Circuit Debates Sweep of Animal Enterprise Terrorism Act

, The National Law Journal

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Members of Everglades Earth First demonstrating against animal testing done by Scripps Florida in Jupiter, Fla.
Members of Everglades Earth First demonstrating against animal testing done by Scripps Florida in Jupiter, Fla.

A federal appeals court weighed Monday whether a federal law criminalizing violence and property damage against animal-related organizations unconstitutionally allows prosecution of peaceful activities that disrupt the target’s profits.

In Blum v. Holder, the U.S. Court of Appeals for the First Circuit weighed five activists’ challenge to the Animal Enterprise Terrorism Act. They claim the law is unconstitutional on its face and as applied to them.

Their appeal challenges U.S. District Judge Joseph Tauro’s March 2013 dismissal of their case for lack of standing. Tauro never reached the activists’ arguments that the law violates the First Amendment, is unconstitutionally vague and unlawfully discriminates on the basis of content and viewpoint.

The act and its 1992 predecessor won approval amid violence and property damage related to animal-rights activism. The existing language, which took effect in 2006, allows prosecution of anyone who “intentionally damages or causes the loss of any real or personal property” that belongs to an animal-related enterprise, “intentionally places a person in reasonable fear of … death … or serious bodily injury” or “conspires or attempts to do so.”

The activists’ brief argues that to bring the case they need only demonstrate a credible threat of prosecution under their reasonable interpretation of the statute. The activists, who have protested the fur and fois gras businesses and sought to improve living conditions for ducks, geese, dolphins and companion rabbits, say they’ve curtailed their activities because they fear prosecution under the law.

Chief Judge Sandra Lynch sat on the panel with judges William Kayatta Jr. and O. Rogeriee Thompson.

Lynch asked the activists’ lawyer, Rachel Meeropol, a senior staff attorney at the Center for Constitutional Rights in New York, about last year’s U.S. Supreme Court ruling in Clapper v. Amnesty International USA. The Clapper court held that plaintiffs needed to show more than “hypothetical future harm” to challenge a Foreign Intelligence Surveillance Act amendment.

“I do not read Clapper to change any of this circuit’s interpretation or precedent involving a situation where a criminal law chills a person’s ability” to protest, Meeropol replied.

“If Clapper applied, would you concede you have no standing?” Lynch pressed.

“The injury itself is the fact that, right now, they are chilled from engaging in First Amendment-protected advocacy,” Meeropol said.

“What about the notion that what you are seeking is an advisory opinion, long before the government has taken a position on application of this statute to particular conduct?” Lynch said.

The Supreme Court “allows over-breadth challenges in this context,” Meeropol said.

Kayatta grilled government lawyer Matthew Collette, an attorney in the Justice Department’s Civil Division, about the plaintiffs’ argument that the law’s property-damage language would allow companies and individuals targeted for protest to file lawsuits seeking lost profits.

Collette said the government is “interpreting the statute as a whole” to determine that “lost profits does not include business loss.”

“Are you able to give the plaintiffs any assurance that tomorrow there won’t be a new policy, or indeed a new attorney general, who takes exactly the contrary interpretation of the statute that you’re advocating we take?” Kayatta asked.

“I’m not sure I have the pay grade to offer binding commitments,” Collette said. “But our position at this point is the only reasonable interpretation of the statute is [that] it does not criminalize lawful, peaceful, picketing or dissemination of information merely because that causes a loss of profits to an animal enterprise.”

Sheri Qualters can be contacted at squalters@alm.com.

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