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Bad Things Happened: Metaphorical Fingerprints, Constellations of Evidence, and “Guilt for Association”

Bad Things Happened: Metaphorical Fingerprints, Constellations of Evidence, and “Guilt for Association”

Lauren Gazzola 

In November 2014, the United States Supreme Court denied certiorari in Blum v. Holder, a lawsuit brought by the Center for Constitutional Rights (CCR) challenging the federal Animal Enterprise Terrorism Act (AETA) as a violation of the First Amendment. The plaintiffs were five
animal rights activists with long histories of participating in peaceful protests and nonviolent civil disobedience. They argued that the AETA is
overbroad, vague, and discriminatory on the basis of content and viewpoint.

The first section of the AETA punishes “caus[ing] the loss of any real or personal property . . . used by an animal enterprise.” Plaintiffs argued
that the statute makes no distinction between loss caused by unlawful or unprotected activity, such as arson and other property damage, and loss
caused by boycotts and other constitutionally protected activity. The briefing throughout the case largely debated whether personal property
includes profits, as distinguished from physical property. If it does, this lends credence to plaintiffs’ claim that the plain language of the AETA proscribes more than vandalism, theft, and other harm to tangible property, and further legitimizes their alleged chill from documenting agricultural conditions, organizing lawful protests, speaking at public events, and other protected expression aimed at harming the profits of animal enterprises.

One plaintiff alleged a distinct chill. She argued the AETA dissuaded her from engaging in a course of conduct that included both advocacy of illegal tactics and protests against specific individuals because, while each of these actions is constitutionally protected on its own, together they violate the AETA. These allegations were directed, in particular, at § (a)(2)(B) of the statute, which punishes “intentionally plac[ing] a person in reasonable fear of [death or bodily injury] . . . by a course of conduct involving threats, . . . harassment, or intimidation . . . .”

This plaintiff had good reason to fear prosecution under this section of the law. Five years before Blum was filed, in United States v. Fullmer, she had been convicted of conspiring to violate the AETA’s predecessor statute, the Animal Enterprise Protection Act (AEPA), for precisely this conduct: speech in the course of a campaign that included both advocacy of illegal tactics and protests against individuals. In Fullmer, this entire multi-year campaign was treated by the Third Circuit Court of Appeals as an illegal conspiracy to violate the AEPA. Additionally, the Third Circuit ruled that protest chants used by this Blum plaintiff, then a Fullmer defendant, were unprotected true threats—despite the fact that a Massachusetts court had previously ruled that the exact same chants were protected by the First Amendment and dismissed state indictments against this plaintiff. For her conviction under the AEPA and related charges, this Blum plaintiff was sentenced to 52 months in federal prison, 3 years of probation, and ordered to pay $1,000,001.00, jointly and severally with her codefendants, in restitution. Thus, in Blum, this plaintiff alleged that her speech had been chilled both because she was uncertain whether the speech she wished to engage in would be deemed protected and because the AETA unconstitutionally discriminates on the basis of content and viewpoint within the unprotected category of true threats.

That plaintiff in Blum and defendant in Fullmer was me.

There has been limited scholarly treatment of the grave First Amendment dangers raised by the Third Circuit’s affirming my and my codefendants’ (collectively, the SHAC 7) convictions. Though a smattering of law review articles have discussed the case, none has thoroughly probed the depths of the First Amendment problems in Fullmer—namely: (1) the Third Circuit’s reckless use of conspiracy to criminalize an entire protest campaign; (2) the court’s use of a protest campaign wherein some individuals committed illegal acts as context to deny First Amendment protection to nonthreatening speech and expressive activity; and, (3) an extensive factual record that belies many of the Third Circuit’s conclusions. Meanwhile, Fullmer has not gone quiet. Indeed, in Blum both the district and appellate courts repeated Fullmer’s sweeping and unsupported claims that the SHAC 7 defendants’ speech was evidence of illegal activity.

Almost a century ago, during the first Red Scare, the fervor of war and anti-socialist panic led a nation to prosecute hundreds of anti-war agitators based on nothing more than their words and associations—and the Supreme Court to (in)famously affirm the convictions it reviewed. Justice Brandeis and Justice Holmes are lauded for their (eventual) bold dissents from this line of cases and for articulating principles that ultimately prevailed and created robust protections for speech. Who will dissent from the Green Scare?

Activists and lawyers have been sounding alarms and defending against repression of the animal rights and environmental movements for over a decade. But they have been almost completely ignored by the scholarly First Amendment community. Despite the seriousness of the charges in Fullmer—terrorism—the nature of the evidence against the defendants—speech and expressive activity—and the gravity of the consequences—multi-year prison sentences and excessive financial lawyers, activists, and a journalist have written the few law review articles addressing the case.  Meanwhile, industries and legislatures continue working to criminalize animal rights activism in an effort to silence a movement that challenges the inviolability of human dominance over, and violence against, all other species on Earth.

In March 2015, a federal court rejected another First Amendment challenge to the Animal Enterprise Terrorism Act. In United States v. Johnson, defense attorneys, including the Center for Constitutional Rights, moved to dismiss animal enterprise terrorism charges against two activists alleged to have released, and conspired to release, thousands of mink and foxes from fur farms in rural Illinois. The motion to dismiss argued that the AETA is unconstitutionally vague and overbroad, and that charging the defendants as terrorists for allegedly freeing animals was an unconstitutional denial of substantive due process. In July 2015, two more activists were indicted on AETA charges for allegedly freeing animals from fur farms and vandalizing property. As courts allow the AETA to stand, the way that such designer legislation was used in Fullmer is instructive. It reveals the reality of what activists face and fear due to the very existence of the AETA.

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