Strict Scrutiny - Blood-Stained Bunny Costume

Episode Date: June 15, 2020

Because constitutional law makes everything more fun, Leah and Melissa decided to spot constitutional law issues in Netflix’s quarantine hit, Joe Exotic.  They are joined by Delci Winders, Assistant Clinical Professor & Director of Animal Rights Clinic, Lewis & Clark Law School, who shares some of the important animal rights and animal welfare issues the show left out. This one goes out to you, Carole Baskin! Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, a podcast so fierce it's fatal in fact. And today we have a very, very special episode. The kind of episode that can only happen when two cultural phenomena become one.

That's right, folks. This is the Strict Scrutiny x Tiger King episode. Rawr! Rawr! Rawr! Alrighty, so it is hard to be a con law professor because you see everything through the lens of constitutional law. Even the guilty pleasures become fodder for hypotheticals and class lectures. And so it was for us with Tiger King. We saw Joe Exotic and a bevy of exotic big cats, and we thought federalism, the Second Amendment, and polygamy.

That's what I saw. I did not see Joe Exotic alone. I saw Joe Exotic alongside these other con law. It was like a walking issue spotter for me. So, spoiler alert, I actually did a Tiger King-inspired final exam for my students. Why do you always have to raise the bar? Our very special guest for this episode, Lauren Lowe. Delce. No, it's not Joe Exotic or Carol Baskin.

Even better, it's Delce Winders. Delce is an assistant clinical professor and director of animal rights clinic at the Lewis and Clark Law School. So welcome to the show, Delcy. Thank you so much for having me. So here's how this episode is going to work. We're going to do a deep dive into the world of Tiger King, not just to talk about it, but to issue spot all of the con law issues and other issues that were surfaced across all of the episodes. We know some con law students had their constitutional law classes

interrupted by the coronavirus and shift to online classes. And some bar studiers are working during shelter in place orders. So we thought we could help with this fun distraction. Is it a distraction or really is it a learning opportunity through the lens of pop culture? Let's think about that. Let's not sell ourselves short.

I like it. We'll leave that one to our listeners. Excellent. Okay. So here's a rundown of how we're going to go through this episode because it is kind of an unusual episode. It's all tiger, all king, all the time. And so first we're going to talk with Delce about her practice and about her clinic, which incidentally is the only animal rights clinic in the country. So we'll hear from her and get her perspective on some of these issues. Then we're going to delve into the question of federal authority to legislate to protect big cats. So brush up on your commerce

clause and all of that. We're going to dig in. We're going to talk about private resistance to the law, an issue that has become increasingly salient in this pandemic. We'll talk about takings, Second Amendment issues, personal and family autonomy, criminal law and criminal procedure issues, and then finally, some First Amendment and evidentiary issues. So it's a jam packed episode. And I'll just say side note, any of this might be jettisoned because we have to make it in under 60 minutes because I have another conference call. So we're not going to have time to explain to you why Carole Baskin killed her husband. But we all know you're thinking about it, and so are we. So stay tuned.

So first, the most important part of the episode, where Delcy helps us discuss some of the issues that I think were left off of the show. And in fact, when we suggested we wanted to do this episode, our producer Melody Rowell reached out to her friend Natasha Daly at National Geographic, who recommended that we specifically talk to Delcy, who, as Melissa noted, is the director of the only animal rights clinic in the country. So Delcy, the show Tiger King did not cover a lot about how the animals were treated or highlight the problematic treatment of the animals until the very end when they covered

the trial where Joe was alleged to have ordered some of the zookeepers to shoot the animals. Why do you think the show kind of omitted that topic or didn't cover it quite as much? So before I jump into that, which I'm very eager to answer, I do want to just clarify that we actually have three animal law clinics at Lewis and Clark. Wow, very fortunate. We're the leading animal law program in the country. And there are a handful of other animal law clinics out there. But my clinic is the only animal law litigation clinic. We're the only clinic. Thank you for clarifying. This is why we needed to have her on the show. She knows things. I just want to give my colleagues due credit. So yeah, I think it's really fascinating to look at

this train wreck of a situation with these guys who are total egomaniacs and defying the law left and right. And you can make an easy buck getting people to watch that. And that's much easier than delving into the issues of animal abuse. And I think that's what happened despite promises to animal advocates that this would be the quote unquote blackfish for tigers, Eric and Rebecca, the filmmakers, really saw an opportunity to make an easier sell, and they just went for it. It's so interesting because they just present this as entertainment, and there's no sort of interrogation of what the underlying ethical issues are around the treatment of animals. What do you wish that the viewers could have known?

If you were watching this afresh, what do you want us to look for as we sit through all eight episodes of this train wreck? Yeah. So, I mean, there is so much that they could have covered and it would have been taken a little bit more effort, but it wouldn't have been that hard. So one is these animals suffer horrifically. And yes, they did touch on that a bit in the show. But there is so, so much more that they didn't delve into. I mean, there is eyewitness testimony, there's video footage of Joe killing healthy animals going back years and years and years. Of Joe denying suffering animals of veterinary care. Well, they'll just cry out in pain for days on end. Of dozens of tiger cubs dying under his watch.

It just, it goes on and on. And it's not just Joe. It's the other players as well. They all have horrific records of animal abuse. And it's far worse than what you see in the show. The show is really just the tip of the iceberg. And I think another thing that's really important for people to understand is how fundamentally complicit the U.S. Department of Agriculture is in all of this suffering and allowing it to persist. Each and every one of the animal exploiters featured in the film has a license issued by the USDA each year under the Animal Welfare Act.

They've each been documented violating that law over and over and over again. And yet the USDA has continued to allow them to stay in business. And Doc Antle and Jeff Lowe still have licenses? I mean, on this show, one of the women who worked at Doc Antle's zoo basically insinuated he killed a tiger that she became close to. Doc Antle and Jeff Lowe absolutely still have licenses. Yeah.

Okay, this is, like, as you were talking- We also still have wives, which also puzzles me as well. Small footnote, we'll come back to that one. Ladies, love yourselves. I mean, honestly, Delcy, as you were talking, like that would have really changed the experience of the show. And I think the show for me and many other listeners, like I cried on my way to the vet when my dog started to cry on the way to the vet. Like the cruelty to animals is just, I think, one of the lowest of lows. Absolutely, absolutely. And each and every one of these men are documented to have have

inflicted immense cruelty on numerous animals. And yet the USDA, although they have them dead to rights, just continues to look the other way. So is there litigation ongoing regarding, you know, their private ownership of zoos or exotic animals? Or what are some of the litigation that your clinic or others are involved in related to this topic? Yeah. So I just want to jump back briefly and mention a couple other things that I wish the show had underscored is that not only is the USDA complicit, but each and every one of us who's engaged in a photo op with a cub is also complicit. And, you know, we may not have known better at the time, we've all done things we wish now that we know more we hadn't done. But it's something I really hope folks will realize that this isn't the case of just, you know,

Joe Exotic is awful. This is an awful industry. And it's fundamentally cruel. It fundamentally requires pulling these animals from their mothers and then discarding them when they get too big. So I hope folks will think twice about engaging in those sorts of opportunities. And then lastly, I think one of the big, big, big problems of the show that really hasn't gotten much attention is that it takes the position that all captivity of these animals is the same and conflates the situation at Carol's Global Federation of Animal Sanctuaries accredited facility and the situation at Jeff and Joe and Doc's places. And there are real differences. And I mean, of course, Carol and other GFAS

sanctuaries would be the first to tell you that these animals should not ideally be in captivity. But given that they've been bred into captivity, and we can't release them into the wild, we owe them the best that we can possibly do. And GFAS, the accrediting body, has rigorous standards that folks need to abide by, including space requirements, enrichment requirements, not breeding more of these animals into captivity. So there are real, real differences that are just completely elided, deliberately elided in the show. What are enrichment activities for tigers? When you said that, I became curious. Like, do you give them puzzles or what? I give my

dog puzzles. So this is the only idea I have. Yeah. I mean, tigers are very scent oriented. So there's a lot of scent enrichment that you can do. You may remember Joe's allegation that someone put cologne on his shoes in the show. So there are a lot of scent enrichments. There are puzzle feeders that you can give them to sort of activate their behaviors. Yep. Yep. So there's all kinds of things that you can do. And basically what you're trying to do is, you know, they have genetically ingrained behaviors that whether they're born in captivity or not, they they're still wild animals and you want to let them act out those behaviors as much as possible. That's basically my whole

homeschooling philosophy. Nice. I approve. Wait, you give your children feeding puzzles or you try to allow them to act out their genetically ingrained behaviors? These kids are feral. That's all I'm saying. But I will answer your question about litigation. There is a huge amount of litigation underfoot. Most of it is happening under the Federal Endangered Species Act because that statute has last several years, there's been a whole host of lawsuits filed, seeking basically to do the USDA's job for it in large part, because they've allowed these men to stay in business and have failed

to take action, despite egregious and well documented violations. Groups like People for the Ethical Treatment of Animals, PETA, where I used to work, the Animal Legal Defense Fund, ALDF, and others have stepped in and they're filing private citizen suits. So there's one ongoing against Tim Stark, who was featured in the show. Jeff Lowe has also implicated himself in that lawsuit. And there's actually an order pending, or sorry, a motion pending for sanctions and contempt for Jeff and Tim Stark, both for violating numerous court orders. There was recently a victory against Dade City Wild Things, which is another awful actor that wasn't really featured in the show, but no surprise had gotten tigers from Joe in the past. And that case recently resolved with a default judgment

because of egregious discovery violations by the defendants. There was recently another victory against an outfit called a tri-state zoo up in Maryland. So there's a bunch of action happening here under the Endangered Species Act. And I do, I'll plug, I have a book chapter coming out on the application of the Endangered Species Act to captive wildlife. It's a really interesting topic. Oh, that's awesome. Please share it with us when it does come out. I did want to explain to our listeners what a citizen suit provision is

that Delcy mentioned. So a citizen suit provision is a provision of a statute that authorizes private citizens to bring suit when someone else violates a statute. And sometimes the private citizens that are authorized to bring suit might not be, let's say, the personal victims of the statutory violation. Here, obviously, the animals might be the primary victims. And so the citizen suit provision authorizes private individuals to bring a suit against other parties who are violating a statute. Now, the court has said there are limits on Congress's ability to authorize these suits to happen in federal court based on the doctrine of standing. But the court has not yet firmly outlined what are the

minimum requirements that an individual has to meet in order to bring suit under a citizen suit provision. The courts held that the citizen suit provision in the Lujan versus Defenders of Wildlife was too broad, but then in some subsequent cases in Frank V. Gauss and Spokane versus Robbins, the court has not yet articulated the governing test on when individuals can bring suits under the citizen supervision. Yeah, and I will jump in and add because Article Three standing is my one area of con law expertise, because I have to brief that in literally every single case I ever bring. There are two main theories that folks rely on in bringing these cases. One is aesthetic injuries to individuals. And so there's case law recognizing

that you have an interest in seeing animals in humane conditions. And secondly, and what's relied on in actually all three of those cases that I just mentioned, is Havens Realty standing, which relies on the Supreme Court's decision in Havens Realty versus Coleman and recognizes that when an organization's interest is injured and they have to divert resources in order to counteract those injuries, they have standing. So that's a big emerging area in animal law and intersection of con law and animal law. Are there any legislative efforts to kind of deal with the situation? I know there were a number of scenes in Tiger King that had legislators, federal legislators, cuddling cubs and whatnot.

So can you say a little bit about the whole legislative reform aspect of this? Yeah. So the big, big, big one is the Big Cat Public Safety Act. And that is pending in both the House and the Senate and has a huge number of co-sponsors. And the most important thing that that statute would do would prohibit folks who have big cats from allowing the public to interact with them. And the reason that's so huge is because by allowing those interactions, you incentivize this breeding mill attitude where currently the USDA allows cubs to be handled from about four weeks to 12 weeks of age. And so the folks engaged in this highly profitable business want to at all times have cubs in that age range. They push the limits all the time and lie about the ages, but more or less they have them in that

age range and then they need to get rid of them. So it's just constantly breeding and dumping, breeding and dumping, and that's creating the tiger and other big cat overpopulation crisis in this country. And so that statute has gotten more, you know, it's been introduced numerous times in the past. It has more traction now than ever. It's gotten out of committee in the House for the first time ever. So that's the really big one. I also do want to flag the Animal Welfare Enforcement Improvement Act, which is the one that I mentioned that would add a citizen supervision to the Animal Welfare Act. And there's also a lot happening on the state and local level in terms of banning some of these most egregious practices. And I think that's those are huge opportunities, too. And those are really empowering, because that's something that anybody can go to their city council and work on getting a lot passed. And that basically brings us to issue spotting Tiger King with the introduction,

dun dun dun, with the introduction of the proposed legislation, and in particular, the Big Cat Public Safety Act, we wanted to discuss some issues about whether the federal government would have power to pass that or potentially broader statutes protecting animals from the abuses that Delsey detailed. So the Big Cat Public Safety Act, Delcy explained, would prohibit the possession of animals or the importation, export, transport, selling, receiving, acquiring, or purchasing any prohibited wildlife, species,

and interstate or foreign commerce. Ding, ding, ding. Ding, ding, ding. Right. OK, so that's going to be potentially relevant. But before we get to the governing law, Melissa, do you want to explain what some of Joe Exotic shifted from his dreams of having a big cat amusement park, basically, to possibly governing the entire state of Oklahoma, which in a few weeks we'll find out is or is not a Native American reservation. But he wanted to be the governor. So he actually launched a campaign to be the governor of Oklahoma on this sort of libertarian platform.

And it was just sort of, I don't like the feds. I'm a libertarian. So technically, fuck the feds was something he said. He was basically arguing that the federal government doesn't have the authority to legislate in this area, that this is basically something that is outside of Congress's concern. I'm not really feeling that argument so much. I'm not either, like a more reasonable person like you or me or Kate or Delcy or someone like that. So the governing law from the Commerce Clause comes from the court's major decision in United States v. Lopez, which invalidated the Gun-Free School Zones Act, which prohibited the possession of guns near schools. And in that case, what the court said is Congress basically has three categories of authority under the Commerce Clause.

First is channels or instrumentalities of interstate commerce. Second is persons or things in interstate commerce. And last is economic activities that have a substantial effect on interstate commerce in the aggregate. Now, as we read the text of the statute, Congress, obviously cognizant of Lopez, has limited the application of this statute to transactions of animals that happened in interstate commerce, thereby limiting the statute to persons or things in interstate commerce. And so I think that that is pretty constitutional under Lopez. But, you know, given the stare decisis is for suckers, time might tell whether, you know, that that remains the law.

Well, I mean, this is sort of an interesting point, right? I mean, the court and certain members of the court have been kind of waffly on how rigid they are on sort of defining what has a substantial effect on interstate commerce. So I mean, the partial birth abortion ban, which was upheld in Gonzalez versus Carhartt 2007, ostensibly had some kind of relationship to interstate commerce. The Violence Against Women Act did not. So that was Morrison in 2000. So again, I think the whole question of whether this is merely a kind of imposition on sort of the liberties of individuals to sort of carve out a particular kind of enterprise for themselves, I think the way that is framed will be really relevant for how certain quarters of the court receive and think about this legislation if it goes up to the court.

I think that that's right. And Justice Thomas wrote separately in Carhartt to say, you know, he wasn't sure if someone brought a Commerce Clause challenge, whether the Partial Birth Abortion Ban Act would be valid. But I think that as written, this isn't really a Lopez Category Three economic activities that substantially affect interstate commerce case. It's instead a persons or things in interstate commerce case. And, you know, some facts in the show suggested that there is indeed a pretty active interstate market in these big cats. That was featured in episode one, is from Ohio. At one time, Joe was traveling and displaying the animals at malls throughout the Midwest. Jeff and Joe went to Nevada to display the animals. So it does appear that there is a pretty active interstate market in this area. I'll just underscore that. I mean, this is a multibillion dollar industry, wildlife trafficking, and I have seen hundreds, if justices on the spectrum of Joe Exotic to,

I'm just going to say, Kate Shaw. Sorry, Kate, you're not here. You know, one closing line that I did think was notable and that other people have flagged was the closing of Justice Kavanaugh's opinion for the conservative majority in Manhattan Community Access Corporation when he said, quote, it is sometimes said that the bigger the government, the smaller the individual, you know, not quite as crazy libertarian as, you know, fuck the feds, Joe Exotic. But, you know, just wanted to highlight that maybe some of the justices are more on the Joe spectrum than the Kate spectrum. Yeah, that's a really good the Joe. I mean, I don't think Kate appreciates it, but it actually is like far out.

Not so far out on this, for sure. Right. What are some of the other big con law issues that you saw. So immediately, the whole question of under what particular authority Congress could legislate to protect big cats was one of them. But are there other issues that we might identify here? Some other questions? So another is private resistance to the law, an individual's ability to push back on laws that they feel are unjust? And what is the state's obligation to ensure that, you know, the individuals basically being protested or resisted can retain their rights under the law? So this is an issue that comes up in constitutional law repeatedly, obviously, in states nullification

of federal law, jury nullification, but also in individual rights cases. So for example, Cooper v. Aaron held that Little Rock had to continue to desegregate its schools despite the violence, some private violence, some private violence encouraged by state officials that made desegregation more difficult is one example. On the other hand, Palmer v. Thompson allowed Mississippi to shut down its public pools when a court said they had to have integrated public pools. In states where marriage equality was perhaps more controversial, even after Obergefell, whether or not private individuals could resist, even as they were obliged to perform public duties, whether it was as a clerk of the

court or issuing marriage licenses or whatnot. So we've seen this before and we'll likely see it in this pandemic as more and more individuals either speak out about shelter in place demands or resist the prospect of reopening before they're ready. Yes, or they maintain religious exemptions to, say, a vaccine requirement or other generally applicable requirements. So this is an issue that I would say is near to Joe's heart. Well, and did he say it is a ticking time bomb and if they try to take my animals away, it's going to be a small Waco? That is, in fact, what Joe said. I believe he said, no one is going to walk in here and freely shut me down.

Tim Stark, the other big cat collector that Delcy mentioned in her opening remarks, in fact invoked Thomas Jefferson. As a graduate of the University of Virginia, I'm just going to have to call BS on that. Like I can spot a Jefferson quote from a mile away. And I think this one, which is quote unquote, if you think it's unfair or injustice, it is your obligation. It is your responsibility to stand up against that bullshit law.

At no point ever did Mr. Jefferson ever say this. I affirmatively can tell you that's not the case. Can I elaborate a little bit on Tim Stark and this issue? Because this wasn't featured in the series. So in March 2017 is actually the last time the USDA went out to inspect Tim Stark. They've been renewing his license all along, including just this past November. They haven't inspected him since then because when they went out then, it was on the heels of having cited him less than two weeks prior for a host of egregious violations. An animal whose tail was inexplicably missing, tiger cubs who'd been illegally declawed, etc, etc. But when they came out on this particular

day, he brandished a gun, He refused to allow the inspector's armed security to enter the premises, and they didn't feel safe going on without their security, and so they left, and they have not been out since. Wow. What to say? So if we could focus on another issue spotter question, one of the things that struck me, I don't know if you both track this as well, but there were a lot of guns in Tiger King. Did you notice? So many guns. So many guns. And beyond sort of the normal kind of hunting musket that we hear about from those who favor, I think, more expansive Second Amendment rights. I mean, there were some serious weapons. Or simple handguns.

Yeah, there were some serious weapons. So OK, first of all, so Leah, what does the Second Amendment provide for? So we know very little about the precise scope of the Second Amendment, given that it was only in District of Columbia v. Heller that the court held for the first time that the Second Amendment guarantees an individual right to possess firearms that are un such as, does this right extend to possession outside the home and in various public places? One question. Second, what kind of guns or firearms fall within the individual right to possess firearms? And then finally, what standard of review is applicable to Second Amendment challenges? Should courts be applying something like strict scrutiny? Is it intermediate scrutiny? What is the precise standard of review? So these are unanswered questions. I think Joe and company probably has some views. And again, here,

it's not obvious to me how different some of their views are from some of the justices on the Supreme Court. So Melissa, well, so there are like, so one of the justices on the Supreme Court. So Melissa. Well, so one of the things that I think, again, this whole question of private resistance to extant law might encompass is this idea that the Second Amendment may prohibit Joe Exotic and his compatriots from having quite the arsenal of weapons that they do have. I mean, at one point, Joe Exotic's husband kills himself on tape by inflicting a gun wound to the head. So I mean, like there's a lot of gun violence in the show. But I don't think that any of these people are part of the group of prospective plaintiffs that gun rights groups are eager to trot out before the Supreme Court. It's so surprising, Melissa, when these gun cases get to the Supreme Court, it's a former police officer and not Joe Exotic and company,

who, by the way, are enthusiastic exercisers of their Second Amendment rights. And, you know, these are the people that, like, come within the scope of those decisions, too. Right. So, I mean, it is actually a really interesting point about the degree to which impact litigation of all kinds can be curated. So we saw this, again, with the marriage equality cases. You know, it was not coincidental that those who were brought out to challenge laws that restricted marriage to just opposite-sex couples were among the most upstanding veterans, teachers, you know, whatever. It's a very concerted strategy, and you also see this in the context of the Second Amendment. But

again, in all cases, these laws protect all comers. These rights protect all comers, including Joe Exotic. Before we go on to the next issue, I did want to highlight a few things that were said on the show about what the individual right to a firearm can be used for, as well as the type of guns that they were using on the show. So for example, Joe said, if you're an animal rights person and you try to come to this facility, this is what you're going to be greeted with. Here's a large automatic firearm. He goes to Walmart and orders 100 rounds of 223 ammunition.

The employee asked Joe whether he wants explosives. And, you know, Doc Antle sleeps with an AK-47 under his bed. And they present it as a question of self-defense, to be really clear. So, I mean, like part of this is sort of the extreme danger. So even if you think, even if you think the Second Amendment right is only in the home for self-defense, right, these are the exertions of self-defense at the home by some people. You know, in his confirmation hearings, one issue that came up with Justice Kavanaugh

was he voted to strike down the District of Columbia's ban on semi-automatic rifles and the registration requirements for the same. So again, listeners, you can place the different justices on the Joe Exotic spectrum as you please. Detail worth highlighting. It is really interesting. And again, it goes back to that question of sort of who is invoking these rights. Like, you know, it could be Joe Heller, who, you know, for all intents and purposes was a law-abiding peace officer. But it also extends to these circumstances.

Like these are technically circumstances about home defense. There was Mario Tabre's compound. He was a former convicted drug dealer. Now he's a cat collector. And there's a sign that displays a gun and above the gun, the sign reads, we don't call 911. You know, we take things into our own hands.

So, I mean, another kind of sort of, I guess, species of distrust of government and police services and this idea that if law needs enforcing, you are perfectly capable, if armed, of doing it yourself. Well, I mean, one very terrifying application of that speaking of former police officers is, you know, the recent Arbery murder, right, where it was a former police officer, Gregory and Travis McMichael, who were arrested for his murder, and they tracked him down with guns. And like, the reason they weren't initially arrested is because they told the officers and the officers credited their story that they were, quote, you know, defending their home. Citizens arrest. Yeah, right. Exactly. Right. And so as we are thinking about, you know, what is the scope of the Second Amendment? Right. And what does it entail? Like, it's kind of important to think about like all of the applications of that right and to be clear i mean i think there's a wide range of views on this and

reasonable people can disagree like i grew up with a dad who went hunting i grew up in florida like like lots of people use rifles for sport and whatnot i have never seen anything like this on tiger king like oh, legit off the hook. I mean, I grew up in Minnesota. People went hunting, right? This is not uncommon, right? All the parks would be marked during deer season. I had never seen anything like this.

These guns are terrifying for so many reasons. But I just want to remind us that more than anything, they were being used to shoot and kill animals, endangered animals in close, they were being used to shoot and kill healthy, endangered animals in close, who were confined. And at close range. Yeah, exactly. Yeah. No, I mean, yeah, there was a lot going on. Other things I had not really seen were just sort of the various permutations of relationships that pervaded the show. And I say this as someone who teaches family law, takes perhaps a more elastic understanding of what is involved in forming a family. And,

you know, I actually, it sort of warmed my heart to see the way that Joe Exotic kind of brought in this, like, created an island of misfit toys of all of these people who were really kind of lost and sort of, you know, at loose ends and brought them together, gave them a common purpose. They kind of formed this kind of family organization. But then the relationship between Joe and his husbands, and I say plural because there were, there was a series of husbands, was so interesting and had such an element of coercion that it really began to trouble me. Yes, absolutely. And I don't know if the coercion that you are speaking of or had in mind is the fact that his husbands at the time they were together appeared to have serious addiction

issues. And Joe was providing them with drugs basically as a condition that they not leave and neither of his husbands identified as gay and I think the combination of his holding over the drugs from them and limiting their access to it right Access to it and travel was deeply troubling. I thought it was really interesting that neither Travis nor John, the two husbands of Joe Exotic, neither of them actually identified as gay, as you say, or bisexual for that matter. And it reminded me of a point that my former Berkeley colleague, Russell Robinson, has made repeatedly in his own writing that these categories, again, are socially constructed. Like, you know, you can have what he calls MSMs, men who sleep with men, whether in long-term relationships or episodically for

particular purposes, whether it's for exchange of funds or whatnot, or in this case, for other reasons. But these categories are completely constructed and people fall in and out of them. And when we legislate according to them, and we often do, we may be missing a whole range of people who don't identify, but nonetheless engage in conduct that would be consistent with a category. The other atypical personal relationships on the show included Jeff Lowe and his wife, who were swingers and used tigers to seduce women in Las Vegas. What's in your suitcase, ma'am? It's a tiger cub. Oh, gosh. The idea when they showed the the I think the show constructed video simulations of tigers being transported in suitcases. That horrified me.

I mean, what are you how can they breathe in there? They're just being held in these pieces of luggage. I just I hated that. Anyways, other atypical family unit, Doc Antle, who lives in a compound with a, quote, great big family unit and has an apprentice program that appears to reward women for sleeping with him and he controls how they dress. So this is not the internship you want ever.

So there's that. Backing up to the Lowe's, the last couple of scenes of the last episode were so horrifying. With the nanny? Thank you. So Lauren Lowe is grossly pregnant, right? I mean, she's like about to deliver. She said they're going to be induced in a few weeks.

So she's super pregnant. And he's talking about getting a nanny. And in front of her talking about like getting a hot nanny. He's like doing the full Ben Affleck. Yes. And she's like, I don't know if she's uncomfortable, if she's anxious, if she's worried. It doesn't seem like it. And he's got, he's printed out photos of the nannies he finds most commonly.

I mean, it's just so gross. And we didn't even flag this, but I mean, likely to engender a whole range of workplace harassment questions because this guy is hell bent on harassing the nanny. Yes. Right. He's basically committed to doing so on national television. And then he also says like he's going to get his wife back in the gym. Like that part, I mean, having had two kids, if my husband had suggested that I get back in the gym, like he would have died. Anything else on personal or family relationships before? So the plural marriage part I thought was actually really interesting.

And it's usually when you talk about plural marriage, it's sort of the Doc Antle model where it's polygamy, right? Yes. So this was actually really interesting in that it was polyandry, but in a same-sex perspective. So he had multiple husbands. That's not the talked-about model of polygamy that we hear about. And so again, though, even in that model, you still, I think, had a lot of the same concerns and questions about coercion and exploitation that I think traditionally attend questions about polygamy, just multiple wives as opposed to multiple husbands. Right. Briefly on the next topics.

All right. So in there's some, I mean, again, I could say like a million things about the family law of Tiger King. I think I will come back to that. One of the things I thought was interesting is like, should any of this be protected, right? So post-Arborgefell, post-Lawrence, is it okay to have relationships that, you know, do not comport with sort of the traditional marriage model? Are the lows okay? Is this something that would be constitutionally protected? I think there are real questions here. I think there are, too. And, in fact, these are some of the questions that the dissenters in Obergefell raised, you know, when the court held that relationships between individuals of the same sex were constitutionally protected,

how far did that ruling extend? Well, Chief Justice Roberts specifically raised the question of polygamy. And I think Justice Kennedy tried to answer it with what was essentially a love letter to marriage, a monogamous marriage and marriage between two people. And so interestingly, in sort of writing this kind of over the top language about marriage being the most profound union that two people could ever enter into, he kind of sort of perhaps forecloses the opportunity for other kinds of relationship. I mean, I certainly think it makes it harder for non-marital relationships to secure protection, but I think it was meant intentionally to kind of close down the question of whether plural marriage might also enjoy that kind of protection. So it's not

obvious to me that any of these configurations enjoy constitutional protection. And I think that is doubly more so under the logic of Lawrence, which, although taking a wider view of what is possible outside of marriage, also comes down pretty clearly that the law can intervene in order to avoid harm to vulnerable third parties. And I think you could make a very strong case that a lot of what is going on here is exploitation and coercion. Absolutely. So there were other issues that we wanted to briefly issue spot for listeners who might want to analyze them on their own. We won't have as much time to dive into them because we wanted to keep this episode within regular time limits. One is the possibility of takings challenges to any regulations of exotic animals. Specifically, there is a possibility that any prohibition on the possession or sale or display of exotic animals would constitute a taking because the animals are, as this show made clear, the economic livelihood for some of the individuals. And so, you know, there's some possibility of takings challenges to, you know, existing laws and potential future laws. that those who are trying to reopen in defiance of shelter-in-place orders are making that like

the fact that there are laws in place that prevent them from opening a business or pursuing their trade are essentially regulatory takings. Yes. So students who are looking for a great note topic, consider analyzing different takings frameworks, either for statutes involving exotic animals or shutdown orders. And I think I just want to add that I think that the takings question really highlights a fundamental issue of animal law, which is that animals are property under our law, just like any other sort of property, despite how fundamentally different they are. And that's that's something that a lot of us are pushing up against in our litigation and other efforts. And not just any kind of property, they're highly lucrative and remunerative. I mean, like this was quite an enterprise. I mean,

they made a lot of money and the trade in Big Cats was substantial. So, I mean, they're not wrong that it is an economic hit. The question is, like, does it matter? Right. Given that these are things with feelings and sensations and, you know, can experience real harm from the situations that they are in as property. Like people who shouldn't be property either. What about criminal law and criminal procedure? So much criminal law and criminal procedure in the show. There was some undercover informants, James Gerritsen, the gosh, I'm blanking on the thing. What was it? What was the thing he was on? But James Gerritsen, the jet ski king, James Gerritsen, James Gerritsen, the jet ski king on the Tiger. He was the last person I thought would have gotten on a jet ski. Right. He was informant. They didn't actually end up...

And they played Eye of the Tiger. That was the best part. He's like coming on the jet ski. They're playing Eye of the Tiger. Yes. He was like the sleeper hit

of the whole last part of the whole series. Strong agree. Although Joe's eventual indictment didn't end up relying on his testimony it relied on jeff lowe and alan glover's statements about joe exotics conversations with alan glover arguably

in which joe was talking about having him go kill carol baskin there was even a shout out to well not really a direct shout out more like like an implication of the Supreme Court's decision in Carpenter versus United States because the U.S. attorney used cell phone, cell site location information to track Alan Glover and do searches of, you know, where the individuals were. And in Carpenter, the court held that was a search for purposes of the Fourth Amendment. So what about First Amendment and evidentiary issues? I saw a bunch of those. I think. Right.

Did you see any? Yeah. So the intersection of the First Amendment and criminal trials is, I think, a super fascinating issue. But here. And the use of social media. Yes, because the prosecutors were using Joe's videos in which he was blowing up dolls in the shape of Carole Baskin and protesting on her lawn with various blood stains on his costume.

Oh, yeah. The bloodstained bunny. The blood bunny. As evidence in his criminal trial. And so there was a question about kind of like why that's permissible. And whether it was more prejudicial than probative under Rule 403. So lots going on there. I thought that was really interesting. That would be a great note and sort of dovetails, I think, with some of the

work that Kate has done about presidential speech on Twitter and just sort of like to what extent can we think about social media as statements and use it as evidence, whether it's of intent or whatnot. I think perhaps the most, I guess, heart-wrenching part of the entire series, aside from the treatment of the animals, was the really sort of searing phone call that Joe Exotic makes from prison, where the tables have been turned and the one who caged the animals is now himself in a cage. And he says it's the worst possible scenario he could ever imagine. Like you can't even treat animals as badly as he's been treated. What did you think about this as just sort of an indictment of prison conditions more generally? I mean, I am very sympathetic to the critiques of prisons as being overly harsh and punitive and whatnot.

On the other hand, like, I don't doubt that Joe Exotic was doing a bunch of things that were really dangerous, you know, to himself, to other people and to the animals. Does that mean he should have been locked up in the exact conditions he was in? Perhaps not, but still deserving of some punishment. I mean, I really felt for him during that phone call. The whole series was sort of making him a kind of anti-hero. But I mean, I think that really kind of sealed the deal. What did you think, Delcy?

I mean, as someone who litigates on behalf of these animals, like, did you find it sort of heart wrenching to see him in these circumstances? I'm generally very sympathetic to prison conditions. I have a brother who's in prison. I'm not a big fan of sending people to prison, except in the rare circumstance where efforts have been made to work one's way up the enforcement pyramid. And they've and folks have defied every effort, like Joe Exotic, like Tim Stark, who's defied license suspensions, revocations, preliminary injunctions, evidentiary orders, etc. But having monitored Joe for well over a decade, I didn't find it credible at all. He's a narcissist. He plays to his audience. And that's exactly what he was doing. And he did a great job at it. I know I don't think he should be kept in horrible conditions. But I do think that he is one of the few who incapacitation is going to be the only way to keep him from doing what he's been doing to harm so many beings.

That's really helpful to have that perspective about kind of like graduated punishments in particular. So is he likely to spend his entire life in prison? Or is he he's never getting supervised release? I believe his sentence is 22 years. We'll have to see. I mean, a lot of folks have said they don't, they don't see him living that long. I mean, folks don't usually serve out their full sentences. He's, of course, engaged in appeals and appeals to our president. So I think we just have to wait and see. Oh, my God. We didn't even talk about the pardon power. If that part, I think that will be a special episode were the issue to arise. Oh, my God. But when you think about it, would you be more on board with a Paul

Manafort pardon or a Joe Exotic? It would be Joe Exotic gate. But which would you like more as a pardon? So maybe we should wrap up. Delcy, thank you so much for being on the show with us and giving us the important perspective of animal rights litigation on the show and on all of the issues we were discussing. Thank you for the work that you do. Yes. Thank you for having me. It's so great to be with you guys. Thank you to Melissa's research assistant, Sam Dunkel, Sam Dunkel, NYU class of 2021. Nice. Sam helped us gather all of the information about the show based, you know, not only on our limited recollections. Thanks to our producer, Melody Rowell. I think the idea for this show actually came from Melody and then you and Kate on one of the last recap episodes. That's kind of all of the good ideas that we have come from.

And thank you to Eddie Cooper, who also makes our intro music. Right, and so thank you to all of our listeners. We so appreciate you all, and we hope that you are enjoying the show as much as we enjoy bringing it to you. If you do love the show and you want to help us support the show

and support Melody by paying her a living wage, you can sign up for our Glow campaign. You want to tell them the website, Leah? Glow.fm slash Strict Scrutiny. The link is also on our website. And also, if you're tired of your bloodstained bunny costume or your tiger costume, you can get a Strict Scrutiny glow up by going to our website, strictscrutinypodcast.com, where you can find all of our fantastic merchandise, including all of the things you need for your own

Strict Scrutiny glow-up shirts, trucker hats, bandanas, everything. We're all there. And now, a special shout-out from the other winner of the Strict Scrutiny shout-out prize from Michigan Law's public interest auction,

now graduate, Jackson Erpenbach. Jackson has a shout-out to the Michigan Law Review volume 118 notes office. Carrie, David, Sophie, Claire, and Maggie. They're the best editors you could ever ask for, and all of them are destined to be unstoppable legal juggernauts. I can personally vouch for all of that, except David. I'm sorry I never got to meet you, but at least Carrie, Sophie, Claire, and Maggie. Shout out to Joe Condon for being the world's greatest study partner. Shout out to Lujan versus Defenders of Wildlife, footnote seven.

You stay special, procedural rights. A standing shout out. It's hard to imagine something better for a Supreme Court podcast. Also, side note, this is not part of the shout out, but I'm adding it anyways. Jackson wrote his note on standing. A very useful note to courts and practitioners dealing with these cases. It is called a post-spocheo taxonomy of intangible harms. Check it out and don't mess up standing doctrine. Back to the shout out. Finally, shout out to the graduated 3Ls of Michigan Law and all graduates that have to follow an online pass-fail semester with a

drudgery of bar prep in the face of an uncertain future. We at Strict Scrutiny will try to help you through that drudgery, including by asking the important questions like, which justice is the Carol Baskin of the Supreme Court? Thank you, ladies. Thank you, ladies. Thank you.