Sunday, March 11, 2012

Animal Enterprise Terrorism Act and the Suppression of Free Speech

JURIST Guest Columnist Kimberly White, Lewis & Clark Law School Class of 2013, is a Legislative Review Editor on the Animal Law Review. She argues that the Animal Enterprise Terrorism Act is unconstitutional because it violates the First Amendment...

Since its passage in 2006, the Animal Enterprise Terrorism Act (AETA) has systematically suppressed the lawful advocacy for animal rights by labeling individuals who engage in acts or conspire to "interfere" with an animal enterprise as "terrorists." However, on its face AETA is plagued with unconstitutionality. Not only could AETA be deemed unconstitutional under the overbreadth and vagueness doctrines, but it also is presumptively invalid since it is both a content-based and viewpoint-based restriction. The "chilling effect" on free speech and advocacy institutionalized by AETA, also called the "Green Scare," should be enough to warrant public outrage because it is a shameless attempt to silence environmental activists with fear. However, AETA goes beyond these flagrant constitutional violations and threatens all activists, or individuals with a disfavored opinion, with the potential to be labeled a "terrorist."

The core provision of AETA establishes that a "terrorist" is an individual, who with the:

[P]urpose of damaging or interfering with the operations of an animal enterprise intentionally damages or causes the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise. Thus, pure property damage without any injury or loss of human life is "terrorism." Yet AETA goes further and mandates that no real damage or losses actually need to occur before the "terrorist" label is permanently affixed by applying equally to any individual who "conspires or attempts" interference.

When urging the passage of AETA in front of Congress in 2006, the FBI identified the Earth Liberation Front and the Animal Liberation Front as the "most serious domestic terrorist threat in the United States today." The FBI made this statement while directly admitting that these groups' actions have never resulted in the death of a single person and, in fact, that they have never even targeted human life. It is worth repeating that it is an undeniable fact--conceded by the government--that no human being has ever been killed by the animal rights movement. This also stands in stark contrast to the death of animal rights activists caused by police brutality. However, establishing that animal rights activists are "terrorists" was the very purpose behind the passage of AETA.

AETA's "chilling effect" on First Amendment activities was not an unintended effect of the legislation, but was a purposeful strategy to silence dissent pursued by large corporations whose profits depend on the exploitation of non-human animals. Recently, Will Potter--author of Green is the New Red--was featured on JURIST as a Guest Columnist and discussed how AETA threatens all activism. This systematic suppression of free speech was anticipated by Potter, who, in 2006, during the House Committee on the Judiciary Hearings, held prior to the passage of AETA, warned "this legislation ... will force Americans to decide if speaking up for animals is worth the risk of being labeled a 'terrorist,' either in the media or in the courtroom. That's not a choice anyone should have to make." This unconstitutional suppression of free speech and silencing of dissent is precisely the affect AETA continues to have on activists.

Challenging and overturning AETA needs to be a multi-faceted approach that not only attacks the unconstitutionality of the law in litigation, but also fosters public awareness and discontent. The fact that the government is trampling free speech and--for the first time in history--making it a crime to engage in civil disobedience, a lawful, time-honored and effective form of protest, should be enough to garner support from all types of advocates. Further, any rational person, even if they are unsympathetic to animal rights, can see the injustice in labeling an individual who trespasses or causes property damage as a "terrorist."

However, given the inundation of misinformation by the media, it is unrealistic to expect the American people to suddenly be mobilized by the plight of animal activists. More importantly, based on US Supreme Court precedent, if AETA's constitutionality was challenged, the court would overturn it as a violation of the First Amendment. Even though it is impossible to truly predict the outcome of an issue presented to the US Supreme Court, there are several severe constitutional defects in AETA, and no precedent (even indirectly) supporting that AETA could be construed as a lawful restriction on protected speech. As a starting point, AETA is protected speech--and thus subject to First Amendment protection--because it does not fall into any of the limited "categorical exclusions" of historically unprotected speech, such as fraud, obscenity and defamation. Since it prohibits protected speech, AETA is unconstitutional on several grounds: overbreadth, vagueness, regulating speech based on content and viewpoint and by promoting guilt by association.

Under the overbreadth doctrine, if a law's scope "sweeps" in a "substantial" amount of protected speech, it is unconstitutional. AETA's "sweep" extends to lawful protest and renders civil disobedience illegal. AETA prohibits individuals from "interfering" with an animal enterprise. However, by failing to define "interference" or providing any standard that would limit its scope, the plain meaning of "interfere" reaches protected speech. According to Black's Law Dictionary, "interference" means "the act of meddling in another's affairs; and obstruction or hindrance." Almost all of the most utilized and respected nonviolent advocacy methods--picketing, disseminating truthful information about industry practices, protests, sit-ins and especially economic boycotts--can easily be labeled as "meddling" or "hindering" an enterprises' affairs. Indeed, AETA has already been utilized to unconstitutionally suppress lawful forms of expressive conduct. Thus, the very purpose of the overbreadth doctrine--to prevent a "chilling" effect on free speech by causing individuals to refrain from protected speech based on fear of prosecution--has already been shown to have been violated. Most alarmingly, AETA was specifically passed to expand the scope of illegal conduct to anything that "interferes." Its proponents felt that the prior law, the Animal Enterprise Protection Act (AEPA), was inadequate to effectively hamper activist efforts because the AEPA only criminalized "physical disruption" of an animal enterprise.

A court reviewing AETA, or any law, for overbreadth is not required to find that the statute "as applied" in the specific instance in front of the court violates protected speech. The application of the overbreadth doctrine relaxes normal standing requirements, thus requiring a litigant to demonstrate that overall the law will have the effect of prohibiting protected speech, as opposed to the litigant being required to prove that the law has a direct effect on their own speech. However, if a court determines that a law suffers from overbreadth, the court will seek to determine if a narrowing of the statute is permissible before finding it unconstitutional. Yet, there is absolutely no potential to narrow AETA and remedy its unconstitutional overbreadth because it suffers from incurable vagueness.

Stemming from the notice requirements of due process, a statute is unconstitutional based on the vagueness doctrine if it fails to apprise a citizen of ordinary intelligence of what conduct is prohibited. In addition to violating the overbreadth doctrine by prohibiting "interfering" conduct, AETA is unconstitutionally vague. Almost all of the expansive terms in AETA suffer from vagueness: "animal enterprise", "damage", "personal property" and lastly the phrase "places a person in reasonable fear." AETA criminalizes any interference that "causes the loss of any real or personal property" used by an animal enterprise or "a person or entity having a connection to, relationship with, or transactions with an animal enterprise." By failing to define or provide any limiting standard for interpreting "personal property," AETA prohibits protected advocacy by reaching anything that causes a loss of profits. It has been firmly established by the US Supreme Court that property includes loss of profits and good will. Since these losses are the very goal of nonviolent activism, AETA has the effect of criminalizing protected expressive conduct simply because it has been successful.

The heart of the First Amendment's free speech protection is that the government cannot prohibit, punish or penalize speech based on its content. AETA is inherently content-based because it only prohibits action, which "interferes" with an animal enterprise. To determine whether a law is content-based or content-neutral the US Supreme Court has stated that the "government's purpose is the controlling consideration." AETA was passed due to pressure from the FBI, and industries engaged in animal exploitation, holding that the AEPA, passed in 1992, was inadequate to address the economic harms inflicted by the animal liberation movement. The legislative hearings refute any argument that government's purpose was to the contrary.

Any content-based government regulation is presumed to be unconstitutional unless it survives strict scrutiny. To meet strict scrutiny the government must demonstrate that the restriction on speech is necessary to achieve a compelling governmental objective and that the law utilizes narrowly tailored means to accomplish this interest. The only government actions that the US Supreme Court has held survive the strict scrutiny standard have been in situations where the government argues that national security is the compelling interest. It is likely that the government would attempt to argue that as a measure to prevent domestic "terrorism," AETA is justified by a compelling national security interest. Even if the Court were to accept that meritless justification, thus ignoring the clear stated interest within AETA, to protect against interferences that cause loss of revenue to animal enterprises, AETA cannot be upheld under the second requirement that the law be narrowly tailored. To survive this prong of strict scrutiny the government would need to demonstrate that AETA fulfills the national security interest in the least restrictive manner and that there was no "less burdensome" way to achieve the goal.

AETA also suffers from viewpoint-based discrimination because the government allows only expression on one side of the issue, while prohibiting discourse of the opposing viewpoint. The established method for discerning if a restriction is viewpoint-based requires an examination of how the government has chosen to regulate the speech, and is therefore not a question of what speech is regulated. Clearly, by singling out, prohibiting and deeming "terrorism" only the speech and expressive conduct that opposes (or "interferes") with the interests of an animal enterprise, the government has sought to regulate only the individuals who support animal rights.

This is not a hypothetical exercise on AETA's constitutionality, this law has condemned activists to unprecedented jail sentences and permanently branded them as "terrorist" for the rest of their living years on earth. AETA also gives judges the discretion to utilize sentencing enhancement for "terrorists," resulting in an additional 20 years to the original sentence. This has already been applied against activist Daniel McGowan, who is serving time in a terrorism specific prison that is the subject of the award-winning documentary, "If A Tree Falls." In the face of the government's "chilling" attempt to suppress free speech and nonviolent activism, the legal community has not only a remarkable opportunity, but an ethical obligation, to advocate for the unconstitutionality of AETA and seek to have this egregious legal error overturned.

Kimberly White studied Government and Politics and Psychology at the University of Maryland. At Lewis & Clark Law School, she is a member of the Environmental Moot Court in addition to a staff member of the Animal Law Review. She has also worked at the Crag Law Center and the Northwest Environmental Defense Center.

Suggested citation: Kimberly White, Animal Enterprise Terrorism Act and the Suppression of Free Speech, JURIST - Dateline, Mar. 11, 2012, http://jurist.org/dateline/2012/03/kimberly-white-animal-terrorism.php .