Fear for the First: Is Activist Speech Terrorism?

On Monday, the Center for Constitutional Rights filed a request to the U.S. Supreme Court for judicial review of Blum v. Holder, a lawsuit challenging the constitutionality of the Animal Enterprise Terrorism Act. The request, and the history that led up to it, provides a glimpse into the ways in which the free speech rights of political activists continue to be eroded as a result of the defining legal and constitutional framework of our era, the “War on Terror.”

The brainchild of the American Legislative Exchange Council, the AETA was crafted as a direct response to the extraordinary success of an animal rights campaign called Stop Huntingdon Animal Cruelty (SHAC). SHAC had effectively employed what its members believed to be legal, constitutionally protected activity to disrupt the business practices of a notorious animal testing corporation accused of engaging routinely in horrific abuses of animals, such as dissection of a live and conscious monkey.

In March of 2006, at the height of the Bush administration’s War on Terror, six SHAC activists were charged, convicted as “terrorists” and sentenced to a combined 23 years under the AETA’s predecessor law, the Animal Enterprise Protection Act. Their crime: posting information on a website about illegal underground actions carried out by activists not directly connected to SHAC. The AETA was passed in the aftermath of the convictions after biomedical and agricultural industry lobbyists and the FBI argued for the need for “more effective tools” with which to yet more vigorously pursue and prosecute activists engaged in “criminal ‘direct action.’”

The AETA criminalizes protest activity aimed at “damaging or interfering with the operations of an animal enterprise,” specifically citing activism that results in “the loss of profits.” It brands violators of the law “terrorists,” making them eligible for special sentencing enhancements and incarceration in super-maximum security prisons or, worse, Communications Management Units.

Though the law was written to single out animal rights campaigners, there is nothing in its wording to stop it from being used to prosecute other activists, such as labor organizers at slaughterhouses and university research facilities. Moreover, critics charge, in spite of a “savings clause” in the act that purports to put constitutionally protected speech outside of its reach, the broad language of the law casts a shadow over all manner of First Amendment activity whose express purpose is to cause “economic damage” and “the loss of profits” to corporations connected to an “animal enterprise” in order to force them to change their business practices. That activity could include picketing, boycotting, leafleting, occupying, civil disobedience, or undercover investigations. (For its part, in a statement provided to me for a 2012 article in The Huffington Post, an FBI spokesperson asserted, “The FBI does not investigate individuals based on their beliefs or other first amendment protected activity like free speech. It is when the individual exhibits intent to or crosses the line to commit a crime that we have an obligation to act.”)

The result of this ominous lack of clarity, argue the plaintiffs in Blum v. Holder, is a chilling effect on free speech.

The rationale used by the First Circuit Court of Appeals in its decision in March 2014 to uphold a district court’s dismissal of Blum has only compounded concerns over the law’s implications for the right to free speech. Citing last year’s Supreme Court decision in Clapper v. Amnesty International, a case that contested the constitutional basis of the Obama administration’s infamous NSA surveillance regime, the appellate judges declared that the nation’s highest court, in rejecting the plaintiffs’ standing to challenge the FISA Amendments Act, had imposed upon the judiciary a new and “more stringent injury standard” by which to measure complainants’ standing in pre-enforcement First Amendment-based constitutional lawsuits.

In other words, the court argued that in the wake of Clapper, the AETA’s chilling effect upon free speech, no matter how evident, no longer suffices in itself to justify a challenge to the law’s constitutionality. Instead, there must be an immediate threat of injury to a potential litigant under the law, such as a criminal prosecution. Someone who seeks to muster a challenge must therefore ignore the very risks that the “chilling effect” implies, and engage in speech activities that may court prosecution as a terrorist, and then sue only when actual charges are filed. Under those conditions, of course, the cost to the plaintiff of his or her suit’s failure is, potentially, imprisonment.

With that interpretation of Clapper, the court may have raised the legal threshold for mounting challenges to laws that inhibit political speech, potentially including statutes that have yet to be written.

Should the appellate court’s novel extrapolation of Clapper stand, the plaintiffs fear, then in addition to the AETA’s explicit strictures on political expression, activists will be faced with yet another legal hindrance to their freedom of speech, this one not even authorized by an act of Congress. To the growing list of abridgements to civil liberties in the name of the War on Terror — which already includes massive electronic surveillance and draconian criminal penalties for political activism under statutes like the AETA — may be added the innovative notion that laws that serve to chill free speech are immune from constitutional challenge unless and until criminal charges are brought under them.

This judicial theory arguably sidesteps the fact that laws that chill free speech inflict damage on constitutional rights simply by existing, inertly, on the books. They do their worst work, that is, when they do not result in prosecutions, but instead inhibit the very activity that they threaten to punish.

“What the Court of Appeals said is that, despite the plain language of the AETA statute, despite my objective reading of it, despite having limited my speech and activism because of it, and despite my fears that if my speech hurts the profits of animal-use industries I could be prosecuted, I cannot even get my foot in the courtroom door unless or until I am facing years in prison—again,” says Lauren Gazzola, who served 40 months in prison as a founding member of SHAC and who is a plaintiff in the lawsuit. “This hardly makes me feel safe from prosecution when speaking up about violence against animals. That’s why we’re asking the Supreme Court to look at our case: so we can go back into court and actually challenge the AETA’s constitutionality.”