Cal. Penal Code § 596.5 bans certain forms of elephant abuse, and Aaron Leider argues that the L.A. Zoo is engaging in “abusing behavior” towards its elephants by, among other things, giving them only 3.5 acres per elephant of space. Judge John Wiley — a former criminal law professor here at UCLA — rejected this argument in Leider v. Lewis (Cal. Super. Ct. Dec. 9), in the process discussing fair notice of criminal law more broadly. The pornography link comes in this passage:
After more than three years of litigation, Leider himself has been vague, even silent, on specifics of his proposed reforms. Leider obviously believes the Zoo’s elephant exhibit is too small. But how big would be big enough? Paragraph 34 of the First Amended Complaint suggests that “over 100 acres” might be enough, if the land suits elephants. Leider has not been more definite than that. So according to Leider, this criminal statute requires more than 3.5 acres per elephant and 100+ acres would do, if the land is good.
If the land is good and the treatment exemplary, what exactly would be the acre minimum? In other words, what is the law, according to Leider?
As Holmes said about the criminal law, “it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.” Where is that certain line in section 596.5? At what point would defendant zookeeper Lewis become a criminal? Fifty acres? Five?
Leider acknowledges the importance of the statute’s “plain meaning.” The practical effect of his proposed interpretation, however, would keep the statute’s true content concealed and unpredictable. Under the Leider approach, no zoo designer could know how to comply with section 596.5 simply by reading it.
Leider emphasizes the unpredictability of his proposal by saying it “fits nicely within the ambit of the famous quotation of Justice Potter Stewart referring to the definition of hard-core pornography, concluding that ‘I know it when I see it.’ (Jacobellis v. State of Ohio (1964) 378 U.S. 184, 197.)”
Justice Stewart‟s “I know it when I see it” quotation is infamous. It was the notorious triumph of unpredictable subjectivity over the objective rule of law. Justice Stewart himself recognized the error of his 1964 statement — which no other Justice would join — when he later JOINED Justice Brennan’s 1973 critique of the gaffe. (See Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 73 and 84 (Stewart, J., joining Brennan, J., dissenting).)
When people tell you they “know it when they see it,” they are saying they have no better way to describe it. Lacking an objective description, their reaction will be objectively unpredictable. That is the problem here. Leider advocates an interpretation of the Penal Code that is objectively unpredictable. In the criminal law, this problem is fatal. Leider is right to say his proposed interpretation “fits nicely within the ambit of the famous quotation.” That concisely explains why Leider’s proposal is incorrect.