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May 4-15, 2016: A global wave of mass actions will target the world’s most dangerous fossil fuel projects, in order to keep coal, oil and gas in the ground and accelerate the just transition to 100% renewable energy. You can find out more about Break Free at: https://breakfree2016.org With more than a decade of experience representing frontline activists, we are […]

Railroads, Ports, and Utilities Legal Primer

This legal primer is intended to be a basic legal resource for activists and legal observers involved in protests at or around railroads, ports, and energy facilities.

Train Bock

Train Bock

Use this guide to help you understand what you are getting into before taking any action. If you are arrested, you are obligating yourself to the federal and/or state criminal legal system, which may have consequences that include a conviction, jail, and/or probation. Act accordingly. If you are not able to deal with the consequences of an arrest and stand in solidarity with your community against government repression, don’t risk arrest. Activism can take many forms, so be honest with yourself about how you can be most effective in fighting for climate justice.

**Please be aware that this primer is not legal advice and does not form an attorney-client relationship.**

Download Railroads, Ports, and Utilities Legal Primer as a PDF for printing.

This Primer is meant to supplement Know Your Rights training from the Civil Liberties Defense Center and does not include a discussion of the most common charges and punishments that activists will face from criminal trespass, disorderly conduct, criminal mischief, etc.

Each State has different laws that may apply to actions on railroad, port, or energy facility property. This primer focuses on Washington and Oregon and is not meant to replace diligent research by campaigns in these or other states. Do your Research!

Railroads

Railroad tracks, and usually the land extending up to 50 feet on either side, are private property of railroad corporations. Railroad police have interstate jurisdiction and can investigate and enforce all state law crimes against the railroad whether or not the officers are on railroad property.

What are the risks?

There are special state and federal charges that may be brought against protesters interfering with railroads and trains.

  1. Federal charges typically involve the use of violence, but many non-violent actions may face serious charges. Federal charges dealing with railroads include:

Terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air (18 U.S.C. § 1992)

This is a big charge. It covers lots of non-violent behavior that’s not usually considered “terrorism.”

Disabling, wrecking, or derailing any on-track equipment or vehicle, as well as making tracks, depots, bridges, tunnels, signals, warehouses, etc., unusable or unworkable, qualifies as a “terrorist attack” under this statute.

You may also be charged under this statute for removing, damaging, or impairing a dispatch, crossing, or control signal, as well as interfering with drivers, engineers, or conductors with a reckless disregard for safety.

It’s also important to note that collecting information, surveiling, photographing, videotaping, or diagramming railroads or equipment to assist in any of this behavior may also qualify as a “terrorist act,” as does attempting, threatening, conspiring, or conveying false information about an attempt to do any of the above.

This is a Class C felony punishable by up to 20 years in prison and/or fines.

(Note: this charge applies to trains or mass transportation carriers involved in interstate or foreign commerce, or to individuals who cross state lines to commit the acts.)

Destruction of national-defense materials, national-defense premises, or national-defense utilities* (18 U.S.C. § 2155)

Despite its name, this charge covers lots of railroads. Injuring or destroying national-defense material, premises, or utilities is a crime, as long as you have the intent to injure, interfere with, or obstruct national defense. It’s also a crime to attempt to do so.

“Materials, premises, and utilities” include any railroad that might carry defense materials or troops — which could be most railroads.

This is a Class C felony punishable by up to 20 years in prison and/or fines.

Entering train to commit crime (18 U.S.C. § 1991)

It’s a crime to enter a train with the intent to injure property or a person, whatever that injury might look like.

This is a Class A misdemeanor punishable by up to 1 year in prison (injury to property or person) or a Class C felony punishable by up to 20 years (robbery or murder), and/or a fine.

  1. State Charges also exist for railroad-specific behavior.

In Washington, charges exist for:

Obstructing or delaying train (RCW 81.48.020)

This charge is pretty broad and criminalizes obstructing, hindering, or delaying a railroad car.

This is a misdemeanor punishable by up to 90 days in jail and/or a $1,000 fine.

Malicious injury to railroad property (RCW 81.60.070)

Tampering with any railroad equipment or structure is a crime in Washington. Railroad structures include embankments and culverts. Technically, you have to tamper in a way that endangers the safety of the property or people. Also note that throwing a “dangerous missile” at a railcar is covered by this statute.

This is a Class B felony punishable by up to 10 years in state prison and/or a $5,000 fine.

Sabotaging rolling stock (RCW 81.60.080)

“Rolling stock” means something rolling along a railroad track. If you take, remove, damage, alter, or interfere with any part of a railcar, and you intend to injure the railcar or deprive its owner of it, you may have committed this crime.

This is a Class C felony punishable by up to 5 years in state prison and/or a $1,000 fine.

  1. Some states do not have any special charges dealing with railroads or trains, but railroad protests may still attract special legal attention.

In Oregon, entering or remaining on railroad yards, tracks, bridges, or rights of way automatically constitutes Criminal trespass in the first degree, a Class A misdemeanor punishable by up to 1 year in jail and/or a fine of $6,250.

Interfering or obstructing the service of a railroad, or using, rearranging, manipulating, or damaging railroad property automatically constitutes Criminal mischief in the first degree, a Class C felony, punishable by up to 5 years in prison and/or $125,000 fine.

Other States have different statutes or laws; make sure to research your state laws.

What we’ve seen so far in Railroad actions…

  • In a series of labor protests in 2013 at the new EGT grain station in Longview, WA, a strong union town, union members broke down fences, blocked trains and even released the grain cargo during their protests. The most common charges that were pursued against the activists were Criminal Trespass and Obstructing or delaying train (see above). Most of the other charges (such as disorderly conduct, obstructing a police officer, malicious mischief) were dismissed, and the others ended in plea deals or trials (with some juries refusing to find guilty verdicts). Punishments mostly consisted of community service and fines. *Special rules apply to union labor struggles and actions.
  • In September of 2013 and April 2014, 5 to 20 activists in Missoula, MT blocked the path of a coal train by standing close enough to the tracks to make it unsafe for the train to pass. They were given a warning to clear the tracks and told that those who remained would be cited. Those who were cited primarily faced charges of trespass and disorderly conduct. The train was slowed, but it was not stopped.

Note: Across the country, Criminal trespass remains the most common charge for activists involved in railroad actions. Keep in mind that, as in other types of actions, protesters may also be charged with criminal trespass, criminal mischief, disorderly conduct, or public nuisance.

Probation terms and restitution are common punishments for climate justice actions, but they are not often reported.

Ports

You should know

Ports are considered separate municipalities chartered by the state (like a city or a town). Port property is likely either owned by the port municipality, a corporation, or private individuals. State law applies in ports, but some federal charges may also apply because ports are considered critical infrastructure of commerce. Ports, like other municipal entities, have their own police forces to investigate and enforce laws concerning port property, which may include inland port property.

Port Block - Portland (Photo Credit: Portland Rising Tide)

Port Block – Portland (Photo Credit: Portland Rising Tide)

 

What are the risks?

As with railroads, there are special state and federal charges that may be brought against protesters conducting actions at ports.

  1. Federal charges typically involve the use of violence, but many non-violent actions may face serious charges. Two federal charges are worth noting:

Boarding vessels before arrival (18 U.S.C. § 2279)

Boarding a vessel before it has completely moored—that is, before it has come to a rest at port—is a crime.

This is a Class B misdemeanor punishable by up to six months in prison and/or a fine.

Destruction of national-defense materials, national-defense premises, or national-defense utilities (18 U.S.C. § 2155)

We saw this one under railroads, too. The charge covers injuring or destroying national-defense material, premises, or utilities, which can include port facilities. You have to have the intent to injure, interfere with, or obstruct national defense. It’s also a crime to attempt to do so.

“Materials, premises, and utilities” covers docks, wharves, piers, bridges, dams, canals, locks, boats, or buildings that could potentially be involved in moving defense material or troops.

This is a Class C felony punishable by up to 20 years in prison and/or fines.

  1. State Charges are less common for port activity. Some states may have different statutes or laws, be sure to research your state laws.

In Washington, a charge exists for:

Obstructing navigation (RCW 88.28.050)

This charge covers obstructing the navigable portion or channel of a harbor, bay, river or stream in any way.

This is a misdemeanor punishable by a fine up to $300.

Note: some states, like Oregon, do not have any special charges dealing with ports. But, again, protesters may face typical activist charges such as criminal trespass, criminal mischief, disorderly conduct, or public nuisance. Also, if you enter a boat or building with the intent to commit a crime, you may be charged with felony burglary. Research the laws in your state.

What we’ve seen so far in Port actions…

  • On December 12, 2012, Occupy activists successfully shut down the Port of Portland. There were no charges for activists at the shut-down itself (others were arrested away from the protest site for unrelated crimes).
  • Two people locked down to equipment and delayed the departure of Megaload shipments at the Port of Umatilla on December 2, 2013 (on inland port property). They faced charges of disorderly conduct.
  • The labor action described above under Railroads took place on port property in Longview and Vancouver, WA.

Utilities

Seneca Protest - Eugene (Photo Credit: Cascadia Forest Defenders)

Seneca Protest – Eugene (Photo Credit: Cascadia Forest Defenders)

You should know

Utilities, public utilities, or energy facilities are the infrastructure producing or transmitting energy to the public, or the companies that own such infrastructure. Electricity, gas, oil, water, and sewage are all utilities. Although usually privately owned, utilities enjoy special legal protections because of their importance to the general public.

What are the risks?

There are special federal charges that may be brought against protesters interfering with utilities.

  1. Federal charges typically involve the use of violence, but many non-violent actions may face serious charges. Federal charges include:

Destruction of an energy facility (18 U.S.C. § 1366)

Contrary to its name, this charge covers more than just “destruction.” It’s also a crime to damage a facility involved in the production, storage, transmission, or distribution of energy, or to attempt to do so. This includes pipelines, whether or not they are under construction or operational.

If this damage causes a significant interruption in the facility’s production (or if you cause over $100,000 in damage), this is a Class C felony punishable by up to 20 years in prison and/or a fine.

It’s a Class E felony punishable by up to 5 years in prison and/or a fine if you cause up to $5,00 in damages and no significant interruption.

Note: this charges applies even to facilities that are not functional — either under construction or off-line.

Destruction of national-defense materials, national-defense premises, or national-defense utilities (18 U.S.C. § 2155)

We saw this in the railroad and ports sections. The charge covers injuring or destroying national-defense material, premises, or utilities. You have to have the intent to injure, interfere with, or obstruct national defense. It’s also a crime to attempt to do so.

“Materials, premises, and utilities” includes electric plants, lines, gas mains, pipes, poles, buildings, or structures supplying energy to national defense premises or armed forces. There are lots of national defense premises and lots of armed forces, so this includes a lot of utilities.

This is a Class C felony punishable by up to 20 years in prison and/or fines.

Criminal penalties for damaging a pipeline or facility(49 U.S.C. § 60123)

Damaging or destroying an interstate gas or hazardous liquid pipeline facility, or a pipeline used in interstate commerce — meaning it must cross a state line, which most pipelines do — is a crime. So is attempting to do so.

This is a Class C felony punishable by up to 20 years in prison and/or fines.

  1. States may not have special charges dealing with utilities.

However, in Washington, causing an interruption or impairment in utility service by physically damaging or tampering with utility property automatically constitutes Malicious mischief in the first degree, a Class B felony punishable by up to 10 years in prison and a fine of $20,000.

Causing a substantial risk of such interruption or impairment by damaging or tampering with utility property automatically constitutes Malicious mischief in the second degree, a Class C felony punishable by up to five years in prison and a $10,000 fine.

In Oregon, interfering or obstructing the service of a utility, or using, rearranging, manipulating, or damaging utility property automatically constitutes Criminal mischief in the first degree, a Class C felony, punishable by up to 5 years in prison and/or $125,000 fine.

What we’ve seen so far in Energy Facility actions…

  • In Asheville, North Carolina in February 2012, Greenpeace members climbed fences to access a Progress Energy Facility, locked down to equipment, and hung a banner from the top of an inactive smokestack. Sixteen people were arrested and charged with trespass and a few with breaking and entering.
  • In July 2012, the Oakridge 3 cut through three fences at Y-12 Nuclear Storage Facility in Oak Ridge, Tennessee and vandalized the outside of a building. They were charged with a variety of crimes but were ultimately convicted of damaging national defense premises (see above). One of the activists, a nun, received 3 years in prison. The two others, who had longer criminal histories, were sentenced to 5 years.
  • Some of the Green Scare activists were charged with 18 U.S.C. § 1366 (Destruction of an energy facility) for a sabotage action that toppled Bonneville Power Administration power lines in December 1999. They were not convicted of this crime because plea deals were made.

Note: It’s worth repeating: in addition to the charges listed above, protesters may face typical activist charges such as criminal trespass, criminal mischief, disorderly conduct, or public nuisance.

Always remember that it’s hard to predict what charges prosecutors will bring. Just because they didn’t pursue a certain charge this time doesn’t mean they won’t in the future.

Understand what conduct is illegal

Recognize that actions such as making plans, scouting, threatening, attempting, and conveying false information are often covered by the charge.

Do your legal research in advance of any potential arrest scenario.

Assert your Rights.

Know Your Rights

What to Do When Interacting with the Police

Basic Tips

  • You are not allowed to lie to cops, but they are allowed to lie to you (and you should expect them to do so).
  • Keep your hands visible and don’t make quick movements.
  • Don’t go anywhere with a cop unless you are under arrest.
  • Stay in well-lit areas and where witnesses are present.
  • Assume that you are being recorded by the cops.
  • If possible, record the cop or have someone else do so. It is legal to record cops in a public place if you inform them that you are recording and you aren’t interfering with their business.
  • Be polite but firm about asserting your rights.

The police interfere with people’s rights in three distinct ways: Conversation, Detention, and Arrest. Identify your situation so you know your rights, and note that if a cop gives you a warning or an order and you disregard it, you may be arrested. Anything you say can and will be used against you, so stay calm and in control.

Level I: Conversation

Police officers have the right to approach and ask you questions, but absent any reasonable suspicion that you are involved in criminal activity, an officer cannot detain you. You do not have to answer any questions. You do not have to provide identification to an officer at this level unless you are driving a motor vehicle; this includes non-US citizens. Minors (under 18 years of age) do not have to answer any questions by police unless a parent or attorney is present. Determine if you are in a Level I situation by asking if you are free to leave. If you are free to leave, leave.

“Am I being detained?”

Level II: Detention

If an officer reasonably suspects you have been involved in a crime, they may detain you for questioning. You must identify yourself upon request at this level (name, address, D.O.B.). In most states, you do not have to produce an ID card unless you are the driver of a vehicle. Giving false information is a crime. Do not consent to a search, but if the police have probable cause or a warrant (which you should ask to see), they do not need your consent. But never verbally consent. Repeat: “I do not consent to this search.” Police may pat down your clothing if they have a reasonable suspicion that you are carrying a concealed weapon; do not physically resist but make it clear that you do not consent to any further search. Do not talk to the police. Say: “I invoke my Fifth Amendment Right to remain silent. I want a lawyer.” Police are allowed to lie to you, and anything you say (as well as complete silence) could be used against you and provide the police with probable cause to arrest you. Don’t run away even if you believe what is happening to you is unlawful; this may lead to your arrest and injury. Remember officers’ names and badge numbers, and write down everything about the incident as soon as possible.

Level III: Arrest

Ask for an attorney immediately upon being taken into custody. Repeat this demand as often as necessary. You have the right to remain silent—wait for your attorney before saying anything. In most circumstances, if you refuse to provide a name and address while in custody, you will not be eligible for release or a court-appointed attorney.Within a reasonable time, the police must allow you to make a phone call to your attorney and may not legally listen to that call (but assume they will!).Do not talk to fellow arrestees regarding the circumstances of the arrest; you never know who might be listening/recording or if you’re actually talking to an informant or undercover officer. You must be provided adequate medical care while in custody. If you are on medication, inform the jail of that fact immediately and repeatedly, in writing if possible. If you have dietary restrictions for health or religious reasons, the jail may be required to provide you with alternative meals. Inform the jail of your dietary needs as soon as you arrive. If the jail fails to accommodate those needs, begin the grievance process immediately. Transgendered people have the right to be safe while in custody. Inform jail staff of issues of concern.

What Happens Next?

Either while in custody, or shortly upon your release, you will be required to appear in court for an arraignment hearing. Plead NOT GUILTY to all charges. Apply for a court-appointed attorney if you so choose. You will receive a future court date to appear. Make contact with your attorney as soon as possible. It is your responsibility to remain in contact with your attorney; this may be frustrating, but will be essential to your defense! If you choose to go to trial, it may be your responsibility to locate and secure witnesses on your behalf. If you are found guilty at trial, or elect to later plead guilty, you are allowed to delay sentencing at least 48 hours. At the sentencing hearing, you may be ordered to serve jail time, so be prepared to report to jail immediately. Probation requires you to obey all laws. A subsequent arrest while on probation could result in a separate probation violation case and additional punishment including jail.

Security Culture Basics

Don’t Brag: You’re engaged in activism to protect the planet from further destruction, not to get cool points. Bragging about actions—past, present, or future—puts you and your community at risk. The government may use bragging to gather information about you, your comrades, and actions, and it may also decide to target you for getting more information. This applies to “real life” as well as electronically. Government agencies closely monitor email, Facebook and other websites, cell phones, and all electronic communications.

Don’t Gossip: Like bragging, gossiping creates a weak link through which the government can gather information about a community to use against it. Additionally, gossip opens up opportunities for the government to exploit or even create disagreements and tensions between activists. Even if the government doesn’t use your gossip to do damage, you may do that anyway; gossip can easily lead to good activists dropping out of movements. Online gossip can be especially damaging to individuals and communities, and most issues that arise within activist communities don’t need to be broadcast to the public and the government.

Operate on a “Need to Know” Basis: Only share information with others that NEEDS to be known, and only share the information with the people who NEED to know it. Any further sharing creates the unnecessary risks of information getting shared with informants, people who will snitch, and people who did not want the responsibility of knowing information. Furthermore, when you are sharing sensitive information with select individuals, be aware of who—and what—is around you. Don’t share information in the presence of anyone who does not need to know it, or in the presence of any electronic devices, security cameras, places that could be wired, etc.

Not Who You Think They Are

Infiltrator: one who enters into a group or territory with hostile intent, usually with backing from a government agency or corporation.

Informant: one who provides information about an individual or a community to a government agency or corporation.

Provocateur: one who is employed by a government agency or corporation to create problems in a community and/or to encourage a community or individual members to engage in violent actions.

Snitch: one who turns their back on their community and takes on one or more of the above roles.

What to Do

Assume that infiltrators, informants, and provocateurs are within any given activist community and respond accordingly. Be on the lookout for suspicious behavior from others, and adhere to security culture practices to help reduce the damage that these unwelcome parties can cause. If someone seems to have come out of nowhere, asks too many questions, stirs up unnecessary dissent, creates harmful gossip, pressures others to engage in violent activities, or behaves in other ways which suggest that they do not care about what is best for the cause, other activists, and the community—don’t trust them. They may be working for the government or a corporation that is eager to gather information about activists and to try to make effective groups fall apart.

In addition to being cautious about the danger posed by people who’ve been paid to work their way into activist communities, you should be careful about trusting people who may one day snitch. If for any reason you think that someone would not be able to withstand pressure from the police, FBI, or other government agency—or you think that someone would be tempted by offers of reduced sentences or money for turning on their comrades—don’t freely share information with them.

For a video of our Know Your Rights training for activists go to:

www.cldc.org/organizing-resources/know-your-rights-for-activists

Contact CLDC to arrange a training or series of trainings for your community.

If you appreciate activist resources like this primer and our Know Your Rights trainings, please consider becoming a member of the Civil Liberties Defense Center or make a donation to support CLDC’s work. Check out https://cldc.org/donate/ for more information about how you can help.

Demand of Rights

  • I will not talk to you or anyone about anything.
  • I demand to have an attorney present before I speak to you or anyone.
  • I will not answer any questions, or reply to any charges, without my attorney present.
  • I do not agree to perform any test, consent to any searches, or participate in any line-ups.
  • I will not sign anything unless my attorney agrees I should do so.
  • I will not waive any of my constitutional rights.

Notes

* For explanatory purposes: “The words “national-defense material” include arms, armament, ammunition, livestock, forage, forest products and standing timber, stores of clothing, air, water, food, foodstuffs, fuel, supplies, munitions, and all other articles of whatever description and any part or ingredient thereof, intended for, adapted to, or suitable for the use of the United States in connection with the national defense or for use in or in connection with the producing, manufacturing, repairing, storing, mining, extracting, distributing, loading, unloading, or transporting of any of the materials or other articles herein before mentioned or any part or ingredient thereof.

The words “national-defense premises” include all buildings, grounds, mines, or other places wherein such national-defense material is being produced, manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, or transported, together with all machinery and appliances therein contained; and all forts, arsenals, navy yards, camps, prisons, or other installations of the Armed Forces of the United States.

The words “national-defense utilities” include all railroads, railways, electric lines, roads of whatever description, railroad or railway fixture, canal, lock, dam, wharf, pier, dock, bridge, building, structure, engine, machine, mechanical contrivance, car, vehicle, boat, aircraft, airfields, air lanes, and fixtures or appurtenances thereof, or any other means of transportation whatsoever, whereon or whereby such national-defense material, or any troops of the United States, are being or may be transported either within the limits of the United States or upon the high seas or elsewhere; and all air-conditioning systems, dams, reservoirs, aqueducts, water and gas mains and pipes, structures, and buildings, whereby or in connection with which air, water, or gas may be furnished to any national-defense premises or to the Armed Forces of the United States, and all electric light and power, steam or pneumatic power, telephone and telegraph plants, poles, wires, and fixtures and wireless stations, and the buildings connected with the maintenance and operation thereof used to supply air, water, light, heat, power, or facilities of communication to any national-defense premises or to the Armed Forces of the United States. [From 18 U.S.C. § 2151]

SLAPP Suits

Strategic Lawsuits against Public Participation

Strategic Lawsuits against Public Participation, also known as SLAPP suits, ordinarily arise out of defamation lawsuits. Defamation is a common law tort whereby one citizen can sue another citizen for damage to reputation. The difference between an ordinary defamation lawsuit and a SLAPP suit is that the plaintiff in a SLAPP suit does not generally plan to actually win their lawsuit. Instead, SLAPP suits are intended to intimidate, censor, disparage, burden, and punish activists for exercising their right to free speech and protest. SLAPP suits are used against individuals who may have meager resources and are unable to afford the legal counsel necessary to help them protect their rights.

As one court has stated:

SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense…The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism…Those who lack the financial resources and emotional stamina to play out the “game” face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle…Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.

Gordon v. Marrone, 590 N.Y.S. 2d 649, 656 (N.Y. Sup. Ct. 1992

The use of SLAPP suits as a harassment tool became so pervasive that beginning in the 1990’s, some states began adopting laws – commonly referred to as “anti-SLAPP” laws – to protect a citizen’s rights to engage in free speech. Not all of these laws are alike, but many of these anti-SLAPP laws offer defendants the opportunity to recoup their legal fees if they prove that they have been forced to defend themselves from a frivolous lawsuit. CLICK HERE to see if your state has anti-SLAPP laws and to get updates on progress of federal anti-SLAPP legislation. However, even if the defendant ultimately prevails with an anti-SLAPP suit, the defendant will likely have wasted multiple years defending their case. Thus, exoneration from a SLAPP suit, if it comes at all, will not come without years of time wasted on litigation and emotional turmoil, as well as the loss of thousands of dollars if a defendant is not lucky enough to live in the few states that have anti-SLAPP laws.

In the last twenty years, animal rights activists in particular have been a target of these suits, some for merely posting a blog on their personal website, and others for their acts of protest and political demonstration. The threat of these lawsuits is enough to make any social change advocate hesitate before expressing their opinion, in effect illegally chilling that individual’s exercise of the First Amendment.

CLDC is a national expert in defending activists and their campaigns from the threat of unconstitutional SLAPP suits. CLDC has a large brief bank and legal resources available for lawyers. If you are an attorney representing environmental or social change activists, please contact us. If you are an activist or organizer and a SLAPP suit has been filed against you, contact the CLDC immediately for assistance. In most states, you only have 30 days from when you were served with the lawsuit to file a response asserting constitutional defenses. CLDC provides trainings to activist campaigns on SLAPP suits.

Defamation in the Political Arena

Because the First Amendment protects our right to free speech, the common law legal claim of defamation can only be used against activity that is not protected speech under the Constitution. Essentially, there is no defamation of a public figure or concerning a matter of public concern unless the speaker knowingly and recklessly made a false statement with a “malicious intent” that caused injury to the affected individual. See New York Times Company & Ralph Abernathy et al. v. Sullivan, 376 U.S. 254 (1964). However, in the realm of SLAPP suits, the corporations and individuals who file the lawsuits routinely ignore these Constitutional safeguards. For example, even though animal welfare advocacy is an issue of public interest that receives Constitutional protection, see e.g. Dienes v. Associated Newspapers, Inc., 137 Mich. App. 272, 276, SLAPP suits against animal welfare advocates may be filed and proceed for years without any proof that statements made against them were false or made with a reckless disregard for the truth.

Animal Welfare Advocacy SLAPP suits

Letter to Editor in Scientific Journal:
Immuno A.G. v. Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270 (1991)(PDF)

In 1983, Dr. Shirley McGreal, who was chair of the International Primate Protection League, submitted a letter to the editor of the Journal of Medical Primatology. The letter criticized Immuno AG, a multinational corporation based in Austria, and their plans to establish a facility in Sierra Leone in order to conduct hepatitis research using chimpanzees. In January of 1983, Dr. J. Moor-Jankowski, the editor of the journal, submitted a copy of the letter to the corporation for comment or reply and specifically stated that the journal would not publish the letter if the allegations could be proven false. The corporation never provided proof that the allegations were false, and the journal eventually published the letter.

In December of 1984, the corporation sued the author of the letter, the editor of the journal, and six other defendants. As the New York high court stated in its opinion eventually dismissing the case after seven years of litigation, the case was a “libel action against the editor of a scientific journal, essentially for his publication of a signed letter to the editor on a subject of public controversy.” Although the lawsuit had initially been filed against eight defendants for two separate publications, the time and money-consuming litigation eventually exhausted seven of the defendants to the point that they paid off the corporation with “substantial sums” to be freed from the litigation. The editor of the journal was the only surviving fighter and had to endure seven years of litigation, including appeals to the U.S. Supreme Court, his own 14 day deposition, and hundreds of thousands of dollars of legal expenses. To the chagrin of all of the defendants who agreed to settle with the corporation, the New York high court ultimately dismissed the lawsuit because most of the statements were Constitutionally protected as statements of personal opinion. Additionally, the corporation failed to prove that any of the factual statements were actually false.

Fur Protest

Schumacher v. City of Portland, 2008 WL 219603, No. CV-07-601-MO (D. Or. Jan. 23, 2008)(PDF)

Starting in 2005, animal welfare advocates held weekly protests outside of Schumacher Furs and Outerwear, a retail store in Portland, Oregon. The protests usually involved a few dozen activists who would hold up signs with anti-fur messages, chant slogans, and play videos on portable televisions depicting animals being tortured and skinned alive for their fur. After two years of these weekly protests and public education campaigns that were successfully encouraging the public to choose more humane way to clothe themselves, Schumacher sued the City of Portland, In Defense of Animals, Animal Liberation Front, People for the Ethical Treatment of Animals, Inc., and several individuals, for claims of Intentional Infliction of Emotional Distress, Interference with Business Relations, Interference with Contract, Public Nuisance, and Trespass. The company argued that the city was a necessary party because it had allegedly failed to protect the company from illegal protest activity. The company requested damages from the city in the amount of $6.2 million, and from all the other parties for $6.6 million each. Although there was evidence of illegal conduct related to the protests, the company had no evidence that any of the named defendants were responsible for illegal conduct. Accordingly, the activists asked the court to dismiss the lawsuit under Oregon’s anti-SLAPP law, ORS 31.150.

Application of RICO to Animal Welfare Organizations

The court refused the company’s request to impute illegal conduct to the activists, stating “I find it was not objectively reasonable to sue the organizations and individuals [that] Plaintiffs were able to identify at the protests, or whose publications were identified as in the case of PETA, on the hunch that those organizations and individuals must be involved in the illegal activities of other protestors Plaintiffs could not identify. . . I granted the Motions to Strike because Plaintiffs did not produce evidence the prevailing defendants did anything illegal.” Additionally, the court vigorously chastised the company for filing a SLAPP suit:

Although Plaintiffs may have had meritorious claims against people whose names they did not know, or even against the City of Portland, they sued people against whom they had no evidence for $6.6 million, sought to restrict their First Amendment speech rights, and disparaged their reputations with accusations of criminal conduct, terrorist affiliations, and responsibility for “shutting down” a business whose financial solvency was questionable before the protesting activities began. This was an extraordinary abuse of the litigation process. . . . I find that awarding fees in this case will properly serve to deter putative plaintiffs from filing multi-million dollar suits against non-profit groups and private citizens engaged in First Amendment activities . . . .

Accordingly, the court dismissed the suit, and awarded legal expenses to the activists in the amount of almost $100,000.00.

Blog Posting

Comins v. VanVoorhis, Case No. 2009 CA 15047-0 (PDF)
(9th Judicial District Circuit Court, Orange County, Florida)

In 2008, a blogger named Matthew VanVoorhis posted a YouTube video link to a video of a man named Chris Comins shooting two dogs, along with two articles expressing his concern, anger, and opinion on the incident.  Comins was later charged with two counts of felony animal abuse for this incident. Despite the video documentation of the event and the pending felony charges, Comins sued VanVoorhis for defamation and “tortuous interference with a business relationship,” and has requested an unspecified amount of damages that at least exceed $15,000. Comins argues that the blog postings “contain numerous factual inaccuracies, gross exaggerations and damaging statements regarding Plaintiff and the incident.” He argues that the “blog posts are designed to incite violence and pose an imminent threat to Plaintiff and employees of his company.” Van Voorhis has filed a motion to dismiss the complaint and has filed counter claims in the lawsuit arguing that the lawsuit violates his First Amendment rights.

RICO

Introduction

In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, ostensibly to curtail the criminal activities of the mafia. In the forty years since RICO was enacted, the application of the law has extended far beyond the activities of loansharks and the “Don,” and into Constitutionally protected protest activities. Over time, the federal courts have gradually made the original intent of RICO – i.e. stopping the criminal activities of the mafia – less and less significant. Instead, the courts have issued interpretations of RICO that consistently ignore this intent and allow the law to be used as a way to silence advocates for social change. Animal welfare organizations such as People for the Ethical Treatment of Animals (PETA), the American Society for the Prevention of Cruelty to Animals (ASPCA), the Humane Society of the United States (HSUS), as well as many others have been victims of RICO prosecutions.

Thus, RICO has degenerated into a weapon that government and industry actors can use against advocates for social change – a weapon that can inflict millions of dollars in court fees and fines, as well as potential jail time, for mere acts of protest. Organizations and individuals that engage in protest for social change, especially protest against businesses and corporations that exploit animals, are now exposed to the threat of RICO charges, fines, and incarceration. Undoubtedly, this application of RICO results in a chilling effect on all of our First Amendment rights.

The Law

In 1950, the U.S. Attorney General held a conference that explored growing national concern with the increased criminal activities and influence of the mafia. As a result of the conference, several committees were formed to develop a legal strategy to address this concern. These committees recommended legislation that would act as a broad net to catch all possible criminal activity committed by mafia members. In 1970, Congress enacted RICO as Title IX of the Organized Crime Control Act. The law contains a long, broad list of activities that qualify as “racketeering,” and thus as federal crimes under RICO if the government can establish a “pattern” of more than one such act.

A violation of RICO can lead to a prison sentence of 20 years to life, as well as fines and permanent government seizure of personal property. In addition to these criminal penalties from the government, the “victim” business/individual in a RICO case may also file a civil lawsuit to recover three times the money damages actually incurred (referred to as “treble damages”), as well as attorneys’ fees, for itself. These treble damages and attorneys’ fees provisions are attractive to businesses and individuals looking to collect huge payoffs.

RICO’s broad definition of racketeering has allowed the Act to be consistently misused and applied to advocates for social change with no connection whatsoever to the mafia and organized crime. Often the purported basis for applying RICO to these political activists is that their activities fall within the loose definition of “extortion” under section 1961.

The Evolution of RICO “Extortion”

Generally, courts will look to a federal law known as the Hobbs Act in order to determine if a criminal act qualifies as an act of extortion. The Hobbs Act, 18 U.S.C. § 1951, defines extortion as “obtaining of property from another, without his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” The U.S. Supreme Court has interpreted this definition to apply even if the alleged extortionist doesn’t actually receive a direct benefit by obtaining the property at issue, United States v. Green, 350 U.S. 415 (1956), and even if the alleged extortionist does not have any economic motive to commit the action, see Scheidler v. National Organization for Women, Inc., 547 U.S. 9, 14-15 (2006). However, the U.S. Supreme Court has also held that extortion must still include some actual obtaining of property.
See Scheidler v. National Organization for Women, Inc., 547 U.S. 9 15 (2006).

Application of RICO to Animal Welfare Organizations

Undercover investigation of animal testing laboratory
The initial expansion of RICO primarily affected anti-abortion protestors engaged in physically violent attacks on abortion clinics. However, in 1997, People for the Ethical Treatment of Animals (PETA) became the first advocacy group that was not an anti-abortion group to be sued under RICO. Huntingdon Life Sciences – a business that engages in controversial exploitative animal testing practices such as live dissection and aggressive physical abuse of captive domestic animals – filed a civil RICO lawsuit against PETA after PETA publicly exposed the company’s extraordinarily cruel practices.

Huntingdon Life Sciences alleged that PETA had engaged in a “pattern of racketeering activity” prohibited by RICO by (1) conducting undercover investigations of its animal testing laboratories, including most recently an eight month undercover investigation in one of the company’s New Jersey laboratories, and then (2) publicly releasing video footage and other documentation of the incredibly cruel and abusive practices observed by the PETA investigator. 
See Huntingdon Life Sciences, Inc. v. Rokke, 986 F. Supp. 982, 984 -985 (E.D. VA. 1997) 

The practices documented by the PETA investigator included breaking the legs of domestic dogs and then administering osteoporosis drugs to the dogs to see how the bones healed. The tapes also showed workers routinely slamming monkeys into cages, and suspending monkeys in mid-air while pumping test substances into their stomachs. One technician stuffed a lotion bottle into a monkey’s mouth as a “joke.” Perhaps the most alarming was a video that showed a terrified and alert monkey kicking and screaming as it was being strapped down to an operating table. Although the monkey was given some sedatives, it was still conscious as lab technicians cut its body open and removed its organs.

When PETA released these videos to the media, the public immediately let Huntingdon Life Sciences know that its cruel and exploitative practices were outrageous and unacceptable. Companies that had commissioned Huntingdon Life Sciences to test their products cancelled their contracts and investors dumped their stocks, resulting in losses of millions of dollars to the corporation. PETA had also turned over the videotapes to the U.S. Department of Agriculture (USDA). The USDA performed a subsequent investigation of Huntingdon Life Science’s laboratory practices, and ended up charging the facility with 23 counts of violating the Animal Welfare Act. See In Defense of Animals v. U.S. Dept. of Agriculture, 656 F.Supp.2d 68, 82 (D.D.C. 2009) (court ordering that USDA and Huntingdon Life Sciences had to disclose the records of this investigation to the public under the federal Freedom of Information Act because “defendants have failed to justify the withholding of the records”).

After filing the RICO lawsuit, Huntingdon Life Sciences convinced the court to issue a gag order to stop PETA from publicly disseminating the results of its investigation, and the court held PETA in contempt of court for allegedly violating this order. When PETA then asked the court to dismiss the RICO claims, the court refused its request, finding that the “eight month investigation by Rokke [PETA’s investigator] and the subsequent transportation of documents for use in press releases and direct mailings” were sufficient acts to constitute crimes of “racketeering” that amounted to a “pattern of racketeering” under RICO when considered in conjunction with past PETA investigations. More specifically, the court found that the acts of the PETA investigator that fit within the scope of RICO were that she “(1) participated in the interstate transportation of documents stolen from Huntingdon” and “(2) violated the Travel Act by traveling to Ohio to promote the extortionate scheme . . . .” Apparently, the court was referring to the undercover investigation in general as the “extortionate scheme.” The case eventually settled out of court.

Furrier Protest

In 1999, Jacques Ferber, Inc., a furrier located in Philadelphia, filed the second RICO civil lawsuit against animal welfare organizations and several individual animal rights advocates alleging that the groups had engaged in a pattern of racketeering activity that included conspiring to shut down the furrier. Jacques Ferber, Inc. v. Bateman et al., Civ. No. 99-2277 (E.D. PA 1999). The lawsuit alleged that the weekly protests that the activists had participated in for four years were “interfering with his legitimate business enterprise” and this amounted to a federal crime of conspiracy and racketeering under RICO. Although there was evidence that individual protestors had broken windows, poured acid on windows, and glued the store’s front entrance shut, there was no evidence of which individual protesters had committed the acts, or that any of the named defendant organizations were in any way responsible for these activities. In addition to alleging extortionate vandalism in their lawsuit, the company also alleged that the activists had disseminated “defamatory stickers and signs” outside of the store, as part of their effort to “interfere with business.” These “defamatory stickers and signs” were used as one of the predicate acts that constituted the larger “extortionate scheme,” and the company sought $50,000 in damages for stickers and signs alone. In response to the lawsuit, the activists agreed to refrain from property destruction, property defacement, trespassing, or disorderly conduct in connection with lawful demonstrations, entering the store or residence of the company’s employees, attempting to initiate communicate with minor children of the company’s employees, blocking access to the store, committing other illegal activities, and from encouraging other to commit any of these activities. The case was then dismissed.

Circus Elephant Abuse Protest

Nearly 15 years after the first RICO case was filed against animal welfare activists, RICO is still being used against these activists. In 2010, Feld Entertainment, Inc., the company that owns Ringling Bros. and Barnum & Bailey Circus, filed a federal civil RICO lawsuit against the Humane Society of the United States (HSUS), the American Society for the Prevention of Cruelty to Animals (ASPCA), the Animal Welfare Institute, the Fund for Animals, the Animal Protection Institute, former circus elephant keeper turned elephant welfare advocate Tom Rider, and leading animal law firm Meyer, Glitzenstein & Crystal. The lawsuit alleges that “In order to bring a philosophical debate into federal court to advance a radical ‘animal rights’ agenda and in order to garner publicity and raise money to support their various activities, defendants [], acting in concert with their attorneys, [], devised and participated in an illegal and fraudulent pattern of actions to circumvent well established limits on the Article III jurisdiction of the federal courts.” See complaint PETA vs FELD.

Essentially, the company argues that that these animal rights groups and their attorneys participated in a pattern of racketeering activity that includes bribery, paid witnesses, and mail fraud across interstate lines in the process of litigating a case against the company to protect Asian elephants under the Endangered Species Act. The Endangered Species Act lawsuit alleges that Ringling Bros.’ routine beating of elephants with bull hooks, and its chaining of elephants for long periods of time constitute the unlawful “take” of these endangered animals in violation of the Endangered Species Act. See ESA Complaint. In February – March, 2009, the U.S. District Court for D.C. held a six-week long trial of the case challenging Ringling Bros.’ treatment of Asian elephants in the circus. Several former Ringling Bros. employees testified that the circus routinely strikes elephants with sharp bull hooks and keeps the elephants chained for the majority of their lives. The plaintiffs submitted voluminous evidence, including internal FEI documents and USDA documents, supporting their claims, and some of the world’s leading experts on elephants testified that Ringling Bros.’ routine practices “wound,” “harm,” and “harass” the elephants in violation of the Endangered Species Act. The case is currently on appeal in the D.C. Circuit Court of Appeals.

In addition to the apparently retaliatory RICO lawsuit, Feld Entertainment, Inc. has a history of attempting to dismantle animal rights groups that campaign to expose its cruel treatment of circus animals. In the past, Feld Entertainment has teamed up with the CIA and spent millions of dollars in an attempt to infiltrate animal welfare groups like PETA and In Defense of Animals. See complaint PETA V FELD (PDF). Operatives illegally recorded conversations and obtained highly confidential bank account numbers and bank information, credit card information, confidential internal financial records, and personnel information.

Animal Enterprise Terrorism Act (AETA)

Introduction

The Animal Enterprise Terrorism Act (AETA), 18 U.S.C. § 43, is a federal law designed by corporations for the purpose of protecting the profits they make from animal abuse and exploitation. Former President George W. Bush signed AETA into law on November 27, 2006 at the urging of a corporate lobbying group – the American Legislative Exchange Council (ALEC) – a group that is largely funded by corporations that profit from animal exploitation. See http://www.alecwatch.org. AETA attempts to eradicate the First Amendment rights of animal rights activists so that cruel, socially unacceptable practices of exploitative animal industries will be insulated from public scrutiny and democratic discourse.

Under well-established principles of Constitutional law, the AETA is unconstitutional because the language of the law is both too vague and too broad. The law’s vague language makes it impossible for an individual to know if an act of public protest could potentially land the individual in federal prison convicted as a “terrorist.” The vague language also gives unbridled discretion to the police and other government agents to decide whether an individual’s actions or statements of political dissent are acts of AETA “terrorism.” By giving complete discretion to police and other government agents to decide whose protest is terrorism and whose protest is not terrorism, the law encourages – and even requires – arbitrary and subjective enforcement based on the personal predilections of the individual police officer and prosecuting attorney. Moreover, the law’s broad language reaches into the realm of protected First Amendment activities because it metes out long prison terms for acts that are constitutionally protected. By enacting the AETA, Congress has elevated corporate profit above fundamental and cherished Constitutional rights that have created our nation, including the freedom to plan and implement acts of public protest such as leafleting, picketing, public assembly, publishing or voicing dissenting viewpoints, and boycotting. An individual could be convicted of any one of these “offenses” under the AETA and be imprisoned, fined, and forever branded a “terrorist” as a result.

Moreover, the AETA’s threat of harsh federal prison sentences – with confinement in extremely restrictive terrorist units – would make any person think twice before engaging in any form of animal rights advocacy that could be swept up in the broad net cast by the language of the AETA. Thus, in addition to violating the U.S. Constitution with its broad and vague language, the AETA also violates the U.S. Constitution because of its “chilling effect” on individuals who desire to participate in protected First Amendment activities in the realm of animal rights advocacy, but refrain from doing so because they are afraid of being defamed and/or convicted as terrorists.

Contrary to the position taken by supporters of the AETA, political dissent is not synonymous with terrorism. To the contrary, it is the foundation of our democracy. AETA was drafted, proposed, and pushed by corporate interests in order to avoid exposure and public scrutiny of the socially unacceptable business practices that they would prefer to continue to profit from. Please use this website to educate yourself on the background, language, implications, and enforcement of the AETA. Learn about the risks it poses to our basic American freedoms to advocate for social change, no matter what type of social change we are advocating for. Take this information to educate your friends and neighbors and start community dialogues about this law and its implications. Click here for a copy of our AETA trifold to disseminate in your community.


Background

Although the AETA was officially birthed as a child of the post-September 11, 2001 “war on terror” hysteria, it has its roots in an earlier statute: the Animal Enterprise Protection Act (AEPA). (AEPA 1996) | (AEPA 2002). Upon the urging of a coalition formed by animal testing giant – the National Association for Biomedical Research – the U.S. Congress passed the AEPA in 1992. The purpose of the AEPA was to make it easier to silence animal rights advocates who are successful in publicly exposing business practices that abuse animals. AEPA was unprecedented: for the first time, Congress used the word “terrorist” to describe an individual who interfered with animal-based industries. The AEPA criminalized the actions of any individual who “intentionally damage[d] or cause[d] the loss of any property (including animals or records) used by the animal enterprise” while attempting to cause “physical disruption to the functioning of an animal enterprise.” Under the AEPA, an individual who “caused” a property loss of $10,000 could be sentenced to fines and/or six months in prison. If an individual “caused” a property loss of more than $10,000, the sentence could be fines and/or three years in prison. Loss of property was not limited to physical property; the statute included loss of profits alone as an economic damage. If an individual caused “serious bodily injury” related to their AEPA-prohibited conduct, the sentence could be fines and 20 years in prison. If an individual caused a human death related to their AEPA-prohibited conduct, the sentence could be fines and life in prison. It’s important to note that in the history of the American animal rights movement, there has never been an injury or death to any animal or human.

Animal welfare and environmental protection groups raised concerns about the broad net cast by the vague language of the AEPA. What was of particular concern was the language “loss of any property,” which included profit loss. Campaigns for social change often involve physically disruptive actions, such as sit-ins and pickets, that lead to a loss of profits for a business. Indeed, some campaigns for social change are undertaken for the primary purpose of diminishing corporate profits in order to end exploitative business practices. One historic example is the divestment campaign staged in the United States to force South Africa to end its brutal apartheid regime. From 1948 to the early 1990’s, the government of South Africa enforced a racial segregation and discrimination policy onto its citizens, which severely curtailed the rights and liberties of nonwhites with respect to residency, travel, assembly, education, employment, and marriage. This policy was lethally enforced by the military and included many instances of arbitrary detention, torture, and killings by those state actors. The policy was intensely protested in South Africa and the government responded with violence and imprisonment of leading voices of dissent, such as Nelson Mandela. Eventually, the international community mounted enough pressure to force the South African government to end apartheid. One element of this international pressure that is widely recognized as a key factor that catalyzed the end of apartheid was the divestment campaign in the United States. University students and faculty all over the country held teach-ins and demonstrations, disrupted meetings, took over campus offices, and otherwise used physically disruptive tactics with the express intention of causing profit loss to the companies investing in South Africa. At Columbia University, students interrupted trustee meetings and took over the Graduate School of Business. At UC Berkeley, 61 students were arrested after building a shantytown in front of the chancellor’s office. As a result of these types of activities, the boards of trustees of several prominent universities voted to divest completely from South Africa and companies with major South African interests. These types of activities used to successfully end apartheid would have been considered terrorism under the AEPA if used to protest animal abuse and cruelty. Under the AEPA then, an individual could have been convicted for engaging in practices that are well-established forms of advocacy for social change.

Despite the alleged need for the AEPA, for many years the federal government failed to find any conduct to prosecute under the AEPA. Accordingly, lobbyists for animal industries began to urge Congress to widen the scope of the law. Around this time, the FBI pronounced that the Animal Liberation Front (ALF) – an underground animal rights activist movement that engages in direct action that causes property damage – was one of the top domestic terrorist threats in the U.S. However, this pronouncement was dubious because government agents and corporate lobbyists have completely failed to ever cite any ALF activity that has caused any human injury whatsoever. They cannot cite any such incidents because there has never been a human injury or death in the U.S. related to animal rights activism in the history of the animal rights movement. To the contrary, the ALF’s guiding principle is to be “a nonviolent campaign” in which activists take “all precautions not to harm any animal (human or otherwise).”

Significantly, other ideological groups routinely engage in conduct that does injure or kill humans, but individuals in those groups have not been singled out and labeled by the federal government as domestic terrorists. For example, FBI statistics show that there were more than 7,400 hate crimes motivated by race, ethnicity, religion, and sexual orientation in 2003 alone. Since 1977, there have been at least 13,000 recorded acts of violence directed at the people who work in abortion clinics, including at least 7 murders. Between 1991 and 2001 there were 2,100 acts of violence against unions including bombings, shootings, and near fatal injuries. Additionally, FBI statistics have recorded hundreds of environmental crimes by industries violating laws that protect air quality and water quality, and require safe transportation and disposal of hazardous waste. That type of illegal destruction or damage to public property, which comprises human health with injury or death and causes millions of dollars in damage in restoration costs, is not considered terrorism by the FBI either.

Riding the government’s terrorism bandwagon, Edward J. Walsh of the National Animal Interest Alliance, an organization supported by animal industries, started pushing legislators to expand the AEPA to include such benign acts as “pies in the face.” According to Walsh, this type of conduct – such as the PETA activist who threw a tofu-cream pie in the Canadian Prime Minister’s face – is a terrorist act and must be punished with a long federal prison sentence. In response to citizens who questioned the constitutionality of his proposed expansions, Walsh fell back on the overworked hyperbole of the post-September 11, 2001 terrorism hysteria by stating that members of Congress who did not want to expand the AEPA were “aiding and abetting terrorism . . . .”

The AEPA has not been used often, but it has been used to convict animal rights activists for constitutionally protected conduct. Federal prosecutors used the AEPA against individuals who volunteered for the Stop Huntington Animal Cruelty (SHAC) campaign. See http://www.shac.net. The SHAC volunteers were convicted of conspiracy to violate the AEPA for merely helping to run a website. The government argued that the SHAC volunteers disrupted the commercial activity of the Huntington Life Sciences (HLS) laboratory, in violation of AEPA, because a video was posted on the SHAC website that exposed the torture of dogs inside the HLS laboratory. The website also posted videos from five undercover investigations at the HLS laboratory that had recorded heart-wrenching animal abuse by HLS employee such as research scientists punching beagles in the face and dissecting live, conscious monkeys. The website also exposed instances where HLS had falsified scientific data in order to promote animal testing. The media attention garnered by the SHAC website resulted in the corporation losing investors and money. Ultimately, HLS was even dropped from the New York Stock Exchange as a result of the public outcry over its abusive practices.

The FBI could not catch the individuals responsible for the undercover HLS video investigations, so instead they arrested the SHAC volunteers who were helping to run the website and charged them with conspiracy under the AEPA. Thus, volunteering to help run a website, alone, was enough to land the SHAC volunteers in federal prison. They collectively faced 24 years in prison and restitution to HLS exceeding one million dollars.

As this case illustrates, in the wake of September 11, 2001, the Bush administration’s “war on terror” has descended into hysterical scape-goating reminiscent of the anti-communist “Red Scare” of the 1950’s, wherein political activists are demonized because their beliefs challenge the dominant social paradigm. As historians and journalists have documented, the term “terrorism” has historically been used by governments “to keep the population afraid and insecure,” and create a kind of lynch mob hysteria in order to achieve political goals. Although the new hysteria over terrorism has encouraged the mainstream media to swallow and promote the notion that political activists who cause profit loss to industry are terrorists, more well-established and logical definitions of terrorism define it as activity intended to kill humans for political purposes. This distinction has been lost in the rush to prosecute non-violent activists as terrorists.

In 2002, James F. Jarboe, Domestic Terrorism Section Chief of the FBI Counterterrorism Division testified before the U.S. House of Representatives Resource Committee and Subcommittee on Forest and Forest Health. While recognizing that the ALF “discourages acts that harm an animal, human and nonhuman,” he asserted that the ALF had emerged as a “serious terrorist threat” because ALF- associated conduct had caused millions of dollars of economic damage. Jarboe further pronounced that the ALF was the “top priority in domestic terrorism.” He called the activities of the ALF “ecoterrorism,” and defined that term as “the use or threatened use of violence of a criminal nature against innocent victims or property by an environmentally-oriented subnational group for environmental-political reasons, or aimed at an audience beyond the target often of a symbolic nature.” Thus, Jarboe made it clear that the FBI considers a threat to cause symbolic property damage to be an “eco- terrorist” act if it is motivated by concerns for animal welfare, regardless of whether or not property damage ever materializes.

1. David Barsamian, They Call All Resistance “Terrorism,” INT’L SOCIALIST REV., Aug.–Sept. 2001; Howard Zinn, TERRORISM AND WAR 57 (2002); Andrew Hartman, The Politicization of Terror: September 11 and American Historical Selectivity, Z MAGAZINE, Dec. 2001, at 25.

Animal-based industries exploited this new government rhetoric to bolster their lobbying efforts to expand the reach of the AEPA under a new name: the Animal Enterprise Terrorism Act (AETA). The AETA was originally drafted by the American Legislative Exchange Council (ALEC). See http://www.alecwatch.org

ALEC is a 501(c)(3) non-profit organization that consists of state and federal legislators who are funded by corporate donors to draft and introduce industry–friendly legislation. When the AETA legislation was passed, ALEC included over 2,400 state lawmakers and members, as well as alumni of at least nine state governors and 80 members of the U.S. Congress. The group is funded primarily by large corporations, industry groups, and conservative foundations that pay up to $50,000 a year (in a tax-deductible donation) in membership dues; members have included corporations like Philip Morris, Johnson & Johnson, Bayer Corp., and Enron. In 2000 alone, ALEC members introduced and convinced legislatures to pass 450 ALEC-drafted laws.

U.S. Senator James Inhofe (R-OK) and U.S. Senator Dianne Feinstein (D-CA) introduced ALEC’s AETA proposal to the U.S. Senate as S. 3880 and it was passed on September 29, 2006. The bill was introduced in the U.S. House of Representatives by Republican Thomas Petri as H.R. 4239 the day after the federal mid-term elections. Many members of the House were still on vacation. Only one Representative, Dennis Kucinich, spoke out against the bill. The House approved the bill via a voice vote on November 13, 2006 under suspension of the general rules for deliberative assemblies, which is a procedure usually reserved for non-controversial legislation. Not one lawmaker present in the House, not even Kucinich, proposed to take a roll call, and had a roll call been performed, it would have shown that there were not enough legislators present to legitimately pass the bill. The AETA was signed into law by former President George W. Bush on November 27, 2006.


Language Of The Law

The AETA criminalizes damage of, and/or interference with, an animal enterprise if any property is lost or damaged, any person is placed in “reasonable fear” of death or serious bodily injury, or if an actor conspires or attempts to do either thing. The definition of “economic damage” includes “loss of profits” and “increased costs resulting from . . . trespass . . . or [resulting from] intimidation against a person or entity . . . .” The penalty section of the AETA requires that even if there is no property loss or damage, and no fear instilled in any person, there is still a sentence of a fine and/or a maximum of one year in prison for violation of the AETA. This penalty could apply in a situation where there may have been an “attempt” to conduct, or a “conspiracy” among several individuals to implement, a protest that never came to fruition, and thus never actually caused a loss of profits. If there is no injury or fear by any person but there is over $10,000 of “economic damage,” the statutory penalty is a fine and a maximum of 5 years in prison. If there is no injury or fear by any person but there is over $100,000 of “economic damage,” the statutory penalty is a fine and a maximum of 10 years in prison. If there is no injury or fear by any person but there is over $1,000,000 of “economic damage,” the statutory penalty is a fine and a maximum of 20 years in prison. So, for example, if the internet publication of video recordings of animal abuse at Huntington Life Sciences resulted in a corporate profit loss of over $1,000,000, the individuals who published the recordings on the internet would each be facing up to 20 years in prison. Moreover, if those same individuals had planned to post the recordings on a website, or attempted to post the recordings on a website, but ultimately never posted them, they would still be facing up to 20 years for “attempt” or “conspiracy” to interfere with profits. (And of course it is the corporation that determines what the profit loss is, which leads to blatant and gross exaggerations in the amount of monetary damage actually claimed).

Another example of effective animal rights advocacy that could now be prosecuted as “eco-terrorism” under AETA is the much-publicized undercover investigation of abuse of “downed cows” by the Humane Society of the U.S. In 2008, the Humane Society released a shocking video that showed employees from the Hallmark/Westland slaughterhouse of Chino, California kicking cows, ramming cows with blades of a forklift, and applying painful electric shocks to the cows in order to force them to stand up and walk to slaughter. The cows featured in the video were mostly “downed cows,” which are cows that are too sick or weak to stand. Downed cows often host food-borne pathogens such as E. coli and Salmonella, and consumption of downed cow meat is linked to bovine spongiform encephalopathy, more commonly known as “mad cow disease.” At the time of the investigation, more than 100,000 schools and childcare facilities were consuming beef from the Hallmark slaughterhouse.

The Humane Society’s exposure of Hallmark’s slaughterhouse practices catalyzed a major political response. The U.S. Department of Agriculture suspended Hallmark’s eligibility for participation in federal lunch programs, shut down the plant for “egregious” regulatory violations, and recalled 143 billion pounds of Hallmark meat (the largest beef recall in U.S. history). The cost of the recall, to the company and the government, is estimated at over one billion dollars. The U.S. Congress held eight hearings to discuss the issue of consumption of downed cows, and eventually President Barack Obama announced that downed cows would be banned from human consumption. The local county prosecutor initiated criminal investigations of the Hallmark plant’s manager and the manager eventually pled guilty to two felony counts of animal abuse.

Although the Humane Society’s internet publication of the results of its undercover investigation obviously resulted in criminal justice and a safer food supply, under the AETA the Humane Society investigators could find themselves answering to federal felony charges for interfering with Hallmark’s profits. Under the AETA, “animal enterprise” includes any “commercial . . . enterprise that uses or sells animals or animal products for profit, food or fiber production.” Certainly a slaughterhouse qualifies as a commercial enterprise that uses and sells animals for food. Furthermore, the AETA criminalizes interference with an animal enterprise if any property is lost or damaged, and the definition of “economic damage” includes “loss of profits.” The massive beef recall and suspension from participation in federal contracts, which led to a profit loss of millions of dollars for Hallmark, was entirely the result of the Humane Society’s investigation. Thus, the socially beneficial and constitutionally protected conduct of the Humane Society investigators falls well within the conduct prohibited by the AETA. Under the AETA, the investigators could each face up to 20 years in prison.

It is critical to highlight the fact that the prison terms meted out by the AETA are tiered according to the amount of profit loss claimed by the corporation. Instead of setting one maximum prison term for any action that violates the AETA by causing profit loss, but does not cause fear or injury, and leaving the profit loss amount relevant only to the restitution inquiry, which was how AEPA was structured, the AETA premises the potential term of incarceration on the amount of profits lost by the corporation. Clearly, by its plain language then, the AETA is primarily geared toward imprisoning individuals for diminishing corporate profits as a result of effective advocacy, and the more effective the advocacy, the longer the prison sentence.

In addition to the penalties authorized by the language of the AETA itself, the federal government also uses “sentencing guidelines” to determine an individual’s sentence. These guidelines include an “enhancement,” which allows increased penalties, for actions that the government deems to be “terrorism.” For example, the federal sentencing guidelines provide that a first offense act of arson alone should have a sentence of 33-41 months (2 – 4 years). But with a terrorism sentence enhancement that sentence (for the same crime) becomes 168 – 210 months (14 -15 years). In addition, receiving the terrorist label at sentencing directly affects the type of incarceration an individual will face: the federal Bureau of Prisons considers the terrorist designation seriously and assigns such prisoners to maximum security prisons or super-maximum security prisons. These facilities are designed to house the most violent criminal offenders in the nation and may require 23 hours of lockdown in a cell each day, as well as limit conversation with family to one hour per month. The government could certainly argue that a conviction under the Animal Enterprise Terrorism Act merits a terrorism sentencing enhancement. In fact, Andy Steppanian, one of the SHAC defendants, was the first white person to be sent to the super-max “Communication Management Unit” in FCI Marion, IL. His “terrorist” crime was helping to organize a public campaign against Huntingdon Life Sciences (animal torturers).

The AETA has significantly broadened the scope of conduct that was prohibited under the AEPA, expanded the potential “victims,” and increased the penalties. There is no longer a requirement for a physical disruption; now only an “interfere[ence]” is required. There is now a much more expansive and ambiguous definition of “economic damage,” which includes “costs resulting from threats, acts or vandalism, property damage, trespass, harassment, or intimidation.” There is no longer a requirement that the conduct affect an animal enterprise; now conduct is criminal even if it only affects parties “having a connection to . . . animal enterprise,” otherwise known as ‘tertiary targets.’ The penalties for nonviolent conduct have increased from a maximum of three years in prison to a maximum of 20 years for the same nonviolent conduct. Finally, whereas the AEPA required some kind of actual loss of property for a terrorism charge, the AETA completely dispenses with that requirement and allows for criminal convictions for actions that “place a person in reasonable fear” of serious bodily injury to themselves or their family “by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation.” Thus, if an owner of a business feels intimidated or harassed by an animal rights campaign, but no actual property damage, profit loss, or injury ever occurs, there may still be grounds for terrorism charge under the AETA.


Implications

We have constitutional safeguards for a reason. Without the undercover work and exposure from the Humane Society in the Hallmark downed cow case, our nation would have been completely oblivious to the fact that school lunches being served to thousands of children contained potentially deadly meat. The AETA compromises the likelihood of future undercover exposes, like the Humane Society’s investigation of Hallmark, by threatening federal prison terms, exorbitant fines, and a terrorist label for that type of conduct, as discussed above. But it’s not just animal rights advocates that need to be concerned about the AETA, other advocates for progressive social change, who threaten corporate profit margins, will be next on the chopping block if we don’t act now.

As discussed above, the AETA classifies something as benign as the posting of undercover video investigations of animal abuse on the internet as terrorism. It is clear that this classification is in place to demonize and silence any form of protest that might actually change business as usual. The AETA is unconstitutional because it is too broad and too vague. Ordinary citizens engaged in traditional forms of protest activities would not know that they are violating the seemingly limitless boundaries of the law. The terms of the law are so ill-defined that nearly any act of protest can result in an indictment. Techniques that have been used for decades in various social movements – sit-ins, pickets, strikes, marches – are now acts of terrorism if they cause profit loss to an animal enterprise, or it they could hypothetically cause that profit loss. What used to be constitutionally protected rights to free speech and protest are eviscerated by the AETA.

By providing the federal government with the means to indict activists as terrorists, the AETA will have a “chilling effect” on constitutionally protected activities. The legal concept of “chill” or a “chilling effect” is part of both substantive and procedural constitutional legal doctrines that have been firmly established by the United States Supreme Court at least since the Civil Rights Movement of the 1950’s and 60’s. In multiple cases, the Supreme Court outlawed government activity that forced individuals to disclose associational ties (e.g., Communist Party membership) and forced organizations to disclose membership lists (e.g., NAACP members) and found that such government activity has 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 the protection of First Amendment activity, such as the right to free speech and to form assemblies. Our First Amendment jurisprudence illustrates that the intention of the original drafters of the Constitution was to protect our freedom to engage in political expression from tyrannical government activity, such as repressive federal laws, that would diminish that freedom.

Essentially, the chilling effect occurs when government conduct deters individuals from engaging in constitutionally protected activity for fear of punishment or unfavorable social repercussions. The chilling government conduct might come in the form of a law, accompanied by punishment for violating the law in the forms of fines, imprisonment, civil liability, or deprivation of government benefits. Unfavorable social repercussions created by the government might include conduct such as government surveillance or contrivance of public hostility towards a targeted group that leads to a decline in organizational membership.

Following this definition of the chilling effect, it seems fairly obvious that on its face, AETA is a law designed to chill animal rights advocates from exercising their First Amendment rights. By labeling anyone that “interferes” with industry profits as a terrorist, and by imposing harsh prison sentences and/or fines on those that are convicted, the AETA will deter those that wish to peacefully advocate for animal rights. Regardless of whether one agrees with animal rights advocates or not, animal welfare is topic that deserves to be openly, honestly, and publicly debated. The AETA sabotages this dialogue by prioritizing corporate profits above public discussion. If we don’t stop the AETA in its tracks now, there is nothing to prevent industry groups from continuing to push the envelope and lobby for legislation that criminalizes and chills the First Amendment conduct of other progressive groups and movements. Who will be next?


Enforcement

In the section below, we are compiling a summary of all cases prosecuted under the AETA to date. All of the cases so far are incidents of nonviolent protest and property damage that are being prosecuted as terrorist acts. Please check back regularly for updates.

Case of Buddenburg, Khajavi, Pope, and Stumpo (AETA 4)
On February 20, 2009 four young people, Joseph Buddenburg, Maryam Khajavi, Nathan Pope, and Adriana Stumpo were arrested and charged with violating the AETA. There are three separate incidents alleged in the indictment against the four defendants. The first incident occurred on October 21, 2007, when a group of 20 protesters demonstrated outside of a University of California, Berkeley professor’s home in El Cerrito, California. Federal investigators allege the protestors trespassed onto the front yard of the professor’s home, rang his doorbell, and made noise chanting “animal rights slogans,” such as “1, 2, 3, 4! Open up the cage door! 5, 6, 7, 8! Smash the locks and liberate!”

The second incident in the indictment occurred on January 27, 2008. Eleven protestors marched down a public sidewalk in front of the homes of several University of California researchers. The government alleges that the protestors chanted “defamatory” comments and used chalk to write “defamatory” messages about the professors/vivisectors on the public sidewalk. They also alleged that unknown protestors confronted the vivisector on the front porch of its house and a slight tussle ensued. The third incident in the indictment simply states that “[o]n or about January 27, 2008, defendants POPE and STUMPO used the Internet to find information on bio-medical researchers at the University of California, Santa Cruz.” That’s right. Two of the defendants faced federal terrorism charges for “using the Internet.” [HYPERLINK to Green Scare timeline—AETA 4 indictment]. In July of 2010, the court dismissed the indictments against the defendants because the indictments did not specify the alleged criminal conduct at a level that satisfied the Fifth Amendment, and because the indictment did not comply with procedural rules. (Link to dismissal PDF).

The court specifically noted:
In order for an indictment to fulfill its constitutional purposes, it must allege facts that sufficiently inform each defendant of what it is that he or she is alleged to have done that constitutes a crime. This is particularly important where the species of behavior in question spans a wide spectrum from criminal conduct to constitutionally protected political protest. While “true threats” enjoy no First Amendment protection, picketing and political protest are at the very core of what is protected by the First Amendment. Where the defendants’ conduct falls on this spectrum in this case will very likely ultimately be decided by a jury. Before this case proceeds to a jury, however, the defendants are entitled to a more specific indictment setting forth their conduct alleged to be criminal.

However, the judge dismissed the indictments without prejudice, which means that the government may file new indictments at any time. The support site is http://www.aeta4.org.


Case of Viehl and Hall

On March 5, 2009, two young people, William Viehl and Alex Hall, were indicted on two counts of violating the AETA. Their indictments allege that they were involved with an August 2008 release of 300 mink from McMullin and Sons Fur Farm, a South Jordan, Utah facility that raises mink and slaughters them for their fur pelts. The indictments also allege that they were involved with spray-painted slogans that were found on the scene of the South Jordan, Utah mink release that stated “No More Mink, No More Murder” and “ALF: We Are Watching.” [HYPERLINK timeline-AETA Utah INDICTMENTS] The first charge is a felony, which could mean up to five years in prison and a $250,000 fine. The second charge, a misdemeanor, could mean up to a year in prison. Viehl negotiated a noncooperation plea deal with federal prosecutors and appeared before a Utah federal judge to change his plea and resolve his case. The judge initially refused to accept the plea because he felt it was not enough punishment for a ‘terrorist crime.’ Ultimately, both Viehl and Hall entered into noncooperation plea deals, and were sentenced. See the CLDC Green Scare timeline for more details about their case.


Case of Halliday

On March 12, 2009, a young Utah animal rights activist, Jordan Halliday, was jailed for refusing to testify before a federal grand jury about his political beliefs and political associations within the Utah animal rights advocacy community. Halliday attempted to invoke his Fifth Amendment right to remain silent, but the federal prosecutors refused to acknowledge that right in the grand jury context. He was jailed for civil contempt after refusing to comply with a court order to snitch on his community in front of the grand jury. In grand jury proceedings, the testimony takes place before a jury, prosecutor, and judge that operate in secrecy. Defense lawyers are forbidden from being present with their clients in the grand jury room. The normal rules of evidence – which are designed to filter and balance available evidence so that jurors are not unduly misled or confused by lies, inflammatory rhetoric, or prejudicial information – do not apply. The lack of protections for witnesses at grand jury proceedings allows the government to abuse the proceedings for the purpose of gathering information about the lives of political activists.

In a clear act of retaliation, and for the first time in over 30 years, on June 29th, 2010 Jordan was officially charged with criminal contempt of court for refusing to testify before the grand jury. The Utah AETA case had already been resolved at the time the US Attorney charged him with this crime. On July 27th, 2010, he pleaded guilty to the charge and on November 3rd, 2010 he was sentenced to 10 months in prison and 3 years of probation upon release. Both Jordan and his lawyer believe that this sentence is too harsh, as he has already served time for civil contempt. They are in the process of filing an appeal.


Case of Demuth and Feldman

In November 2009, federal prosecutors in Iowa subpoenaed two young people, Scott DeMuth and Carrie Feldman, to testify before a grand jury ostensibly regarding an incident five years prior in which lab rats and mice were removed from the University of Iowa’s Psychology Department, and computers were vandalized. No one was injured in the incident. The government did not provide any reason for suspecting that Demuth and Feldman were connected to the crime (Demuth was 18, Feldman was 15 at the time of the incident). When Demuth and Feldman were called to testify before the grand jury about their beliefs and affiliations with animal rights organizations, they invoked their Fifth Amendment right to remain silent. After both refused to testify, the court held them in contempt of court and they were jailed.

On November 19, 2009, DeMuth was indicted under the AETA for conspiring to commit the break-in at the University of Iowa lab. [HYPERLINK Green Scare timeline—Iowa AETA–FIRST INDICTMENT]. Although the prosecutor fervently argued that DeMuth is a “domestic terrorist,” the federal magistrate judge released DeMuth from jail on November 30, 2009, pending his trial. On September 13, 2010, DeMuth pled guilty to one count of misdemeanor conspiracy to commit animal enterprise terrorism under the AEPA for an unrelated action causing less than $10,000 in damage for his role in the April 29, 2006 ALF raid on Lakeside Ferrets, Inc., in Howard Lake, Minnesota. The plea was to a lesser included charge of the second superseding indictment. [HYPERLINK Green Scare timeline–2ND INDICTMENT]. As a condition of the plea agreement, the government will ask for a sentence of the full six months in prison, but not for the imposition of any fine. Demuth did not testify against anyone else in the process of signing his personal plea agreement. Demuth’s sentencing has been scheduled for December 15, 2010, with a surrender date likely to be set for early 2011.

After Feldman refused to testify before the grand jury, she was also jailed for contempt of court. She appealed her contempt ruling, but in a 2-1 split decision, the U.S. Court of Appeals for the Eighth Circuit declined to order her release (read the complete Court decision by clicking here). Feldman was kept in jail for contempt of court until her release on March 19, 2010.
The support site is http://davenportgrandjury.wordpress.com


HELP US ABOLISH THE AETA!

Advocating for social change is not terrorism

The Civil Liberties Defense Center is working with organizations across the country to abolish the Animal Enterprise Terrorism Act and end this assault on our constitutional rights. We are educating the public about how the AETA represses free speech and association and will continue to assist activists in the Courts who are facing AETA charges. We are striving to facilitate a more critical, aware, and active community in which people know their rights and how to protect them. Please join us in this important struggle.

What You Can Do:

  1. Organize a presentation;
  2. Distribute information in your workplace, school, or community;
  3. Hold fundraisers for organizations, such as the Civil Liberties Defense Center, that are working to combat AETA;
  4. Continue working for animal rights and other progressive social causes;
  5. Write a letter to your local newspaper;
  6. Call, write a letter, or email your Senators and Representative(s) in Washington, D.C.

More Information

Green is the New Red