Washington, D.C. – Last night, the Center for Constitutional Rights (CCR) asked the US Supreme Court to review its case challenging the federal Animal Enterprise Terrorism Act (AETA) as a violation of the First Amendment. The law punishes causing lost profits to an animal enterprise, but makes no distinction between loss caused by criminal acts and loss caused by boycotts and other constitutionally-protected activity.
The Animal Enterprise Terrorism Act punishes anyone found to have caused the loss of property or profits to a business or other institution that uses or sells animals or animal products, or to a “person or entity having a connection to, relationship with, or transactions with an animal enterprise.” CCR attorneys argued the law was unconstitutionally vague and overbroad, and that it cast a chill on legal First Amendment activity by the animal rights activists they represent.
The appellate court ruled that the activists were not permitted to sue because they did not reach the unprecedented threshold that their prosecution under the law was “certainly impending.”
“Courts have never required that a prosecution be imminent before a plaintiff can bring a pre-enforcement challenge to a criminal statute,” said CCR Senior Staff Attorney Shayana Kadidal. “And for good reason—the chilling effect of laws like the AETA causes people to silence themselves out of fear of prosecution. Yet, the First Circuit’s ruling requires that these individuals risk being charged as terrorists for speaking out before they can demonstrate that the law is unconstitutional.”
The First Circuit’s threshold requirement contradicts decades of Supreme Court precedent allowing plaintiffs to challenge a law when their speech is chilled based on an objectively reasonable interpretation of the statute, even if current prosecutors disagree and insist the statute should be read more narrowly. The First Circuit adopted the new standard on its own volition, without the government’s urging and without briefing on the issue. According to attorneys, the activists’ fears are even more reasonable given that the AETA is part of a broader crackdown on animal rights activists, which also includes state-level “ag-gag” legislation punishing undercover investigations and whistleblowing inside animal agricultural facilities.
“From the AETA to the proliferation of ag-gag legislation, animal rights activism is increasingly under assault by laws created to protect agribusiness and other animal use industries,” said lead plaintiff Sarahjane Blum. “Now, a court has told me that I must risk being prosecuted before I can challenge those laws. I am forced to either be silent about violence against animals or live with the looming possibility of being charged with ‘terrorism.’”
Blum v. Holder was filed on behalf of five animal rights activists with long histories of participating in peaceful protests and advocacy efforts, who have limited or even ceased their lawful advocacy out of fear of being prosecuted as terrorists. In the first use of the AETA, in 2009, four activists were indicted and arrested in California by the Joint Terrorism Task Force for protesting, writing on sidewalks with chalk, chanting, leafleting, and using the Internet to find information on animal researchers. One of the plaintiffs in Blum, Lauren Gazzola, was convicted under the previous version of the law, the Animal Enterprise Protection Act (AEPA), and served 40 months in federal prison for her role in publishing a website that advocated and reported on protest activity against an animal testing lab in New Jersey.
Although it targets animal rights activists specifically, attorneys argue the AETA is written so expansively it could turn a successful labor protest at Wal-Mart into an act of domestic terrorism. Non-violent violators face up to twenty years in prison, depending on the amount of profit loss that results. Groups including the Fur Commission USA, the National Cattlemen’s Beef Association, and several pharmaceutical companies lobbied for the law.
The Center for Constitutional Rights provided amicus support in Plaintiff Gazzola’s AEPA case and was co-counsel in the California AETA case.
Blum was filed in the US District Court for the District of Massachusetts. Alexander Reinert, a professor at the Benjamin N. Cardozo School of Law, along with David Milton and Howard Friedman, of the Law Offices of Howard Friedman PC, are co-counsel on the case.