On March 7, 2014, Chief Judge Lynch of the U.S. Court of Appeals for the First Circuit held that that five animal rights activists were not entitled to declaratory and injunctive relief stating that the Animal Enterprise Terrorism Act (AETA)—which criminalizes force, violence, and threats—is unconstitutional.
The five plaintiffs, all animal rights activists, filed the lawsuit to receive guidance on their plans for future protest activity. The plaintiffs want to lawfully protest animal abuse, but fear being criminally prosecuted under AETA for their protests. In rejecting the plaintiff’s right to bring the action, Chief Judge Lynch held that the plaintiffs had failed to allege an objectively reasonable chill on their First Amendment rights, and therefore had failed to establish an injury-in-fact. The court held that until the protestors have actually protested, the plaintiffs do not have standing to have a court determine whether the AETA’s restrictions on protests may be enforced.
The court’s decision is unfair. It chills the ability of protestors who wish to lawfully communicate their political agenda out of fear of inadvertently triggering AETA. Instead, the court left the activists in fear, unsure of what they may or may not legally do. This situation is unfair to the protesters and, even more so, to the innocent animals whose lives they might otherwise have saved.
Briefly, in 1991 Congress enacted AEPA, which criminalized the use of interstate commerce to cause physical disruption of an animal enterprise. In 2002 and 2006, Congress amended the statute and renamed it AETA—inserting “terrorism” into its title. In addition to higher penalties, the AETA, unlike the AEPA, does not limit itself to physical disruption of an animal enterprise. Instead, the AETA also criminalizes threats made against third parties who are associated with animal enterprises.
Prior to the AETA, animal rights activists had been successful in shaming other businesses which conduct business with animal abusers. This strategy has been used by many protest movements. Notably, many anti-Apartheid protests in the U.S. were directed not at the South African embassy, but U.S. corporations that refused to divest. The AETA was written to curtail the ability of the animal rights protestors in this regard.
The plaintiffs, wishing to engage in protests, sued to obtain declaratory and injunctive relief stating that AETA is unconstitutional under the First Amendment. They point to three alleged flaws in AETA:
- Portions of AETA are overbroad;
- AETA discriminates as to content and viewpoint; and
- AETA is void for vagueness.
Each of the activists had sought to engage in activities that they reasonably fear will trigger AETA prosecution, as follows:
The Activities at Issue
These activities are as follows:
(1) Sarahjane Blum would like to lawfully investigate, but has been deterred from, investigating, a Minnesota foie gras farm, and publicizing the results of her investigation via a documentary film. She says that she would also like to organize letter-writing and protest campaigns to raise public awareness, and pressure local restaurants to stop serving foie gras.
(2) Ryan Shapiro would like to lawfully document and film animal rights abuses, but is deterred from doing so. Although Shapiro continues to engage in leafleting, public speaking, and campaign work, he fears that these methods of advocacy are less effective than investigating underlying industry conduct.
(3) Lana Lehr alleges that she would, but for AETA, attend lawful, peaceful anti-fur protests, bring rabbits to restaurants that serve rabbit meat, and distribute literature at events attended by rabbit breeders. Now, Lehr’s advocacy is limited to letter-writing campaign, petitions, and conferences.
(4) Iver Robert Johnson, III alleges that although he himself has not been deterred from speaking by AETA, others have been deterred, and their being deterred has led Johnson to be unable to engage in effective animal rights advocacy.
(5) Fifth and finally, Lauren Gazzola alleges that she is chilled by AETA from making First-Amendment-protected statements that are short of the incitement of illegal conduct.
(Gazzola was convicted in 2004 based on the predecessor statute, AEPA, that was in effect before AETA, and based on the claim—highly debatable on the facts—that Gazzola had made true threats.)
The Right To Bring Pre-Enforcement Lawsuits
Typically, for a party to obtain a judicial remedy, the plaintiff must prove “standing.” This requirement arises from Article III of the U.S. Constitution, which provides that the courts only hear “cases” and “controversies.” The Founders, in order to restrict the powers of the judicial branch, limited federal courts to matters where the plaintiff can show a concrete, particularized, and actual or imminent injury.
Thankfully, cases interpreting the First Amendment have held that the plaintiff need not actually undergo a criminal prosecution in order to challenge an unconstitutional law. Instead, the plaintiff must either allege an intention to engage in a course of conduct that is proscribed and there is a credible threat of prosecution. Alternatively, a plaintiff may obtain standing when she is chilled from exercising her right to free expression. The Supreme Court has held that the alleged chill cannot be the subjective opinion of the plaintiff, but rather there must be a specific present objective threat of harm.
The Court Holds That the Plaintiffs’ Fears of Prosecution Are Not Sufficiently Concrete
Despite the plaintiffs concerns of prosecution, the court held that there is no objective reason for the protestors to have such concern. The court felt that aspirational language in the statute that supported free expression would guide prosecutors away from prosecuting the plaintiffs. Further, the court placed great weight on the government’s statement that it did not intend to prosecute the plaintiffs’ planned actions.
Like the plaintiffs, I am doubtful that the prosecutors will necessarily exercise the restraint that they claim to possess. In particular, Ms. Gazzola informed the court that she intends to voice support for other animal rights activists who are engaged in illegal activities. She further intends to participate in lawful protests. Ms. Gazzola—having previously been successfully prosecuted—understandably wants a judicial determination on the validity of aspects of the AETA before she proceeds. I disagree with the court that her fear of prosecution is unreasonable.
The court concludes with noting that should Ms. Gazzola and her co-plaintiffs be prosecuted, they will have the right to raise all of these concerns as defenses at that time. Leaving the activists in fear and unsure of what they may or may not legally do is unfair to the protesters and, even more so, to the innocent animals whose lives they might otherwise have saved.