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

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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.")

This is the "trust us" theory of legislating. It demands that we trust prosecutors to act in good faith, with a sense of proportion and respect for our rights to speech, privacy, and due process. It expects us to ignore overwhelming evidence that prosecutors are not inherently trustworthy, that they routinely abuse their broad discretion and persecute ordinary, generally harmless citizens for unwittingly violating over-broad laws.

The Supreme Court is sometimes complicit in these abuses; (the Court upheld the use of anti-terror, material support laws against peace activists.) But in U.S. v Stevens, Justice Roberts acknowledged and rejected the "trust us" approach to legislation. The animal cruelty video ban at issue in Stevens was "a criminal prohibition of alarming breadth," Roberts observed, and the government should not be trusted with it. The Court "would not uphold an unconstitutional statute merely because the Government promised to use it responsibly." The First Amendment "protects against the Government; it does not leave us at the mercy of noblesse oblige."

Might the Court display similar concern for constitutional checks on government power in the interests of individual rights if it ever reviews the Animal Enterprise Terrorism Act? Progressive critics of the Court's pro-business biases might point out that in U.S. v Stevens, it struck down a law that restrained commercial enterprises. The AETA, however, protects commercial enterprises from political activity that threatens profitability. My own view is not quite so jaundiced. I suspect that a majority of justices will stand with First Amendment rights when the government targets speech that doesn't unduly disgust or frighten them or significantly threaten the power of the security state. This is the "I know it when I see it" approach to judicial review of speech restrictions. (Maybe I am quite so jaundiced, after all.)

What will the Supreme Court see in protests of animal cruelty? Who knows? The Third Circuit Court of Appeals upheld the Animal Enterprise Protection Act (AEPA), predecessor statute to the current Animal Enterprise Terrorism Act, in U.S v Fullmer. The third circuit rejected First Amendment based facial challenges to the AEPA's over-breadth, as well as challenges to law's application to the animal rights defendants then before the court.

Read the opinion in Fullmer, and you may be convinced that most of the defendants in the case crossed the line between protected speech and criminal harassment, actual threats, and electronic vandalism, which made them imperfect vessels for facial challenges to the AEPA's effect on free speech. Plaintiffs in the CCR lawsuit, however, are allegedly refraining from engaging even in peaceful, non-threatening protests, and they're challenging an enhanced animal enterprise statute (the AETA) that effectively equates officially unwelcome speech with terrorism. This is a high stakes case that invites a lofty defense of liberty; but, after U.S. v Stevens, it also presents federal judges with a simple question: shouldn't people who oppose animal cruelty enjoy the same constitutional rights as people who enjoy it?

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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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