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AMERICAN BAR ASSOCIATION

SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES

NEW YORK CITY BAR ASSOCIATION

REPORT TO THE HOUSE OF DELEGATES

RESOLUTION

RESOLVED, That the American Bar Association urges Congress to repeal Section 43 of Title 18 of the United States Code (The Animal Enterprise Terrorism Act).

FURTHER RESOLVED, That until such time as the constitutionality of the Act is resolved,

urges the Department of Justice to forbear from any further prosecutions under the Act.

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REPORT

Introduction

The law under 18 USC §43 (The Animal Enterprise Terrorism Act) purports to address domestic terrorism; however, it misapplies the term to cover a host of otherwise constitutionally protected activity. The law raises serious constitutional concerns because by targeting conduct that also causes only economic harm, such as lost profits, it reaches protected First Amendment activity including leafleting, protesting and picketing.

The law was enacted to make it a federal crime to use “a facility of” interstate commerce “for the purpose of damaging or interfering with the operations of an animal enterprise” by “intentionally damag[ing] or caus[ing] the loss of any real or personal property” connected to an animal enterprise; by “intentionally plac[ing] a person in reasonable fear” of death or serious bodily injury by “threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation;” or by “conspir[ing] or attempt[ing] to do so.” 18 USC § 43(a)(1-2).

We urge the repeal of 18 USC §43, and that the Department of Justice forbear from any further prosecutions under 18 USC §43.[1] The concerns with the law’s constitutionality are that: (1) it is an unconstitutional, overly broad, content-based restriction on the rights of free speech and assembly under the First Amendment; (2) its vague and undefined language infringes on the Fifth Amendment right of due process by failing to notify individuals of, and distinguish between, permitted and prohibited conduct, and by failing to provide law enforcement with clear guidelines to prevent arbitrary and discriminatory enforcement, thereby also chilling speech; and (3) the savings clause, purporting to protect First Amendment rights, fails to provide adequate protection for lawful activity or remedy the law’s apparent constitutional defects.

(1) First Amendment Issues

18 USC §43 is an unconstitutional, overly broad, content-based restriction on the right of free speech and assembly under the First Amendment of the Constitution.[2] “Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[3] Underlying this Supreme Court standard is the concern that any regulation of speech, even if arguably content-neutral, not reduce individual expression or impede participation in the marketplace of ideas.[4] However, exceptions apply, for example, when speech is a “true threat”[5] or “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[6] Nonetheless, speech may not be regulated based on the hostility it engenders.[7] Any content-based restriction on the right of free speech is subject to strict constitutional scrutiny and must (1) serve a compelling government interest, (2) be narrowly tailored and (3) apply where content-neutral alternatives are not available.[8] Because 18 USC §43 does not serve a compelling government interest, is not narrowly tailored and content-neutral alternatives do exist, it should not survive strict constitutional scrutiny.

First, the legislative history of 18 USC §43 points to how the speech and ideology of a particular group have been targeted, thereby raising concerns of an unconstitutional content-based restriction. The legislative history reveals that the law’s purpose is to target animal activists and their ideologies. The preamble to the enrolled bill states that its purpose is “[t]o provide the Department of Justice the necessary authority to apprehend, prosecute, and convict individuals committing animal enterprise terror.”[9] A Department of Justice statement supporting enactment of 18 USC §43 refers to “animal rights extremists,” their “terror tactics,” and their separation from “mainstream activities that should be part of the public discourse.” [10] After its passage, a press release was issued by a congressional Senate committee which stated that the amendments to 18 USC §43 were designed to “provide law enforcement the tools they need to adequately combat radical animal rights extremists’ [sic] who commit violent acts against innocent people because they work with animals.”[11] However, pinpointing the statute’s focus on ideology, the Congressional Research Service (“CRS”), an independent federal agency, recently commented that 18 USC §43 was “specific legislation” directed at “supporters of animal rights.”[12] CRS also posed the policy issue of “why a specific terrorism statute [18 USC §43] covers ideologically motivated attacks against businesses that involve animals, while there are no other domestic terrorism statutes as narrow in their purview covering a particular type of target and crime” (emphasis added).[13] Although the government has a compelling interest in curtailing violent acts and terrorism, 18 USC §43 reaches a host of otherwise constitutionally protected activity, further explained below.

Second, 18 USC §43 is not narrowly tailored to curtail violent acts or terrorism, but is overly broad. A statute violates the First Amendment where its overly broad reach is “substantial . . . judged in relation to the statute’s plainly legitimate sweep.”[14] Criminal statutes, such as 18 USC §43, “must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Various definitions under 18 USC §43 are over-inclusive and may reach “a substantial amount of constitutionally protected conduct.” For instance, “interfering with [the operations of an animal enterprise]” under §43(a) is not defined. Black’s Law dictionary defines it as, among other things, “intermeddling,” or, in other words, “meddling.”[15] Leafleting or an otherwise lawful assembly to protest a circus could clear the first hurdle of prosecution since they would arguably be “meddling” with an animal enterprise.

The statute’s definition of “animal enterprise” in §43(d)(1) is also over-inclusive. That expansive definition includes not only research institutions and animal processing facilities, but also pet stores, zoos, and any business that sells or uses animals or animal products. It includes virtually all U.S. retail and service establishments since most sell some form of animal products (e.g., a department store (fur coats, wool sweaters), a drugstore (animal-based drugs), a restaurant (meat and dairy), a supermarket (meat and dairy), a car manufacturer (leather seats), and even a pornography shop (leather outfits). In fact, the enterprise need not be lawful or may even be engaging in unlawful activity; yet, it is protected.[16] The only exception is that an animal competitive event must be lawful, so as not to protect animal fighting enterprises.

In another example, “economic damages” in §43(d)(3) includes “loss of profit” and “increased costs.” That expansive definition threatens to criminalize public speech activities, which often have the coincidental or secondary effect of causing the disfavored business profit or reputational losses. On a plain reading of the statute, demonstrators picketing in front of a local pet store could be prosecuted if the store lost sales or business goodwill as a result.

The statute also sets a broad range of possible criminal penalties for its violation, including fines and imprisonment ranging from less than one year to a life term.[17] 18 USC § 43(b). There are stepped up penalties for economic loss ranging up to 20 years. By imposing criminal penalties for causing economic loss alone, the statute reaches traditional protest activity even with the incidental effect of lost profits or lost business opportunities. Therefore, the statute’s inclusion of “economic damages” within its scope makes the statute unconstitutionally overbroad.

The overbreadth of the statute is even more apparent for penalties imposed after the fact. Included in the definition for “economic damage” in §43(d)(3)(A) is “increased costs.” This would allow, for instance, a supermarket being protested for selling eggs from caged hens recovery for installing a security system after a protest. It would also increase the prison term allocable to the amount spent – for a security system costing $25,000, the allocable prison term would be 5 years. 18 USC§43(b)(2)(A). Also included in the definition for “economic damage” in §43(d)(3)(B) is a caveat that it “does not include any lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise.” This language, however, premises the lawfulness of any activity based on what others do after the fact. Moreover, the language does not require any temporal proximity or imminence, so that any “reaction” could be extended to an indefinite time into the future. For instance, a business deciding to terminate its agreement with an animal enterprise for janitorial services a couple of months after a protest of the enterprise or of the business could be characterized as a “reaction” despite the lack of temporal proximity.

The statute goes a step further in its definition of “course of conduct” to also impose penalties after the fact. Except that, in this case, it makes individuals otherwise engaging in lawful First Amendment activity liable for any unlawful activity by unknown actors. “Course of conduct” in §43(d)(2) is defined as “two or more acts evidencing a continuity of purpose.” Placed in context, “course of conduct” is used in the offense section of §43(a)(2)(B) which specifies placing a person in reasonable fear of death or serious bodily injury by a “course of conduct” involving, among other things, harassment, intimidation, vandalism and property damage.[18] For example, a protest against a puppy mill may occur without incident, yet one month later an unknown actor vandalizes the property with graffiti. Under the statute, liability is not limited to the vandal, but could also apply to those who organized or attended the protest, even though their activity before the vandalism was actually lawful. The problem is that §43(d)(2) does not require that the acts be closely related in time or done by the same person, in this instance, the individuals who organized or attended the protest. In fact, “a continuity of purpose” would not require that it be an illegal purpose. It would be sufficient that where one group engages in legal activity while someone else engages in illegal activity, that the purpose is the same—to protest the puppy mill; hence, “a continuity of purpose.” This provision does not require conspiracy.

Converting an otherwise legal act to an illegal one ex ante solely based on an unknown actor’s commission of an illegal act, after the fact, amounts to guilt by association rejected by the Supreme Court. “The First Amendment … restricts the ability … to impose liability on an individual solely because of his association with another.”[19] However, an even more tenuous connection exists under this statute because it goes beyond association to merely sharing the same “purpose.” Rather than isolating the illegal act done by the illegal actor, the statute premises liability on a shared ideology.[20] Therefore, the emphasis on “purpose” implicates ideology.

The statute captures ideology and fails to distinguish between legal and illegal actors, and between lawful advocacy and advocacy that incites imminent lawless action. The Supreme Court in Brandenburg v. Ohio made clear that “[a] statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First … Amendment[]. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.” [21] In that case, the Ku Klux Klan had engaged in violent rhetoric articulating its ideology of possibly seeking “revengeance” against the U.S. government. They were prosecuted under the Ohio Criminal Syndicalism statute, which penalized “advocat(ing) * * * the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform . . .” [22] In striking down the statute, the Supreme Court ruled that a State may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[23] By focusing on ideology to bootstrap the acts of illegal actors to those of legal actors, 18 USC §43 accomplishes the same purpose for which the Ohio statute had been struck down—by penalizing advocacy “as a means of accomplishing … political reform.” Therefore, 18 USC §43 likewise “sweeps within its condemnation speech which the Constitution has immunized from governmental control.”

The Supreme Court has also drawn a sharp distinction between a group’s violent history and individuals within a group exercising free speech. The Supreme Court articulated the highest protection for free speech in Brandenburg despite the Ku Klux Klan’s violent history, and in the case involving neo-Nazis marching in Skokie, IL despite the violent history of the Nazis. “This [Supreme] Court has recognized that expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.’ … There is a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open’” (internal citations omitted).[24] Unfortunately, 18 USC §43 chills the debate.

Third, content-neutral alternatives in curtailing violent acts or terrorism are available, thereby making the statute unnecessary. The USA Patriot Act already addresses violent acts and domestic terrorism and can be used to prosecute anyone engaging in such activity.[25] However, the premise underlying 18 USC §43 appears to diverge from this kind of activity. The American Legislative Exchange Council (“ALEC”) which had drafted “eco-terrorism” model legislation and may have influenced the current language in 18 USC §43, seemed to concede in a 2003 report that animal activists could not be prosecuted under the USA Patriot Act because acts rising to the level of terrorism require physical injury or death, “an element not characteristic of eco-terrorism.” [26] Moreover, the statute addresses mainly common law crimes – “threats, acts of vandalism, property damage, criminal trespass, harassment or intimidation” §43(a)(2)(B) -- otherwise established in state codes. There have been successful prosecutions of property damage under 18 USC §43;[27] however, state codes cover the entire range of common law crimes from misdemeanors to felonies making 18 USC §43 redundant. “Criminal trespass” is characteristic of civil disobedience also adequately covered in state codes. Given the “economic damage” penalties for lost profits or increased costs, the statute appears to be protecting essentially commercial interests. Such interests would fall more appropriately in the area of torts rather than terrorism.