'Trust Us' Legislation: When Protest Becomes an act of Terror

The law concerning animal rights protest is too broad, protecting commercial interests and making terrorists out of people who want to voice concerns.

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Distribute an animal cruelty video commercially and you're protected from prosecution by the First Amendment. Distribute an animal cruelty video idealistically, to protest practices by laboratories, agribusiness, or the fur industry, and you risk prosecution as a terrorist under the Animal Enterprise Terrorism Act (AETA). In other words, current law involving depictions of animal cruelty protects commercial speech and threatens political advocacy.

Blame Congress, not the Supreme Court, for this absurdity. Recently, in U.S. v Stevens , the Court struck down a federal law criminalizing the commercial sale or possession of videos depicting animal cruelty. Writing for an 8 - 1 majority, Chief Justice Roberts rightly rejected the government's effort to carve out an animal cruelty exception to the First Amendment (akin to the exception for child pornography.) The Court has not reviewed the AETA, but it could and should eventually avail itself of an opportunity to strike it down as well.

The Center for Constitutional Rights (CCR), representing several animal rights activists, has filed a federal court challenge to the Animal Enterprise Terrorism Act. "The AETA classifies certain protected speech and activity as a 'terrorist' crime," CCR's complaint in Blum v Holder explains. "It punishes individuals who alone, or with others, criticize or demonstrate against what the statute vaguely identifies as an 'animal enterprise,' if that otherwise permissible speech damages the property or profitability of the animal enterprise or even a person or entity connected with it ... (The AETA) punishes otherwise lawful and innocuous speech or advocacy that causes a business that uses or sells animal products to lose profit, even where that lost profit comes from a decrease in sales in reaction to public advocacy."

This characterization of the AETA is not hyperbole: While the statute was ostensibly intended to protect research and commercial entities and their employees from violent attacks, criminal harassment, and vandalism by animal rights extremists, its broad, vague prohibition of "interfering" with an animal enterprise and affecting the profits of any related person or entity means that exposing the abuses of factory farms or successfully boycotting fur sales could be labeled acts of terrorism. Conceivably, some targeted activists could eventually prevail with First Amendment defenses at trial or on post-conviction appeal, but some would not. But all would suffer the panic of being targeted by a terrorism prosecution, and some would likely plead guilty to lesser offenses, surrendering their free speech rights to avoid imprisonment. CCR alleges that its clients (one of whom was previously convicted under an earlier version of the AETA), have simply ceased protesting, resorting to self-censorship to escape prosecution.

Why did Congress include non-violent advocacy in an anti-terrorism statute? Ten years after 9/11, that is essentially a rhetorical question. Fear mongering and the authoritarianism it breeds don't discriminate between actual and highly implausible or imaginary threats to security. Whatever dissenting or disruptive speech that authorities intensely dislike is increasingly liable to be condemned as terrorism. But the AETA also reflects a legislative trend simply not attributable to 9/11. To deter or punish particular acts -- like violent attacks on animal researchers -- Congress legislates in general terms, criminalizing speech or conduct barely related, if at all, to the evil it purportedly to seeks to control. Consider the Controlled Substances Act and its use by drug warriors against doctors who prescribe pain medication (and beware of any law enforcement crusade marketed as a "war.")

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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