case for you. Um, so my understanding is that on this occasion, they were first approached by security guards. Um, is, is that Right. And can you tell us what they had to say?

Sara Berinhout: Yeah, absolutely. So, um, so Daraius Faraz, you know, this, this fourth incident, as I mentioned, it happened three, three other times within the preceding year, but on this fourth occasion, um, they did, they did... I mean, what they did was exactly right. They were both incredibly courteous and respectful police officers, and they also filmed their interactions. So what you see, um, is, uh, you know, they're, they're engaging in a Cuba of Truth. Um, and you actually see that there are people engaging in political speech right across, um, the, the kind of the walkway from them. Um, and so the private security guards approach first, um, they're familiar with them at that point.

They've had multiple interactions in the past as I described. And, um, you know, rather than simply leaving as they had done in the past, Daraius and Faraz explained, listen, you know, we, we've spoken with an attorney, um, and, uh, you know, we, we've confirmed on the Discovery Green's own official website and through their public, um, uh, property records that this is indeed a public park.

We have every right to be here. Um, and so they kind of engaged with the, with the security guards, uh, more than they had in the past. And again, as you can see in the video footage, they did so incredibly respectfully, incredibly courteously. And then eventually the police officers, um, officers, Douglass and Whitworth, who are defendants in this case, were, were called to the scene and they're the ones who ultimately, um, you know, made, uh, Faraz leave and Arrested Debosh.

Mariann Sullivan: Now I have down in my notes that, that they were told, tell me if this is right, that, that whether certain speech is permissible is determined on a case by case basis and their manager would have to come and look at it. That's Wow. Um, and did that happen? Did the manager come and look at it?

Sara Berinhout: Yeah. So, um, yes and yes. Um, so the, the security guards, you know, explained this is, you know, handled on a case by case basis. It's based on, um, the subjective determinations of our manager. Um, the manager was eventually brought over, um, and explained that, look, you know, the content of of the videos is the problem.

They used the word content about eight different times on video. They also, you know, describe this, this prohibition that they are purporting to enforce in terms of its content, you know, it's subject matter. Um, you know, we're seeing violence and, and cruelty towards animals, and that's not permissible. Um, and then ultimately they, they, the manager, you know, we, we've um, we see that he kind of goes off camera for a while, comes back and relays that he has spoken with the president or now former President of the Conservancy, Mr. Barry Mandel, who's also a defendant in this case, um, who ultimately gives the order that, look this, we don't want them here. If they remain, it's, it's a trespass and gives the final order to the law enforcement officers to arrest Debosh.

John Greil: And the video in this that Daraius and Faraz took, it's very unusual to have a First Amendment case with statements this clear on video. Uh, one of the security guards says, sure, you have first amendment rights, but we decide what they are. And this idea

Mariann Sullivan: Oh my God!

John Greil: That an individual is gonna determine whether speech is acceptable or not on a case by case basis.

There's a specific rule in free speech doctrine about unfettered discretion chills speech, because if people don't know before they go to the park, is today, is he gonna be in a bad mood and I'm gonna get arrested or not? That's gonna chill speech before the fact. So the video that Daraius and Faraz took, I think speaks for itself, but it's really a testament to them as clients that they managed to keep their cool while having to deal with all of this.

Mariann Sullivan: Yeah. No, I, knowing Faraz, I, I'm, I'm not surprised though. Uh, he has, he has a long history of, of really interesting activism and, and I just wanna make clear too, 'cause I think it's important, um, that, and I don't wanna confuse the words videos. I mean, we've been talking about the video that they took, but that they're, there's also the video that they were showing and, um, the video that they were, they were, uh, they were, they weren't told that they had to leave.

Right? It was specifically that they were not allowed to show the video of what happens to animals, um, in factory farms right now, everywhere, in Texas and elsewhere, um, going on right now. That's what they had. And they were told, that's the problem. You, you're allowed to talk. They weren't told that you're not allowed to talk about animal rights or slaughterhouses or anything.

Is that right?

Sara Berinhout: Yeah, that, that's exactly right. So they were told that, look, you can remain in the park, um, you can speak with passersby so long as you are not showing these images. Um, and this, you know, this, this muted documentary footage.

Mariann Sullivan: Yeah, I mean, just as an aside, I have to say that, you know, having been in animal rights for, uh, for, for 30 years, the thing that, the thing that changes people is seeing, seeing it, you know, word words just do not convey to people's consciousness 'cause you know, you're so resistant to understanding what's really going on.

It's when they see it that people really are affected by. Uh, so video is, an hugely, hugely important tool in animal rights.

Sara Berinhout: It is and, it's, it's important. Uh, you know, the Supreme Court has recognized repeatedly that it's, it's not just an expressive medium, it is one of the most important expressive mediums precisely for the reasons you describe. I mean, it, it, it has the potential to change people's hearts and minds in ways that, you know, words in a simple pamphlet just doesn't, um. And that's why we see this utilized in, in so many movements. Um, you know, not just animal rights, but I, I think here it's, it's particularly compelling because, you know, according to Daraius and Faraz and so many animal rights activists, these are things that are deliberately kept hidden from the public. And so, you know, if, if, if what you're trying to do is convince people that this is going on, this is wrong, how better to do it than to show them what's actually happening behind closed doors.

John Greil: On the First Amendment side, one thing that's so concerning is that they wanna show the truth. This isn't their expressive, artistic way of, they think this is the best message. They just directly want to explain to people, okay, you know, you can go to the store and buy your ham, here's what happens behind that.

If that makes you feel uncomfortable, then we can talk about it. So the fact that it's actually the truth of what's happening, that is the most important thing for the government to censor, seems to me to get the First Amendment exactly backwards.

Mariann Sullivan: That is such an excellent point that I haven't. They're, they're allowed to say whatever they want, even if it's lies. But, but, but to, to show the truth is, is impermissible. Um, there was a lot of talk about children, exposing children to this. Um, can you talk a little bit about how that interacts with the First Amendment? Like the children...

I mean, I can understand, uh, a parent being troubled by their kids seeing things. I mean, from what you've said, there are many protests about many disturbing things in this park. Um, but that's certainly understandable. I mean, you wouldn't want young children to see this. I mean, so how does that key into First Amendment jurisprudence?

Sara Berinhout: Yeah, it's, it's, it's a great question and it's, it's certainly a valid concern. Um, you know, I've got a 4-year-old, um, and you know, we, I've been in that position where, you know, you're out in public and they're being exposed to an image, you know, something that you don't think they're ready for. You know, it can be, it can be a really difficult thing to navigate. Um, but to put it very simply, you know, the, the Supreme Court has been clear for decades that we simply do not childproof our public spaces. Um, and there's, you know, there are a number of cases that, that touch on this, um, that describe how, um, you know, public parks and public sidewalks, what we call our traditional public forums, um, are the places where First Amendment protections are at their absolute highest.

And these are the places where the Supreme Court has, you know, described, um, you know, going back to a decision Hague in 1939, that these are the places that have been kept for a time immemorial, um, within the public trust, specifically for, you know, free expression, free communication, free assembly. Um, and so particularly in these places, it's, you know, it's, it's, it's not that it's not a consideration, but it is a significantly, um, you know, smaller consideration than the government would have you believe in this case.

So there, there's, uh, there, there's one case that we use quite a bit, um, Brown v EMA. And this is a Supreme Court decision where the court struck down a California ordinance, um, that was prohibiting violent video games, specifically targeting minors. Um, and the court described how, you know, there is no separate First Amendment analysis for speech that targets minors. Here we're talking about speech that doesn't target minors. You know, if anything, minors are potentially among the audience. Um, and speech that is in a traditional public forum, which, you know, again, is afforded the highest First Amendment protection. Um, another Supreme Court case, Erznoznik, uh, the Supreme Court struck down an ordinance that was banning drive-in movie theaters from showing films containing nudity if the screens were visible from public sidewalks. And again, and, you know, the primary rationale there as well was protection of minors. And the Supreme Court said, you know, we, we simply do not do that. We, we, we don't, we don't allow these kinds of, um, these kinds of speech prohibitions, these kinds of restrictions on free expression in our traditional public forums.

John Greil: And the facts here, Daraius and Faraz, uh, made multiple steps to make sure that this is not targeting children. There's a playground at Discovery Green Park. They intentionally set up so it's not near the playground. They instruct members of the Cube of Truth team to not engage anyone who appears to be under the age of 13.

So Daraius and Faraz are intentionally targeting this speech at adults. And what the city is doing is they're saying, you have to treat every square foot of this park like it's the children's playground, which then manages to suppress all grownup speech everywhere in the park.

Mariann Sullivan: That's really interesting. Um, alright, so the next thing that happens is an arrest. Uh, John, do you wanna tell us about this since it involved only Daraius and I'm curious. I'm not sure I, you know, I'm not sure I picked up from the papers, I'm sure it's in there, but I didn't pick it up, why he was the one who got arrested.

John Greil: They didn't say why, but I think that they were just trying to make a point. Uh, one of the police officers did dangle his handcuffs in Faraz's face to let him know that that would happen to Daraius as well. Um, but Daraius had shown like public records to the officer that this was a public park and he was arrested only because the manager of the park said, this is now criminal trespass.

And the only reason that it was criminal trespass was the content of Daraius's speech. So under the state law of criminal trespass, that is not a valid arrest. It's unclear whether the officers knew that at the time, but they arrested Daraius after he continued to ask, am I free to leave? Am I under arrest?

Had they given him the chance to leave, I think he would have, but it seems also the officers were just trying to make a power point. They handcuffed him, they walked him through the park, they held him in a Discovery Green office room for multiple hours with his, uh, hands handcuffed behind his back. He spent overnight in jail and his criminal defense attorney was able to get the charges dropped, so he was not prosecuted.

But I think that that's a testament to how there was never a case. There was never a moment in time where this was plausibly a criminal trespass. It is a public park, so it is not Discovery Green's property to trespass someone from, and certainly not because of the content of their speech.

Mariann Sullivan: Okay, so, um, since the charges were dropped, the case before us, I mean, people may, may have been thinking that this case is gonna be about them getting arrested, but that's not what it's about. They did, he did get arrested, but then the ca the charges were dropped. And now it is a lawsuit that Daraius and Faraz brought against the City of Houston and other defendants.

And you brought the case in Federal District Court in Texas. Can you tell us what happened there? 'Cause it seems like not a lot happened, not a lot of issues got resolved there. Is that right?

Sara Berinhout: Yeah. So I mean the, not a lot of issues got resolved. The, the district court, the, um, the Southern District of Texas held that, um, that there was no state action in this case. You know, effectively finding that because Discovery Green is operated and overseen by a private conservancy, um, that, you know, the city had sort of washed its hands of its constitutional obligations, that this was exclusively private action and that was sort of the underpinning, um, of the, you know, vast majority of its holdings. Um, and you know, in addition to that, it, it held that the police officers, um, because they believed that Discovery Green was private, um, that they're also absolved from, from liability, that they're entitled to what's called qualified immunity. Um. It's interesting too, I mean, something that, that John was just describing, you know, we, we see on the video footage how Daraius, you know, tells the police officers over and over and over, um, you know, if I, if you tell me that I need to leave, I will leave. Um, and the police officers go out of their way to defer entirely to the private conservancy security guards and say, oh, well, you know, if they say that you can't be here, then you can't be here. Daraius comes back and says, well, I'm not sure that that's a lawful directive. I'd like to hear it from you. If you tell me I need to leave, then I will do so. I don't wanna do anything illegal. Um, but we require our police officers to do far more than that. You know, the, they're not private security guards.

They are not meant to simply defer to whatever the conservancy management says. The law says that they have to undertake an independent probable cause analysis, um, you know, to determine whether or not a crime likely occurred. And they didn't do that here. Um, and you see, you know, on, on the video just how deferential they were to the conservancy staff. As John said, how they repeatedly refused to look at the public records that Daraius presented them with establishing that this is a public park and there could be no probable cause for trespass.

Um, so yeah, that the District Court's decision is incredibly troubling for a lot of reasons.

Mariann Sullivan: So basically like, like if somebody, if this truly was private property, if somebody went into, I don't know, a business office and refused to leave and or was showing something and, and that would be ver then the police would have a right to ask the people who own that piece of PR private property are, are, are they allowed to be here if you told them to leave?

And your point is that, well this, a public park is a very different thing from private property. Correct. And they were, they were acting as if it was a private, a private enclave.

Sara Berinhout: Exactly, and, and, and you know, I mean, as a public park, it's, it's, you know, it's, there's no private ownership here. I mean, it's owned by the people of Houston. It's their taxpayer dollars that go to fund the park. Um, um. So, you know that that's not to say of course, that the police officers may not have believed incorrectly that this was a private park. You know, we, we argue that, um, that seems incredibly unreasonable considering this has been held out as Houston's Premier Public Park for almost two decades. Um, local law enforcement has routinely been involved, um, in facilitating that, you know, protest activity that we described earlier. Um, but you know, if that, they can certainly have that belief.

But the question under the law is whether that belief was reasonable and the district court didn't even ask that question. It simply settled on, they believed it was a private park, and that's enough. And that goes against the law.

John Greil: A public park can have rules, if, if someone is drinking alcohol in a public park that has a rule that says no drinking alcohol, you don't have a right to do that there. And Discovery Green has a list of publicly posted park rules. Daraius and Faraz did not violate any rule. The officers never said that they violated any rule, and the management of the nonprofit operator never said that they violated any rule.

So they can't even point to a rule to say, oh, this is the reason we kicked you out of the park. The only reason is that some individuals thought that showing these true videos of animal footage was inappropriate for public.

Sara Berinhout: In fact they say that on camera that the only problem Discovery Green has is with the content on those video screens. It's incredibly telling.

Mariann Sullivan: Yeah. Yeah. Alright, so you're now in the fifth Circuit. Um, I don't think I asked you to go through your, I mean, you have a lot of causes of action. Can you just kind of summarize them and basically tell us who you're suing and for what? And are they all pursuant to 42 USC 1983 or are there various jurisdictional, uh, bases for, for the various causes of action?

I know this is a rotten question, but can you kind of summarize it for us?

Sara Berinhout: Yeah, absolutely. So, so we have, we have, actually, I just wanna pull this up, make sure I'm not forgetting which, uh, because there are so many defendants in this case, which,

Mariann Sullivan: Yeah, no, that's why I'm asking you to do this.

Sara Berinhout: no, I, I could, that's, let's see. So,

Mariann Sullivan: I mean, you don't have to cover, just cover like the gist of, of you know, the, the, what the lawsuit is about.

Sara Berinhout: Sure, sure. So, I mean, you know. As most basic level, we have the First Amendment violation for prohibiting free speech in a traditional public forum. Um, and so that one is against the city, the city's public park corporation, which I, you know, kind of got into a little bit at the beginning. This is a public, um, uh, corporation that the city created for the express purpose of helping it to develop and oversee Discovery Green.

Um, and that's the organization that directly entered into a contract with the private conservancy, um, and then also against the private conservancy itself. And then we have, um, a First Amendment violation that, um, for prior, an unlawful prior restraint. and we can get into that a little bit too. But the law is, you know, that that's a, that's a separate, um, legal doctrine as well. Um, and then we have, you know, direct and retaliatory First Amendment violation against Officers Douglas and Whitworth. Um, and then the former President of the Conservancy, Mr. Mandel. then we have first amendment violation, restricting free exercise of religion, um, which John has described. And then we have Fourth Amendment violation for false arrest and unconstitutional seizure.

Um, and that's brought by Dubash, um, against the officers. Um, and then we have two state law claims, unlawful private delegation and a violation of the Texas Religious Freedom Restoration Act.

So quite a few causes of action. Lots of defendants.

Mariann Sullivan: And they're not just, you know, sometimes there's many causes of action, but they all boil down to the same thing. These really don't, I mean, you have a lot of different directions in which this lawsuit is reaching as to why a lot of different people did, did the wrong thing. But, uh, obviously there are huge speech concerns here and there are religious concerns.

But, uh, to be, to be transparent, John's time is limited here. So let's start with religion. Um, so we're sure we get through it before he has to leave. Um, so this claim is based in the free exercise clause. Correct? And can you just remind everybody what the free exercise clause is?

John Greil: Yes, sure. The government shall not prohibit the free exercise of religion, and that applies to state and local government actors through the 14th Amendment. We also have a Texas Religious Freedom Act claim, which is under the Texas constitution, but it's similar for protecting the free exercise of religion.

That one doesn't have like a qualified immunity issue, so it's a little bit different. Um, but the idea is that if the government burdens someone's religious exercise, then they need to have a really good reason and they need to have tried alternatives. So for your kind of con law outline, if you show that you have a sincere religious belief, which Daraius does, spreading the Vedantic Hindu teaching of ahimsa, and then the government burdens religion... here, the burden is arresting someone for preaching their faith or threatening to arrest them in the future, then you need a compelling government interest, which is similar to the free speech doctrine.

So here the government has said basically, we don't want people to see images that we think are inappropriate. Um, I don't think that that's going to be a compelling government interest for many reasons. Uh, one of my favorite reasons is that the park hosts a barbecue festival, and so I find it very implausible to believe that it's inappropriate to show pigs being slaughtered, but it's appropriate to show like pigs on a spit.

Mariann Sullivan: I love. I love that. That is, that was well put.

John Greil: And then the government needs to show that completely banning this form of protest is the least restrictive means of achieving that compelling interest. And they have never adopted any possible alternatives besides completely banning this speech. So we don't think that they've even attempted the strict scrutiny framework.

Um, and so, you know, that's, and, and one other part of the ways to think about all of the different claims we have is we have past claims for the injuries our clients suffered in the past, as well as injunctive relief to prevent that from happening in the future. And so we do have a Texas Religious Freedom Act claim for what they did to Daraius in burdening his religious exercise in the past, as well as an injunctive claim to allow him, um, to go forward.

And this would not, I mean, the injunction itself would literally just apply to Daraius but I think that principle would allow Jehovah's Witnesses who currently set up on the sidewalks outside of the park to distribute their leaflets in the park. Um, and many other preachers as yeah, would gain that freedom with a good court order here.

Mariann Sullivan: Yeah. And I seem to remember at some point they suggested that, that these folks should go outside, should go on the sidewalk outside the park, um, to, to show their video if they wanted to, which really like, like there are no children outside the park? We're really trying to protect children here?

John Greil: Right, and they actually said what they, what they really meant was actually the, the sidewalk on the other side of the street. That they think Discovery Green owns the sidewalks, which are also a traditional public forum, um, as well as they say that you can do it nowhere in the park. One thing that I think is, is really cool about this case is that it represents a religious belief that's unfamiliar to many, but also a form of religious exercise that I think is very American.

So we had some excellent amicus briefs, um, which Sara mentioned, one by the American Hindu Coalition and another by the Hindu American Foundation. And they laid out this teaching of ahimsa and non-violence and the Hindu practice of how they structure their diets. That can seem not like a religious belief to someone who's just used to kind of Protestant or Catholic Christianity. So we had great support to kind of lay out, here's the scripture that explains where that comes from. It is the case that most Hindu, but not all, traditions have a dietary aspect to their exercise of faith. Um, and we got a really cool brief from the uh, Yale Free Exercise Clinic tracing the history of public preaching, where in colonial times and in the early 19th century, there were preachers who no institutional church would let them preach inside their church walls 'cause they were too radical or they were dissenters.

And so they would travel America going to public parks where they would

express their

Mariann Sullivan: There you go.

John Greil: sermons because they weren't allowed to do it elsewhere. Um,

Mariann Sullivan: Yeah.

John Greil: I, I think when people hear about this case, they often hear like, I don't really understand the religion component, but I think that it's actually a, a great way to show like all people how minority faiths are protected by these traditions that might not have included them at the founding.

Mariann Sullivan: I think that if I, I, looking at their briefs, I think they're primarily relying on the fact that they didn't know about this, uh, that Daraius had not told them. Can you address that? Because that doesn't seem like a bad argument to me at like off the cuff.

John Greil: Well,

Mariann Sullivan: Can you address that?

John Greil: I would say it would be a better argument if it had any precedential support anywhere. Um, and, and it does not because the fact is the way that most minority religions are burdened in America is that some rule is passed and no one even knows or is aware of the minority faith. So you can think about like peyote or ayahuasca, which some Indigenous faiths need.

Um, you know, the kind of criminologists are probably just focused about illegal uses. They aren't thinking about how there's a small number of individuals who have a religious use for those drugs.

Um, and here to the injunction going forward, it's not even true that they didn't know about the religious component because the Texas Religious Freedom Act actually has a requirement that you give written notice to the defendants before you sue them. And there's a good reason for that because you should be able to work out an accommodation. It's intended to get the government and people of faith to work together outside of litigation to solve their problems, but they didn't come back with any accommodations.

Um, so they certainly knew about the religious faith when we filed the lawsuit, and there are no cases that say that that's a part of the free exercise clause.

Mariann Sullivan: I have one other question that I love that I I, and that's always scary when an interviewer asks you the question that they love. But, um, I don't know whether there's any really binding caseload, but I know it's been argued in courts, in, in, in the US and certainly in the UK, only into the UK it's under statutes, not under the Constitution, which they don't have.

Um, but that ve animal rights veganism may in some circumstances qualify as the kind of philosophical belief that is so, sufficiently akin to a religion that is so strongly held and guides people's everyday actions and, um, that it is protected by the religion clause. I mean, this is not established law.

But there's some jurisprudence. Did you consider making this type of argument? Do you like this type of argument?

John Greil: So that's interesting, I haven't...

Mariann Sullivan: Do you wanna get into an argument about this?

John Greil: Well, I haven't been asked that before. And, you know, um, the United Kingdom and a lot of international human rights law, will talk about freedom of religion or belief.

Mariann Sullivan: Yeah, yeah. And there's some, there's some us, US law as well.

John Greil: In America, our, we have the, um, you know, free exercise of religion and we have the Religious Freedom Restoration Act in Texas. And there are kind of the draft cases and some cases about swearing religious oaths where atheism or non-belief is included as a religion. Um, here, you know, we talked with the clients, uh, Faraz and Daraius before the suit, and Faraz doesn't see his motivation as something akin to a religious belief.

It, for him, it's, it's interesting our two clients, um, 'cause for Faraz, he's very driven by the science behind it, his research and what he believes are the scientific studies, um, related to that. So I don't think he would want to express his view that way because that's not what motivates him.

Mariann Sullivan: Yeah. And I, I mean, I, can see that, I mean, I would certainly, if you ever wanna bring this case, John, give me a call because, uh, I, I really love this argument because I feel very strongly that that, I mean, you know, for animal rights activists, like a really serious, I mean, it's your life, it's just, it's just what you run your life on.

And, um, very, and talk about minority religions, it's, uh, it's definitely, it's definitely not wildly accepted. So, uh, I, I also think it might've muddied this case a bit, you know, brought you into a, you have a lot going on in this case already, and that would've taken you into this whole other unexplored, uh, area.

Um, okay. Well, unless there's something I, I, I wanted to talk about religion first because you'll have to leave us. But if, is there anything you wanna add before we turn to speech?

John Greil: I'd just like to, one, one case that I like to point out on the, that I think would be of interest to this podcast's listeners was that pork producers case with a dormant commerce clause from about four or five years ago.

Mariann Sullivan: Yeah. Yeah, we, we know it well.

John Greil: Carter Snead was a professor at Notre Dame, wrote a fascinating amicus brief, um, that I really commend to anyone interested in, in this issue that goes deeply into both the moral, philosophical and theological approaches to treating animals with dignity.

Um, that I think really gets to, it gets digs into the theology of different religions.

and anyone interested. I think that it does a great job of kind of being comprehensive on that issue.

Mariann Sullivan: Oh, I'm so glad you told me about that. I'm fascinated in all those issues and I was unaware of that. Um, I assume it can be found on the Supreme Court's website?

John Greil: Yeah.

Mariann Sullivan: But Yeah. that, that's great. All right. Um, alright. Speech. Um, first of all was, is showing a silent video where nobody's talking? I, I, I did listen to the oral argument and I see, saw you got rather battered on this.

Que on this question. Um, um, is showing a silent video speech? They're not talking. Did you get that there? Nobody was talking or is it speech?

Sara Berinhout: Um, un undoubtedly it's speech. Um, there, you know. The First Amendment protects musical composition. It protects, uh, artwork, um, you know, a cut according to the Supreme Court's decision in Hurley it, it protects participating in a St. Patty's Day parade. According to Brown v EMA, um, the case I, you know, we discussed earlier, it protects violent video games. Um, so the notion that it doesn't protect, you know, documentary footage, which, you know, as John described so well, I mean, just showing the truth, showing, showing what's actually occurring simply because there's no audio, um, it, it's not just unfounded, it, it's, you know, it kind of goes against common sense.

It really is quite absurd.

Mariann Sullivan: Yeah. they, and I think they contended that, that it couldn't be speech because it didn't, so to speak, speak for itself. It needed explanation. It doesn't need any explanation. I mean, that's the whole problem with it. Their problem with it, I think they specifically said that it gratuitously depicts cruelty and violence.

Well, apparently it got its message across. I mean, that was the message it was trying to convey with, and I love that quote that you mentioned at the beginning of the interview, John, um, about the gospel and, uh, conveying it. And, and if you absolutely have to. You can talk about it, something like that. I'm, I'm woefully paraphrasing.

Alright. Say they also are, I mean obviously their arguments don't end there. That that it, I mean obviously, well, maybe not obviously, but most people probably are aware that under the First Amendment, even if it's speech, it doesn't mean that everybody can just talk all the time wherever they want. That you can have time, place, and manner restrictions.

It's not like a, a free for all that, that, that there can't be any restrictions. Um, and that's what they imply was going or the state was going on here. And your contending I think that it was, no, it wasn't, it clearly wasn't time or place. I guess they're saying it was a matter restriction.

Um, no video. And, and you're saying it's a content or even a viewpoint restriction. So can you kind of explain what the difference is between those things and why you believe, along with all of the police officers, that this was about the content?

Sara Berinhout: Yeah, absolutely. And it's, um, mean it's a great thing to discuss 'cause some of this isn't entirely intuitive. Some of it very much is, but, but not all of it. So, um, so at the highest level there is viewpoint discrimination, um, which is impermissible everywhere. The government is not permitted to engage in viewpoint discrimination, um, you know, no matter the circumstances, um, you know, particularly when we're talking about traditional public forum, where First Amendment rights are at their highest. You could say that if they engage in it there, it's particularly bad, but they can't do it anywhere. Um, and so, you know, we, we don't want the government putting their thumb on the scales effectively and saying, okay, well, we like this viewpoint.

We don't like this viewpoint. Um, and what this includes, and this is the part that I think is probably less intuitive to some people, is, um, the Supreme Court has been very clear that giving offense is a viewpoint. Um, and so if the government is silencing speech, um, which, you know, as we described, doesn't have to be words.

Um, it can be images, ideas, um, you know, any kind of expression because it finds it offensive or, or inappropriate, that is impermissible viewpoint discrimination. There has to be another rationale behind it. Um, and so here, what you see in the, in the videos, um, is them explaining repeatedly that the sole reason why they're doing this, um, why they're shutting down, uh, Debosh and Faraz's speech is because they find it offensive and they're concerned that other people will find it offensive.

That's classic viewpoint discrimination. And again, we've got, you know, ample Supreme Court law and Fifth Circuit precedent that, that supports that. And then, um, you know, aside from viewpoint based discrimination, as we've already described, this is a content based prohibition as well. So the Supreme Court has said that, you know, the paradigmatic example of content based discrimination is when, um, it targets particular subject matter or a particular topic for disparate treatment, regardless of whether it takes any, um, any stance on, uh, on that subject matter.

You know, any, any stance on viewpoint. So something that the defendants argue at length is that, well, this can't be content based because we're not taking a position on, uh, on the content. And that's, just not what content based discrimination is. What they're doing is they're targeting images, um, that in their, you know, characterization depict cruelty and violence towards animals. That's classic content based, um, discrimination. so where you have, uh, content based discrimination, you have to satisfy strict scrutiny. Um, what they're arguing is that this is not viewpoint based. It's not content based. This is simply a time place manner restriction. But the time, place, manner restriction presupposes content neutrality, and they're, they're, they're, you know, they're brief, um, it's something you see a lot in these cases, where they sort of breeze past, you know, the, the, the fact that this prohibition is content based on its face say oh no, no, we're simply trying to limit, you know, the manner, the location, the time, the place, the manner, you know, those, those sorts of things.

But again, time, place and manner presupposes content neutrality. So where it's content based, you're not going to, you're not going to apply the same kind of lower, um, threshold as you would in a content neutral time, place, manner restriction.

John Greil: It's interesting because they've never actually, the time that we're allowed to do this is never, and the place that our clients are allowed to do this is nowhere within Discovery Green. And as to the manner, uh, they've never, they don't have a rule that says no videos, that that's not a rule that's in the park.

And one of the doctrines of First Amendment is that the grounds that the government gives at the time is what they have to stick by in court, because otherwise it encourages bad faith and bad actors. So they didn't give a time, manner, place restriction at the time of the arrest. So they aren't allowed to create a new one now.

Sara Berinhout: And, and just to, to clarify one thing, if, if they were to say, you know, going forward we are not going to permit video footage, um, to be displayed in the park, you know, that would be content neutral. Um, and then it would be subject to a different analysis.

Mariann Sullivan: Right. That's a whole other case.

Sara Berinhout: Exactly.

Mariann Sullivan: Not necessarily okay, but that's not what we're talking about here.

Sara Berinhout: Exactly.

The question of whether or not that, that that's going to be acceptable.

But, you know, we'd have to answer that separately. But it is, it is a different analysis. It's a lower bar. But here, at no point do they say, oh, well we don't permit video footage, as John said. I mean, the issue, as they described it over and over and over, was that they found the content offensive.

Mariann Sullivan: So, they, they said, uh, in their brief, I think that this would allow people to show videos of tortured children in a playground. How do you, how do you uh, respond to that?

Sara Berinhout: So, you know, again, if, if, if they had, they had a speech prohibition in place that says, we do not permit video footage of children being tortured, that is a content-based restriction. And so it would need to satisfy strict scrutiny, which, you know, law students listening, former attorneys are gonna know, you know, you've got to show that there's a compelling government interest that's narrowly tailored and it's a very high bar. Um, but, you know, for all we know, something like that would pass strict scrutiny.

You know, certainly if, if there are lots of playgrounds around, I mean, it's, uh, you know, it, it certainly could pass strict scrutiny. Um, but if, if the prohibition were broader and simply said, you know, we're not going to permit any kind of video footage. We're not going to per, or, you know, let's say we're, we're not going to permit any expressive activity, um, you know, within a certain radius around playgrounds, things like that. Those are content neutral.

And so they're subject to a lower bar. So, again, and, and you know, John, John made this great point earlier that, you know, no one would suggest that the government is not able to regulate expression, um, in traditional public forums. They're able to, but we do have these frameworks in place for good reason.

John Greil: I would also note that this is something Sara made a great point during our oral argument. We don't call this torture in our briefs and Daraius and Faraz don't call this torture. They don't call it animal cruelty. They just say, this is what happens to these animals. It's only the defendant that's calling it torture to animals.

So it's interesting that they give it that kind of moral valence. And when it comes to images of, you know, like dead children, I mean, perhaps the most iconic image of the Vietnam War was a, a naked child being napalmed. And some of the most powerful images of the war in Gaza are images of dead children.

So the idea that the government, on a purely political topic, could censor those powerful images, I'm also dubious of that. At the playground, I can concede, but in an entire park?

It's those powerful images that move the heart.

Mariann Sullivan: I I, it absolutely. I mean, and as I said before in animal rights, I think that's, that's more true than, than... people know they care about children, but sometimes people don't even know they care about chickens until they see a chicken being tortured and then they realize, oh my God, this is wrong. Um, and until then it was a joke, and then all of a sudden it's not a joke.

John Greil: Yeah, I would note that one area that there's not precedent on this binding in the Fifth Circuit, but it's probably a very similar issue, is that a lot of anti-abortion protestors show images and photos of aborted fetuses for the same justification.

Mariann Sullivan: Exactly. Yeah.

John Greil: Those cases have shown up in other circuits, I think every other circuit has said you cannot ban those images just because they disturb people.

Mariann Sullivan: So, uh, I think that you also mentioned, which I think is a, that, that these actions constitute a prior restraint. I mean, we're, we're running outta time, but can you briefly explain that? 'Cause that seems like, uh, a particularly important point. 'Cause that's a really, really powerful pair of words in First Amendment jurisprudence, right?

Prior restraint.

Sara Berinhout: Yeah, so you're, you're absolutely right. The prior restraints, these are, you know, considered to be the most, um, you know, insidious type of, of speech prohibition. And, and these are, you know, as the name suggests, these are, um, prohibitions that kind of go in place in advance, um, you know, ahead of when the speech, the expression is to occur. Um, and here we have one that, you know, it's particularly problematic for at least two reasons. One, it's taking place in a traditional public forum. Um, and two, it's it's subject to the, you know, unbridled discretion of the conservancy president and conservancy staff. Um, so, you know, we, we spoke earlier about how, um, you know, John and, and his clinic drafted the letter to the conservancy and the city and the Park Corporation, um, pursuant to, to, um, to Texas Religious and Freedom Act. Um, kind of laying out all of the bases, um, for our claims in this case. Um, you know, setting forth the religious motivation, but not just that, you know, all of the, the free speech claims as well. Um, the conservancy came back and said, you know, our, our position has not changed. Um, they're not going to be permitted to, uh, to show this, you know, um, muted documentary footage. Um, and so, you know, our argument is that that operates as a prior restraint. Um, it's been in place, uh, since then, since the letter was sent in May, 2023. Um, and it's, you know, particularly problematic for the reasons that I, that I described.

Mariann Sullivan: Yeah, I think that's a powerful argument. Can, can we just take a, i, I just wanna take a moment to consider how absurd the fact is. Sorry to, to, uh, give speeches in the middle of your interview, but these videos, but it just strikes me so strongly with this case, which depict conduct that is obviously committed legal... I like to say purportedly legal 'cause I think there are a few arguments they can't get into court, but there are a few arguments as to why these should be considered against the law.

But it's, it happens all over, all the time, without stopping, everybody participates in it to this extent of buying its products. It's, it's considered so terrible that it would harm children and perhaps adults as well, just to see it. I think this case is so powerful that for that reason, and I just wanna make o one other, um, one other editorial comment before John leaves.

I interviewed an activist a year or two ago, um, in Uganda, an animal rights activist in Uganda. And he started, he's now doing different kinds of work, but he started really, I think as a teenager, very passionate about animals, gathering his friends together and doing Cubes of Truth in a, in a shopping area in Kampala.

And they all got arrested. I thought at the time, oh, that's terrible. Wow. Uganda must have just terrible laws and here it's happening in Houston. Uh, you know, it just really, really strikes me how, how we shouldn't take casually the enforcement of these laws and how important it is and allowing people to speak their mind.

As I said, he went on to do very different kinds of, um, there was no, he didn't have, uh, lawyers like you in Uganda fighting his case, and, um, he might not have had the law on his side either. Um, so he's doing other types of activism. Dash Meisler is his name. Um, but such a similar case, uh, really such a similar case.

Um, all right. And, and are there any other additional claims that we should cover? I think we've covered the gist of it, but there are damages claims and, and is there anything else that you would like to go into before we leave the as to, um, explaining?

John Greil: I do have to run, but I'll let Sara wrap up. I did wanna make sure that we mentioned that the video is Dominion. I know Daraius and Faraz encourage folks to watch it. It is available for free online. You know, the government won't let you see it in Discovery Green, but you are still free to view it.

Mariann Sullivan: Dominion has, has had a powerful effect on great many people. Yeah, I didn't actually know it was footage from Dominion that they were showing. So thank you for adding that. And thank you for joining us today, John.

And if you can just stay on a few more, um, minutes, Sara, and, and tie up a few of these. Uh, 'cause there were a few other claims that we talked about, um, the causes of action against the individual police officers.

Um, is that unusual to, to bring actions against the individual police officers? Did you think their behavior here was particularly egregious?

Sara Berinhout: So I, it depends on the type of case. I, I it, you know, unfortunately it's not that unusual in First Amendment law cases. Um, you know, there is this sort of, this overlap that you frequently see between the First Amendment, um, you know, free speech, free religion, and the Fourth Amendment, you know, police officers tasked with enforcing these laws, um, and doing so, uh, in a way that, you know, we argue is unconstitutional.

Um, so, but I mean, to answer the second part of your question, I, I do find what Officers Douglas and Whitworth did here particularly egregious. Not, not in the, you know, um, use of undue force that you see in a lot of these cases.

Mariann Sullivan: It's different. than the usual egregious police case. Yeah.

Sara Berinhout: It is exactly. And I, I think that unfortunately works or dis, I don't wanna say it's unfortunate there was no use of undue force in this case.

Right. But, but you know, from a legal perspective, because most cases, um, involving police officers, you know, where qualified immunity is raised, you are dealing with something like that. Um, I think people can look at this case and potentially miss what was so egregious about their conduct here. Because, you know, and this comes up, um, this comes up in at least two ways in this case.

One is, you know, whether there was probable cause for the arrest, which, you know, basically comes down to whether or not there was sufficient likelihood. uh, that a crime had occurred. You know, would the objective police officer believe that a crime had likely occurred? Um, and the question of qualified immunity, um, whether or not the police officers violated a constitutional right and whether or not that constitutional right was clearly established at the time.

And both of these inquiries are objective. You know, the question is what an objectively reasonable police officer in that position with the available information would've done. Um, and for both the district court applied what is very clearly a subjective determination. I'm sure this will all be very familiar to people who have, who have, you know, been through law school.

Um, but the district court asked, you know, what, what did the police officers believe? Not whether or not that belief was reasonable. And so here, you know, we're talking about a park that, again, it's the city's premier public park. I mean, we, we expect our police officers to have some basic information, some basic knowledge of the communities that they're tasked with policing.

Um, so I think the idea that, you know, they, they believe that this was a public park seems, you know, unreasonable to begin with. But what really sets this case apart is that, you know, Daraius and Faraz presented them with undisputed public records, establishing that the park is public and they refused to look at them.

Um, you know, they refused to look at them over and over and over again. Um, and, you know, they had ample time to do so. They had ample time to make a phone call, confirm whether or not the park was public or private. They had ample time to check the park's official website, which makes very clear that it's a public park and that the First Amendment would apply.

They didn't do any of those things. And the law is very clear that police officers are not permitted to disregard facts, tending to dissipate probable cause. Um, you know, they, they should speak to witnesses. They should look at the totality of the circumstances, but they're not permitted to pick and choose.

Um, and that's exactly what they did here. The law also says that where facts on the ground raise a question as to whether or not probable cause exists. A reasonable police officer is required to undergo some amount of investigation. And of course, you know, what degree of investigation is required is going to depend on the circumstances.

If this is a very, you know, tense situation where they're, you know, high stakes and they've gotta make very, very quick decisions for their safety, for other people's safety, it's gonna be less of an investigation. But that's not the situation here. I mean,

Mariann Sullivan: Not even remotely,

Sara Berinhout: not even remotely, I mean a

Mariann Sullivan: It was even unclear why, why they would bother invest arresting him at all. Uh,

Sara Berinhout: It, really isn't.

And again, you know, we see on the footage, Daraius saying repeatedly, if you tell us that we don't have a right to be here and need to leave, we're gone. We'll go. I mean, they could not have been more respectful, they could not have been more courteous. But what these police officers did was essentially act like they were private security guards.

And we, we have to expect more of our police officers.

Mariann Sullivan: Yeah. The other argument that under this, the same area that they're making on appeal is that he wasn't even under arrest by these officers, so they're not liable for arresting him. Is that what they're? That is the, like he was in handcuffs, uh. And it, I mean, I've seen this argument made so many times 'cause I used to work in a court where I heard a lot of criminal... and you know, they will make it, but it's the weakest argument that you're not into under arrest until under police records you're listed as an arresting officer. And anybody can be an arresting officer and they weren't listed it. Nobody wins that argument.

Like it's, a, it's an act of total desperation and they're, they're relying on that. Yeah.

Sara Berinhout: It is, it's, it's absolutely absurd. And again, I mean, there are, you know, judges are humans. You know, you'll, you'll see problematic opinions. Every attorney in this country knows that to be the case. The district court's opinion was really, really very troubling.

Mariann Sullivan: it? Yeah.

Sara Berinhout: And this is, this is another reason why the district court found that officers Douglas and Warworth were not the arresting officers.

And, um, you know, the judge concluded that based solely on contested hearsay in the arrest report, which listed somebody else as the arresting officer. But again, the fifth circuit, just like every other circuit court has made it very clear arrest occurs, um, such that probable cause is required when the objectively reasonable person, um, in the arrestee's position would believe themselves to be under arrest.

Mariann Sullivan: Yeah.

Sara Berinhout: There are ample cases that find that that has occurred with, I mean, far less severe circumstances. You know, they've been handcuffed, um, for 30 minutes. Um, you know, here we have them telling Dubash repeatedly, you are under arrest. Not you will be arrested if you don't comply, but you are currently under arrest.

Handcuffing him, holding him for multiple hours all before this other officer, um, who's listed in the arrest report even shows up.

Mariann Sullivan: Yeah, it was, uh, that was a real low point I, thought. Um,

Sara Berinhout: I completely agree

Mariann Sullivan: Among many.

So how did you feel that the, how did, how did you feel that the argument went?

Sara Berinhout: You know, it's always hard to tell,

Mariann Sullivan: It's always hard to tell,

Sara Berinhout: Always hard to tell. Um, and I could be eating my words when we get the decision, hopefully in a couple of months. But I, I feel very cautiously optimistic actually. I think, I was very pleased with the panel that we, that we got. Um, I, I think, you know, these are three judges who will understand what's at stake in a case like this and, and take very seriously the First Amendment issues, um, you know, on the table.

Um, and, you know, just based on their, their questions, I, I, I think they... I was a little worried with where Judge Haynes was taking things in the beginning, but I, I,

Mariann Sullivan: Yeah. Yeah.

Sara Berinhout: I was quite pleased and I, I don't think it gets much better than having Judge Ho call the other side's argument gibberish. Um, so,

Mariann Sullivan: It's, it's always a good moment in an argument.

Sara Berinhout: It, it was, I I, I mean it took every ounce of self-restraint to control my facial expression when he said that, but yeah. So cautiously optimistic.

Mariann Sullivan: And, uh, is there anything I should have asked you that I haven't? And if not, I, I wanna hear a little bit more about FIRE and then I'll finally let you go.

Sara Berinhout: No, I, I, I, I don't think so. I think we've, we've covered it all, but this is, this is a really, really fascinating case. I, I certainly encourage people to take a look.

Mariann Sullivan: Yeah. I love this case.

Sara Berinhout: It, it, it's just absolutely so interesting and there's something, there's something for everyone. There really is.

Mariann Sullivan: Yeah. But especially from an animal rights perspective, it really gets to the very fundamental issue.

Sara Berinhout: It, it absolutely does. I mean, there is just so much irony to the government's position here,

Mariann Sullivan: Yeah,

Sara Berinhout: That I mean that this is, this is, this is torture. I mean, those are their words. This is

Mariann Sullivan: yeah,

Sara Berinhout: is violence towards animals. I mean, unfortunately these are practices that, I mean also according to the government, are not covered under animal cruelty laws.

I mean, it's just completely ridiculous.

Mariann Sullivan: Um, alright, so tell me about FIRE.

Sara Berinhout: So FIRE, um, which stands for Foundation for Individual Rights and Expression is a public interest organization that, um, uh, advocates for freedom of speech, freedom of expression. We represent, um, only individual clients, but you know, across the country. Um, they used to focus on, uh, free speech rights on college campuses, um, but, you know, last couple of years they've expanded.

Um, we are incredibly busy, um, getting busier. It's, it's one of those things where, you know, you, it's almost sad when business is booming, right? Um,

Mariann Sullivan: Yeah.

Sara Berinhout: But uh, yeah, we, we've been incredibly busy. It's an incredible, incredible organization. Um, wonderful place to work.

So I'm, I'm very proud to be a part of it.

Mariann Sullivan: Well, I mean it, it's sad that you're so busy, but maybe one of the reasons you're so busy is you're doing work that would, the problems would still exist, they just wouldn't be being addressed because people would be unable to find counsel. And, and I think this is an incredibly important time for people to, to be protecting their speech.

And it is always important for animal rights activists who, you know, are sort of the, sometimes the redheaded stepchild of, of advocacy movements that aren't taken very seriously. And I, I really, really love how seriously you've taken this case and, and how you've explained it to us all today. Thanks so much for joining us, Sara.

Sara Berinhout: Oh, absolutely. And thank you so much for the work that you do. It is so incredibly important.

Mariann Sullivan: Oh, thank you.

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