Julie Hilden

A First Amendment Challenge to Animal Activists' Convictions: How Far Can Protesters Go? Part One

By JULIE HILDEN


Wednesday, November 11, 2009

On October 14, a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a split decision in a criminal case that is likely to prove significant both for legal doctrine relating to the advocacy of illegal activity, and for the future of animal rights activism.

In this two-part series of columns, I'll discuss the decision. In this part, Part One, I'll cover the evidence against the defendants, the text of the federal statute at issue, and the basic gist of the defendants' constitutional challenge. In Part Two, I'll consider whether that challenge should have prevailed, and contrast the views of the two-judge majority and the dissenting judge.

The defendants are six individual activists and the New Jersey branch of the organization to which they belonged, Stop Huntingdon Animal Cruelty ("SHAC"). They are not the only ones who have identified and objected strongly to animal cruelty at Huntingdon's labs. The mainstream animal rights organization People for the Ethical Treatment of Animals (PETA) has also investigated and documented shocking cruelty at Huntingdon, as reported in The New York Times. (Full disclosure: I am a PETA member.)

The SHAC defendants were convicted of conspiring to violate the Animal Enterprise Protection Act (AEPA), as well as of interstate stalking; conspiracy to stalk; and conspiracy to use an interstate communications device to threaten or harass. But the charges the court's decision primarily focused on were the AEPA charges.

As the court noted, this case is especially significant in that it is the first time that a federal court of appeals has interpreted the AEPA. But I will argue that the decision also illuminates problems with longstanding doctrines regarding criminal conspiracy. As noted above, the court upheld the statute and its application, 2-1. It did so despite strong First Amendment and due process challenges.

The Evidence: The Defendants' Website and Actions

SHAC's website walked a fine line: It stated that "We operate within the boundaries of the law but recognize and support those who choose to operate outside the confines of the legal system."

The website also described other groups' "direct action" of freeing lab animals and committing "economic sabotage," and it commented that while SHAC does not organize such actions or possess any inside knowledge of them, it does encourage website readers to support direct action and those who participate in it. Then, in some other statements, SHAC qualified this position -- noting that it only supports direct action if it does not harm any human or animal.

SHAC's site also mentioned and applauded certain legal and illegal protests, including break-ins that resulted in freeing animals and instances where the property of individuals connected to Huntingdon was destroyed. Regarding these instances of "direct action," the site commented, "Keep up the good work!"

Similarly, SHAC's bulletins sometimes depicted the result of illegal activity, but with the disclaimer that the organization is never involved in such activity; "anonymous activists" are. After posting a list – compiled by detractors of direct action – of twenty tactics that activists had used in the past, including physical assaults, SHAC commented sarcastically, "Now don't go getting any funny ideas!"

SHAC also provided advice to protesters regarding how not to get caught in their activities. It advised that they destroy evidence of their activities, use email encryption programs, and employ "electronic civil disobedience" by deluging Huntingdon's servers and sending all-black faxes to its fax machines to exhaust its toner supply. (Huntingdon claimed in court that it lost $465,000 as a result of two business shutdowns due to "black faxes," but $400,000 of that figure represents "lost business," which is surely speculative and subjective to value – and thus a disturbing basis for a criminal sentence or restitution order.) SHAC also used "virtual sit-ins," where numerous supporters all accessed company websites at the same time, in order to slow them or shut them down.

Much more disturbingly, too, SHAC posted the names and addresses of persons and companies working for or with Huntingdon, and even those of some of those persons' family members. The result was vandalism, spraypainting, paint-throwing, the use of smoke bombs, stickering, flyering, and postering at businesses and/or homes – with some of the posters and other materials suggesting threats against specific individuals by, for instance, X-ing out their images.

Reports of these incidents appeared on SHAC's website, but were at times signed by "direct action" organizations or networks of individual that were separate from SHAC, such as the Animal Liberation Front. An actual bombing also occurred, and was reported on the SHAC website, but it was attributed to "The Revolutionary Cells," with SHAC claiming no involvement.

The defendants' activities varied dramatically in their gravity and dangerousness. One defendant, Lauren Gazzola, made a specific threat to burn down someone's house – a very serious crime by virtually anyone's standard, and one that was documented on videotape. At the other end of the spectrum, however, the opinion suggests that defendant Jacob Conroy basically provided tech support to SHAC; and that Josh Harper, from SHAC's Seattle branch, simply advocated and praised others' direct action. Harper's situation was especially troubling to the dissenting judge, as I will explain below.

Note: Since this column was posted, I've learned that a Massachusetts state court's fact-findings suggest that the Gazzola threat was not a "true threat" -- as the federal appellate panel found, and as would be necessary to strip it of First Amendment protection. The Massachusetts court noted that the threat was part of a ten-second chant by the group, during which Gazzola would shout "what comes around goes around," and the group would shout "burn his house to the ground." Some of the protestors, the court found, were "smiling or laughing," and the police were present and seemed "unconcerned." The court also found that "there was no indication that any defendant had the present ability to carry out the threat, nor did any lawless action ensue." It added, "Indeed, around that same time, Gazzola cautioned the group to stayoff the sidewalk so as to be in compliance with the civil injunction against them, suggesting an intent toconform to the law." In light of these facts -- which I believe the federal appeals court should have included in its opinion -- I no longer believe that Gazzola's speech was a crime; instead, I believe that it was fully First Amendment-protected, for it fell short of being a "true threat" or an incitement of imminent violence.

One of the problems with conspiracy charges like those at issue here is that they pull serious criminals into the same net as very minor offenders, and treat all co-conspirators as if they had committed all offenses, whether they were aware of those offenses or not. (More details about the evidence against particular defendants can be found at pages 23 to 30 of the court's opinion.)

Another disturbing aspect of the court's opinion is that it seems to assume the worst every time one of the alleged co-conspirators used encrypted email, or said that he or she did not want to discuss something over the phone. It's possible that the encrypted emails and in-person discussions planned criminal activity, but it's also possible that SHAC simply knew it might be being watched – as, in fact, was the case -- and wanted privacy to plan legal protests.

For these actions, the various defendants received sentences ranging from one to six years' imprisonment, and SHAC itself was put on probation for five years. The defendants were also ordered to pay $1 million in restitution.

The AEPA's Language at the Relevant Time

The AEPA has since been amended, but in this column, I'll discuss its original version, which was in effect when the defendants acted. The statute made it a crime to "travel[] in interstate or foreign commerce, or use[] or cause[] to be used the mail or any facility in interstate or foreign commerce for the purpose of causing physical disruption to the functioning of an animal enterprise," and to "intentionally damage[] or cause[] the loss of any property (including animals or records) used by the animal enterprise, or conspire[] to do so."

The AEPA also stated that " ‘physical disruption' does not include any lawful disruption that results from lawful public, governmental, or animal enterprise employee reaction to the disclosure of information about an animal enterprise." In other words, the statute seemed to exclude lawful, non-violent protest that turns out to be disruptive in some way.

In addition, the AEPA defined "economic damage" as "the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated
experiment, or the loss of profits…."

The Legal Challenge: A Combination of Due Process and the First Amendment

The defendants challenged the AEPA under the "void for vagueness" doctrine. In particular, they contended that the statute was unconstitutionally vague because it failed to define "physical disruption," and did not define "economic damage" specifically enough.

A criminal law can be struck down as being void for vagueness under the doctrine of constitutional due process even if it does not target speech, but only conduct -- for due process guarantees us clarity about which kinds of conduct are prohibited, and which are permitted.

One fear behind the "void for vagueness" doctrine is that statutes' ambiguity will allow or tempt authorities to pick and choose their targets. Another fear is simply that people will inadvertently step over the legal line, because the statute is unclear as to where the line is drawn. The idea is that we all deserve fair warning about what the law prohibits.

Here, however, there was not only a due process issue, but also a First Amendment concern. Not only was the statute unclear about what was permitted, but its lack of clarity threatened to chill constitutionally-protected speech. Thus, the typical concerns about selective enforcement and clear line-drawing existed here, but they were also coupled with a serious concern about silencing legitimate, First-Amendment-protected dissent.

In my next column, appearing on this site in two weeks, I will discuss the question whether the defendants' arguments should have prevailed in court – and explain why one judge on the three-judge panel dissented in important respects from the panel's holding which gave its blessing to all of the convictions.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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