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ARA's Face Harsh Unconstitutional Consequences Others Don't

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The Scavenger -- 13 February 2011

Terrorism act muzzles animal rights movement. Free speech and civil liberties – key tenets of the US Constitution – have been severely curtailed by harsh legislation against animal rights activists engaging in non-violent protest, writes Dara Lovitz.

In 2006, six animal activists of the group Stop Huntingdon Animal Cruelty (SHAC) were convicted of terrorism under the Animal Enterprise Protection Act and sent to federal prisons across the United States.

Did they kill anybody? No. Did they cause physical harm to anybody? No. What they did was apparently more dangerous: they caused a significant loss of profits to a powerful laboratory at which nonhuman animals are subjected to horrific experiments which test household products, pharmaceuticals, foods, and other products.

A new crime: animal enterprise terrorism After a series of amendments, the “Animal Enterprise Protection Act” became the “Animal Enterprise Terrorism Act” (AETA). Whereas the prior emphasis seemed to be on the protection of animal enterprises, the new emphasis is on the terrorists who target the animal enterprises. The linguistic shift thus highlights the trend away from passively protecting animal enterprises (indeed the former statute had been applied only a handful of times) toward aggressively prosecuting animal activists.

The AETA gives federal agencies the authority to arrest, prosecute, and convict individuals who engage in acts that threaten “animal enterprises”. As defined by the AETA, an “animal enterprise” includes commercial or academic enterprises that use or sell animals or animal products for profit, food or fiber production, agriculture, education, research, or testing; zoos, aquaria, pet stores, breeders, furriers, circuses, or rodeos; or any other enterprise that is “intended to advance agricultural arts and sciences.”

The AETA criminalizes any act that crosses state lines (obviously including all internet communication) that is intended to damage an animal enterprise or interfere with its operations. Conspiring to attempt such an act (but not personally undertaking it) is also a violation. The law addresses criminal acts against property or persons. Under the AETA, criminal actions that damage property or cause property loss include damaging, manipulating, or taking records; defacing, dismantling, or destroying real property (a building, its structure, or its locks, windows, doors, etc.); and injuring, taking, or releasing nonhuman animals. Significantly, property loss includes costs that reduce profits—such as the costs of replacing damaged property, repeating an interrupted experiment, or increasing security in response to intimidation of anyone connected with the enterprise. Should you be found to have violated the AETA, you would be subject to restitution – essentially paying back the animal enterprise for such costs. Acts against a person include those against someone who works for the animal enterprise, that person’s partner, or a member of that person’s immediate family. Under the AETA, it is criminal to intentionally place such a person in reasonable fear of serious bodily harm or death by harassing, intimidating, or threatening him/her; trespassing on his/her property; or damaging his/her real or personal property. Under the AETA, activists can be found criminally liable for reducing the financial well-being of clients, insurance companies, banks, health providers, accounting firms, shareholders, market makers, and internet providers who do business with individuals or entities targeted by activists for abuse of nonhuman animals. Penalties for violating the AETA range from significant fines to 20 years’ imprisonment.

The constitutional failures of the Animal Enterprise Terrorism Act

The First Amendment of the United States Constitution requires that law enforcement focus on the criminal acts themselves, as opposed to the political views of the actors. Once law enforcement has selectively prosecuted and silenced individuals based on their political beliefs rather than on their actions, a grave constitutional violation has occurred. The AETA violates activists’ right to freedom of speech. The text of the Constitution itself provides a remarkable framework for the ideals of our founding fathers. That text was ratified only with the assurance that the Bill of Rights, which includes the First Amendment, would attach. Our Constitution’s principles of freedom inherent in the First Amendment dictate that we must have an expansive marketplace of ideas in which to publish agreement, dissent, and opinion, because only through the unrestricted publications of citizens’ ideas can truth prevail.

Freedom of speech is thus considered by the courts to be vital for political, social, and economic reform. The Constitution’s protection of speech is essentially a commitment of the government to abstain from inhibiting the free expression of ideas, which thereby ensures the continued building of politics and culture.

A bedrock principle of the First Amendment is that the government may never restrict expression on the basis of the ideas that it conveys, however unpopular those ideas may be. Suppression of speech based on its content completely undermines the profound national commitment to the principle that debate on public issues should be uninhibited; it is also considered, in the courts’ own words, “governmental thought control.”

It is well established that when the speaker’s views differ from what the government perceives to be the larger societal view, that speaker’s ideas deserve paramount constitutional protection. The message that nonhuman animals should not be abused and exploited certainly pales in comparison to the larger, majority view that nonhuman animals are the property of humans and thus may be used for food, clothing, science, entertainment, or however else those profiting from such use see fit.

Thus, the message against animal exploitation should receive optimum constitutional protection. The very existence of a statute like the AETA, however, is proof that the animal activists’ message is being denied such protection. The United States Supreme Court has also affirmed that a person’s speech cannot be inhibited merely because that person is associated with a group that may have been responsible for violent acts.

For example, a right-wing Christian cannot be held accountable on the grounds that another right-wing Christian has bombed a clinic in which abortions are performed. Freedom to associate is a fundamental right because in many instances, a minority individual’s voice is too faint to be heard alone; but the sounding of the collective voices of that person’s political peers increases the likelihood that the message will be heard. Despite the mandate that under the Constitution, one’s association with individuals who break the law should not render him/her a criminal, the conviction of the SHAC defendants was based on association. At trial, the government showed nothing more than loose, circumstantial evidence establishing a mere association between the SHAC defendants and some individuals who were alleged to have committed illegal acts.

In addition to the First Amendment, animal activists’ rights under the Fourteenth and Fifth Amendments are also being hindered. The Fourteenth and Fifth Amendments of the Constitution mandate equal protection under the law. In other words, in the application of laws, the government must treat an individual in the same manner as anyone else in similar conditions or circumstances.

Under the AETA, low-level property crimes such as trespass or vandalism are raised to the level of a federal crime of terrorism. To illustrate an unequal consequence, consider the following: if you vandalize the property of a Planned Parenthood in the name of anti-choice activism, you face nothing more than a simple state code violation, likely a misdemeanor; whereas if you vandalize an animal enterprise in the name of animal rights activism, you face felony prosecution for the federal crime of terrorism. The AETA is thus unconstitutional because it is based on the content of the speech and penalizes the speaker for his/her viewpoint – when that viewpoint is the opposition of animal use and abuse. No comparable law penalizes a speaker whose viewpoint, for instance, opposes gun control or healthcare reform. By singling out animal activists, the AETA violates their constitutional right to equal protection.

Quelling essential debate

As our Supreme Court has written: “[A] function of free speech under our system of government is to invite dispute.” The very purpose of the First Amendment is to protect speech that is unpopular with the community and unfavorable to the listener. The First Amendment was not created to protect the message espoused by the majority or by those in power, but to protect that of the minority. Indeed, it is the open gate to unfettered expression that leads to a progressive nation; one built upon varying ideas and concepts that result from debate, discussion, and resolution.

Our country was not born from agreement, but from disagreement, and the First Amendment protects our rights to disagree. To the extent that the government restricts a group’s message because it dislikes the nature of that message, the right of all groups to disagree becomes threatened, and as a nation we suffer.

But what of the true victims? Nonhuman animals, at the mercy of the profit-hungry entities who use and abuse them, obviously cannot unite on their own behalf. It then falls to humans with a conscience to advocate for them. But such activists are being denied the basic constitutional rights that would enable them to properly advocate for the voiceless animals.

Sadly, then, those who simply wish for their important message of nonviolence to be heard lack the otherwise universal benefit of the freedom of speech and protest enshrined in the Constitution. In a free society, animal activists deserve to speak openly against animal abusive industries. Otherwise, we are entering an era the Founding Fathers attempted so vigorously to avoid – one dismally defined by “government thought control.”


Dara Lovitz is the author of Muzzling a Movement: The Effects of Anti-Terrorism Law, Money and Politics on Animal Activism. Published by Lantern Books. Dara is an Adjunct Professor of Animal Law at Temple University Beasley School of Law and the Earle Mack School of Law at Drexel University, and the incoming Vice Chair of the Animal Law Section of the Pennsylvania Bar Association. She is an animal activist in Philadelphia, Pennsylvania and a board member of Four Feet Forward and Peace Advocacy Network.

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