The Hon. Jim Strickland, Mayor,
And Members of the City Council
Memphis City Hall
125 N. Main St.
Memphis, TN 38103

Dear Mayor and Council Members,

Several Memphis citizens have reached out to us over the enactment by Memphis Animal Services (MAS) of a new “Rescue Partner Policy” which includes the policy that rescuers may not engage in any social media activity or communication that MAS deems negative to the reputation of MAS. Violation of that policy could result in dismissal. This policy violates the constitutional rights of volunteer rescuers.

42 U.S.C. § 1983 states, in relevant part,

Every person who, under color of any statute, ordinance, regulation, custom, or usage… subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

It is a violation of Section 1983 for a state or municipal government to take action designed to prevent or intimidate people from exercising their First Amendment rights, or punish them for doing so, and there can be no dispute that complaining about conditions at animal shelters is a constitutionally protected right. A volunteer, rescuer, or any other member of the public not only has the First Amendment right to speak out against any conduct they deem untoward committed by a government shelter, he or she also has a constitutionally protected right to demand that the government correct the wrongs that are identified. As the Supreme Court has stated, a government entity “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”

These principles were recently applied in a legal action brought by a rescuer who was terminated for calling attention to poor conditions at Los Angeles County Department of Animal Care & Control shelters. (Cathy Nguyen, No Kill Advocacy Center, et. al. vs. County of Los Angeles, L.A. Superior Court Case No. BS112581). Significantly, the Court found that plaintiff’s suspension would no doubt discourage such a person from exercising her First Amendment rights and specifically ruled, following a line of established federal precedent, that the opportunity to serve as a volunteer is a protected government privilege. As a result, the Court required the County to restore the rescuer’s access to the shelter. In addition, a Federal Judge in Maryland more recently ruled that a volunteer, rescuer, or any other member of the public cannot be banned from a government shelter simply because he or she has criticized shelter management, complained about the policies and practices of the shelter, or posted information online that officials believe is unflattering to the shelter: http://trib.in/1Ip0BnI. In the case of MAS, the agency has enacted rules specifically indicating that rescuers will be terminated for exercising those rights.

Mayor Strickland and Members of the City Council, this letter is not meant to globally disparage MAS. According to recent reports, the agency has achieved an 89% live release rate for the month of October, their highest ever. They also announced that they have stayed above 80% all year, with adoptions up 21 percent. They have also announced that while they hope to hit 90%, they also admit that they need to push past that to “completely eliminate euthanasia” of all the lives at risk. This is exciting news and news I celebrate. There was a time, not so long ago, when MAS was little more than a vicious, abusive house of horrors.

It was, however, public criticism that led to these changes at Memphis Animal Services. And it is the threat of continued public pressure that always protects against backtracking and ensures continued improvement. Moreover, the shelter belongs to the people. They pay the salaries, the shelter is supposed to reflect their values, and they have a right—a constitutional right—to criticize conduct they do not agree without fear of retribution. Tragically, however, Memphis officials have so far made the decision that they will turn rescuers away—and potentially kill the animals—if those rescuers do not sign away their First Amendment rights or, if they do sign and then later stand up to injustice.

Because MAS’ partner-placement social media policy is so obviously contrary to our country’s fundamental principles of liberty and clearly unconstitutional, we are requesting that you order MAS to withdraw the illegal policy.

Very truly yours,

Nathan Winograd
No Kill Advocacy Center

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