Julie Hilden

A First Amendment Challenge to Animal Activists' Convictions: How Far Can Protesters Go? Part Two

By JULIE HILDEN
Monday, November 23, 2009

In October, a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a split decision in a criminal case against a group of individual animal rights activists and their organization, Stop Huntingdon Animal Cruelty ("SHAC"). The defendants were prosecuted under a now-outmoded version of the federal Animal Enterprise Protection Act (AEPA).

In Part One of this two-part series of columns, I discussed the evidence against the defendants, the text of the relevant version of the AEPA, and the gist of the constitutional challenge.

That challenge depends upon the due process right to know which conduct will, and will not, be deemed criminal; and upon the First Amendment right to protest action with which one strongly disagrees.

In this column, Part Two in the series, I will comment further upon the defendants' constitutional arguments.

The AEPA's Language At the Relevant Time

At the time the defendants acted, the AEPA made it a crime to "travel[] in interstate or foreign commerce, or use[] or cause[] to be used the mail or any facility in interstate or foreign commerce for the purpose of causing physical disruption to the functioning of an animal enterprise," and to "intentionally damage[] or cause[] the loss of any property (including animals or records) used by the animal enterprise, or conspire[] to do so." (Emphasis added.)

The statute expressly exempted physical disruptions resulting from lawful protest.

The Defendants' Constitutional Challenge

As noted above, the defendants challenged the AEPA under the "void for vagueness" doctrine, which holds that laws must be clear enough so that we may know what they do, and do not, prohibit.

Where, as here, the First Amendment is implicated, the doctrine is especially important, because a vague law can chill constitutionally-protected speech.

In particular, the defendants contended that the AEPA, as it was then written, was unconstitutionally vague because it failed to clearly define "physical disruption." They also contended that the statute was vague as applied to them, or simply was inapplicable to them, because it only mentioned animal enterprises. The lion's share of the defendants' physical disruptions occurred at companies that were not animal enterprises, like Huntingdon itself (an animal-testing lab), but rather were other types of businesses (such as insurers) whose clients included Huntingdon, but whose own business had nothing to do with animals. (The exception here is the "black fax campaign," directed at Huntingdon and discussed below.)

The defendants' argument is very persuasive: The idea that a physical disruption at one location (an insurance company) could also be a physical disruption at another location (Huntingdon) simply because it was that other location that protesters intended ultimately to influence is far-fetched at best.

By analogy, if a physically disruptive protest in, say, California ultimately hopes to gain the attention of the White House, or to convince the protestors' audience not to donate to the incumbent party, does that protest also somehow "physically disrupt" the White House? Of course not.

Given that SHAC's actions did in fact – and apparently, were specifically intended to – cause physical disruption at the companies that did business with Huntingdon, it is very odd to argue that the defendants also caused, or conspired to cause, physical disruption at Huntingdon itself. We all know what a disruptive protest is; it causes disruption where it takes place – by blocking streets, stopping traffic, and the like.

Presumably, if SHAC and the individual defendants had wanted to disrupt Huntingdon, then they would simply have targeted it directly at its place of business -- just as they had targeted the other companies (and as they did in the black fax campaign).

The Statute's Subsequent Amendment Proves the Defendants' Point

Notably, the current, amended version of the AEPA now covers both animal enterprises and those who do business with them – indicating that Congress must have realized that the prior version of the statute had too narrow a scope.

The situation is quite clear: There was a loophole. Congress closed it.

Of course, the government must wish that the loophole had never existed. It doubtless wishes that it had foreseen that activists might disruptively protest business partners of animal enterprises, not just the enterprises themselves. And it doubtless wishes that, with that foresight, it had written the statute differently from the very beginning. But the fact is that it did not.

Even if the government regrets leaving open the loophole, it is a fundamental constitutional principle that the government cannot retroactively apply criminal laws that did not exist when the actions at issue occurred. Imagine the dangers that would arise if retrospective criminal laws were permissible – especially when presidential administrations succeed one another, and power shifts.

Thus, loopholes – no matter how unfortunate – must continue until Congress closes them. Otherwise, something much worse than a loophole – the creation of a new crime by prosecutors acting alone – would exist. And that situation would violate the Constitution's prohibition, in the Ex Post Facto Clause, on retroactive criminal laws.

The Black Fax Campaign: Is an Electronic Disruption a Physical Disruption Too?

In sum, to be constitutionally convicted on the conspiracy charge that was lodged against them, under the relevant version of AEPA the defendants had to have specifically intended to create a physical disruption at Huntingdon itself.

Yet as the dissenting judge, Judge Fisher, pointed out, the only actions that specifically targeted Huntingdon – the black fax campaigns -- raise yet another constitutional vagueness issue: Is an electronic disruption, such as the disruption caused by numerous electronic signals directed at a particular fax machine, also a "physical disruption" under the meaning of the statute?

Again, the vagueness of the term "physical disruption" makes it very hard to answer this question. The model the statute's drafters had in mind was likely that of a street protest, not a black fax campaign. (And if all the statute really reaches is the black fax campaigns directed toward Huntingdon, then the jail sentences here for the AEPA violations seem unjustly long, and the restitution amounts grossly high.)

Judge Fisher deserves praise for reading the AEPA as it was written, not as he – and the government -- might have wished it to be. He wrote, "I fail to see any evidence of an agreement to cause physical disruption to Huntingdon – as opposed to other nonanimal enterprise companies affiliated with Huntingdon – or to cause damage or loss to property used by Huntingdon." And he therefore concluded that the AEPA did not apply.

Was There Incitement of Imminent Lawless Action, and/or Were True Threats Made?

The defendants also argued that their speech was First-Amendment-protected because it did not meet either of the two applicable Supreme Court tests: It did not rise to the level of a "true threat," and it did not incite "imminent lawless action."

The court agreed with these points with respect to much of the material on the SHAC website. But it was troubled by a series of posts coordinating electronic civil disobedience (basically, the black faxes and similar conduct) at a particular time and place, and by the SHAC site's practice of including postings giving out individuals' names and addresses.

Once again, however, the black faxes seem a small peg to hang the entire case upon. Jail sentences shouldn't be arising largely out of a toner shortage, no matter how inconvenient.

A harder issue would have been presented if, rather than sending black faxes, SHAC had simply sent numerous, different argumentative faxes to the companies at issue, arguing its position. The black faxes were very likely to be found to have no (or minimal) First Amendment protection, but with a diverse set of argumentative faxes, it might have been a very different matter.

Letter-writing campaigns, after all, are a classic form of First-Amendment-protected activity. And one of their goals is to express the strength of opposition through the very volume of the correspondence – as the black faxes did, but as argumentative faxes would have done more effectively and with better First Amendment protection.

The posting of individuals' names and addresses, too, is legal if it does not satisfy either of the two First Amendment tests – which again, require a "true threat" or "imminent" lawless action. Sherry Colb's prior column for this site explains where the line is drawn.

The Questionable Evidence of "True Threats"

In addition to seeing "imminent lawless action" in the black fax campaigns, the court also saw a "true threat" in, for instance, the holding up at SHAC protests of photos of a Huntingdon-UK employee after a notorious beating that had occurred years in the past at the behest of SHAC-UK. But the court did not establish that any of the defendants themselves held up such posters; instead, it used the broad net of conspiracy law to tag the defendants with acts by others.

The court also saw a true threat in the fact that past "direct action" by SHAC may have caused new targets of "direct action" to capitulate quickly when threats were made. But over-reliance on the shadow of past events – and not the actual content of what is said at the day and time in question– threatens the First Amendment.

And once again, most if not all of the doctrinal work here was done by the conspiracy charge: The court failed to find that any true threat was actually conveyed by these particular individual defendants, with the exception of Lauren Gazzola.

And as to Gazzola, the court disturbingly omitted important facts from its opinion – facts that suggested that, in fact, no true threat was made. And indeed, a Massachusetts court held exactly that: There was no true threat, and Gazzola's words were First Amendment-protected.

In Part One of this series of columns, I stated, based on the federal appeals court's opinion, that Lauren Gazzola had been videotaped making a true threat. I've since added an update to that column in order clarify the following facts, which I'll repeat here, because they are important:

The Massachusetts court noted that the threat was part of a ten-second chant by the group, during which Gazzola would shout "what comes around goes around," and the group would shout "burn his house to the ground." Some of the protestors, the court found, were "smiling or laughing," and the police were present and seemed "unconcerned."

The court also found that "there was no indication that any defendant had the present ability to carry out the threat, nor did any lawless action ensue." It added, "Indeed, around that same time, Gazzola cautioned the group to stayoff the sidewalk so as to be in compliance with the civil injunction against them, suggesting an intent toconform to the law."

In light of these facts -- which I believe the federal appeals court should have included in its opinion -- I no longer believe that Gazzola's speech was a crime. Instead, I believe that it was fully First Amendment-protected, for it fell short of being a "true threat" or an incitement of imminent violence. And without this threat, the government's case truly falls apart.

The Convictions Based on Constitutionally-Protected Speech Should Trouble Us All

It is not just Gazzola's case that is troubling. As I noted in Part One, the convictions of Jacob Conroy and Josh Harper (who belonged to Seattle's SHAC branch, not New Jersey's, as the other defendants did) are especially worrisome, too.

Conroy's proven role was simply that of providing tech support, such as website creation software. And as Judge Fisher pointed out in dissent, the majority admitted that, in its own words, "Harper's personal conduct does not cross the line of illegality; to punish him simply on the basis of his political speeches would run afoul of the constitution."

Yet, directly after saying this, the court still claimed that Harper's perfectly legal and, in fact, constitutionally-protected conduct could constitute circumstantial evidence of Harper's participation – from Seattle! -- in a New Jersey-based conspiracy.

That argumentative move deeply troubled Judge Fisher, in dissent, as it certainly should have. Indeed, every American – regardless of politics -- should be concerned about the majority's decision to allow prosecutors to employ conspiracy law to circumvent the First Amendment in this fashion. Turning legal protest into evidence of illegal conspiracy, without more, is no less than McCarthyite.

That two federal judges would allow such an outcome suggests that this is a case that is clearly worthy of Supreme Court review. In fact, it cries out for it. So does the fact that those same two judges effectively decided to apply to the defendants a version of the AEPA that simply did not exist at the time the defendants spoke and acted. We are all entitled to be judged by today's criminal law, not some new law that may be created to punish us retroactively tomorrow.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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