The First Amendment to the United States Constitution as enacted by the federal statute 1983 (42 USC 1983) grants irrevocable rights of freedom of speech to both shelter volunteers working at animal shelters and the public visiting them.
Volunteers at Government Managed Animal Shelters
There are millions of kind volunteers working in government run animal shelters/sanctuaries/animal facilities across the United States. Sometimes they clash with management on the subject of animal welfare.
Animal shelter management ask volunteers to sign a nondisclosure/confidentiality agreement. These agreements are meant to protect genuine rights of privacy and the welfare of animals. Sometimes they go beyond this limited remit and try and gag volunteers from speaking out about poor animal shelter management which is detrimental to animal welfare. This, as I understand it, is illegal. Any agrieved volunteers should sue and/or publicise the fact. Both are tricky to do.
The First Amendment grants rights to volunteers to speak out and not to be subject to retribution from shelter management if they do so. In addition, volunteers have the right to take photographs and make videos if and when they criticise a shelter. Taking photographs and making videos is an extension of talking/writing and criticising.
A Maryland court case, reported on January 29, 2015 in the Chicago Tribune, spelled-out these rights. Shelter volunteers were critical of a Virginia-based rescue, Fancy Cats, a Baltimore County Animal Services shelter. Volunteers were banned from rescuing animals. As I understand it, they sued and won claiming that their freedom of speech under the First Amendment had been violated.
The district judge stated that the volunteers of a government organisation have the right to exercise constitutionally protected free speech and to be “free from a state actor’s retaliatory adverse act” (shelter retaliation).
You will note that up to now I have referred to government run organisations. The well-known lawyer and animal rights advocate, Nathan Winograd states that the rights mentioned above apply to private humane societies or SPCAs:
“Sec. 1983 has been held to apply to both government shelters and private SPCAs”.
Mr Winograd quotes a number of cases in support of that assertion. You can see them on his Facebook page.
To summarise, volunteers working for government run animal shelters have a right to criticise management and that criticism can be made public and they should not be the target of retaliatory action from the animal shelter. In fact Mr Winograd adds that:
“…we have a constitutionally protected right to demand that the government correct the wrongs that are identified”.
The Public Visiting a Government Shelter
A member of the public cannot be banned from a government shelter simply because he or she has criticised the shelter management or complained about the policies and practices or indeed posted information online which is critical of the shelter and painted the shelter in an unflattering light.
In addition, the public have the right to take photographs and make videos within public areas of a government run animal shelter without being banned or stopped or harangued by shelter management. The First Amendment protects the public in this regard.
“Banning photography and video in public areas of the shelter limits free speech” (Nathan Winograd).
The taking of a photograph or video is included within the First Amendment’s right to free speech. It also protects the press because they have the right to disseminate (publish) the video or photograph. There is case law to support this.
“Videotaping and capturing images of poor shelter conditions or neglected animals are indistinguishable from ‘commenting’ or ‘speaking out’ on such conditions.” (ACLU vs Alvarez 2012).
Do Animal Shelters Have To Be Open to the Public?
Elisa Black-Taylor, in her article on this website about a restrictive policy change at a government funded animal shelter, states that it is not the law to have open access to the public in animal shelters. Perhaps this is a way they get around the First Amendment. If the public is not allowed to enter any part of an animal shelter they are obviously barred from seeing what goes on inside and from photographing or videotaping it. However, an animal shelter that bars the public can hardly be described as an animal shelter; more an aimal processing facility.
Mr Winograd’s Facebook page on the subject has over 5,000 comments. Some are quite enlightening. The first one states that a shelter in Greenup, KY has a sign stating “forbidden photography in the kennel area”. There would seem to be illegal. The trouble is that the law is quite complicated. Judges do put limits on freedom of speech so the First Amendment is not a totally open, unrestricted right which complicates matters. The public and volunteers sometimes are unaware of their rights. Shelter management sometimes know this and are able to manipulate volunteers and the public into doing things which is against their rights.
If anybody can add to this page it would be most welcome. I have been as careful as possible. I cannot guarantee absolute accuracy but I believe what I’ve written here is accurate. If anybody corrects me, legitimately, I will amend the article.