Legal Analysis and Commentary from Justia

The European Court of Human Rights Upholds German Ban on PETA’s “Holocaust On Your Plate” Campaign: Lessons For Animal Activists and for Animal Product Consumers

In November, the European Court of Human Rights (ECHR) held that Germany could lawfully censor an animal-rights campaign consisting of seven graphic posters analogizing animal exploitation and slaughter to the Nazi Holocaust.  The organization that had developed the campaign, the German branch of People for the Ethical Treatment of Animals (PETA), which is called PETA-Deutschland (or PETA-D for short), challenged a Berlin regional court’s 2004 injunction against publication of the poster campaign.

The Berlin Court of Appeal subsequently rejected PETA-D’s appeal, after which PETA-D brought its case to the Federal Constitutional Court and then to the ECHR, claiming that the censorship violated Article 10 of the European Convention on Human Rights, which guarantees freedom of expression.

Both the Federal Constitutional Court and the ECHR, in turn, rejected PETA-D’s claim, finding that the plaintiffs who had sought the injunction against PETA-D had successfully satisfied part (b) of Article 10, which allows the government to place some limits on free expression, to protect, for example, “the reputation or rights of others.”

In this column, I will critically analyze (1) PETA-D’s decision to launch a campaign comparing animal exploitation and slaughter to the Holocaust; (2) the ECHR’s conclusion that comparing animal exploitation to the Holocaust diminishes survivors and victims of the latter; and (3) the specific nature of the offense that is felt by those who condemn the analogy between animal exploitation and the Holocaust.

PETA-D’s Strategic Choice

PETA-D’s poster campaign, entitled “Holocaust on Your Plate,” consisted of seven posters containing juxtaposed pictures of nonhuman animals confined and mistreated while alive, and then piled up after slaughter in farming operations, on one side; and pictures of humans confined and mistreated while alive, and then piled up after slaughter during the Holocaust.  Each poster included a short text that drew an analogy between the respective contents of the two pictures.  Though reasonable minds can differ on how to interpret the campaign, the basic point was to call attention to parallels between the brutal, painful practices that consumers of animal products currently support, on one hand, and the atrocities that marked the Holocaust, on the other.

I will assume, for purposes of this column, that PETA-D’s objective in the campaign was to persuade people to stop participating, through the consumption of animal products, in animal exploitation and slaughter.  I make this assumption provisionally, because some of PETA’s campaigns lead me to wonder whether its goal is actually to gain notoriety for the organization itself.  Its other campaigns include, for instance, posters of naked women with the tag line “I’d rather go naked than wear fur,” which seems more likely to appeal to a prurient interest than to persuade people of the injustice of confining, torturing, and slaughtering sentient beings.

That said, PETA may sincerely have hoped and expected that its campaign would result in reducing people’s participation in harming animals, and I am prepared to assume good faith on PETA-D’s part in this respect.

On this assumption of PETA-D’s good faith, I would suggest that PETA-D made a strategic mistake by producing posters that compare anything to the Holocaust.  It is entirely predictable that people who might otherwise be receptive to the animal-rights message of veganism would become angry and outraged—and much less likely to accept and embrace the message of veganism—when they see people comparing the injustice of animal exploitation to that of the Holocaust.

My parents were both Holocaust survivors, and their parents and nearly all of their siblings were murdered by the Nazis.  I am therefore sensitive to Holocaust comparisons, and I flinch when people describe an annoying or obnoxious person as a “Nazi” or “Gestapo.”  A person can be very obnoxious indeed without nearly qualifying himself to be comparable to the Nazis.

Moreover, it is not only trivial matters that cannot profitably be compared to the Holocaust.  To compare even serious atrocities (such as race-based slavery, or the Armenian genocide) to the Holocaust will also (predictably) offend many people.

Part of this offense is unjustified, for people in one group can tend to elevate their own victimization over everyone else’s, thus yielding a very ugly “competitive victimization” scenario, in which everyone defensively asks how dare the others compare their suffering to one’s own.

Part of this offense, however, is justified.  People feel that their unique experience (and every individual’s experience is unique) loses its uniqueness and becomes diminished by being classified along with other atrocities in our history.  While both the Holocaust and race-based slavery were horrifying injustices, they were also distinct events that deserve our undivided attention as we study and contemplate each.  Equating different experiences can thus de-individualize the suffering and death that, however enormous, occur individual by individual and group by group and vary greatly from one event to another, despite the parallels.

Does this mean that it is never useful to consider different horrible events together?  Of course not.  We may even learn something about avoiding future atrocities if we are able to generalize from one to another.  When Holocaust survivors, for example, say “Never again,” they obviously do not mean to warn us against returning to 1939 Europe through time travel to repeat the precise events that happened then and there.  Rather, they mean to advise that we must remain cognizant of the horrifying atrocities that can occur when we are not vigilant about protecting the vulnerable from hatred and violence.

The expression “Never again” thus necessarily offers a parallel between the Holocaust and some future hypothetical event that is not the Holocaust, but that implicates at least some of the same concerns.

When a speaker draws such analogies, however, it is very important for him or her to do so in an atmosphere of safety in which everyone understands that the speaker is trying to draw lessons from concededly distinct events, rather than equating or collapsing all atrocities into one undifferentiated category.

Thus, to go back to the PETA-D case, a campaign poster that says, for example, “The Holocaust on Your Plate” is a counterproductive use of the analogy that will certainly offend people, and that can offer no assurances that the speaker fully appreciates the uniqueness and pain associated with the Holocaust.

One ought to use even the word “Holocaust” carefully, so that one’s meaning is clear and respectful of what victims and survivors of that atrocity endured.  One cannot possibly be clear and respectful about this fraught subject, however, in offering merely two photographs and a short text.  PETA-D (and PETA more generally, since the campaign was not limited to Germany) therefore made a strategic mistake in creating a “Holocaust on Your Plate” campaign, and I—as a child of Holocaust survivors, and as an ethical vegan—feel especially unhappy about that strategic mistake.

Does the Analogy to Animals Diminish Humans?

The shared premise of the various decisions upholding the German injunction is some variant on this:  Comparing the slaughter of a group of humans to the widespread slaughter of nonhuman animals diminishes the worth and status of the humans in question as well as the gravity of their tragedy.

I must respectfully disagree with that premise.  As the Federal Constitutional Court acknowledged, PETA-D meant no insult to the victims and survivors of the Holocaust.  It meant instead to suggest that what is happening to animals to serve consumer demand ought to be deeply disturbing to all people who rightly view the Holocaust as an outrageous injustice by humans against other humans.

Notably, internationally renowned author and Nobel Laureate J.M. Coetzee made a similar point in an essay:

“Of course we cried out in horror when we found out what they had been up to. We cried: What a terrible crime, to treat human beings like cattle! If we had only known beforehand! But our cry should more accurately have been: What a terrible crime, to treat human beings like units in an industrial process! And that cry should have had a postscript: What a terrible crime, come to think of it – a crime against nature – to treat any living being like a unit in an industrial process!”

Another Nobel Laureate, Yiddish writer Isaac Bashevis Singer had the main character think in similar terms in a novel entitled Enemies, A Love Story:

“As often as Herman had witnessed the slaughter of animals and fish, he always had the same thought: In their behavior toward creatures, all men were Nazis. The smugness with which man could do with other species as he pleased exemplified the most extreme racist theories, the principle that might is right.”

When conservative lobbyist and activist Grover Norquist infamously compared raising taxes on the wealthy to the Holocaust, the offensiveness of his comparison turned, at least in part, on the fact that a more graduated income tax, however burdensome it might be for wealthy people, is profoundly less burdensome for its putative victims than is being rounded up, confined to death camps, and gassed to death, as the victims of the Holocaust were.  The insult, in other words, is not in comparing the worth of Jews in Europe to that of Americans on Wall Street, but rather in comparing mild burdens with extreme suffering and martyrdom.  By the same token, for instance, shoplifting an orange at a convenience store is not comparable, in terms of the magnitude of harm, to shooting the store owner, his wife, and their three children.

What people find offensive about PETA-D’s Holocaust analogy, however, differs from the light burdens/heavy burdens comparison by Grover Norquist.  The offense is generally understood to lie instead in the comparison between worthy and unworthy victims:  human beings, who are entitled to be valued and treated with respect, with nonhuman animals, who—by hypothesis—are entitled, at most, to be protected from “unnecessary” forms of suffering in the process of being turned by humans into food and other consumer items.  The premise of the ECHR’s decision upholding the German injunction is that valuing humans requires us to devalue nonhumans.  The notion is that one cannot view animal slaughter as an atrocity without diminishing the atrocities that human victims have experienced.  To suggest, in other words, that nonhuman animals every day suffer a true injustice by being confined, mutilated, subjected to excruciating pain and deprivation, and then slaughtered, is to lower humans, in the eyes of the ECHR.

This notion, however, is a faulty one.  We do not need to demean anyone, as a condition of valuing someone else.  People once thought otherwise (and, on the animal issue, many continue to think otherwise), but we have learned that we do not rectify oppression and injustice against some by carrying out oppression and injustice against others.  People once believed that men should rule over women; that it was just for some men and women to rule over other men and women who were slaves; and that men, women, and slaves should all rule over animals.  To empower a woman was necessarily to demean a man, and so on down the line.  But none of this has proven to be true, and human dignity likewise in no way requires nonhuman indignity.  One need not regard a pile of slaughtered pig corpses with indifference in order to regard a pile of slaughtered human corpses with horror.  The German Jewish philosopher Theodor Adorno suggested, on the contrary, that “Auschwitz begins wherever someone looks at a slaughterhouse and thinks: they’re only animals.”

A Hypothesis About Why Many Take No Offense When Confronted With Seinfeld’s “Soup Nazi” but Take Offense at the Suggestion That We Perpetrate a “Holocaust” Upon Farm Animals

Several years ago, I had a conversation with a friend in which he observed that some of the people who object to comparisons between animal slaughter and the Holocaust are undisturbed by a Seinfeld episode called “The Soup Nazi.”  In the episode, a soup vendor rigidly insists on customers’ following the proper procedure for receiving soup; if they do not do so, he refuses to serve them.  The soup is so delicious, however, that customers tolerate the mistreatment.  As Wikipedia describes the episode, “[t]he term ‘Nazi’ is used as an exaggeration of the excessively strict regimentation [the vendor] constantly demands of his patrons.”

So why are people offended by one comparison to Nazism, and not by the other?  Is it because the Seinfeld episode is clearly meant as a joke?  I don’t think so.  One might expect that comedic Holocaust comparisons might especially offend people who are inclined to feel offended when someone diminishes the seriousness of the Holocaust. After all, not only is the comparison being made, but it is treating one of the world’s most serious subjects with frivolity.

Thus, my friend and I reached the conclusion that perhaps people are offended by seeing themselves characterized as perpetrators, as animal rights/Holocaust comparisons make them out to be, rather than as victims, as the “Soup Nazi” sketch makes them out to be.

When a person is able to laugh at the Seinfeld “Soup Nazi” episode, it is because he or she understands that the writers do not mean to diminish the experience or value of those who perished in the Holocaust, or of those who survived the Final Solution.  It is, however, just as clear that Isaac Bashevis Singer and J.M. Coetzee similarly have no intention of diminishing the lives or the experiences of the Nazis’ victims by drawing from that chapter in history a lesson about what we do to animals.

What Singer and Coetzee do mean to do, and what PETA-D, through its campaign, apparently meant to do as well, though, was to assert that people who consume animal products might want to take an honest and critical look at what they are supporting.  The comparison thus levels an accusation against every (competent adult) consumer of animal products; it says, “You are participating in a process that you ought to find morally revolting.”

When people think of themselves or their relatives as innocent victims of injustice, they predictably become offended at the suggestion that they are in fact perpetrating an atrocity against other innocent victims.

The problem with the outrage in this case is that it requires its audience to view nonhuman animals as “only animals.”  When animals suffer and cry out in pain, desperate to avoid the burning, the cutting, the stench, the removal of their children and of every other animal with whom they bond, and ultimately the slaughter, we are supposed to find the consumption that drives the suffering and slaughter morally unobjectionable, and to see no ethical parallels between the animals’ experiences and those of humans who are kept in these sorts of conditions, thus acquitting consumers of any wrongdoing.

I accordingly suspect that there are very few ethical vegans who find offense in (sensitively-executed) comparisons between atrocities against human victims and atrocities against nonhuman animal victims.  As a child of Holocaust survivors, I am not offended by such comparisons, so long as I am convinced that the person who is drawing the analogy truly appreciates the horror and injustice of the Holocaust.

Because so many people are offended, I think it ill-advised to draw the analogy between animal-rights violations and the horrors of the Holocaust without great care and elaboration.  One can, and therefore should, generally make the argument in terms far less threatening to an audience than what PETA-D deployed in its campaign.  Nonetheless, it is worth considering the possibility that I outlined above:  the possibility that the comparison is threatening not because it challenges the worth and dignity of human victims, but rather because it challenges the justice of practices that almost every one of us was trained from early childhood to embrace and support without question.  It asks us to reexamine the thing that “everyone is doing” and to consider that there may, despite its popularity, be something fundamentally wrong with it.

Sherry F. ColbSherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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4 Responses to The European Court of Human Rights Upholds German Ban on PETA’s “Holocaust On Your Plate” Campaign: Lessons For Animal Activists and for Animal Product Consumers

  1. SL_SoCal says:

    I saw PETA’s campaign, in its original form in the U.S., back in 2003, I think it was. It immediately turned my indifference towards PETA to loathing. Not only does their campaign trivialize the Holocaust, it is plagued by a particularly dark form of irony: Hitler was a vegetarian.

    But this is PETA. Given the abominable record of their animal facility in Virginia, I would expect nothing less. Shock over substance is the PETA way.

    • Blomhåret says:

      I’m not a big fan of PETA either since their organization has failed to stop using sexism and objectification in their campaigns, but i must add here that Hitler was in fact not a vegetarian, that was propaganda spread by the nazi propaganda machine to make Hitler seem like a nice dude by making him seem like a famous and popular vegetarian at the time, namely Gandhi.
      Hitler was a big fan of meat tho and his chef has released a book with Hitlers favorite foods, witch consist mostly of different meat and other parts of animal corpses.
      Also it might be worth noting that it’s said that Hitler was advised by his doctor to cut down on meat for health reasons, but refused to do so.
      And surely, if Hitler had been a vegetarian, would he then not have mandated that for all his followers too? I mean, surely he had the power to do so.
      It’s a shame that the nazi propaganda is still alive and kicking in this day and age.

      • SL_SoCal says:

        I’m afraid it’s not propaganda. (Or, if it is, then he sure fooled a lot of people close to him. http://en.wikipedia.org/wiki/Adolf_Hitler_and_vegetarianism )

        My original point wasn’t that Hitler somehow makes vegetarianism bad though. (It’s like saying that Hitler makes shoes bad because he wore them.) I just think that PETA’s use of Hitler’s horrible deeds to promote vegetarianism is shockingly ignorant on their part.

  2. SteveQuaid says:

    The suffering of a single Jew is more important than the suffering of the entire world!

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