Animal Rights Activists Should Have Clear Notice of the Bounds of the Animal Enterprise Terrorism Act (AETA)

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Posted in: Constitutional Law

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:

  1. Portions of AETA are overbroad;
  2. AETA discriminates as to content and viewpoint; and
  3. 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.

Posted in: Constitutional Law

  • Mckneal

    It always amazes me that people like Julie and the activists are more worried about the rights of extremists rather than the legitimate business people who are licensed and regulated from top to bottom. In their America today, people who pay taxes and put people to work are not to enjoy the protections of our constitution. I realize this is not a fashionable statement in some circles but animals do NOT have rights. Human beings and citizens of this great country have unalienable rights as guaranteed by our constitution and founding fathers. It IS, however, our duty to treat animals under our control humanely. I, for one, firmly believe in animal welfare, not animal rights. If the welfare laws are insufficient, work to change them – not put people out of work for subscribing to lawful practices.
    If animals have rights as the activists suggest, that would then mean that they have the ability to think, reason and understand. They would then have to be held accountable for doing something wrong (aka., breaking laws.) Sounds ridiculous, doesn’t it? I mean, if a dog is allowed to then urinate on your yard without breaking an ordinance, how about your neighbor?
    Think about it people!

  • fearnot

    what?/ the innocent animals? Are you a vegan? If you are you shouuld state that. These people threaten our food supply and terrorize innocent PEOPLE whose lives they ruin and even threaten them with death. I see you went to Yale where Wayne Pacelle, head of the animal rights group HSUS also attended so I am not surprised that you put animals above people. Support illegal activites that threaen other humans should be prosecuted.

  • Dannielle Romeo

    Threatening people with harm terrorizing their families and stalking arent protected by the first amendment. You want to stand on a sidewalk with a sin fine. You come at my kids and youd better hope all you face is jail time.

  • laurelladesborough

    While the stated goal of many animal rights activists is to provide information on animal abuse and to protest animal abuse, it appears that in the process of achieving this goal, animals are harmed, property is destroyed and some animal owners/managers are threatened, their children harassed, and so on. While most reasonable people do not support animal abuse, neither do they support these kinds of behaviors from animal rights activists. That is why the AETA is an important law; it specifically addresses the illegal actions of radical activists.

  • animaladvocate2

    AETA is unconstitutional and hopefully it will be repealed. It only shields the horrific cruelty inflicted in factory farms. If you aren’t interested in the suffering of the animals, you should be worried about how your food is being handled. There has not been a single person killed or injured by animal activists. So many of you follow what the media tells you. Do your homework before making such idiotic and false assumptions. Mercy for Animals and the HSUS are amazing organizations that have factory farms running scared.

    • Ruby Fifer

      HSUS lives very well on your donations. Wayne draws a salary of about $400,000 plus expenses. He supports M.Vick and encouraged him having dogs AGAIN. This was all after they collected donations to care for the Vick dogs… Dogs THEY NEVER had in their possession. Dogs that they had NO PART in caring for in anyway!!
      HSUS COLLECTED thousands & thousands of dollars for the animal victims of Katrina THEN as soon as their owners were gone they killed most of them!!
      HSUS & ASPCA AFTER a decade lost the fight (the harassment of) Ringling brothers & are paying MASSIVE fines under the RICO laws… They also have to pay the legal fees that Ringling brothers incurred… MILLIONS OF DOLLARS in donations to pay for this harassment.
      HSUS has 25,000,000 stashed in Cayman banks accounts Ummmmm I haven’t yet figured out HOW THAT is helping ANY OF our animals!!! Oohhh but it will help Wayne & his cronies huh!!

    • Hobbit Hole Farm

      Running scared?? I think not. I have at least 10 chicken farms for Tyson and OK foods with in a 2 mile radius of me. ANd they are going about the business of raising chickens without a thought of any of you silly little crybabies in their heads. HSUS is a fraud and a liar. Mercy for animals has done nothing worth noting except hurting people and animals. Nobody has been killed YET that can be proven but there are some cases that make you wonder… And hurt can encompass more than personal physical damage. What about the damage done to peoples homes and property? What about the damage done to peoples mental status? How do you think the carriage drivers feel being called nasty names day in and day out? HURT! How do you think a breeder of wonderful animals feels when their life’s work gets reduced to rubbish and accusations of abuse and neglect? Hurt just does not cover that. So dear I think YOU need to take a walk on the real side of this issue. Get dirty and sweaty with a REAL ANIMAL LOVER not just some dumb chick standing on the sidewalk with a sign.
      Now I am off to feed my growing herd of meat/breeding/pet rabbits and do some REAL good in this world!

  • Hobbit Hole Farm

    Really now? The protesters are in fear? WELL that is how ALL animal owners, farmers, ranchers, and others that have and USE animals in their lives feel. WE spend our days not knowing if an acceptable practice today will be declared illegal tomorrow. WE spend our lives in fear of the “knock on the door” or the stranger wanting to “see” our animals. MOST of us are good caring animal owners yet that does not stop these protesters from vilifying and attempting and in many cases succeeding in destroying our hard work and our animals. SO I HOPE that these protesters who really KNOW NOTHING about ethical animal husbandry do wonder and fear. They do nothing but destroy the very industries that keep them alive. Without animals and farmers we would not eat. Farmers ranchers, breeders, and pet owners support the economy of this country. THOSE protesters just TAKE! Protect the ones really needing protection animal owners/users NOT the big mouth crybabies that just don’t like what we are doing.