A Case of Significant Evil: Animal Law, Activism, and Constitutional Rights

I'm not sure they've been on together before, but they've both been on before. But we're gonna be talking at long last about Wayne's conviction in Sonoma County, California in an open rescue case, well sort of an open rescue case, but more than that, and all of the issues on appeal. And I'll tell you, there are some issues on appeal.

Um, just a quick reminder before we get into that, about the Our Hen House podcasts, Rising Anxieties comes out on Tuesdays, The Hen Report on Thursdays, and the long form interview, including this one, on Fridays. Bonus for Flock members comes out on Mondays and we a podcast and we're on YouTube. Please subscribe and hit like wherever you can.

And, uh, I'll just do a brief introduction, though I imagine both of these gentlemen are known to a lot of you. Wayne Hsiung is of course an animal rescuer, theorist, lawyer, co-founder of Direct Action Everywhere, blogger at the Simple Heart on Substack, and I believe if everything has worked out, a seminarian or a soon to be renewing being a seminarian, which the New Yorker just wrote an article about today, which I just saw.

Uh, so that's something not everybody goes to seminary and has the New Yorker write an article about them. Um, Steffen Seitz is a litigation fellow at the Animal Activist Legal Defense Project at the University of Denver, where he represents animal advocates and whistleblowers in criminal and civil proceedings.

And I have to say, since they founded that clinic, the whole world of activist defense in this movment has completely changed. Like it exists. It used to be when activists would do something that they might get arrested for, they were just out there, they had to hope somebody would step up.

Now, now that hope is often fulfilled. He has also, of course, been part of the defense team for Wayne's conviction in Sonoma County, which is what we're gonna be talking about today.

Before we start, I just wanted to say that I have been trying in all of the podcasts to highlight the importance of the issues we cover in providing context for what's happening in the, in the United States right now. It's not hard to do that. Uh, but I think it's so important that we don't allow people to think that animal rights is this other issue, that we'll just wait until we fix all the human issues. That's not how this fits together. I, I just think that nothing we have covered so far highlights that as much as this particular case and this interview, and, and we don't have a lot of time to talk about that. But I, I really want everyone to, um, read, I guess the article in the New Yorker, which might touch on these issues, but also Wayne's blog post, I think of just today or yesterday, which really touches on these issues of how these are not separate things. These are the same thing, and it's just us who's saying that. So it's really important.

All right, but now we have to talk about law, um, and get into specifics, which is what we do here. Uh, Wayne, let's start with you. You know, to tell you the truth, until I sat down to do this, I knew there were these convictions in, in, in Sonoma County, and I even wrote a little about them in that law of your article I wrote, but I never really understood what was going on. It was also confusing.

So can you just try to tell us the seminal facts regarding these two days in question, both the overall protests that were going on and your particular role in each? Let's start with Sunrise, which I think was the first one.

Wayne Hsiung: I think you weren't the only one who was confused. I think everyone was confused, partly because what happened in Sonoma County in California after Prop Two and pro Prop 12 went into effect was such a mess. But really the story begins in 2008 because in 2008, Californians voted overwhelmingly, more Californians supported this proposition to ban battery cages in any ballot initiative in California history, I think it was like 64% of the public said, let's get these hens out of cages. It went into effect, in January 1st, 2015, and lo and behold, what do we find when we start walking into these factory farms?

The battery cages are still there. And remember the, maybe the most prominent example of this was Sunrise Farms because the owner of Sunrise, Arnie Riebli, was one of the people being lionized for adopting the practices of Prop Two. He had been covered in the New York Times. There had been a headline in the New York Times talking about how California hens are now living a good life.

And I thought it was highly relevant that this significant figure in the egg industry was still confining hens in battery cages. And for the record, there's just no dispute about this. The footage we have from 2016, 2017 shows demonstrably, battery cages, hundreds of thousands of hens.

So we thought, you know, let's bring this to government and see what they will do about it. And for years they basically completely ignored us. Uh, we'd send complaint after complaint. We would explain with expert testimony, expert declarations that these clearly are battery cages. They're clearly violating Prop Two. They'd even bother to respond. In fact, there was a game of hot potato going on between the Attorney General's office, the California Department of Food and Ag, and local prosecutors.

All of them were saying, oh, it's not my responsibility to go to the Department of Agriculture. It's not my responsibility to go to a local prosecutor. And no one was willing to even kind of have a collective conversation to figure out whose responsibility it actually was. And so this goes on for basically three years and after years of not just seeing these violations of California's Prop Two, but just egregious animal cruelty.

Um, so one of the most horrific instances, we found a hen who was collapsed on the ground of a battery cage. Her feet were all kind of basically distorted and grotesquely, um, kind of broken to the point that she was not able to stand and all the other hens were just trampling on her. And there were just countless stories like this unfolding at Sunrise Farms and other egg farms in California.

And we thought, we've gotta do something about this if the government's not. So in 2018, after we had already organized, at that point, I think multiple mass open rescues, actions were large numbers of people, hundreds of people just peacefully, nonviolently, often with flowers and peace signs. After calling the authorities ourselves saying, you gotta come help these animals, if you don't, we will, we just go in and start helping them.

And Sunrise was sort of the epitome of this movement. And 2018, we had 500 people walk onto Sunrise. It was particularly notable because Sunrise was, was not just a facility lauded by the New York Times, but it was also a certified humane Whole Foods facility at a time where the natural foods movement was just really blowing up.

Everyone thought humane, cage free, organic, this is the next wave of food. And it got enormous amount of attention. Um, Vice, The Intercept, every publication locally covered this extensively and, and I honestly thought the legal case was stronger than any case we've ever brought. Um, not just because of necessity, but because of the extensive documentation of animal cruelty evidence, the efforts that were made even by people inside the government to try and get some of these laws enforced. There was a government veterinarian who, um, shortly after Sunrise, actually wrote a report indicating the animals in factory farms in Sonoma County were being so cruelly abused that many of them could not walk.

They were starving to death with gaping holes in their side. They were necrotic and rotting because the animals are not being properly cared for, and the intensive confinement was causing so much abuse. And so partly because of legal defense and partly because I just thought the grim cruelty was so horrific, and the government's own acknowledgement that it was happening was so egregious that surely a jury would side with us.

Uh, but that's not what happened. And in 2023, we went on trial. It was supposed to be a, I think two week trial, ended up being a two month trial. And I was convicted of felony conspiracy misdemeanor trespass for organizing that action.

Mariann Sullivan: And, uh, tell us, uh, also about Reichardt.

Wayne Hsiung: I honestly did not organize Reichardt. I got convicted for trespass at Reichardt, mainly because I gave a speech outside of the demonstration and then walked, apparently, a couple steps onto the driveway at some point. But Reichardt was a, a mass open rescue that occurred the next year in Sonoma County in 2019, also with around 500 people, where activists didn't just rescue animals. They also literally lock their necks on the line. They put their necks on the line of the slaughterhouse to prevent it from continuing its operations. It was a duck farm that also had evidence of egregious animal cruelty, including large numbers of animals collapsed on their backs, just pedaling, unable to reach food and water.

And a number of other activists just locked their, their necks to the front gate so the gate couldn't close or open, which is actually somewhat symbolic because there was a back gate that they could have used. So that evidence was sort of not really raised at trial very much by the prosecution, but I, um, was involved as a lawyer primarily in that case and as a speaker.

So I spoke very strongly in defense of the activists. I thought they were doing the right thing. I gave food and water to the activists who were locked on a very hot summer day. And so I walked on the driveway a few times, gave some activists, I think some granola bars and some water. And for that I was convicted of a trespass in the same case.

So it was kind of a, a case where all the different Sonoma County mass open rescues were brought in to one single omni case. And, um, I was prosecuted for all of them.

I will say, one other fact is that through the kind of one and a half, two year period from, you know, 2018 to the end of 2019, when all these mass open rescues were happening, there was another mass open rescue at a facility called Petaluma Poultry at the end of 2018 that I did organize.

There were, I believe it was at least around 150, maybe close to 200 separate activists who were charged, initially with felonies, in all these cases, only one person served jail time. That's me. And only one person was convicted after going to trial and, and that's actually something that I think needs to be strongly revisited because I think one of the problems in this mass defense case was that we didn't have the right tools and strategy and culture to make sure more people went to court.

'Cause at the end of the two year period, the last man standing was me. I was the only one going to trial. And I think that was not strategically the right move for the movement.

Mariann Sullivan: Yeah, actually. Well, Steffan, before I get to, I, I just wanna ask Wayne one more background question, but before we get to that, were there any facts that you think that we should know about, about either of these that, that Wayne didn't mention that you would like to add?

Steffen Seitz: I don't think so. I think Wayne did a pretty good job. I mean, I think it is, again, worth emphasizing the scale of both these actions and also the trial, uh, the amount of witnesses, just how long it took. Um, it was quite a, an undertaking.

Mariann Sullivan: And Wayne, I I do have just one more background question, especially given what you just said. Can, can you just talk a little bit, I, you're not allowed to do a half an hour on this, um, because we have the case to get to, and I know this is a big question, but just talk a little about what you just said about how this didn't really work as well as you would hoped for in, um, in an open rescue case

And, and and how this fits into the whole major strategy of open rescue and what worked, what didn't.

Wayne Hsiung: Yeah, lemme just start by saying, we saved 37 lives at Sunrise. Um, 37 made it out. One of them passed away shortly after arriving at the veterinarian. A number of them died shortly after that too. But for that reason it was an enormous success. And I honestly, every time I think about it, I'm just so happy 'cause I got to see these little birds walk into the sunlight for the first time. And it's just, if you haven't seen this, it's just such a magical experience to see a creature who's been trapped in a cage her entire life, see the sun for the first time. There's nothing that will give you more hope for the future of the world than that.

I mean, even just talking about it now is very powerful. Yeah. It's so powerful.

Mariann Sullivan: You can't call them a failure.

But you can think about what could we have done better?

Wayne Hsiung: No, I think a hundred percent. I mean, I think, um, there were a couple things that I think led to significant problems as we moved forward in the case. The first, frankly, was just that it just got drawn out forever and people got tired.

Um, people who were super gung-ho and spirited and ready to fight in 2018, by the time we went to trial in 2023, 5 years,

Mariann Sullivan: Well, there was a pandemic.

Wayne Hsiung: They've moved on.

Mariann Sullivan: That was an issue.

Wayne Hsiung: Yeah. There was the pandemic. But we've had other cases even subsequent to the pandemic, that get dragged out far too long. And, you know, I think one of the mistakes we made was to a certain extent, listening to our criminal defense lawyers.

I mean, it's a mantra of criminal defense law that every continuation is a victory 'cause you're not in jail. And that's just not true of these movement cases 'cause we have these other objectives and, and unlike the kind of typical criminal defendant, you know, our defendants are actually really excited to tell our story.

We want to tell our story. And if you keep drawing it out, it's kinda like a movie that you keep promising people. I mean, it's like, or a video game. I don't, this is probably beyond your demographic, Mariann, but there's this famous joke about Grand Theft Auto.

Mariann Sullivan: Yeah, I have no I idea what you just said...

Wayne Hsiung: it's been like 15 years.

It's like the most famous game in the history of video gaming. And it's never come out and at this point everyone's just tired and done with it and doesn't want to deal with it anymore. And that's kinda the way it was with us. The second big thing was infighting. Um, I think partly because, you know, it's a five year wait before going to Sunrise Farms and then going to trial and, and partly because the movement just didn't have the conflict resolution kind of capacities and, uh, the institutional structures to resolve disagreements.

Just eventually people get into little scuffles with each other. And, and that was extremely demoralizing and I could tell you a hundred percent that the number one reason a lot of the defendants ended up taking very, I mean, generous pleas, and it was the right thing for them, was 'cause they were just tired of all the fighting, you know, they were just kinda sick and tired of having other animal rights activists and vegans attacking them. And they were like, you know, I don't wanna deal with this. I'm going home. I'm moving on with my life.

And so those are the two mistakes. I do think there were some legal mistakes made too. Um, and since this is an Animal Law Podcast, I would say probably the biggest legal mistake we made, in my view, was not doing a more aggressive job in vetting the judge.

'Cause I think we kind of just thought this judge is someone who's like reasonably well known, she's young, she's a woman, so she's probably think good for us.

Mariann Sullivan: What do you mean vetting?

Like, you don't get to choose your judge.

Wayne Hsiung: Well, in California you do, um, you have the right to actually disqualify a judge once just by a, kind of, um, signing in declaration an affidavit saying, we think this judge is biased.

Mariann Sullivan: Oh my god! California, you people are nuts.

Wayne Hsiung: And there are other ways, like change of venue, um, change of judge. There are other things that could be done, but just making sure you've got the right forum even before you make the right arguments. Because I think fundamentally, I, my guess is Steffen'll agree with this, the biggest obstacle in the case was just the judge and it was the most hostile judge. And I've dealt with extraordinarily hostile judges. I've had other judges threaten me with contempt of court, try to throw me in jail. This was like on another level.

Mariann Sullivan: Yeah. I mean, I didn't read the transcript obviously, but, um, I could tell from the rulings that, I mean, they seemed really bad. Not everything, you know, there, there are some difficult questions here. There are some that are like, what?

So interesting. All right. Interesting. All right. Steffan, why don't you tell us what the charges were specifically and what the convictions were for for each case?

Steffen Seitz: Yeah, so the charges were similar in both cases. Um, it's worth noting there was more charges initially and they were sort of winnowed down to these two. So it was conspiracy to commit misdemeanor trespass and misdemeanor trespass at both places. There were slightly different trespass charges at Sunrise. Um, it was essentially trespass where you refuse to leave when you were told to leave. And at Sunrise it was trespass with an intent, intent to interfere with a business. And one thing that's worth noting in both of these was the conspiracy charge was, as I said, um, conspiracy to commit misdemeanor trespass.

But in California, you can actually charge that as a misdemeanor or a felony. And so in both cases, Wayne was charged with a felony to commit misdemeanor trespass.

As far as I know, that's a unique sort of California feature. Um, that I think also is very troubling, um, that you can use conspiracy to sort of get a more aggressive charge against someone.

Mariann Sullivan: Just to tie up the story before we get into the issues, uh, and to jump to the end. So, um, you were convicted. If everybody doesn't know that already, I am giving away the ending. And how long did you end up spending in prison?

Wayne Hsiung: I had a 90 day sentence, but partly because of time served in the various arrests I had in Sonoma County, and partly because California passed a statute to reduce the amount of time people have to serve in actual jail. I ended up spending 37 days in the Sonoma County main adult detention facility,

Mariann Sullivan: Okay.

Wayne Hsiung: The record were some of the best 37 days of my life, which doesn't mean they were the most enjoyable, but they were very, very meaningful.

Mariann Sullivan: That, that is really good to hear, and I hope we can get to that. But let's get into, um, let's get into the law.

Wayne Hsiung: Mm-hmm.

Mariann Sullivan: There are so many, uh, pretty serious and really interesting errors here, uh, that I think rather than going through any kind of overview of the trial, we should just address each argument and spell out the facts relevant to each of them as we go.

And the first, of course, is one of my favorite arguments in the world. And that's that you were deprived, well, not, I'm not happy that you were deprived of it, but the ability to present a necessity defense to the jury. And Steffen, can you give us the overview regarding affirmative defenses in general and when they must be charged to the jury? And tell us about this particular defense as it is articulated in California law.

Steffen Seitz: Yeah. So, um, affirmative defenses, we're all familiar with, you know, self-defense, uh, these sort of paradigmatic examples in which, um, even if you committed, uh, what ostensibly looks like a crime, you, uh, broke the car window of a, of a car where there's a dog or a child, um, who's suffering inside 'cause of the heat, or you defended yourself, uh, using violence against someone because you were threatened. Um, we believe in those kinds of emergency situations, uh, you actually do have a defense, and not only do you have a defense, but you're, you're justified in taking action. We want the person by the hot car to smash the window to save the dog or the child inside. Um, we want the person who's threatened, uh, whose life is threatened to defend themselves.

And so we have these affirmative defenses. The affirmative defense that's most relevant here, um, as you mentioned is necessity. I'm sure most of your listeners are already familiar with it. Um, but just sort of in broad strokes, basically it says you can violate the letter of the law to avoid some greater evil.

Um, again, the, the dog in the hot car is a perfect example. Ordinarily, you can't go around smashing car windows. Um, if there's a dog, a child, some individual in the car who's suffering, uh, then you actually can do that and you have a defense available if you do that. Um, and our argument here, uh, was basically the exact same. It's that, um, in this case we knew for a fact that there was, uh, there, there were many, many animals suffering at these farms, um, especially at Sunrise as, as Wayne mentioned.

I mean, the documentation was extensive. There was footage, uh, that was just absolutely horrific to see. Uh, Wayne had been in even just the night before the, the rescue. Um, and so we knew that there was evidence of animal cruelty happening inside, a really egregious animal cruelty. And so the basic idea is that a trespass to go into a farm and remove an animal and give that animal veterinary aid, uh, is a, it's a fairly small, uh, sort of crime, all things considered. Whereas the evil that we're averting, the evil of animal suffering is much greater. And so as a result, you're justified in taking action. Um, and the court ultimately, uh, denied the necessity defense, meaning that Wayne was not allowed to present evidence to the jury of necessity, wasn't able to present evidence of animal cruelty, wasn't able to present evidence of all the reporting that he had done to various agencies and law enforcement around California.

I mean, ultimately, the jury also wasn't instructed on it. And what that means is that ordinarily a jury's told, look, you can acquit the defendant if you find these things. If you found that they acted in self-defense. Or in this case, if they acted, uh, out of necessity. The jury wasn't told that. And the reason is that the judge decided that as a matter of law, the necessity defense simply did not apply, uh, because, um, in the judge's view, necessity does not apply to animals.

Um, and I'll pause there, but, uh, I think that that sort of a, a patently ridiculous ruling, and we can dig into why.

Mariann Sullivan: Yeah. Um, actually I do wanna dig into why, and I really wanted to know, did the court give any explanation? Because it does seem patently ridiculous to just eliminate a, uh, a, a particular defense. Was there any rationale given or was it just a ruling? No, it doesn't apply.

We have that defense in California, which not every state does have that defense.

It's not exactly on the books in California, but it's definitely a defense in California. Did the court articulate any reason as to why it doesn't apply to this particular, I think the language is significant evil? It applies to significant evils.

Steffen Seitz: Correct, which I actually think is again, uh, California's necessity defense is in some ways much more expansive than many other states. It doesn't say just that there's a harm to human being or to a person and you, you, know, then we would get into difficult person questions. It says significant evil. Um, and I think it's very clear that suffering to animals is significant evil.

It's criminalized in California, so all these cases saying that it's a policy of California to avoid, um, suffering to animals. There's all these ballot measures that have been passed. I mean, it's very clear that California law considers harm to animals a significant evil. Um, but the court gave kind of these two sort of half-baked rationales.

Um, I'd say the primary rationale was just, it's never been done before. Um,

Mariann Sullivan: That, like...?

Steffen Seitz: Everyone recognized is not a very good rationale.

Mariann Sullivan: You I mean, case of first impression, like you learn about that first year of law school!

Steffen Seitz: Exactly. Um, so I think, uh, so I think that's a very bad rationale, but I think that was probably the sort of main motivating thing. It was sort of like, I have to do something new here. I'm not going to do that. Um, and as a result I'll do something what I think is sort of straight up illogical.

And then the second rationale, um, was this sort of weird slippery slope argument, uh, where I think she explicitly said something like, Oh, if we extend it to animals, what's next? Are we gonna have to extend it to, uh, you know, to cellular matter? Um, and

Mariann Sullivan: What?

Steffen Seitz: I'm not quite sure what she was going for there. Uh, you

Mariann Sullivan: My God.

Steffen Seitz: My sense is that like she didn't maybe fully understand the argument or, or what we were going for.

I mean, I'm, I'm not quite sure. I mean, it was not exactly a, it's a bit hard to reconstruct charitably, to be honest. Um, but again, that one's also ridiculous. Uh, the argument was that animals who are already recognized by California law to have a right not to suffer, um, that's simply the, the right that we're trying to vindicate here. It's already in California law. We're not asking her to write new laws or anything like that, just apply the law as it is.

Mariann Sullivan: Uh, what I also think is relevant too, in thinking about it, is that the necessity defense, it doesn't say you can do anything you want if an animal is suffering. I mean, in the context of animal suffering, it's a balance between the evil you are doing by breaking the law and the evil that the law is meant to prevent.

So if you're, if you're doing, you know, if you're shooting somebody to save, uh, an animal, uh, maybe that wouldn't be considered a necessity. You should have done something else to save the animal. So it's, it's already a balancing act. It's not like animal cruelty or anything else just trumps, uh, what... oh, shouldn't use that word...

Um, whatever is on the other side. It, it's the balancing act that should go to the jury, right?

Steffen Seitz: Right. So it's actually, it's a fairly narrow defense. So first you have to have, um, a significant evil. So not everything counts just because, uh, you've been pinched or hurt or something like that in a minor way, you might not be able to, uh, assert the, the, the necessity defense. So it has to be something significant, significant evil. Um, there also have to be no alternatives. You have to have exhausted all your alternatives. Um, you can't simply, uh, go it alone if you haven't reached out to law enforcement or other people. It is the case that if, if, if reaching out is futile, you don't have to do that. Um, and in these cases we know that there's such a pattern of reporting.

Um, but in this case, there was a lot of reporting, right? So it's not the case that like Wayne saw something and just walked in immediately. Uh, there was all of this stuff beforehand to try to get the authorities to act, to try to get people to actually do the right thing, and where all else failed, uh, is when, when activists took action.

Um, so there's all these ways that it actually ends up being limited. And exactly like you said, there's also this sort of proportionality requirements, kind of imminence. Um, it has to be basically an emergency where you're taking action.

Mariann Sullivan: Yeah, the imminence requirement actually, uh, that is an, an argument that, that they're still making on appeal. If the harm does have to be imminent, how do you address their argument that the fact that Wayne planned the, the events at issue ahead of time, that uh, or somebody planned them, a lot of people planned them and, um, it wasn't done on the spur of the moment.

Um, how do you address that argument that that makes it not imminent?

Steffen Seitz: Yeah, so I think just it's very clear that the harms were imminent because they were structural. It was about the nature of the facility, the scale of the facility, the number of animals inside. Um, and also once you have enough evidence, once you go inside and do these investigations, and every single time you go inside, you see widespread animal suffering due to these structural features of the farm, it's very clear that if you've done that nine times, on the 10th time, uh, it's not going to be surprising that you're going to see the exact same kind of suffering.

Um, so I think, uh, just because there's a plan involved on the, on the front end doesn't mean that it's not an emergency. I mean, there's all sorts of, when the fire department shows up to a house that's on fire, the fact that they first put on their gear and they, you know, hook up the hose and do all these things instead of just rushing in, um, like mad, uh, it doesn't mean that isn't an emergency.

There's stuff that sort of take preparatory actions. I think the same is true here, where you have animal suffering. You need to make sure that you have veterinary help available, that you're actually able to get in and get the animals out and identify the animals in need. The people who go in have some understanding of animal health and animal care, know how to hold the animals, know, um, how to identify an animal who's suffering, an animal who isn't suffering.

So, the fact that there's some sort of preparation on the front end, I don't think diminishes it, uh, by any means.

Mariann Sullivan: Yeah, otherwise it would eliminate so many, um, areas in which really significant harm is being done. If, if, if the only way you could exercise it is to immediately, uh, try to address it without, without taking some precautions or preparing yourself or, uh. I mean, I think it's an argument that it, they, it's not like nobody, no court has ever decided this before. That's just, I dunno. It's ridiculous. Do they actually argue that on appeal?

Wayne Hsiung: Can I actually be a legal realist and add one other reason the judge decided how she decided?

Mariann Sullivan: You always are.

Wayne Hsiung: I think this case...

Mariann Sullivan: There is alot of legal realism going on here. Even I am willing to admit that.

Wayne Hsiung: Well, yeah, and I think this case is an example. It's an, it's a very abject example of how the law is read through the distortionary lens of power.

Mariann Sullivan: Yeah.

Wayne Hsiung: Because The Farm Bureau is incredibly powerful in Sonoma County, The Farm Bureau endorsed Judge Passaglia and has enormous influence over the DA's office. And the owner of the farm, a multimillionaire who spent six figures fighting various ballot initiatives, Mike Weber, was treated like royalty in the courtroom. It was kind of shocking how contemptuous the judge and everyone in that courthouse was towards the animal rights activists and how everyone just like set out the red carpet for this guy. And um, I think part of the answer is, and we're seeing this around the country right now with, you know, the First Amendment, the Second Amendment, how these principles often bend quite a bit when someone powerful decides. Yeah, I mean it's just, it's just the nature and I think this is just one of the cold hard realities of democracy and the rule of law that Americans are somewhat wising up to.

Mariann Sullivan: I think another area, I think this would be, uh, considered legal realism. Uh, but you can tell me 'cause you're the expert in that. Um, it also, all of our arguments prove too much. Um, if what's happening to those chickens was illegal, it means everything that, that billions of animals are being treated illegally cruelly in the United States.

Like, what do you do with this? It's everything we argue proves too much. Doesn't make it untrue, but the implications are, uh, are always daunting. And for judges, you know, to step outta the box and do something that daunting takes a lot of courage and, you know, apparently don't, don't have that much. All right.

Let, let's get back to the arguments. Um, alright. You do draw, I think there was, um, I don't wanna go too far into all of the case law, but you draw an, an analogy to Fourth Amendment cases regarding exigent circumstances that I found, I found interesting. I think People v Chung is the, uh, is the case that you cited where police were allowed to enter a home without a warrant to save a dog. Now that's a different ca, that's a different issue. Can you just explain the analogy of why that makes it clear that that concept should be applied here?

Steffen Seitz: Yeah, so the Fourth Amendment gives you a constitutional right to be free from unreasonable searches and seizures. The government can't just barge into your house. Um,

Mariann Sullivan: Well, it

Steffen Seitz: suspect

Mariann Sullivan: it, it used to, except in Minnesota.

Steffen Seitz: Uh, yeah. Uh, you know, setting aside the Minnesota exception, um, generally speaking, the Constitution doesn't allow the government to, to enter a house, um, to enter someone's home, uh, just because, you know, they think something might be going on inside that's bad.

Uh, they have to have a warrant, um, or there's like various, uh, probable cause exceptions. And, uh, that's sort of, that's well established black letter law under the Fourth Amendment. So there's this new case before the California Supreme Court, um, or maybe it was the appellate court, um, that was having to decide whether or not if an animal is suffering inside, that's the kind of emergency that justifies dispensing with a warrant requirement that justifies essentially sort of violating the letter of Fourth Amendment law and entering the home anyways.

And they said yes, because if an animal is suffering, if they're in immediate need of help, that's an emergency. The police are allowed to go inside and render emergency aid. Um, and so our argument was that, I mean, these are constitutional rights, the most sacred rights we have. And California courts have already recognized that those kinds of rights, we can create an emergency exception to those rights when the life or the health of an animal is at stake.

And that's basically analogous to what we're asking for here. We're not asking them to set aside a constitutional right. So in some ways it's even a, you know, a much smaller ask. We're trying to say this sort of statutory, uh, you know, prohibition on trespass, uh, should give way in an emergency situation in which an animal is suffering or about to die, uh, just like it did in the Fourth Amendment context.

Mariann Sullivan: Yeah. I, I think that's a great analogy. I mean, we have a lot of other issues to, to address, so I wanna move on, but, but I think this is one area where there was a lot of interesting commentary from the, um, amicus briefs. Can you just like mention a couple of those examples?

Steffen Seitz: Yeah, so we got really lucky that we had incredible amicus partners. Um, so we had a bunch of animal law scholars who are really experts in this area write a a really good brief. Uh, Matthew Liebman is the professor who really led that effort, um, and that briefly digs into the nature of evil and significant evil, both in California laws or ethics more generally.

Like what does it mean for something to be significant evil and why animal suffering constitutes a significant evil. Um, we also had Kristen Stilt at Harvard Law School write a great amicus brief. Um, she sort of dug more into California law, and in particular she looked at some California statutes like their vehicle confinement law, which allows you to, like I said, you know, break a, a car window to save a dog in a hot car.

Um, so basically the idea being that California law already has these things for these policies enshrined in law, um, whereby we prioritize the wellbeing of animals, um, over, you know, mere property damage or, or things like that. Um, we had a German, uh, uh, professor actually also write an amicus brief because one of the things we'd cite is, um, that in deciding the sort of contours of California necessity law, they've actually looked at other jurisdictions to figure out, uh, you know, what, you know, how far should we go? What do these things mean?

I mean, one of the earliest necessity cases looked at West Germany, um, and sort of how West Germany handled these kinds of questions. And so we said, well, let's look at other jurisdictions. What do other jurisdictions do on this sort of issue of first impression? Um, and so we cited, uh, some German cases, uh, and then we actually had a, a, a German professor actually weigh in on this and say, yes, uh, in Germany, if this case had happened here, absolutely you'd get a necessity defense.

Here's how German courts have thought about it. Um, and Germany's necessity statute, um, is basically almost the same. I mean, it's very, very similar to California's common law necessity defense. Um, and then we also had individuals from the Climate Defense Project weigh in. And so they also have expertise in necessity cases where climate activists take action, uh, to avoid, you know, climate disaster, and then assert the necessity defense.

And they've met with more success than we have in animal rights movement. And so, um, I thought that was a sort of helpful additional context here to show that, you know, other movements are making these same kinds of arguments. They're meeting with success and here's the way that they're thinking about it.

Mariann Sullivan: Yeah, and I, I'll, I'll just mention that I've always thought that the, the argument for the climate, um, not, I mean, it depends on the particular facts of the case, but frequently they're more like civil disobedience cases, which are one step removed from the harm that's trying to be prevented. In the animal rescue cases, it, it's right there. The evil is something that you are actually preventing. It is not, you're not putting in, in putting in, in to process a, a system or hoping to make political change or whatever. You are actually preventing the cruelty that is the crime. Uh, it's so much more direct. And yet as you point out, they have had more, um, more success. Again 'cause perhaps our arguments prove too much.

Alright, so if there's nothing, if either of you wanna add anything on that, I do have one more question on that, and that is relief. Um, but first, do you wanna add anything to what we've already said about the, um, the substance of the defense?

Steffen Seitz: I don't think so. I mean, uh, like the, the basic point is really just that, uh, animal suffering is significant evil. That's what the court... the court said it isn't, and we think it is. I don't even think you have to get into the weeds on the law here. You can just read. What does necessity defense say? Says it counts... you know, significant evil's, uh, justify necessity. Of course an animal who's about to die, who's suffering on the floor of a factory farm, of course that's significant evil. Um, this is maybe an area where being a lawyer actually gets in the way.

Mariann Sullivan: Yeah, it so often does. Um, alright, well that does lead me to my last question. Assuming that the court agrees that, you know, we shouldn't make some categorical determination that animal cruelty can't justify a necessity defense, what is the relief? Could the court look at what you presented to the court?

Could the appellate court look at the evidence you presented to the trial court and say it's not categorically denied? Uh, because, because animal cruelty isn't a significant evil, but you didn't present enough evidence? Or, or is a new trial absolutely necessary?

Steffen Seitz: So the court could do that. I think the court would be wrong to do that, but the court could say, um, this is harmless error basically. Um, even if you had been able to present the evidence, uh, to the jury, it wouldn't have been enough as a matter of law to meet the elements of necessity. So even though the court was wrong to deny categorically, um, the court, uh, there was ultimately no real error here.

There's no harm to you because, um, you just didn't present, like you could never have, uh, uh, presented enough evidence. Um, I think that would be clearly wrong. We addressed this in our briefs. Um, and part of the reason it's wrong, like one is, uh, this defense was, was cut off from the very beginning, right?

Because the court said this doesn't apply as a matter of law. Wayne wasn't actually able to get that evidence into the record.

All of this like really footage, um, all of the evidence of reporting, wasn't able to be in the record. Um, and even still, uh, just in all of the arguments that were made, uh, pretrial, a lot of it ends up being in the record sort of almost by, by happenstance. Um, and I think very clearly is enough. So I think the only, uh, just outcome, and I think sort of what the law requires here is, uh, would, would be remanding for trials. Basically vacating convictions, reversing it and saying, You need to do a new trial. And this time Wayne needs to be given the necessity defense. The jury needs to be instructed on this, and he needs to have an opportunity to present all of that evidence.

Mariann Sullivan: Okay. Alright. The next argument I find a bit challenging to explain, um, and I'll, I'll try to ask the question that makes sense, but, but it also relates to the necessity defense. But if I understand it, you are arguing that even if the court disagrees with you on your first argument arguing that he's entitled to a necessity defense and the court says no, the court below is right. You're saying, well, he believed he was, therefore he was entitled to have the court charge the jury that that mistake on his part about the applicability of the necessity defense meant that he couldn't have had the necessary intent, at least in some of the charges, to prove the conspiracy counts.

Is, is that right?

Steffen Seitz: Yes. And, and some of this is sort of because California law's a bit weird here. Um, as far as I can tell, it's, it's, it's quite unusual in that, um, for conspiracy in particular, uh, there's a case that says you actually have to know that you're entering an unlawful agreement. So the fact that the agreement, um, that you don't know it's unlawful, that you believe that you're doing something lawful, is a complete defense in a conspiracy case.

It's actually an element of conspiracy that the agreement is unlawful, that you know it's unlawful. And the argument here is just that Wayne in good faith believed that he had a right to act here because of the necessity defense. I mean, that's why he did all this reporting. That's why he got all this footage.

Um, I've spoken with Wayne, I can vouch for the fact, absolutely, he genuinely believes in this. I mean, I do too. Um,

Mariann Sullivan: I do too.

Steffen Seitz: Exactly. So, uh, Wayne had a good faith belief that what he was doing was justified by the necessity defense. And if it's justified by the necessity defense, um, then it can't be the case that he believed he was entering an unlawful agreement.

It can't be the case that he believed he was breaking the law, and yet that's what's required. But the court again said, Nope, that gets too close to necessity. We're not allowing that at all. Um, even though again, this wouldn't require him to actually have a necessity defense just to believe he has a necessity defense.

Mariann Sullivan: I told you, I told you it was confusing. I told you. Uh, yeah, I mean I was just like, in California, that old, old adage, ignorance of the law is no defense, you have to put after that, except in conspiracy charges 'cause

Wayne Hsiung: Yeah, I mean in, in defense of California law, I, I think the idea behind this is when people organize with others to do something criminal, there's something distinctly harmful about that, that we don't like large groups of people doing criminal things together. And you can get that, you know, gangs, the mafia, so on terrorist organizations.

So, yeah, so I mean, it's, it's not completely illogical to have this requirement for conspiracy conviction, and also because conspiracy comes with a lot more consequences. You know, a trespass conviction can get you a six months in jail, I think in California, I think maybe it's up to a year in jail, depending on the level of trespass.

Conspiracy can be up to seven years, if I recall correctly. So this is a felony, and the idea is something about the organization of criminal activity with a larger group of people when they know they're engaging in unlawful activity is distinctly harmful to the republic. I will say when they charged me with conspiracy, I was familiar with the elements of conspiracy, I laughed and thought, how are they gonna prove this? There's just no evidence of it.

And I will say, apparently my lawyer in my trial was pretty poor. I mean me. Because despite having no evidence of this element of conspiracy, I was still convicted.

In my own defense, I think the constraints the judge put on me made it so hard for me to describe what my actual belief was about the nature of the agreement, that the judge just didn't find credible because we just kept talking about food and water. Because the one narrow exception she gave to us, 'cause she couldn't deny the intent element entirely, because the mistake of law isn't actually a defense, it's just an elaboration on the element.

There's an element of conspiracy in California that requires an unlawful and a knowingly unlawful agreement. It's a case called People v Urziceanu, and the judge said, Okay, you're allowed to defend yourself from this allegation, but you're only allowed to defend yourself from this allegation by saying you were there to give the animals food and water.

We're not there to give the animals food and water. The judge forced us to say over and over again, we were there to give the animals food and water. And the reason is because there's a statute on the books, 597E, that gives you the right to enter a facility to give animals food and water if they've been denied food and water.

And she didn't like the idea of an open-ended trial about necessity, even with respect to just my belief system. But she allowed this very narrow set of evidence just about food and water. And every witness, the prosecution would ask, were you there to give food and water? And every time I was cross-examined, or another witness was cross-examined, we'd have to explain, or even in direct examination, we'd have to explain that we were giving the animals food and water.

And it was just kind of a, a complete sham trial as a result, with all this discussion of food and water that was completely irrelevant to the case. So the judge effectively forced me to lie. And unsurprisingly, when the judge forced me to lie, the jury didn't believe I was telling the truth.

'Cause I wasn't in, in many ways.

Mariann Sullivan: Yeah. And well, let's, it wouldn't have made any sense to go in there and try to give them food and water when they were like, had broken legs or whatever. Uh, it, it makes you sound ridiculous.

Alright. I hope that was clear because, uh, that whole 597E thing and being allowed to, um, bring in mistake of law as to that part and not as to necessity, I found very confusing. But, but we did our best folks.

The really interesting part of this is, has to do with the evidence. This meant that you could bring in some evidence, but you couldn't bring in a lot of other evidence, though you just said, Steffen, that somehow some evidence came in that you thought might not be able to come in.

So can you just talk a little bit about that? Like what evidence was able to be brought in about the suffering of the animals, which was the crucial question in necessity, and that's wasn't in the defense and, um, but under these other rubrics. And what, what you wanted to be able to bring in to show them, if you had been able to argue in necessity defense that that was kept out. Can you just kind of summarize all of that?

Steffen Seitz: Yeah. So first, just to clarify, the evidence that did come in, um, that I think would go to necessity, most of that wasn't shown to the jury. It came in pretrial when there was arguments about necessity and other stuff.

It's in the record and I can, you know, we could refer to it in our appellate brief being like, here's these things that should have gone to the jury. Um, in terms of what went to the jury, I mean, honestly, Wayne, you probably remember better than I do, but, um, you know, there's footage from the day of, of some of the chickens. Um, but even that was often quite limited. Um, the, the crucial stuff that wasn't allowed in was all of the footage leading up to the rescue.

And in some ways, that's the most relevant footage, not just for moral reasons and storytelling reasons, which I think are often honestly the most important reasons. But even legally, because again, what this all really came down to was Wayne's subjective belief. Did he have a good faith belief that what he was doing was lawful? And the more evidence of, of, you know, chickens stuck in cage wires, chickens dying, chickens sort of on the floor, unable to access food and water, uh, because they fallen out of these battery cages, the more evidence of that that's in there, the clearer it becomes, oh, it was actually extremely reasonable for Wayne to believe, uh, that there was an emergency here that he had to take action for.

Um, and because there was such a small amount of that evidence that actually made it to the jury, it made it much easier for the jury to think, oh, this is all motivated reasoning.

This is just sort of, you know, he doesn't actually earnestly believe this. Um, because all we've seen, you know, we haven't seen the, the, the full story of, of the animal cruelty.

Wayne Hsiung: It wasn't just the evidence before the action. Even the evidence from the day of and the evidence afterwards was excluded 'cause the judge ruled that the contemporaneous evidence of animal cruelty could not be cooperative of my intent because I didn't know of the existence of those conditions until I walked into the farm, or someone else walked into the farm.

So, for example, Libby, a hen we found who's collapsed, sick and dying of hypocalcemia. This is just one of the many reasons that hens die. Um, they're laying so many eggs that their body gets drained of calcium and they become weak and sick and just collapse on the ground and die, usually of a heart attack is like the immediate precipitating factor that causes the death.

But Libby died of hypocalcemia and she was just collapsed on the floor of the factory farm. The jury didn't see her. She didn't even hear her story. She didn't hear her name. They, they didn't hear her name. 'cause the judge ruled that the evidence, even the contemporaneous evidence in our view was, No, this is extremely probative.

It's kinda like if a fireman says, I broke down the door to stop a fire. It's highly relevant to whether he actually had the intent to break down a door to stop a fire if there was a fire there.

Mariann Sullivan: Yeah.

Wayne Hsiung: The jury should know if there was a fire there, but I wasn't allowed that evidence. The small amount of evidence that was allowed tended to be evidence that did not relate to the necessity defense at all.

So just like activist milling about, there were some like wide shots of activists carrying hens and kind of blurry livestream footage that you couldn't really tell what they were carrying. And me talking about it and talking about, look, this animal's been cannibalized, or this animal is rotting to death, or whatever it is.

And then there was one clip, only one clip of pre... and it's completely arbitrary and unclear why she allowed this one clip, but she allowed this one clip of a hen. You can kind of see her back and you see her turn her head and her eye is all inflamed. She's got like an eye injury and then she turns her head back and that's it.

Out of the hundreds and hundreds of hours of video footage we shot at Sunrise Farms, maybe not hundreds of hours, certainly hundreds and hundreds of clips, and hundreds and hundreds of minutes of footage that was shot at Sunrise Farms in the two years prior to 2018. That one clip was the only clip shown of Sunrise conditions prior to our entry in May of 2018.

Mariann Sullivan: Yeah, so the jury really had, I mean, the jury thought basically

Wayne Hsiung: They had no idea.

Mariann Sullivan: you were nuts.

Wayne Hsiung: Yeah,

Mariann Sullivan: All right. Uh,

Wayne Hsiung: Which they were right on, but not for the reasons they thought.

Mariann Sullivan: For other reasons. Right. Um, alright, the next argument that I wanted to talk about, well, that you argued, um, is I think only relevant to the Reichardt case. And it's this, well, another like, great argument. I always say, you know, you always get into arguments when you're reading about them, and I used to argue appeals too and, um, you always think you're right when you go in. But, but this is crazy. It's this aiding and abetting statute, at least as applied, um, in this case. And your argument is that it violates the first Amendment. Uh, before we get into that, can you just reiterate what Wayne was charged with and what are the underlying facts supporting that charge?

Just to remind people about the Reichardt um, conviction.

Steffen Seitz: Yes, at Reichardt Wayne was charged with, um, trespass with an intent to interfere with a business, and then also conspiracy to commit that trespass. And as relevant to this particular argument, the theory of liability that the prosecution really went all in on, and I think it's sort of all they had, wasn't that he actually trespassed himself.

Um, so it's not that he like walked past the fence or broke into the farm or anything that, but he aided and abetted, trespass. Meaning that he basically encouraged or promoted other people, uh, in their trespass and a result, he can then be held liable as if he had done it himself.

Mariann Sullivan: And can you just tell us a little bit of what you were saying, Wayne? Um, you know, 'cause you gave a speech at the time, um, and I guess spoke to people. What is it that you were saying? Because it's really your words that are the, that are the gravamen of this cause of action.

Wayne Hsiung: I was just summarizing the egregious animal cruelty that we had documented over many years at facilities in Sonoma County, including at Reichardt, and also arguing for the right to rescue. So it's basically making a legal argument in front of 500 people outside of Reichardt. I will say it's unclear what theory the jury convicted on, and I know there's some interviews and I've looked at the interviews.

Honestly, the interviews are completely unintelligible. The interviews are great demonstration about how oftentimes the law doesn't actually really matter that much, the jury's very confused about the law. 'Cause the jury says all these things that are just clearly not true about the law. They say, for example, we convicted him because of aiding and abetting conspiracy.

And it's like, aiding and abetting conspiracy doesn't even exist. You can't do that.

Mariann Sullivan: Yeah.

Wayne Hsiung: But the point is, what the, the prosecution primarily argued was that, Okay, we admit Wayne didn't walk into the property, but he did step on the driveway a couple times and give people some food and water. And more importantly, he's a leader.

He's speaking about this and he's promoting this conduct. He's encouraging the activists who are actually doing it. And, and that was central to, I think, probably at least some jurors in their decision to convict because they asked a bunch of questions about it. They're like, what does this mean? What does encourage mean?

Mariann Sullivan: Yeah, the jury asked for an explanation of this very, the very term that you're, you're troubled by. So, Steffen, can you go into the, into the specifics of, of the, um, the language that was given to the jury right from the statute that was not explained to them, and why you think it's problematic in this particular case?

Steffen Seitz: Yeah, so aiding and abetting is defined as, uh, encouraging or promoting or facilitating, um, someone else committing a crime. Um, and the really important word here that ends up being defined to the jury is the word promote. Um, and so the idea is basically if you promote someone else committing a crime, then you can be held guilty as if you've done that crime yourself as an aider and abetter. Uh, ordinarily that maybe is sort of intuitive if I, uh, you know, promote you as selling drugs because I give you drugs or I tell you exactly how to sell them or where to go or what prices to offer, um, that makes sense. I can be held guilty as if I was, you know, the drug dealer myself. But it's really problematic in these sort of speech cases where what Wayne is being held accountable for, what he is being punished for criminally, is engaging in speech that promoted other people's civil disobedience. Um, and typically the First Amendment protects speech. Uh, and we have very narrow exceptions, uh, where you can hold someone accountable, you know, you can punish someone for their speech. So for example, if you, uh, incite someone, so if there's imminent lawless actions going to result from someone's speech, and you subjectively and objectively are directing your, your speech in that direction, you can be held liable. If you engage in true threats, uh, if you like actually, if it's a serious desire to hurt somebody, uh, that can also, uh, you know, that's an exception to the First Amendment. Just 'cause you did that in speech, uh, doesn't offer defense. The problem here is that, uh, aiding and abetting, especially the word promotes, sweeps so broadly, that if I were to write an op-ed saying, you know, if, or God forbid, I were to write a law review article talking about how the necessity defense applies, uh, to animal rescuers...

Mariann Sullivan: I have often told my student. That, uh, if the law was what they said it was, I would be in prison.

Steffen Seitz: Yeah, so like, you know, to me that sounds a lot, I think, to the average person, that sounds like you are promoting open rescue. You've said very nice things about open rescue,

Mariann Sullivan: I am!

Steffen Seitz: talked about it, and

Mariann Sullivan: in a certain sense.

Steffen Seitz: That's a confession. Exactly. So in that sense, you are aiding and abetting. You know, if someone listens to this podcast and you've said that, and then they go out and do an open rescue, uh, under the plain sort of meaning of the law that an ordinary person would read, they would say, Oh, well Mariann promoted open rescue. I'm gonna go out and do an open rescue. And as, as a result, now your liable is an aider or abetter.

But of course, the First Amendment doesn't allow that. So just to be clear, I don't think that you'd be guilty. And I think the First Amendment is a bar here. Uh, the problem is that California courts haven't, uh, sort of inserted the First Amendment as a bar here. And so our argument is that they have to read it through these exceptions. And in particular, there's this case called Brandenburg, um, which is the famous incitement case in which they say, uh, only, uh, you know, you can actually advocate lawless activity. You're totally protected to advocate illegality as long, as you don't do so in a way that is likely to incite imminent lawless action, um, and actually it's, you know, and you also intend, uh, to do that.

And so our argument basically is that they should have sort of, you know, read Wayne's speech through that lens. Um, I think it very clearly doesn't meet the requirements of Brandenburg.

Mariann Sullivan: Yeah, and as we pointed out before, the jury even was clearly troubled. I mean, they asked for an explanation of what promote means in this context, right?

Steffen Seitz: Yeah. And that's, that's another one of the errors is that the court, uh, didn't offer definition. And the California law is very clear if a jury says, what does this word mean? It's sort of key word. You can't just say, oh, you know, figure out yourselves. Your job as the judge is to interpret the law and sort of help the jurors understand what the law is.

The judge didn't do that here. Um, and as a result, I think it's quite clear they were, you know, using promote in the sort of colloquial sense that we all do, which is much more expansive than the First Amendment allows. And, and the last thing I'll say on this is I think this is a, a really important argument, um, not only for Wayne's case, but I think for all activists everywhere.

Because if it's the case that any kind of speech in support of civil disobedience or in support of a particular viewpoint that might be disfavored, um, if that makes you an aider and abetter, that just opens the floodgates for holding people, uh, accountable for speech. Um, especially in today's age, we're already seeing sort of crackdowns on speech.

That means if you are, you know, writing op-eds about what ICE is doing is wrong, or if you, um, you know, advocate that we should, uh, change our immigration laws or advocate that people should stay here and not have to be deported. Uh, those are all, you know, in theory under this kind of broad interpretation of promote, uh, you might be held liable as an aider or abetter if the courts don't, uh, do sort of what we're asking 'em to do, which is basically insert the First Amendment to this area, as it should be.

Mariann Sullivan: That is a really, really important point. And I'm curious, do aiding... and I mean you might not know this but, and I should know it, but do aiding and abetting statutes in general, use the term promote? Is it just a matter of having to expand on that a bit in speech cases? Or is this unusual? Do you know? I mean, there's no reason that you should. Like, like.

Steffen Seitz: Uh, so, so no actually, I should. So I've been actually, uh, uh, co-authoring a, a law review article with Justin Marceau, the professor I work with here on this very issue. Um, and so actually the words encourage and promote, the vast majority of jury instructions around the country that define aiding and abetting use the words encourage and promote, um, which are extremely broad, courts have found problematic in other contexts.

So, um, I think especially if you put yourself in the mind of a juror who's told, you know, he can be guilty of aiding and abetting, I don't know what aiding abetting is. That's such archaic language.

Um, so what you end up really relying on are these instructions, right?

Um, and the instructions say encouraging or promoting a crime is enough.

Mariann Sullivan: Yeah. And it's not even that they would have to change that language, but they would have to expand the charge in certain cases. I mean, it, it's really an as applied challenge to this specific language though it would be nice if they did change the language. It wouldn't be a bad idea. Alright, let's get to, uh, uh, well, the necessity defense is my favorite argument, but the religion argument is also really a favorite.

I think it'll be an audience favorite as well. We still have so much to cover. I'm sorry, everybody. Um, alright. First, tell us when a philosophical belief can count as the equivalent of a religion for First Amendment purposes, and what the implications are for animal rights vegans.

Steffen Seitz: So the Supreme Court has never defined, uh, what religion means under the First Amendment. So we all know the First Amendment protects your exercise of religion. and the Supreme Court has never defined that, and for good reason, because as soon as the Supreme Court says this is what a religion is, that's the First Amendment problem.

Right. Because now other religions are gonna be excluded, and, and it's really hard to offer a definition that captures, you know, uh, traditional sort of monotheistic Christianity, um, Buddhism, which is, uh, you know, you know, has sort of different philosophies, um, and then sort of other religions maybe that are... you know, it's, it's really hard to do that.

And so the test that's typically used is basically if, um, a belief system, a particular belief system occupies the same role in your life as a traditional religion occupies the life of religious person, then we consider that to be religion. I mean, we're not going to inquire into the, the specific doctrines or anything like that.

That's not the role of government. We just wanna see sort of what, what, um, what role does it play in your life. So it's not enough for it to just be kind of like a lifestyle or a philosophy. Um, it has to be something deeper. It has to sort of inform your place in the cosmos, your sense of obligation to others, that kind of thing. Um, and our argument is that very clearly, um, ethical veganism, um, as practiced by Wayne and by many ethical vegans around the world, occupies exactly that place. It informs not just, um, what you eat and your sort of what you wear, although it does do those things, um, it also informs your place in the world, the relationship that you have with other beings, the obligations you have to other beings.

Um, it's, it's basically occupies the role that religion occupies in a lot of people's, um, worldviews because it informs sort of your ethical duties and your place in the broader cosmos. And so in that sense, I think under sort of prevailing First Amendment doctrine, ethical veganism for many people, including Wayne, is a religion and should, you know, or is at least a religion for the purposes of the First Amendment and should get those kinds of First Amendment protections.

And yet what we saw during trial was really egregious and sustained hostility to Wayne's veganism and to the veganism of, uh, you know, all of the other, uh, uh, witnesses as well. Basically every witness on the stand, their first questions were, Are you vegan? Does that mean you don't drink milk? Does that mean you don't eat meat? You don't wear leather? Um, did you sign the Liberation Pledge? Do you believe in animal personhood or the Animal Bill of Rights?

Um, and then what they would do is they would put up images, um, on the, on the, the sort of screen for the jury to see of whatever the sort of most confrontational protest was that that individual had engaged in. Whether that was, you know, um, Zoe Rosenberg, for example, at at at Berkeley had, uh, dyed a fountain red and then stood in the, in the, in the red water there as like a, a protest against the, um, cafeteria serving animals. Um, and you know, the point is the purpose of

Wayne Hsiung: You forgot Paul dressed up as a chicken.

Steffen Seitz: Yeah. Paul dressed up as a chicken outside Chick-fil-A.

Um, I think there's also Zoe, like chained to a basketball hoop. Uh, you know, there's all of these kinds of protests, that if you have no context, if you're a juror, you just suddenly see this on a screen. You're going to think, Wow, these people are weird. They're different from me. They're, uh, you know, aggresive and confrontational.

And what, and instead of treating this belief system with any amount of respect, um, they just denigrated it. They made it, uh, seem alien and different. And I think the implication was basically, look at these people, these weirdos who have weird beliefs, bad beliefs, they're different from us. Um, and, and that I think itself is a problem, and especially it's a problem when what they're pointing to is are these sort of deeply held beliefs that the First Amendment ought to protect.

Wayne Hsiung: Can I just add that the confusion about religion and the definition of religion is very important in theology too. As someone who's studying theology right now, it's kind of shocking how many debates there are about what religion is, and the best definition I found is from our seminary President Serene Jones writes that, What religion theology are, are essentially just identifying your core stories as a community and reflecting together on their shared significance. And that's definitely veganism.

I mean, what, what could be more important for vegans than the suffering of animals? I mean, this is literally what we do every day, all day with all our vegan friends.

So by Serene Jones' definition of theology, we're definitely involved in the practice of theology,

Mariann Sullivan: Unfortunately, the definition of religion, not to keep bringing back the painful situation of the country, for the moment seems to be, uh, they'd like it to be Christianity and probably only very limited types of Christianity. Uh, there have been...

Wayne Hsiung: Meaning the parts that ignore Christ.

Mariann Sullivan: Right. Don't have anything to do with Christianity. Um, so is this, how has this ever been applied?

I, I am pretty sure there are some contexts in which this has been applied to veganism, I'm not sure how strongly. And certainly in the UK that has happened, so this isn't like a totally new idea.

Steffen Seitz: It's come up a few times before. Um, so the most common way that it comes up in the US is in, um, prison

Mariann Sullivan: Prison.

Steffen Seitz: So when someone who's incarcerated basically says, I wanna be given vegan food, um, I'm not being given vegan food, and then sues, um, over it under sort of religious freedom, um, uh, concerns, because that's, for example, if you're Jewish, um, and you keep kosher, you have a

Mariann Sullivan: Um,

Steffen Seitz: kosher food in prison.

Mariann Sullivan: yeah.

Steffen Seitz: the First Amendment guarantees that. And the same argument is being made, has been made by, by vegans in prison. Um.

Mariann Sullivan: And some of those ca I mean, I know of cases of that too that haven't ended up going to court that, you know, they, the argument was made and there might have been a little back and forth about it, and then the prison, uh, actually, know, at some, at some administrative level, they complied.

Steffen Seitz: That, that's generally actually sort of a, a problem in some of these cases. That the only cases that go to court are the ones where the prison ends up saying, um, Oh yeah, we're gonna litigate over this. Like it, you know, the, the easier cases, they're just gonna give them the vegan food, they're not gonna wanna deal with the litigation.

So in, in those cases, it really depends. It, you know, they've often looked at, okay, for example, in one case someone is Buddhist, um, and, and claims this, and then yeah, their Buddhism gives them a right to it. And that's a very easy case. 'Cause we don't have to dig into whether ethical veganism or religion or not Buddhism, we all sort of, sort of traditionally agree that's sort of seen as a traditional religion, so it's an easier case.

In other cases, um, the, the, the sort of what's pled is basically, it's a lifestyle that this is sort of how they choose to live and that that's not enough. It can't just be a lifestyle, can't just be a diet. It has to be more than that.

Mariann Sullivan: Yeah. We all know vegans, who we would not include in this, uh, this category.

Steffen Seitz: Exactly. My sense is that like the kinds of vegans who, uh, go into factory farms and organize open rescues and go to jail over this kind of stuff are the kinds of vegans who are more likely to be in this category.

Mariann Sullivan: Possibly.

Steffen Seitz: Um,

Mariann Sullivan: possibly..

Steffen Seitz: So I think Wayne in some ways is one of the easier cases here. The thing about the First Amendment though is even if in one context for one person, the court says, Yeah, no, that veganism doesn't count as religion because of, you know, these reasons, that doesn't answer the question for Wayne because everyone has to be assessed on their own terms. It's not like veganism as a whole can simply be dismissed as a religion or not as religion. It's, again, it's the question of does it occupy the role in Wayne's life, uh, that a traditional religion occupies, you know, in the, in the, in the life of a traditionally religious person.

Mariann Sullivan: So let's assume that animal rights veganism, if, if held deeply, can qualify, that we're gonna agree with that. What does this mean in this context about like, what is it that prosecutors can and can't do that that might end up violating someone's First Amendment, you know, First Amendment rights? I guess this is free exercise, um, with their commentary about the religion or the equivalent.

I mean, I assume there's certain contexts in which they can ask about a religious belief if it's relevant, like so where is that line drawn?

Steffen Seitz: Yeah, so I think it's really about the level of hostility. So if it's relevant, a prosecutor can ask, but there's different ways of asking. There's ways of asking that make it seem alien and there's ways of treating it with respect. Um, and here I think it was very clear that it was, it was sort of hostile the whole way through. Um, there's an expert witness, uh, a criminal law professor, um, who testified about an opinion that she had authored saying that necessity applies to animals. And one of the questions she was asked was, Is this your opinion? She says, yes. And then, Is this your vegan opinion? And we can imagine it, you know, it's a criminal law scholar who is, you know, very well versed in, in, in the criminal law and has written this thing and it's plaus... you know, you cannot imagine that if, um, you know, she also happened to be Jewish. You cannot imagine if someone then asked her, uh, Is this your opinion? Yes. Is this your Jewish opinion? I think all of us would recoil at that. As if that somehow makes it a lesser opinion, makes it less scholarly or anything like that. And so I think those are the kinds of things you can't do.

Mariann Sullivan: So it's sort of an implication that, that they were being dishonest or, or at least their opinions were clouded by the fact that, that, that they embrace these beliefs, that they, they wouldn't be straightforward with the court and you couldn't rely...

Wayne Hsiung: I think you're being too charitable. I think they were just trying to create contempt for us. It wasn't even about, I mean, it, it really was just an effort to make contempt, make the witnesses and the defendants seem contemptible. Just these people who are preaching to you, who are kind of, um, just out of control 'cause they're dying blood in water fountains and getting dressed up in chicken suits. They're just crazy, dangerous people.

I mean, we've seen what Trump has done with immigrants across the country, to try to do to us what Trump has done to the entire immigrant community of the United States.

Mariann Sullivan: That is a better way of expressing it. Yeah. Uh, I mean, and I, I, it's just infuriating to read. Now, if this is successful, harmless error analysis doesn't apply, right? I mean, there's no way the court could say... Is, is or does it? Like, could the court say, Well, this didn't really affect the outcome of the case. The evidence was overwhelming, or whatever.

Steffen Seitz: No, I mean, if, if the court agrees that there's, that, that veganism in this case is religion, um, and also that there's this pervasive hostility, it would have to be vacating and remanding for new trial where you can't, uh, engage in this kind of hostility. The problem with this argument is that, um, you know, it wasn't raised that there wasn't like a, a clean objection at trial or anything like that.

And so basically we're saying to the court, look, um, this is one of those structural issues that's so big it affects the, the fairness and integrity of the proceedings, and you do have discretion to reach those. You don't have to reach them, but you have discretion to do it. So we're asking the court to exercise its discretion to reach this because of the importance of the issue.

Mariann Sullivan: Yeah, I meant to ask that. I mean, I, it sounds like it's a very similar standard to, to New York, but New York's really the only one I know, but, um. So the court can reach questions that aren't preserved, uh, in New York, the expression is in, in the interest of justice. It's probably a somewhat similar, it's, it's discretionary and it, uh, it's not that commonly done, but they certainly could at this type, this is the type of issue, if they were offended by it, that they would reach it in.

Steffen Seitz: I hope so. I mean, it is, again, it is, it's quite uncommon for the court to exercise discretion in that way. Um, my concern is that the court is going to think, This is tricky. I don't wanna weigh in on this. It's an issue of first impression. I don't have to weigh in on this, so I just won't. Um, but I also do think that if they read the transcript and they sort of read the facts as we've tried to display them in the, in the brief, that they'll be sufficiently alarmed by what happened, that they'll take action.

Mariann Sullivan: Yeah. Yeah.

Wayne Hsiung: Yeah, it's a good, it's a good lesson for the lawyers out there. I mean, I think in the trial court you do have to think about preserving things on appeal. I mean, part of the reason I didn't preserve it was because I just have this philosophy that I think probably Steffen disagrees with, and I think Steffen is working towards... you already know what I'm gonna say!

Mariann Sullivan: We've had this conversation!

Wayne Hsiung: My philosophy. My philosophy in court, at least when I'm defending myself, when I'm defending my clients, it's very different, I do what my clients tell me to do. When I'm defending myself, I don't make any objections. So I, I just don't object to lines of questioning 'cause my view is radical transparency is the future.

We should be able to defend ourselves to any sort of even unfair cross-examination. And that's just part of the movement developing its intellectual muscles. But in this case, maybe it backfired.

Steffen Seitz: I will say, this is, I think to, to go back to the beginning of our conversation about how, um, it would've been helpful if there was, you know, many defendants and sort of this sort of mass defense that happened. I think those are the situations where it's best because then you, 'cause it is difficult when you're representing yourself, I think, to make objections because you're not just being judged as a lawyer, you're always being judged as a defendant and it always seems like you're trying to hide something.

And that is a really tricky position to be in. And so in some ways the ideal is you represent yourself. Someone else has a lawyer who can then make the objections that you can sort of get a little bit of best of both worlds.

Wayne Hsiung: Yeah.

Mariann Sullivan: a real, that's a really good point. And, and also you just have different minds like paying attention to what somebody just screwed up on. And you can make an objection. I mean, the more, the more the better. But, uh, well, I mean, I, I worked in an appellate court, so obviously the presence of objections is something I consider quite, quite relevant, uh, to, to what happens next. Alright, we have one more argument. This one's an, this one is, is not preserved. I, I assume it's not preserved because somebody dug this up after the fact because this is an interesting argument. Can you just tell us about this section 602o, and what it says and why you believe, um, in this context it violates the First Amendment?

Wayne Hsiung: So we actually did dig it up before the fact, and I very, very aggressively prevented us from bringing the argument.

Mariann Sullivan: Because it was

Wayne Hsiung: I can explain why.

Mariann Sullivan: yeah. Well, should you do, should you do that now or

Wayne Hsiung: Why don't we, why don't we let Stefan explain the argument and I'll explain why didn't want it brought. Yeah.

Mariann Sullivan: Absolutely.

Steffen Seitz: 602o is the trespass statute that Wayne was charged with, uh, at the Sunrise Rescue. So it's a refusal to leave, um, trespass with refusal to leave. Um, and so Wayne was yeah, convicted of 602o and also conspiracy to commit 602o trespass. And the actual statute itself says, uh, you have to leave, uh, it, it's trespass if you remain on property after you've been asked to leave by the owner or an agent of the owner, um, but there's an exception to it. Unless you're there, uh, picketing for like labor reasons, basically, if you're doing something in accordance with what the labor, uh, laws allow you to do. And our argument is that that's clearly a content based restriction on speech. So the First Amendment, um, allows you to set some restrictions on speech if they're, you know, sort of neutral. Um, but you cannot have content based, uh, restrictions on speech unless they pass strict scrutiny, which is the highest level of scrutiny. It's very difficult to pass. And that's because we don't want the government picking and choosing messages. We don't want them to say, you are allowed to protest on labor stuff, but not animal rights stuff.

But that's exactly what the First Amendment is designed to protect against. And yet that's what this statute does. It says if you're there picketing, uh, if you're an employee who wants better work conditions and you're standing there picketing, uh, for better, you know, wages, better hours, et cetera, that's protected.

You are allowed to be on the property even if the owner tells you to leave, um, because the statute has an exception for that. But if that exact same person stands there instead of asking for better wages and work hours, they say, we want you to treat the animals better. We're concerned about animal welfare.

Um, we believe in animal rights. That person would be violating the statute. And so again, similarly situated people engaging in the same kind of activity, um, one of them ends up being protected because they're doing labor activity, the other one is not protected because they're doing other kinds of activity, that's clearly content based.

That's the kind of thing that the First Amendment doesn't allow.

Mariann Sullivan: And Wayne, why did you not wanna, um, to, to bring this argument?

Wayne Hsiung: Yeah, first shout out to Mirais Holden 'cause she was the one who kind of did a lot of the research and drafting of the, the motion that we ultimately didn't file. And the reason we didn't file there, there's a kind of a pragmatic and a more philosophical, spiritual reason. So , the pragmatic reason, and which I still basically agree with is I thought that the evidence from Sunrise was so much more important for the jury to hear, that if I was just faced with the facts of the Reichardt case.

The Reichardt case was a case where someone almost died, where there was much more aggressive disruption, including damage to property that occurred than at Sunrise. At Sunrise, we didn't damage any property. We just walked on very peacefully. We walked off very peacefully. We even had cops walking off with us when we took the hens out, while Reichardt was more of a smash and grab.

And I was concerned that if the jury only heard about the Reichardt case, they would not see the full picture of who are as activists. I'm of the view that most of these cases are won or lost just based on whether the jury likes you or not. I just didn't think the jury would like us very much, wouldn't like me very much if they only heard the Reichardt story.

So that was kinda the practical, strategic reason, which I still stand by. But frankly, I think this philosophical reason which is more important, which is I didn't wanna win on a First Amendment legal argument. You know, I thought it was really important for us to defend the necessity defense for us to get animal personhood on trial.

And even if we won that case, I mean, we had been setting up this case for five years. You know, we started DXE in 2013, organized around this idea that we have the right to rescue animals, that we can win this case in court, that we can appeal and change the law. And I thought it was incredibly important to preserve this appeal.

If we had won on 602o at the lower court level, and I guess it's still in theory possible the judges at the court of appeals level just ignore all the necessity arguments and just rule on 602o or promote or whatever, which is why I'm almost a little concerned about the other arguments in the appeal.

'Cause I, I, the central case, the central argument, to me that is movement significance is the necessity defense. And I didn't wanna lose that. We would, in theory, still have an appeal based on the Reichardt case, even if I had been convicted. But the Reichardt case's facts are just not nearly as good. I think Steffen can attest to this, that across the board, the necessity defense is just, there's so much more evidence of the condition of the animals, of the reports we made, of the lack of action by the government as a result of those reports in the Sunrise case than in Reichardt.

And I thought for the movement, it was important for us to fight on Sunrise. So I actually got in this huge shit storm argument with the other lawyers and, and, um, Priya actually dropped outta the case partly because of this. Because we'd gotten into this huge argument, not because Priya disagreed with me, but her lawyers disagreed with me, and she ended up having to fire her lawyers or effectively have to fire her lawyers, and she decided to take a plea bargain rather than represent herself.

Mariann Sullivan: Um, well, that, that is a lot of inside information that really does bring up a lot of, um, the rationales for, for, for why this happened, but you are arguing it on appeal. What would be the implications of, of winning it on appeal and what are they arguing? Um, because facially, their argument makes a certain amount of sense.

I mean, workers have a reason to be there, you can't just throw them out. So what, how are you counting that argument? And then talk a little bit about the implications for the possibility. Because courts do find a way to get rid of something that is not that controversial, and this could be their way. You know, not having to go into the necessity defense and things that are more difficult to get into.

Steffen Seitz: I if we prevail on this, it would mean that, um, Wayne's Sunrise convictions would have to be vacated because he was convicted of 602o and conspiracy to commit 602o. Both of those would go away. He would still have the 602k trespass conviction at Reichardt, but that would just be a misdemeanor. So I think in some ways that would still be a big win.

And again, a win, not just for Wayne, but for activists across the board, um, who are being subject to the, this kind of, uh, content based regulation. Um, you know, as you say, the, the government's response here is that really, this isn't about the speech you engage in, but the relationship of the individual so that the employee has certain rights that a non-employee doesn't. Um, I don't think it's quite right though, because if you actually look at what the exception says, it's not just if you're an employee, you can't be, uh, kicked off the property. You have a right to be there, even if the, the owner wants you off the property. It's, it's that you if you engage in certain kinds of labor activity, including picketing for labor rights, and it, there, there's, uh, I would have to go back and look at the specific language, but it actually is specific to the kinds of picketing you're doing.

So again, if you have an employee who's on the property asking for animal rights and for better, um, you know, welfare for the animals independent of their work conditions, that wouldn't be protected. Um, and the employer is allowed to then say you have to get off the property, um, otherwise it's a trespass.

Whereas if they're asking for something, uh, directly related to their employment, uh, then the employer would not be allowed to do that. So I think really what it turns on ultimately is the nature of the speech as opposed to the relationship of the employer and employee.

Mariann Sullivan: I think it's a really interesting argument and your explanation there does make it sound much more compelling. And, um, I guess, and it would be a way out for the court, but the fact that it's not preserved would make it harder for them to, um, to do that. But they could if they wanted to.

Steffen Seitz: On the preservation issue, because it's a constitutional issue, um, it's actually fine that it's not preserved.

Mariann Sullivan: Oh, okay.

Steffen Seitz: You're allowed to challenge the constitutionality of statute at any point.

Wayne Hsiung: Yeah. And I think, I mean, my, my sense is, I think you're right that it's possible to dispose of this without addressing this question of significant evil or personhood. And, and, and for the record, I think one piece that has been missing in the, in the discussion of necessity is the judge was heavily influenced.

I think people often who are not in the weeds of trials, don't understand how often jury instructions matter more than anything else. And what happened in this case is the judge read the jury instruction on necessity and said, which says that it has to be harm to the defendant or someone else. And looked at that term, someone and basically said, well, animals are not someone, they're something.

And, and that is the central argument, I think needs to get resolved. And I think it's a, it's the first argument on our brief, it's the most of the text in both the opposition and our appellate brief relates to this argument. And it's the argument we, we think has incredible movement significance.

I'll also say that it is often the case that the arguments made in court don't necessarily have to be the arguments we make out in the political sphere. Right? The, the Somerset case itself, that, you know, so, or, or even like Dale Jennings, I mean like the famous gay rights case in 1952, Dale Jennings, he actually won on entrapment.

It wasn't even a, basically this gay, gay man was, you know, basically entrapped and then, you know, convicted or they charged him with solicitation of another man, which was illegal at the time in California. He won, not because the jury and the court system vindicated the idea that you can be gay. They just won because it was an entrapment defense that basically the, the government basically told you to do this, you know, guiding you in doing this, and then they had you do it, and now the government can't say you did it when they entrapped you in doing it.

But still it had enormous significance for the gay rights and the Mattachine Society exploded after that, even though the argument made in court had almost nothing to do with gay rights. So yeah, my, my point is, I think it could still really matter, even if we win on 602o.

Mariann Sullivan: I, I totally agree, think that with both your points, both the juries really do pay attention to the actual language of jury instructions. They do hang, hang on them and, and really wanna understand them. And by and large, I mean, juries really take it seriously, the general public and the press not even remotely, uh, either you won or you lost. Um, and can, can expand on that in a lot of different ways. That seems very true to me. So I, I, I really tend to agree with that. Uh, is there anything that we didn't get to that you wanted to, and I didn't ask?

Steffen Seitz: I just wanna also just thank, uh, you know, we have incredible amicus briefs from so many partners. I mentioned some of them. Um, we also had like Animal Justice from Canada weigh in. Um, we had the NHRP, the Nonhuman Rights Project weigh in. They also produced a great brief on, on necessity that I forgot to mention earlier, the ACLU, the National Lawyers Guild.

I mean, it's really a lot of high profile organizations weighed in here.

Mariann Sullivan: Right. The ACL U, I mean, really, really did a lot here, didn't they? It was a pretty extensive argument.

Steffen Seitz: No, it is, it is a phenomenal brief.

Mariann Sullivan: I, I've been doing this long enough when I remember the ACLU would not go near an animal activist, so that's a real step forward.

Wayne Hsiung: Can I say on just a personal level too? I am very happy that one of my former professors, Martha Nussbaum, who I thought hated me in law school, I I seriously thought I was her least her, her least favorite student. She just, I thought she had just such contempt for me.

Mariann Sullivan: Possilbe you were, and she's just fair-minded.

Wayne Hsiung: Possible maybe I, maybe she still hates me, but she believes in animal rights and that's what matters.

So thank you so much, Professor Nussbaum. I know I wasn't your best student, but I'm so glad you're sticking up for the animals. The other professor that just makes me so happy who signed off to one of the producers, Laurence Tribe at Harvard, just one of those renowned constitutional law scholars in the nation.

Mariann Sullivan: And who has done a lot of great work, vis-a-vis animals.

Wayne Hsiung: Done a lot of great work for animals, he supported NHRP too. But there is something shifting among the intelligentsia. I think the zeitgeist is shifting. And again, I think a lot of people are not seeing the progress because we're looking at stuff on Twitter, we're looking at the number of animals being killed.

And those numbers keep going up. But I think we're on the brink of a sea change. 'Cause the intelligentsia, I think, doesn't generally drive change, but they're good predictors of where change will be. And so like on gay rights in the eighties and nineties, you have some intellectuals starting to come forward and say like, Oh yeah, this doesn't seem like it's consistent with equal protection of the law.

And it took 20 years for the, the rest of society to come around, but it was a good prediction of the way society was going. And the fact that we have so many renowned scholars saying, Oh yeah, it doesn't seem right that animals that compared to cellular matter is a good prediction of where society will be 15, 20 years from today.

Mariann Sullivan: I absolutely agree. Uh, let's hope so. Um, all right, so I was going to ask you, were there other, any other, um, amicus briefs that you wanted to mention? Have you, have you basically covered it?

Steffen Seitz: I think I've covered all the amicus briefs, yeah.

And And, there was just a ton of time and energy put into these. They're really strong. Um, I think obviously legal arguments are really important, but even just signaling to the court this matters, there's all these groups from across the political sp...you know, multiple different movements that care about this.

Um, this is something that you have to address and resolve. Um, I think that goes a long way just signaling to the court.

Mariann Sullivan: I mean, especially once you reach the appellate level and you're more likely to get what I refer to as gimme the wall judges, the ones who really wanna be out there and wanna write the opinion that gets recognized. The fact that there's all these names attached to it and that Wayne's in The New Yorker today, uh, makes a huge, huge difference to them not taking that easy out and deciding this on, uh, you know, an, an issue that doesn't make that much difference for animals, but really, really tackling it.

So let's hope that's the case. Has the argument been scheduled?

Steffen Seitz: Nope, we're still waiting for oral argument to be schedule. So this has been, yeah, it's been several months now since the briefing's been complete. Um, it's a huge

record. I mean, it was like, what, two months long trial?

Mariann Sullivan: There's a lot of huge records though, you know.

Steffen Seitz: Yeah, so I, I, I think they could still take some time, but we don't even have a date yet for the argument.

Mariann Sullivan: Yeah.

Wayne Hsiung: Can I ask you a question, Mariann? How important do you think oral argument is in apellate cases?

Mariann Sullivan: Uh, I think in most cases it's not. In some cases it is. So you, you just, you just have to assume that. I mean, not every judge goes, I mean, that is something I know a lot about, and they, they definitely don't all go in knowing how they're gonna vote. Definitely. Um, and in those cases, they usually have, I would guess, um, the questions lined up that they're particularly focused on and they really wanna get those answers. You know, I mean, it, it, in most cases, it probably doesn't matter a lot, but cases, a case like this, I would say it would matter a fair amount. I mean, especially since, uh, the defendants were so, or the defendant was so disparaged and veganism, the witnesses were so disparaged that, uh, a, a good oral argument could go a lot to repairing that kind of image if it did come through in the briefs and the record. Uh, so. I, I, I think everyone who's ever asked me that, I mean, not in this context.

Obviously this question, this case will be argued, but usually when lawyers have asked me that they want me to say, Yeah, the oral argument doesn't matter. You don't have to do it, but you definitely have to do it.

Wayne Hsiung: I'm glad you said that because I'm trying to get Steffen's boss, Justin, I wanna make sure he does the oral argument 'cause not that Steffen wouldn't do an amazing job and his co-counsel Chris, they're both amazing attorneys. But I do think the stature of the arguer often matters. And you know, Justin obviously is a very distinguished scholar.

You know, he's, uh, on the pattern jury instruction committee for the American Law Institute on criminal law. So, just, someone like Justin arguing this I think would be a historic moment for the entire animal rights movement and maybe for the legal system.

Mariann Sullivan: Yeah, I mean, I think it'll be a momentous argument and, um, I think any of you would, would do a great job. One thing we've got, which we didn't use to have, is a bunch of great lawyers. Um, so, so where are the best, since this is gonna take a while, where are the best places for people to stay up to date on what's happening?

Wayne Hsiung: Probably my substack. I mean, I would say follow the University of Denver, but there's not... the University of Denver, for the record, does amazing comms. I mean, our, our friend Lauren Gazzola got so much amazing media attention for all these trials, most recently Zoe's trial, but they don't really have much of a social media or email list game. So it's kind of hard to follow them without,

Steffen Seitz: We do have a newsletter!

You can Google that. We're on, I think Instagram, um, like a few other social media sites.

Mariann Sullivan: There you go.

Steffen Seitz: So follow us there. But I agree that Wayne's Wayne's,

Substack I think excellent place to follow as well. Um, but yeah, follow us, follow Wayne.

Those are the places that you'll see most of this.

Wayne Hsiung: You gotta get Steffen to start writing. I've been telling Steffen should start a Substack for like the last, at least the last what year? Maybe two years. But he hasn't taken my advice.

Mariann Sullivan: Oh, that would be great. I would follow that, that's for sure. Uh, well I think that that calls it, we've been on here for a while, but I actually, I thought we'd go an hour 30, so we're doing great. And, um, it was fascinating. So many interesting issues. Really, really, these, a lot of these arguments have serious legs, I think.

I can't wait to hear more about what happens. Um, and thank you so much for joining me today to talk about it. It was really great.

Wayne Hsiung: Oh, Mariann, can I actually add one more thing? Because if this, if this comes out on Friday, my wife is literally going on trial the Monday after this podcast comes out in the King's Sheep case.

Yeah, we did talk about our her case the last time, but the, the trial literally starts on Monday.

Yeah. Just so briefly, she rescued some sheep, some sheep, some lambs from the King of England who was mistreating them. He has a huge 2000 sheep flock, and her trial starts on Monday, so a few days after this podcast is released. So you can follow me on X, follow Animal Rising on X or Instagram, follow my Substack, but it's gonna be a very, very interesting case in defense of the right to rescue.

Mariann Sullivan: We'll definitely be watching that. Thanks, Wayne.

I also wanna thank Vicki Beechler, Jen Riley and Akber Khan for their help in producing the podcast. And I wanna thank you guys for tuning in. And, um, don't forget to subscribe on your favorite podcatcher catcher or on YouTube and see you next time.