While Congress has been busy protecting animals from cruelty at the expense of the First Amendment (See U.S. v Stevens) elsewhere it has been legislating away the First Amendment rights of animal cruelty protesters to protect corporate profits. 

Last month, a federal court in Northern California heard oral arguments on a motion to dismiss in United States v. Buddenberg, the first prosecution under the American Enterprise Terrorism Act (AETA), which was passed in November, 2006, under Congress’s interstate commerce powers.

While it is true that some animal activists engage in direct action such as breaking into laboratories to rescue animals that they feel are imminently in danger, that is not the kind of activity that was at issue here.  The indictment alleges that the defendants conspired to use interstate commerce to engage in “a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, and intimidation,” that “intentionally place[d] a person in reasonable fear” of death or serious bodily injury in violation of AETA, 18 U.S.C. § 43(a).

According to the Center for Constitutional Rights, co-counsel in the case, the activities alleged in the indictment consist of little more than: chanting, leafleting, chalking on public sidewalks in front of University of California researchers’ homes, and using the internet to conduct research on the activities of the protested company (apparently, an abuse of interstate commerce). 

It is also telling that the defendants have only been charged with conspiracy to carry out the prohibited conduct.  Thus, many of the allegations in the indictment are lawful activities that the government is using to argue that the defendants had a criminal mindset.

The AETA greatly expanded the scope of its predecessor, the Animal Enterprise Protection Act (AEPA); both the old and new statutes were the result of a collective effort by an alliance of agricultural and bio-medical lobbying interests. While the old AEPA statute made it a crime to intentionally disrupt an “animal enterprise,” the new AETA can be invoked for real or imagined economic loss to both the “animal enterprise” as well as others doing business with it or connected to it. Thus, the new statute also crimininalizes reaching out to tertiary parties who do business with the “animal enterprise,” targeting a common strategy of many advocacy campaigns.

Most notably, the new statute makes “terrorists” out of animal rights protesters. This has alarming ramifications, for example by enabling the federal government to wiretap organizations engaged in the alleged terrorist activities. As the New York City Bar Committee on Legal Issues Pertaining to Animals has noted, the Freedom of Access to Clinic Entrances (FACE), on which AETA was modeled, was passed only after extensive congressional hearings into the real dangers and obstruction posed by anti-abortion protesters to women seeking abortions at clinics (and exercising their constitutional right to do so). AETA, which largely protects the loss of profits, passed with just one hearing and without a serious inquiry into risks of “eco-terrorism.” Meanwhile, the statute is much more sweeping and punitive than FACE, least of all in invoking the label of “terrorist.” It doesn’t take too much cynicism to note Congress’s own ideological priorities.

In any case, as with many First Amendment claims, the important question is what we might be too afraid to say as a consequence of the threat of a criminal prosecution. It is true that the statute has a “savings clause,” which exempts protected lawful, “peaceful” First Amendment activity from the scope of the statute, but this is a circular argument – the conduct in question is lawful unless it is unlawful. This is hardly a reassurance that we won’t be penalized for speech when we seek to protest anything outside an establishment or operation might be possibly be construed as an “animal enterprise.”

A look at the statute and its implications for the defendants of United States v. Buddenberg (the “AETA 4” reveals some of the ways in which 18 U.S.C. § 43(a) has the potential to chill speech:

The statute is overbroad, because it focuses on economic damage such as the loss of profit not threat to human life as the measure of prohibited conduct; this extends far beyond what one might commonly conceive of as “terrorism” and strikes at the heart of most lawful animal rights activity. As critics point out, the statute could conceivably apply if someone sends emails advocating the boycott of a grocery store, thereby intentionally seeking the loss of profit, in protest of stocking a certain product.  The type of businesses that are considered “animal enterprise” has been greatly expanded from farm and research facilities under the AEPA to encompass to what appears to be virtually any commercial establishment that “uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research or testing,” i.e. restaurants and clothing stores.

The statute is vague because it fails to define key terms that have implications for protected First Amendment activity. For example, the statute fails to define what it means to “interfere” and cause “damage” to qualify as an offense.  If one were to use a common law definition, an attempt to impact a company’s reputation could be punishable. Thus, the defendants argue that there is no way for individuals to know if they are engaged in activities for which there are criminal penalties or whether they are still within the ambit of protected First Amendment activity. This uncertainty has the potential to make us think twice before speaking at all.

The AETA raises penalties for activities that are already covered under existing statutes for criminal trespass, vandalism, and true threats, when that conduct hinges on speech critical of an “animal enterprise.” Thus, the AETA is a content-based regulation, generally permissible under the First Amendment only where there is a compelling interest and the regulations must closely fit the purpose of the statute. The vague and overbroad nature of the statute, however, violate these requirements of First Amendment jurisprudence.

The absurd possibilities for AETA criminal prosecutions are only laughable until one remembers the agricultural disparagement laws, the so-called veggie libel laws, which were also designed to protect corporate profits of the agri-business at the expense of speech. After six years of litigation and a million dollars in attorneys’ fees, Oprah Winfrey finally emerged victorious from a lawsuit filed against her by Texas cattlemen for a show on the mad cow disease epidemic.  Such statutes are a form of pre-emptive censorship for anyone who might want to inform the public about specific concerns regarding food safety or animal mistreatment.

The prosecution of the AETA 4 is proof that the statute has empowered law enforcement to label ordinary animal rights protesters into terrorists.  Oprah may be able  to afford defending her speech against corporate interests, but who else can? And while corporations are protected in their ability to profit, what valuable information do the rest of us lose in the silence?