Under AETA it is no longer just the radical underground activists that are targeted for harming the corporate agenda, but also the law—abiding, above—ground activists. AETA is so broad and vague that ordinary citizens may not know that they are acting outside the vast boundaries of this new law. Under AETA, it doesn’t take much to be labeled an “animal enterprise terrorist. ” Techniques that have been used for years in various social movements are now acts of terrorism if they cause profit loss, including increased security costs, to an animal exploitation business. Those who peacefully protest or engage in undercover investigations can be deemed a terrorist precisely because these actions are purposefully enacted to cause economic loss to a business so that it can no longer engage in the exploitation of animals.
The Chill Effect: The Corporate Attempt to Silence a Movement
It is of utmost concern that AETA may have a chilling effect on above—ground animal rights activists. The legal concept of “chill” or a “chilling effect” is part of both substantive and procedural constitutional legal doctrines, which were introduced over 1/2 a century ago in this country. Essentially, the chilling effect occurs when government conduct — which is not specifically directed at constitutionally protected activity — nonetheless deters people from engaging in constitutionally protected activity for fear of punishment or unfavorable social repercussions. The chilling government conduct may come in the form of a law, but it also includes other government activities such as surveillance. The feared punishment which deters individuals or groups from engaging in constitutionally protected activity may include fines, imprisonment, civil liability, or deprivation of government benefits. It may also include public hostility and declines in organizational memberships.
The legal concept of chill was first developed in the 1950’s and 1960’s in U. S. Supreme Court cases which addressed government activity against “subversives. ” In multiple cases, the U. S. Supreme Court addressed government activity that forced individuals to disclose associational ties (e. g. , Communist Party membership) or forced organizations to disclose membership lists (e. g. , NAACP members) and found the government activity to have a chilling effect on the constitutional freedom of association found in the First Amendment.
Although the chilling effect doctrine protects all constitutionally protected activity, it is especially applicable to First Amendment activity. This application is important because it protects the open exchange of information and open criticism of government.
If the government passes a law which has a chilling effect, that law may be deemed unconstitutional and taken off the books. In legal jargon, we say that a law which has a chilling effect can only remain on the books if the government can prove it has a “compelling state interest,” and that the activity is “narrowly tailored” to accomplish that interest. This level of judicial scrutiny is the highest available in constitutional law cases, and is often called “strict scrutiny. ”
A Long History of Silencing Dissent
1. Alliance to End Repression v. City of Chicago (1985)
In this case, the court documented the infiltration of peaceful activists and activist groups by the Chicago Police. It found the infiltration to be unconstitutional and awarded thousands of dollars to the activists because the infiltration activities chilled first amendment rights. Prior to this decision, a different opinion also found that the City of Chicago had illegally infiltrated the activists’ legal team to obtain privileged and protected information about legal strategy and the court had to enjoin the City from further illegal infiltration. [Alliance to End Repression v. Rochford, 75 F. R. D. 435 (D. C. Ill. 1976)].
One organization which was infiltrated was Alliance to End Repression, a civil liberties group seeking reform of the criminal justice system. The police had no suspicion of criminal activity but instead targeted the group to “nullify its sympathetic and political influence, its financial and organizational support, and its operational activities. ” Police sent an informer and an undercover agent to become board members of the group and to participate in the group’s decision—making process. Additionally two officers and an informer falsely testified before the U. S. Senate that the group was a communist “front group. ”
Another group infiltrated by the police — without suspicion of any criminal activity — was the Chicago Peace Council. An informer became a treasurer of the group and participated in its decision-making process. Police also spied on the group during a weekend camp conference by taking photographs and collaborating with a local reporter who then published a false story that the activists had engaged in a “secret revolutionary planning session. ” The Court also found that the Chicago Police had a policy to “neutralize” other peaceful and legal activist groups including the Spanish Action Committee of Chicago, the Citizens Action Program, and the National Lawyers Guild.
On a more personal level, the Court also found that the Chicago Police had unconstitutionally chilled the activities of a retired social worker. Although the police had no suspicion of any criminal activity, it maintained files containing a detailed chronology of her personal and political activities, medical records, financial records, medical and educational information about her children and her husband, details of conversations at a private cocktail party, etc.
2. Brown v. Socialist Workers ’74 Campaign Committee (Ohio) et al. 459 U. S. 87 (1982)
In this case the U. S. Supreme Court recognized a history of government harassment of members of the Socialist Workers Party in its decision that forcing the group to disclose membership lists would chill its First Amendment activities. It noted that the FBI had conducted “massive” surveillance of the Party, and had conducted a counterintelligence program against the Party called the “SWP Disruption Program. ” As part of this program the FBI disseminated information about Party members to the press and sent anonymous letters to supporters and family members in an attempt to disrupt the group. At the time of the district court’s decision, the government possessed 8 million documents relating to the Party and its members, and the FBI had already had 300 informants pose as members of the Party, as well as utilizing 1,000 informants who were not members. 21 of the member’s informants held local offices, three member’s informants ran as candidates, and informants were paid thousands of dollars for their infiltration and surveillance activities.
3. Gibson v. Florida Legis. Investigation Committee (1963)
In this case, a state government investigation committee was ostensibly seeking to identify Communists, and ordered that the Miami branch of the NAACP disclose its membership list to the government. The U. S. Supreme Court recognized that there was “intense resentment and opposition [from] the politically dominant white community” at play. Therefore it found that forced disclosure of membership lists would influence individuals not to associate themselves with the NAACP, which unconstitutionally chilled their freedom to associate.
4. Shelton v. Tucker (1960)
In this case, school teachers sued after an Arkansas law forced them to lose their jobs. The law required that teachers disclose every group they belonged to for the past five years as a term of employment. Testimony indicated that certain local groups intended to lobby the schools not to rehire teachers who disclosed that they were members of groups like the American Civil Liberties Union, the Urban League, the American Association of University Professors, and the Women’s Emergency Committee to Open Our Schools. The U. S. Supreme Court found the law unconstitutional for chilling the teacher’s freedom to associate.
5. Sweezy v. New Hampshire (1957)
In this case, a state government committee ostensibly investigating subversive activities called a university professor to testify as to whether he was a member of the Progressive Party. The professor refused to testify as to that matter and was held in contempt of court. The U. S. Supreme Court stated that the investigation had abridged the professor’s constitutional right to associate with organizations which may express dissident political viewpoints.
6. NAACP v. Button (1963)
In this case, petitioners challenged a Virginia law which criminalized the method by which the NAACP solicited plaintiffs for their legal cases challenging school segregation. The U. S. Supreme Court recognized the potential for the law to be used in “selective enforcement against unpopular causes. “It stated that the law would cause NAACP members or sympathizers to “understandably hesitate” before involving themselves in civil rights litigation with the NAACP, and accordingly found the law unconstitutional because of its effect on freedom of association.
7. Bates v. City of Little Rock (1960)
In this case the a local NAACP president was convicted of an Arkansas law which required the disclosure of the membership list, ostensibly to determine whether or not the groups was a charitable, local tax-exempt organization. The president provided financial information but not the membership lists, because the members wanted to be anonymous in order to avoid racial harassment/possible hate crimes and the membership lists were already declining in response to the law. The U. S. Supreme Court found that although the law was not a “frontal attack,” NAACP members freedom to associate was “stifled by more subtle government interference” by the law, and it was therefore unconstitutional.
AETA has the potential to chill lawful First Amendment activities of the entire animal rights movement due to its application of a terrorist label, surveillance implications, broad reach, vague language, and harsh sentences. This is a direct violation of our constitutional rights, despite the fact that actual speech under AETA has not been outlawed. Of course, this is undeniably what animal enterprises want, to quiet the movement that shines a light on their horrendous practices. As the U. S. Supreme Court noted in Sweezy v. State of New Hampshire: “[h]istory has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted.
AETA was designed to crush the animal rights message and it is important that we not let corporate America scare us into submission; rather, activists must continue to exercise their freedoms of speech, assembly, petitioning, and association to educate the public and impede animal exploitation. Keep fighting, and know that there are lawyers out there to support you if the FBI comes knocking on your door. Knowledge is power!