Federal Legislation Labels Activism As "Terrorism"

InformationLiberation
Oct. 09, 2006

The Animal Enterprise Terrorism Act (AETA) is currently pending in Congress, and industry groups are doing their best to push it through quickly and with little public scrutiny, Patriot Act style, before Fall recess. Please act now to make sure that the War on Terrorism, and the tragedy of 9/11, isn't used to push a political agenda and silence dissent.

The Animal Enterprise Terrorism Act expands the Animal Enterprise Protection Act of 1992. Supporters say it is meant to stem illegal actions taken against controversial animal enterprises, or any company that does business with an animal enterprise. But the sweeping language in the bill goes much, much further:

AETA labels the tactics of Martin Luther King and Gandhi as "terrorism." It spells out penalties for "an offense involving exclusively a nonviolent physical obstruction of an animal enterprise or a business having a connection to, or relationship with, an animal enterprise, that may result in loss of profits but does not result in bodily injury..." In other words, a terrorism law includes nonviolent civil disobedience.

AETA risks the prosecution of undercover investigators, whistleblowers and other activists as "terrorists." It defines "economic damage" as including "the loss of profits." The extremely vague, overly broad language in the bill puts all activists at risk. Causing loss of profits isn't terrorism. It's effective activism. And even activists that aren't prosecuted under the law will feel the chilling effect of its "terrorist" rhetoric.

AETA isn't needed. Existing laws are already overly broad: the Animal Enterprise Protection Act was used to successfully convict the SHAC 7 this year on "terrorism" charges for running a website. And AETA's penalties for violence aren't needed, because the animal protection movement has never killed a human being. All Americans should be concerned, regardless of how they feel about animal issues. The word terrorism should not be batted around against the enemy of the hour, to push a partisan political agenda. Who will be next?

- Idausa.org

U.S. Humane Society: Oppose the Animal Enterprise Terrorism Act (AETA)

The Humane Society of the United States has no tolerance for individuals and groups who resort to intimidation, vandalism, or violence supposedly in the name of animal advocacy, and we have spoken out repeatedly against violence in any form. We believe harassment, violence, and other illegal tactics are wholly unacceptable and inconsistent with a core ethic of promoting compassion and respect, and also undermine the credibility and effectiveness of mainstream, law-abiding organizations and individuals. However, the Animal Enterprise Terrorism Act (AETA) threatens to sweep up – criminalizing as “terrorism” or otherwise chilling – a broad range of lawful, constitutionally protected, and valuable activity undertaken by citizens and organizations seeking change. Even with changes that have been incorporated into the current version of the legislation, it is still seriously flawed.

The AETA threatens legitimate advocacy. The legislation uses vague, overbroad terms such as “interfering with” which could be interpreted to include legitimate, peaceful conduct. For example, someone who uses the Internet to encourage people not to buy eggs from a company producing eggs with battery cages could be charged with terrorism for causing the company a loss of profits. Likewise, someone who seeks to “interfere with” the cruel treatment of puppies by filming the brutal conditions at a puppy mill, causing lost profits for the company when the film is publicized, could be charged with terrorism. The very risk of being charged as a terrorist will almost certainly have a chilling effect on legitimate activism.

The AETA is not clear. The bill imposes penalties for “economic damage,” including loss of profits. It provides an exemption for “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.” But this exemption doesn’t explicitly include activities such as whistleblowing and investigations that may well cause loss of profits. And whether an activist’s actions are subject to criminal penalties will depend on whether a public, governmental, or business audience reacts in a lawful way, something out of the activist’s control. Moreover, this exemption doesn’t tie back to the offense, which uses different words than “economic damage,” so a court might disregard the exemption language altogether. (We had requested a clear exception in the offense section: “Nothing in subsection (a) shall be construed to prohibit any damage or loss of property that results from boycotts, protests, demonstrations, investigations, whistleblowing, reporting of animal mistreatment, or from any lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise.”)

The AETA is a solution in search of a problem. Under the current federal law, the Animal Enterprise Protection Act of 1992, which the AETA seeks to amend, there have recently been several successful convictions, yielding sentences of 3-5 years for activities such as running a web site to incite vandalism and violence. (According to the Department of Justice, the national average sentence for a violent assault is 5 years, and sexual assault is 6 years.) Given that, it’s not clear that existing law even needs to be strengthened. Law enforcement agencies already have the tools they need to successfully prosecute and convict people who engage in campaigns of harassment and intimidation.

Passing the AETA reflects misplaced priorities in Congress. It is particularly disheartening to think Congress may rush forward with this ill-advised bill, yet not enact reasonable and long-overdue reform, such as the Animal Fighting Prohibition Enforcement Act (H.R. 817/S. 382). Purportedly, the AETA sponsors want not only to penalize, but also to prevent, extremist conduct that endangers animal enterprises and the people associated with them. When Congress fails to act on modest animal welfare reforms like the animal fighting bill, it makes it more difficult for organizations like The HSUS to make the case to activists that meaningful change is possible working through the system – and that they should pursue legal channels rather than taking matters into their own hands.

ACLU Letter to Congress Urging Opposition to the Animal Enterprise Act, S. 1926 and H.R. 4239 (3/6/2006)

Re: Animal Enterprise Act, S. 1926 and H.R. 4239

Dear Member of Congress:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write today to explain our opposition to the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239 (AETA), a bill that amends the Animal Enterprise Protection Act (AEPA), now 18 U.S.C. § 43. The AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts. The bill is overly broad, vague, and unnecessary because federal criminal laws already provide a wide range of punishments for unlawful activities targeting animal enterprises.

It’s important to let the reader know what conduct is criminal under current law, too. What are the elements of the crime? Setting them forth now is useful to make your point that the bill criminalizes speech. The AEPA, which passed in 1992, created a penalty of $10,000 or 10 years to life imprisonment for any physical disruption that leads to $10,000 in damages to an animal enterprise. AETA expands the class of criminal behavior in 18 U.S.C. § 43, by changing the term used to described activity “for the purpose of causing physical disruption” to activity “for the purpose of damaging or disrupting” an animal enterprise. The overbroad class of “disruptive” activities apply to any and all activities that result in “losses and increased costs” in excess of $10,000.

Lawful and peaceful protests that, for example, urge a consumer boycott of a company that does not use humane procedures, could be the target of this provision because they “disrupt” the company’s business. This overbroad provision might also apply to a whistleblower whose intentions are to stop harmful or illegal activities by the animal enterprise. The bill will effectively chill and deter Americans from exercising their First Amendment rights to advocate for reforms in the treatment of animals.

Alarmingly, the bill would also make the expanded crime a predicate for Title III federal criminal wiretapping. This provision could be used for widespread domestic surveillance of animal rights organizations. A court will be far more likely to find probable cause for a vague crime of causing economic damage or disruption to an animal enterprise than for a crime that requires some evidence that the organization plans to engage in activity causing illegal “physical disruption.”

While the bill provides an exemption for “lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise,” that exemption applies only to claims of economic “disruption” and not claims of economic “damage.” It also does not necessarily cover the entire range of expression protected by the First Amendment, which covers more than a lawful “reaction” to a “disclosure of information.” Ordinary persons would not understand which activities are prohibited and which are lawful.

The bill AETA also expands the types of facilities covered by the AEPA. The bill adds facilities that sell animals, expands the class of criminal behavior to include threatening conduct (which could have a chilling effect on legitimate whistleblowers) and expands the class of entities protected from the enterprise itself to persons connected to the enterprise. Finally, AETA doubles the criminal penalties and criminalizes attempts to disrupt, which creates a greater danger of encompassing protected speech.

Amendments to AEPA are unnecessary. The Department of Justice has successfully used the existing Animal Enterprise TerrorismProtection Act to obtain indictments of members of animal rights organizations alleged to have engaged in violent behavior. The ACLU urges you to oppose the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239.

We thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Lisa Graves,
Senior Counsel on Legislative Strategy

Analysis of AETA as it Passed Senate (S. 3880)
October 5th, 2006 by Will Potter

Perfuming a pig. That’s the best that can be said of the revised version of the Animal Enterprise Terrorism Act rushed through the Senate on the last night before Congressional recess. The legislation is still vague, still overly broad, and still a direct threat to basic First Amendment rights — lawmakers just tried to sweeten the stench.

Instead of substituting amendments to change specific lines of the bill — or, more appropriately, rejecting the bill in its entirety — Senator Diane Feinstein, a Democrat from California, made a last-minute complete substitution. The rewritten “eco-terrorism” legislation passed by unanimous consent. Not one Senator opposed.

It’s clear that Feinstein’s revisions were a direct response to civil liberties concerns. That’s a good thing. But let’s take a closer look at the “fixes” in this legislation, and the problems that still remain.

For reference, you can download pdf files of S.3880 and H.R.4239.

MINOR CHANGES IN THE SENATE BILL

*The Senate bill spells out that activists must damage “real property.” S.3880 says the law targets anyone who

intentionally damages or causes the loss of any real or personal property (including animals or records) used by animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise. [emphasis added]

Compare the same clause to the existing House version, which targets anyone who “intentionally damages, or causes the loss of any property…”

At best, this is a baby step in the right direction. It shows that lawmakers have heard civil liberties concerns that the overly broad language in the bill could sweep in basic First Amendment activity that threatens corporate profits. This language is a bit more specific, bringing the law more in line with its alleged intent: targeting illegal, underground actions in the name of animal rights. As I’ll explain shortly, though, it doesn’t go nearly far enough.

*The Senate bill rewrites the “civil disobedience clause” in the penalties section of the Animal Enterprise Terrorism Act.
The previous Senate version, and the current House version, spell out:

(1) for an offense involving exclusively a non-violent physical obstruction of an animal enterprise or a business having a connection to, or relationship with, an animal enterprise, that may result in loss of profits but does not result in bodily injury or death or property damage or loss–

(A) not more than $10,000 and the length of imprisonment shall be not more than 6 months, or both, for the first offense; and
(B) not more than $25,000 and the length of imprisonment shall be not more than 18 months, or both, for a subsequent offense; [emphasis added]

The revised Senate version cut out the references to “non-violent physical obstruction,” undoubtedly a response to public outrage that a “terrorism” bill could target non-violent civil disobedience.

The revised penalties section item now says punishment shall be:

(1) a fine under this title or imprisonment not more than 1 year, or both, if the offense does not instill in another the reasonable fear of serious bodily injury or death and–
(A) the offense results in no economic damage or bodily injury; or
(B) the offense results in economic damage that does not exceed $10,000;

In other words, lawmakers put some window dressing on this section, to distract from the fact that it spells out penalties for actions that don’t “instill in another the reasonable fear of serious bodily injury.” But at the same time, the penalty for such non-violent action is increased to a maximum of one year, compared to six months in the prior versions.

MAJOR CONCERNS STILL REMAIN

*This vague and overly broad legislation directly puts non-violent activists at risk. The offense section spells out that the bill targets anyone who damages “real or personal property,” but it also targets anyone who

intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation;

There are two huge problems here. One is the use of “reasonable fear.” The word “eco-terrorism” is being batted around recklessly by industry groups, in a scare-mongering campaign that has included full-page ads in major newspapers and even stooping so low as to call a children’s movie “soft-core eco-terrorism for kids.” They are doing everything they can to create this fear through scare-mongering: that’s the point. In light of this political climate, it’s impossible to discuss “reasonable fear,” because industry groups are throwing all their weight into making the unreasonable seem reasonable — into making the public afraid of non-violent activists, so they can push a political agenda.

The second huge problem is that the “course of conduct” clause, which puts restrictions on the “reasonable fear” offense, includes criminal trespass, harassment and intimidation. These generic charges are frequently used to arrest activists when nothing else will “stick.” Here’s a very likely scenario: A group of activists holds a loud protest outside an executive’s home or office on a daily basis as part of a national campaign. Activists yell and chant as people enter the building. Some wear masks or bandanas (which is increasingly common at protests, because activists fear being “blacklisted”). Toss in the climate of fear that industry groups have created, and suddenly this First Amendment activity becomes “terrorism” under the law, because of the “harassment or intimidation” and a “reasonable fear” of bodily injury.

The fact that lawmakers note the legislation doesn’t prohibit conduct “protected from legal prohibition by the First Amendment” shows that they realize it is vague and overly broad. It’s an attempt to cover their butts and ease public fears. But simply proclaiming “this legislation is Constitutional!” doesn’t make it so.

*This “terrorism” legislation chills free speech. Even if we buy the rhetoric of industry groups and lawmakers that this legislation won’t target First Amendment activity, the bill still creates a climate of fear and distrust. Reckless use of “eco-terrorism” rhetoric by industry groups and lawmakers has already created widespread concern among activists. Legislation that classifies non-violent crimes as “terrorism” is enough to make any reasonable person pause and think, “Is it worth it? Is speaking up really worth the risk of being labeled a ‘terrorist’?” That’s not a question anyone should have to ask. Even if legal, above-ground activists are not charged under this legislation, the damage is done.

*The legislation is a solution in search of a problem. You might have noticed that I haven’t spent much time critiquing clauses in the legislation dealing with bodily injury and death. That’s because the U.S. animal rights and environmental movements have not been responsible, directly or indirectly, for any bodily injury or death. To be very clear, there has been plenty of fiery rhetoric and plenty of extremely controversial and illegal actions. But tough talk isn’t enough to turn a crime into “terrorism.” Using the War on Terrorism to go after crimes where “no bodily injury occurs” is an insult to the victims of 9/11, and a waste of scarce law enforcement resources.