Posted by thomaspainescorner on September 4, 2010
Researchers Seek Restraining Orders Against Jason Miller
By Jason Miller
[Editor's note: Please Contact Barbara Atkinson, KU Med's Executive Vice Chancellor, and tell her that what KU Med is doing to primates is wrong and to stop wasting our tax money on cruelty and fraudulent science! She is at (913) 588-1440 and BATKINSON@kumc.edu.
Contact Francis Collins, Director of the National Institute of Health (KU Med's source of funding) at 301-496-2433 and firstname.lastname@example.org and tell him to stop providing public monies to a 'research facility' that was cited for 160 violations of animal welfare laws by the USDA!]
Here is the local media's take on the situation (note that KCTV 5 mistakenly stated that KU Med vivisects chimps. Their victims are actually macaques and squirrel monkeys):
Here is my take:
With respect to the University of Kansas Medical Center's statement in the KCTV 5 news clip, 'Center officials said they have fixed the problems, but none of the issues dealt with animal welfare,' it is an utter fabrication. The University of Kansas Medical Center has blatantly lied to the media and to the public (who is funding their abject animal cruelty with millions of tax dollars) throughout our campaign to shut down their primate vivisection program.
Dear Ms. Nielsen,
Sorry for the delayed response, but I've been preoccupied with other animal defense issues.
In light of this 12/31/09 article from the Kansas City Star, I fully understand why you would deny our request to observe and document the 'ethical research' funded by our tax money and why you would also bar the media from entry to your laboratories.
As I'm sure you are aware, Mara Rose Williams of the Star wrote:
USDA cites KU Medical Center for violation of animal protection laws
'The University of Kansas Medical Center has been cited for about 160 violations of federal animal protection laws during experiments at university laboratories'.
'.The USDA report describes how monkeys that were afflicted with an infectious disease were left to suffer from extreme weight loss, vomiting, diarrhea and neurological disorders for at least a day after they met criteria for euthanization. The monkeys were part of a study funded by the National Institutes of Health.
People for the Ethical Treatment of Animals has called for the NIH to take back federal grant dollars awarded to KU Medical Center for that research in which the violations occurred'''
By Michael Budkie
Simulposted with SAEN
According to the annual report filed with the USDA by the University of Kansas Medical Center, this facility experiments on and/or holds captive about 150 primates per year, a relatively small amount. The report which contains this statistic is a bland one page document which belies the cruel reality that it represents.
A cross-section of the lives of these animals is represented by a stack of documents which is just over a foot tall. The existence of these highly intelligent animals has been reduced to so much paper and ink. Their identities represented only by numbers, their passing marked only by the word 'euthanized.'
The University of Kansas Medical Center has become known for violating the Animal Welfare Act. In fact, recent inspections for the period from September 2007 to June of 2009 catalogue 58 pages of violations, many of which involve primates and their deaths. The USDA inspectors who wrote these documents uncovered heinous acts of cruelty which prolonged the pain these animals endured. One monkey was allowed to deteriorate so severely that his/her weight dropped by 26.8%, or just over '. Another primate, whose skull had been opened to have a recording chamber put into place, did not receive anything close to adequate treatment. These recording chambers can harbor serious bacterial infections which can lead to brain abscesses, and so they are supposed to be cleaned regularly. The chamber of one animal at this facility had not been cleaned for three weeks. It is amazing that s/he was still alive.
Another monkey who died during 2008, #0A0, lost 22% of his body weight, which should have been sufficient to qualify for euthanasia. However, the suffering of this animal was allowed to continue. The USDA report states: 'He was sitting curled up on his perch while I was hosing his cage and would make a screeching sound. I gave him a cereal bar, but he was having difficulty picking it up'.
On Thursday, September 2, the issue of the vivisectors' TRO's against me was meant to be laid to rest.
However, the three vivisectors, who were previously unrepresented, arrived with an attorney, Tim Keck. He advised David Bell, my attorney, that he had several witnesses to attest to the stalking allegations in the TRO's.
I have posted David Bell's well-constructed and powerful argument, which he has filed with the court as a brief, below. As you will read, our position is that none of the allegations in the TRO rise to the level of 'stalking' (and some are false) and that the TRO is an infringement on my First Amendment rights.
Since David was not apprised of the witnesses in advance, Judge Phelan agreed to continue the hearing until 11/30 at 9AM. Due to the highly contentious and complex nature of this situation, he has set aside an entire day for this hearing.
Most TRO hearings are over in about 5 minutes and a vast percentage of them pertain to domestic violence situations. This is a significant battle for Constitutional rights and the ability of social justice activists to exercise their First Amendment rights.
Here is David's argument, which is long but so powerful that it is well worth the read:
RESPONDENT'S SUGGESTIONS AND SUPPORT IN OPPOSITION TO PETITIONERS' REQUEST FOR ORDER OF PROTECTION
COMES NOW Jason Miller (hereinafter 'Respondent') by and through counsel, and hereby submits suggestions and support in opposition to Petitioners' Request for Order of Protection filed against him pursuant to K.S.A. 60-31a01, et. seq.
Respondent's alleged conduct is protected under the First Amendment of the United States Constitution, made applicable to the state of Kansas through the Fourteenth Amendment, and therefore any action brought pursuant to K.S.A. 60-31a01, et. seq., is barred.
The First Amendment, applicable to the States through the Fourteenth Amendment, provides that 'Congress shall make no law ' abridging the freedom of speech.' Virginia v. Black, 538 U.S. 343, 358 (U.S. 2003). The hallmark of the protection of free speech is to allow 'free trade in ideas'' even ideas that the overwhelming majority of people might find distasteful or discomforting. Id. The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. Texas v. Johnson, 491 U.S. 397, 404-405 (U.S. 1989). 'The First Amendment protects [Respondent's] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.' Meyer v. Grant, 486 U.S. 414, 424 (U.S. 1988). First Amendment standards 'must give the benefit of any doubt to protecting rather than stifling speech.' Citizens United v. FEC, 130 S. Ct. 876, 891 (U.S. 2010). It is not acceptable for the state to prevent a speaker from exercising his constitutional rights because of the reaction to him by others. Beckerman v. Tupelo, 664 F.2d 502, 509 (5th Cir. Miss. 1981).
The Protection from Stalking Act was enacted in order to protect victims of stalking and to facilitate access to judicial protection for stalking victims. K.S.A. 60-31a01. As defined by the act, 'stalking' means an intentional harassment of another person that places the other person in reasonable fear for that person's safety; 'harassment' means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose; and all constitutionally protected activity is not included within the meaning of 'course of conduct.' K.S.A. 60-31a02.
Three separate Petitions for Protection From Stalking Orders ('Petitions') were filed against Respondent pursuant to K.S.A. 60-31a01, et. seq. Petitions were filed by (1) Dianne Durham, Ph. D, Kansas University Medical Center, Otolaryngology Department, Director of Research ('Durham Petition'); (2) Paul D. Cheney, Ph. D., Kansas University Medical Center, Department of Molecular and Integrative Physiology, Director of Research ('Cheney Petition') and (3) Navneet K. Dhillon, Ph. D., Kansas University Medical Center, Post Graduate Institute of Medical Education & Research ('Dhillon Petition'). Collectively, Petitions alleged that an order of protection is necessary to protect from harassment by Respondent. Petitions also stated that each individual feared for their safety.
Respondent is a known Animal Rights Activist. Approximately six months prior to filing of the Petitions, Respondent learned through an Animal Rights Organization called 'Stop Animal Exploitation Now' that Kansas University Medical Center ('KUMC') was engaged in the practice of conducting medical experiments on primates. Upon learning of said experimentation, Respondent conducted his own investigation into the policies of KUMC as it concerns the treatment of primates. Specifically, Respondent learned of an article published in the Kansas City Star on December 31, 2009, which stated that KUMC had been cited for 160 violations of federal animal protection laws during experiments at university laboratories. The article quoted a USDA report which described how monkeys that were afflicted with an infectious disease were left to suffer from extreme weight loss, vomiting, diarrhea and neurological disorders for at least a day after they met criteria for euthanization. Upon further inquiry, Respondent became aware that a federal grant had been awarded to KUMC and that grant monies were being used for the research in which the violations had occurred.
Appalled by federal funding contributing to the unethical treatment of animals at KUMC, Respondent engaged in a proactive, peaceable campaign in order to make the public aware of such transgressions. Respondent took numerous measures to bring the matter to the attention of the public, and to voice his displeasure with KUMC's policies, including, but not limited to: (1) organizing a protest at 39th Street and State Line; (2) making numerous blog postings regarding KUMC's unethical animal treatment; (3) visiting neighborhoods and businesses surrounding KUMC to educate the public about KUMC's research policies; (4) organizing a rally at 47th Street and Main Street; and (5) writing President Barack Obama to voice his displeasure with KUMC's use of its research grant.
Nevertheless, and despite Respondent's efforts, KUMC continued its medical research practices. However, three KUMC employees filed Petitions for Temporary Orders of Protection against Respondent. Durham Petition alleged three incidents of stalking attributable to Respondent: (1) a protest on a sidewalk outside of her home; (2) receiving threatening voice mail messages on her office phone; and (3) posting of the video of the protest outside her home on Respondent's website. Cheney Petition alleged the following incidents of stalking: (1) Respondent and associates came to his home and posted stickers with messages such as 'Animal Murder;' (2) Respondent circulated fliers to Petitioner's neighbors and outside KUMC condemning Petitioner's role in animal research; (3) Respondent sent an email to Petitioner directing him to Respondent's website; and (4) Petitioner received phone calls at work and at home 'believed to be' connected to Respondent. Dhillon Petition also alleged three incidents of stalking: (1) Petitioner received an email from Respondent which described her as an 'animal torturer;' (2) Petitioner was sent an email containing a link to Respondent's website; and (3) fliers were distributed at KUMC condemning the actions of Petitioner for her role in unethical animal research.
Respondent denies ever placing any telephone calls to any of Petitioners. However, assuming arguendo the content of the Petitions to be true, not only was the content of the Petitions insufficient to issue a Temporary Order of Protection, but ordering the enforcement of Petitions violated Respondent's First Amendment right to freedom of speech.
Respondent's alleged conduct not only serves a legitimate purpose but is also constitutionally protected activity, and therefore any order issued pursuant to K.S.A. 60-31a01, et. seq., is barred. Respondent's purpose in protesting outside homes of Petitioners, distributing informational fliers regarding the nature of animal research occurring at KUMC, and directing Petitioners to his website was to both educate the public as to research tactics being used at KUMC and call for a change of research tactics being used at publically-funded KUMC.
While there may be debate as to whether Respondent's tactics in attempting to bring about policy change are effective, there is no debate that Respondent is within his First Amendment rights to advocate for his cause in the manner that he did. While a majority of people may find his tactics discomforting, his expressive conduct is still constitutionally protected. See Virginia v. Black, 538 U.S. 343, 358 (U.S. 2003). Respondent's actions were targeted and specific, and evidenced a strategy to voice his concerns regarding KUMC in a manner well within the law.
Petitioners are state employed medical researchers engaged in conducting experiments upon primates. They no doubt have experienced public outrage on other occasions, deserved or not, as a result of their research methods. The article in the Kansas City Star citing 160 USDA violations of the treatment of animals used for research initially brought such transgressions to the public's attention. A reasonable person in Petitioners position would expect to receive aggressive criticism from many animal rights activists, considering past demonstrations across the United States by animal rights advocates, and the fact that public funds contributed to the research.
Durham Petition cites one instance of harassment being a demonstration which was held by Respondent outside of Petitioner's home. However, Petitioner was not even home during the time that the demonstration was held, which took place outside her home and on a public sidewalk. Additionally, peaceful picketing and protesting is not considered harassment, but is expressive conduct constitutionally protected under the First Amendment. See Phelps-Roper v. Nixon, 545 F.3d 685, 689 (8th Cir. Mo. 2008); See also Olmer v. City of Lincoln, 192 F.3d 1176, 1179 (8th Cir. 1999).
Furthermore, Petitioner's presence did not, and would not, matter to Respondent. Respondent did not engage in the demonstration to harass or torment petitioner, but instead to voice his displeasure with the State, and the State's employees, regarding their treatment of animals, as is his constitutional right. Furthermore, the posting of video of the demonstration on Respondent's own personal website cannot be considered stalking of Petitioner; Respondent did not even notify Petitioner that such video was posted. It would vastly expand the definition of stalking if posting of one's personal video, containing no footage of an alleged stalking victim, on one's own personal website could be deemed to qualify as an act of stalking within the meaning of K.S.A. 60-31a01, et. seq.
Cheney Petition states that Respondent circulated fliers with Petitioner's picture and messages such as 'animal murderer,' and sent Petitioner an email directing Petitioner to Respondent's website. The Court has continuously recognized the right of activists to spread their message through distribution of informational documents. See Schenck v. Pro-Choice Network, 519 U.S. 357, 358 (U.S. 1997)('Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.'). Additionally, speech that may be offensive to one's audience is afforded protection under the First Amendment. See Hill v. Colorado, 530 U.S. 703, 716 (2000)('The right to free speech, of course, includes the right to attempt to persuade others to change their views, and may not be curtailed simply because the speaker's message may be offensive to his audience').
Factually speaking, Petitioner may be an 'animal murderer' in the sense that, through the course of his employment by the State, Petitioner does cause the death of countless animals. While Respondent's choice of words may not have been extremely tactful, Respondent is again within his First Amendment right to choose the manner in which he advocates for his cause. As our society has become ever more fast-paced and ever-changing, it sometimes takes an extreme and exaggerated statement to get the public's attention. Respondent was simply trying to advocate for his cause by drawing attention to KUMC's research policies by using an attention-grabbing statement. Respondent's First Amendment rights cannot be usurped simply because Petitioner takes offense to his message. Additionally, simply making Petitioner aware of Respondent's website is not an act of stalking, and Petitioner can exhibit free will in choosing not to view the website which Respondent suggested.
The allegations contained in Dhillon Petition simply cannot support an Order of Protection. Petitioner was sent two emails by Respondent. Petitioner had the choice of whether to even view those emails in the first place. Petitioner also cites the distribution of fliers at KUMC condemning the institutions research methods. However, Petitioner simply being aware of the fliers is once again unjustifiable to sustain an Order of Protection.
In Madsen v. Women's Health Ctr., 512 U.S. 753 (U.S. 1994), a Florida state court issued an injunction, applicable to antiabortion protesters, which in part restricted the use of 'images observable' to clinic patients. On appeal, the United States Supreme Court held that broad prohibition on all 'images observable' burdens more speech than necessary to achieve the purpose of limiting threats to clinic patients or their families, as all would be necessary to avoid seeing the images would be for the clinic to close its curtains. Id. at 73. Thus, the Court held that the 'images observable' restriction violates the First Amendment. Id.
Likewise, since Petitioner's only reported conduct is being made aware, and ultimately viewing, images she finds offensive, an Order of Protection in this case would operate much like an 'images observable' restriction, which violates the First Amendment. Petitioner had the option of whether to view the emails she received. Petitioner could simply delete the email, thus 'closing the curtain' on any allegedly offensive material. Such an act would sufficiently address the situation without unnecessarily burdening Respondent's First Amendment rights.
Additionally, Petitioners state that they fear for their safety. However, none of Petitioners have ever had physical contact with Respondent. Respondent has never physically threatened Petitioners, either in person, by computer message, or by phone message. Once again, Respondent denies ever making any telephone calls to Petitioners' home or place of employment.
Petitioners in this case are state employees attempting to use an order, which is meant to protect innocent people from dangerous and violent offenders, to stifle criticism of their state-endorsed animal research methods. Respondent's alleged conduct is protected under the First Amendment. Respondent was simply advocating for policy change in as lawful and peaceable way as he knew, and so as to draw attention to his cause. No doubt this is a delicate balance to strike. However, when there is doubt as to whether speech is protected under the First Amendment, the benefit of the doubt must be given to protecting speech rather than stifling it. See Citizens United v. FEC, 130 S. Ct. 876 (U.S. 2010). Here, benefit of the doubt must be given to protect Respondent's First Amendment rights, especially since an order under K.S.A. 60-31a01, et. seq., could have criminal consequences for Respondent.
WHEREFORE, for all the foregoing reasons, Respondent respectfully prays that the Court deny Petitioners Request for an Order of Protection against him, and for such other and further relief that the Court deems just and proper upon these premises.