Journalistic Interview J 483
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Journalism and Mass Communications
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Journalism and Mass Communications
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JOHNSON FMT 332008 83702 AM DANE E JOHNSON Cages Clinics and Consequences The Chilling Problems of Controlling SpecialInterest Extremism re you a domestic terrorist if your ideology drives you to destroy a medical facility The answer is yes provided the facility is one that performs animal experiments and not abortions If your mission compels multiple murders of abortion providers you are merely a criminal albeit a particularly dangerous one If your victims are vivisectionists however you are labeled a terrorist You need not even commit the murders Placing your victims in reasonable fear of serious injury will qualify as terrorism Confused Uneasy Uncertainty about the eventual scope of enforcement of the recently enacted Animal Enterprise Terrorism Act AETA 1 has made some nonviolent animal rights advocates feel the same way2 Opponents of abortion JD Candidate University of Oregon School of Law 2008 Associate Editor Oregon Law Review 200748 I would like to thank my wife Ellen for her invaluable support and inspiration and Professors Garrett Epps Rebekah Hanley and Robert Illig for their critical guidance and advice 1 Pub L No 109374 120 Stat 2652 codified as amended at 18 USC 43 2006 2 See Vince Patton Fur Store Owner Terror Charges for Activists KGWCOM Nov 29 2006 httpwwwkgwcomnewslocal storieskgw71128067news schumacheriterrorists33a877lchtml What AETA is certainly doing is putting a chill on the animal advocacy movement because nobody knows exactly where the line is uoting Laura Ireland Moore Director Animal Law Center Northwestern School of Law of Lewis amp Clark College 249 JOHNSON FMT 332008 83702 AM 250 OREGON LAW REVIEW Vol 86 249 rights felt similarly unnerved after the 1994 enactment of the Freedom of Access to Clinic Entrances Act3 FACE 4 But because AETA brands militant animal protectionists as terrorists mainstream animal rights supporters fear the graver consequences that accompany that despicable label5 In many ways AETA parallels FACE AETA and FACE have similar statutory wording and address similar criminal conduct AETA lawmakers appear to have borrowed some of FACE s clauses to avoid impinging on protesters First Amendment rights Indeed both laws prompt some of the same constitutional concerns Despite these concerns federal courts have broadly upheld FACE6 Assuming AETA also is upheld a result that seems likely for reasons this Comment will discuss AETA s application of the politically charged terrorism label will continue to impose a greater chilling effect on animal rights advocates than FACE places on abortion opponents AETA s use of the terrorism label potentially is harmful in several ways First characterizing aggressive animal activists as terrorists may hamper the pursuit of genuine terrorists by confusing them with those who commit ordinary property 3 18 USC 248 2006 4 See eg FACE Challenges Accrue Totalling 7 Rescues Planned ABORTION REP June 10 1994 citing statement of Beverly LaHaye President Concerned Women of America that FACE will have a chilling effect on peaceful protest 5 See generally PHILLIP HERBST TALKING TERRORISM A DICTIONARY OF THE LOADED LANGUAGE OF POLITICAL VIOLENCE 164 2003 Conveying criminality illegitimacy and even madness the application of terrorist shuts the door to discussion about the stigmatized group while reinforcing the righteousness of the labelers justifying their agendas and mobilizing their responses For a discussion of the importance and difficulty of distinguishing terrorism from legitimate political violence see John Alan Cohan Necessity Political Violence and Terrorism 35 STETSON L REV 903 2006 5 See eg United States v Bird 401 F3d 633 634 5th Cir 2005 Norton v Ashcroft 298 F3d 547 552 6th Cir 2002 United States v Hart 212 F3d 1067 1073 8th Cir 2000 United States v Gregg 226 F3d 253 256 3rd Cir 2000 United States v Wilson 154 F3d 658 660 7th Cir 1998 United States v Weslin 156 F3d 292 294 2d Cir 1998 Hoffman v Hunt 126 F3d 575 589 4th Cir 1997 Terry v Reno 101 F3d 14121413 DC Cir 1996 Cheffer v Reno 55 F3d 1517 1519 11th Cir 1995 see also Heather I Blum Redlich Annotation Validity Construction and A lication of Freedom of Access to Cl39mic Entrances Act FACE I8 USCS 248 134 ALR FED 507 1996 describing cases upholding FACE against constitutional challenges JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 251 crimes7 Second a definition of terrorism that punishes those WhO destroy civilian property While excluding those WhO murder civilians is perverse Third such a definition imposes fear that chills politically unpopular protest against the enterprises that AETA purports to protect The thousands of terrorism investigations pursued since September 11 2001ior almost any image of Guantanomo Bay detainees isuggests that such a fear is rational8 Finally reducing protest removes an incentive that can prompt enterprises to recognize the business value of making improvements in areas of social concern While reducing protest and its associated burdens of decreased sales and increased public relations costs may have potential shortterm benefits this Comment suggests that delaying improvements in areas of social concern ultimately may weaken competitiveness Part I of this Comment provides a background on AETA from its origins in the bioresearch industry to its adoption as law Part II compares the crimes of militant animal protectionists with those of militant abortion opponents Part III then compares AETA and FACE analyzing AETA s constitutionality using as a model decisions upholding FACE Part III concludes that AETA does not violate the First Amendment Part IV argues that since AETA is likely to Withstand First Amendment scrutiny the law legitimizes an inconsistent use of the terrorism label that will hinder protected protest activity Finally Part V suggests reasons that this chilling effect is not benign9 including societal consequences of constraining protest and economic consequences for protested enterprises 7 See GEN ACCOUNTING OFFICE GAO03519T COMBATING TERRORISM OBSERVATIONS ON NATIONAL STRATEGIES RELATED TO TERRORISM 7 2003 hereinafter GAO COMBATING TERRORISM statement of Richard J Decker Director Defense Capabilities and Management explaining risks of duplicated efforts and misallocation of resources from multiple definitions of terrorism 3 Federal investigators have interviewed more than 15000 persons of interest in connection with activities investigators associate with terrorism since September 112001 Allen Pusey Every Terrorism Case Since 911 ABA J Sept 2007 at 16 citing a Transactional Records Access Clearinghouse of Syracuse University analysis of Justice Department data These investigations have led to more than 4300 prosecutions and almost 3000 convictions Id The average sentence has been twentyseven months Id 9 See generally Frederick Schauer Fear Risk and the First Amendment Unraveling the Chilling Effect 58 BU L REV 685 1978 JOHNSON FMT 332008 83702 AM 252 OREGON LAW REVIEW Voli 86249 I BACKGROUND ON THE ANIMAL ENTERPRISE TERRORISM ACT President Bush signed AETA on November 27 200610 Members and trade groups of the agricultural fashion and pharmaceutical industries immediately cheered What they saw as the accomplishment of a mission11 to create penalties for persons encouraging financing assisting or engaged in acts of animal and ecological terrorism 2 Also haVing reason to celebrate were other animal enterprises 13 efines this term broadly including business interests ranging from breeders and circuses to pet stores rodeos and zoos14 The term covers any commercial or academic enterprise that uses or sells animals or animal products for profit food or fiber production agriculture education research or testing 15 AETA gives these interests powerful enforcement tools by significantly expanding the scope of conduct criminalized under its predecessor statute the 1992 Animal Enterprise Protection Act AEPA 16 Despite existing laws prohibiting generally the same conductiincluding AEPA which specifically addressed Violence against animal enterprises17iAETA s proponents 10 Press Release Office of the Press Secretary White House President Signs Si 435 Si 819 Si 1131 Si 2462 and Si 3880 Nov 27 2006 httpwwwiwhitehouse goVnewsreleases200611200611271ihtml 11 See eg Fur Comm n USA Mission Accomplished AETA Passes Both ousesl r 39 39 ETA pdf last Visited Jan 11 2007 listing industry groups supporting AETA 12 Press Release Ami Legisi Exchi Council ALEC Offers Legislation to Fight Domestic Terror by Animal and EcoExtremist Groups Sept 15 2003 hereinafter ALEC Press Release httpwwwalecorgnewspressreleasespress I I N3 I 39 I F I L A 0139 L 39 I i rightsandecoextremistgroupsihtmli 13 See eg Statement of Norman Abrams Acting Chancellor Univ of Call LIAI A Message from the Chancellor on Animal Research Legislation Nov 2006 1 1 11 Mm pl 14 18 USC 43d1B 2006 15 43d1AA 15 18 USC 43 1992 amended 2006 17 AEPA originated with the National Association for Biomedical Research The law created the crime of animal enterprise terrorism de ned as intentionally stealing damaging or causing the loss of any property includin animals 0 records used b the animal enterprise l l or conspiring to do so 43a2 1992 amended 2006 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 253 argued that a gap in the law allowed underground militant activists to exploit current law s inadequacy of addressing and protecting nonprimary targets 18 Some prosecutors however argue that convictions of ecoterrorists need not require an exotic antiterror law 19 Indeed prosecutors have used existing criminal laws to obtain convictions of animal rights activists on arson burglary conspiracy theft and trespass charges20 arising from conduct that AETA now regulates as terrorism21 Notwithstanding r ial successes law against militant animal rights protectionists has not been without challenges Militant animal rights activists often work independently and lack hierarchical organizations making surveillance difficult22 Consider the Animal Liberation Front LF e group which the Federal Bureau of Investigation considers most representative of the threat from domestic 13 Animal Enterprise Terrorism Act Hearing on HR 4239 Before the Subcomm on Crime Terrorism and Homeland Security ofthe H Comm on the Judiciary 109th Cong 29 2006 statement of William Trundley Vice President Global Corporate Security and Investigations GlaxoSmithKline 19 Eg Joshua K Marquis amp Danielle M Weiss EcoTerror Special Interest Terrorism PROSECUTOR JanFeb 2005 at 30 35 20 See eg State v Troen 786 P2d 751 1990 EcoTerrorism and Lawlessness on the National Forests Oversight Hearing Before the Subcomm on Forests and Forest Health of the H Comm on Resources 107th Cong 52 2002 hereinafter EcoTerrorism and Lawlessness Hearing statement of James F Jarboe Domestic Terrorism Section Chie ounterterrorism Division Federal Bureau of Investigation noting successful prosecutions of individuals alleged to have rpetrate acts of ecoterrorism on arson and extortion charges Major incidents of animal rights or ecoextremism declined in 2004 effectively deterred by existing criminal laws Current and Projected National Security Threats to the United States Hearing Before the Select S Comm on Intelligence 108th Cong 26 2005 hereinafter National Security Threats Hear39mg statement of Robert S Mueller III Director Federal Bureau of Investigation 21 The US District Court for the District of Oregon has held that the terrorism enhancement under US Sentencing Guidelines 3A14 could apply to defendants convicted of conspiracy to commit arson and destruction of an energy facility United States v Thurston No CR 066006901AA 2007 WL 1500176 at 20 D Or May 212007 The court emphasized that the definition of federal crime of terrorism explicitly requires an intent to in uence or affect the conduct of government by intimidation or coercion or to retaliate against government conduct Id at 15 The court appeared to recognize effects of the terrorist label beyond those on the defendants sentences noting that the issue the court must decide is not whether the defendants are terrorists as the word commonly is used and understood in today s political and cultural climate Id at 1 22 See EcoTerrorism and Lawlessness Hearing supra note 20 at 53 JOHNSON FMT 332008 83702 AM 254 OREGON LAW REVIEW Vol 86 249 terrorism directed toward animal enterprises has no apparent organization anyone committing a direct action that serves s published goals may claim credit in its name24 Describing the proposed legislation AETA s drafters expressed the frustration of many law enforcement professionals with the prosecutorial challenges that the autonomy of ALF activists presents the group s lack of membership rules would make the cells seemingly easy to penetrate by undercover law enforcement agencies However it s sic nonhierarchical structure and lack of membership rosters rather effectively thwart gathering usable evidence 25 These law enforcement challenges offered AETA s conservative drafters an opportunity to promote the model bill as addressing what they viewed as existing law s greatest shortcoming the government s inability to reach the assets of legitimate nonviolent animal rights groups such as People for the Ethical Treatment of Animals PETA AETA s drafters accused PETA of conspiring with and supporting ALF through financial contributions and statements of support in principle for criminal conduct directed toward animal enterprises26 The drafters also cited the development of ALF splinter group Stop Huntingdon Animal Cruelty SHAC as another justification for a new law27 New Jersey and California courts have upheld injunctive relief against SHAC on accusations that the group like PETA conspired with violent activists by publishing information on their actions 8 23 See id 24 Andrew N Ireland Moore Caging An39mial Advocates Political Freedoms The Unconstitutionality of the An39mial and Ecological Terrorism Act 11 ANIMAL L 255 2005 25AMI LEGISI EXCHI COUNCIL ANIMAL amp ECOLOGICAL TERRORISM IN AMERICA 9 2003 hereinafter ALEC REPORT available at httpwwwalecorg iiieo v vFquot J A 39 F 39 T 39 39 A 39 apdf 2 EId at 839 cf Randy Borum amp Chuck Tilby Anarchist Direct Actions A Challenge for Law Enforcement in 28 STUDIES IN CONFLICT amp TERRORISM 201 220 2005 discussing similar challenges for law enforcement in investigating decentralized political revolutionary groups 27 ALEC REPORT supra note 25 at 8 Huntingdon refers to Huntingdon Life Sciences a United Kingdombased pharmaceutical company that tests drugs on animals Id 23See generally Novartis Vaccines amp Diagnostics Inc v Sto Huntingdon Animal Cruelty USA Inc 50 Cal Rptr 3d 27 Cal Ct App lst Dist 2006 TEVA JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 255 AETA is a legislative byproduct of the American Legislative Exchange Council ALEC a collaborative of industry representatives and legislators formed during the early Reagan administration to advance conservative policies by developing and introducing model legislation29 In building support for the model bill that became AETA ALEC suggested a need to protect animalusing industries from groups such as PETA and SHAC30 which often release documentary evidence obtained during breakins31 Exposing the treatment of animals inside animal enterprises such as vivisection facilities and factory farms can have significant economic effects on such enterprises For example a 1993 DOJ report noted in the fur industry the impact of an attack on local public opinion can translate into the gradual and potentially permanent loss of clientele 32 SHAC has claimed that negative public opinion generated by its campaigns led at least thirtyfour companies to end business relationships with animal testing provider Huntingdon Life Sciences33 To protect its industry members from these economic threats ALEC proposed to jail and penalize animal and eco terrorists and their sympathetic financial agents for What they areidomestic terrorists 34 AETA accomplishes this goal by imposing graduated penalties tiered to economic damage on anyone WhO travels in interstate or foreign commerce for the purpose of damaging or interfering with the operations of an animal enterprise 35 This language roughly parallels AEPA enacted in 1992 Unlike AEPA however AETA criminalizes intentionally placing a person in reasonable fear of death or serious bodily injury36 or conspiring or attempting to do so for Pharmaceuticals USA Inc v Stop Huntingdon Animal Cruelty USA Inc 2005 WL 1010454 Nil Super Ct Chi Div 2005 29 Am Legisi Exchi Council Background About ALEC httpwwwialec iorgabout last visited Jan 11 2007 30 See ALEC REPORT supra note 25 at 7 8 31 US DEPT OF JUSTICE REPORT TO CONGRESS ON THE EXTENT AND EFFECTS OF DOMESTIC AND INTERNATIONAL TERRORISM ON ANIMAL ENTERPRISES 7 1993 hereinafter DOJ REPORT 32 Id at 22 33 Borum amp Tilby supra note 26 at 214 34 ALEC Press Release supra note 12 35 18 USC 43a 1 2006 3quot 43a2B JOHNSON FMT 332008 83702 AM 256 OREGON LAW REVIEW Vol 86249 the purpose of damaging or interfering with animal enterprise operations37 AETA thus widens the scope of conduct subject to classification under the label of terrorism In broadening the reach of that in ammatory term the new law risks chilling protected protest activity II SPECIALINTEREST EXTREMISM AND TERRORISM A De ning Terrorism The definition of terrorism shares with its practitioners an uncanny ability to elude pursuit The concept of terrorism has persisted throughout history38 but resists capture in a universal definition despite the efforts of sociologists theologists philosophers psychologists and lawmakers As Emanuel Gross Haifa University Professor of Criminal Law and a former Israeli military court judge explains no definitive agreement on which circumstances if any would denude a particular act of its terrorist attributes exists39 Here and abroad debate over the elements of terrorism continues40 At least twentytwo definitions or descriptions of terrorism and terms relating to support of terrorism occur in US federal law41 The analytical vagueness is important for two reasons First because terrorist acts and ordinary criminal acts consume different law enforcement resources it is important to avoid misidentifying one as the other even though terrorism may encompass criminal acts42 Second denomination of a violent act as an act of terrorism carries significant individual and societal 37 43a2C 38 EMANUEL GROSS THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM 11 2006 39 Id at 11712 40 Id at 12716 comparing terrorism statutes in the United States Britain and Israel 41 See Nicholas J Perry The Numerous Federal Legal Def39mitions of Terrorism The Problem of Too Many Grails 30 J LEGIS 249 255 n48 2004 citing numerous statutory definitions The search for a single definition has come to resemble the quest for the holy rail Id at 249 n2 quoting OMAR MALIK NOUGH OF THE DEFINITION OF TERRORISM xvii 2000 42 GROSS supra note 38 at 13 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and szsequenses 257 consequences43 As this Comment will show characterization of violent activism as terrorism is likely to repress willingness to engage in nonviolent protest for those causes Confrontational protest activities such as those of radical environmentalists antiglobalization advocates and abortion opponents may be vulnerable to characterization as acts of domestic terrorism44 placing protected speech in these areas at risk under sweeping definitions Shaping a definition for various applications such as for criminal or diplomatic contexts is not necessarily an unworkable practice The extremely malleable meanings given to terrorism however promote inefficient use of law enforcement resources as well as the criticism that the United States fails to act consistently toward those it accuses of terrorism46 Moreover the various definitions create the danger of improperly attaching a pejorative and politically powerful label As Nancy Chang Senior Litigation Attorney at the Center for Constitutional Rights cautioned after passage of the USA PATRIOT Act protest activities that previously would most likely have ended in a charge of disorderly conduct under a local ordinance can now lead to federal prosecution and conviction for terrorism 7 A RAND Corporation chronology of incidents of international terrorism since 1968 highlights the potential for political misuse of the label noting that definitions of terrorism appear viewpoint dependant48 A report on the RAND compilation concluded that the terrorist label condemns both politically and socially because it implies a moral judgment and if one party can successfully attach the label to its opponent then it has indirectly persuaded others to adopt its moral viewpoint 9 43 See HERBST supra note 5 at 163 Carrying enormous emotional freight the label of terrorism is often used to define reality in order to place one s own group on a high moral plane condemn the enemy rally members around a cause silence or shape policy debate and achieve a wide variety of agendas C CHANG amp CTR FOR CONSTITUTIONAL RIGHTS SILENCING POLITICALDISSENT 45 2002 45 See GAO COMBATING TERRORISM supra note 7 at 7 45 Perry supra note 41 at 270 47 CHANG ET AL supra note 44 at 113 48 BRIAN MICHAEL JENKINS THE STUDY OF TERRORISM DEFINITIONAL PROBLEMS 1 1980 49 Id JOHNSON FMT 332008 83702 AM 258 OREGON LAW REVIEW V01 86 249 A comparative study of definitions used in the United States Britain and Israel revealed the common factors as ideological motivation and the use of acts that provoke various degrees of fear among all or part of the public50 These two elements are found in the FBI s definition which describes terrorism as including unlawful use of force and violence against persons or property to intimidate or coerce a government the civilian population or any segment thereof in furtherance of political or social objectives 51 The US Department of State adopted the definition given in 22 USC 2656fd2 identifying terrorism as premeditated politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents usually intended to influence an audience 52 The Patriot Act sets out the legal standard limiting domestic terrorism to activities that A Involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State B appear to be intendedii to intimidate or coerce a civilian population ii to in uence the policy of a government by intimidation or coercion or iii to affect the conduct of a government by mass destruction assassination or kidnapping an C occur pri r31arily within the territorial jurisdiction of the United States In contrast AETA criminalizes the conduct of anyone who A Intentionally damages or causes the loss of any real or personal property including animals or records used by an anima enterprise or any real or personal property of a person or entity having a connection to relationship with or transactions with an animal enterprise B intentionally places a person in reasonable fear of the death of or serious bodily injury to that person a member of the immediate family of that person or a spouse or intimate partner of that person by a course of conduct 50 See GROSS supra note 38 at 161 51 28 CIFIRI 0851 2007 52 UNITED STATES DEPARTMENT OF STATE PATTERNS OF GLOBAL TERRORISM 2001 xvi 2001 footnote omitted available at httpwwwistateigovdocumentsorganizationl0286pde 53 18 UISICI 23315 2006 emphasis added see also Ethan Carson Eddy Privatizing the Patriot Act e riminalization of Environmental and Animal Protectionists as Terrorists 22 PACE ENVTL L REV 261 273774 2005 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 259 involving threats acts of vandalism property damage criminal trespass harassment or intimidatiosn or C conspires or attempts to do so Although AETA amended AEPA by substituting the term Terrorism for Protection AETA s definition of terrorism differs in two significant ways from that of the Patriot Act First AETA includes in its definition of terrorism acts of less magnitude than the Patriot Act requires Second AETA outlaws conduct without reference to political objective In AETA s case the elimination of a political motivation element from the bill s original draft ensured passage ALEC s model bill applied to any animal or ecological terrorist organization or any person acting on its behalf or at its request or for its benefit or any individual whose intent to commit the activity was optional language insert politically motivated 55 The revised bill omitted any contentbased language referring to political motivation That result apparently addressed the First Amendment concerns of most legislators56 as well as the American Civil Liberties Union57 which dropped its opposition58 Deletion of political purpose as an element of the offense allows AETA to avoid attack as a form of unconstitutional viewpoint discrimination as Part III discusses The optional language in the model bill s text however indicates that political motivation may have been merely a red herring designed to allow proponents to strike an obviously unconstitutional provision without affecting the bill s actual scope The 54 18 USC 43a 2 2006 emphasis added 55 ALEC REPORT supra note 25 at 22 55 But see 152 Cong Rec H8590 8594 statement of Rep Kucinich contending that what we have done here is we have crippled free expression 57 Id statement of Rep Sensenbrenner noting that while the ACLU ask ed for minor changes they did not express one concern about constitution protected first amendment rights being infringed upon or jeopardized in any way by this bill 53 Letter from Caroline Fredrickson Director Washington Legislative Office ACLU to F James Sensenbrenner C airman House Judiciary Committee Oct 30 2006 available at httpwwwacluorgimagesgeneralassetiuploadi le809 727356pdf The ACLU does not oppose AETA but believes that minor changes are necessary to make the bill less likely to chill or threaten freedom of spee h While the ACLU does not condone violence or threats we are concerned when a law singles out a specific group that engages in expressive activity JOHNSON FMT 332008 83702 AM 260 OREGON LAW REVIEW Vol 86249 increased likelihood that AETA will pass constitutional muster gives this deviation from the Patriot Act s definition of terrorism greater potential to chill protected speech Animal rights activists may be less likely to engage in nonviolent protest against enterprises that allegedly exploit animals for profit if the activists fear that indirectly attacking those enterprises or expressing support for direct attacks may be characterized as terrorism Ironically by deleting the political motivation requirement to avoid threatening protected speech legislators enhanced the law s ability to hinder constitutionally protected conduct that cannot be condemned plausibly as terrorism B Animal RightsIn uenced Violence A fundamental aspect of the animal rights movement is moral philosophy59 A number of philosophical theories contend for support Within and around the movement639O This diversity of perspectives extends to considerations of the morality of violent acts in defense of animals61 For the most part however major scholarly works articulating tenets of the animal rights movement share a disavowal of violence aimed at safeguarding animals and insist instead on nonviolence62 59 See GARY Li FRANCIONE RAIN WITHOUT THUNDER THE IDEOLOGY OF THEANlMAL RIGHI S MOVEMENT 12 1996 50 Id 61 Compare MARK ROWLANDS ANIMALS LIKE Us 188 2002 You cannot be violent to a table You can be violent with a tableias when you hit somebody over the head with itibut your violence is then directed against the person and not the table In any reasonable sense of the term you can be violent only against things that can Sufferi with TOM REGAN EMPTY CAGES FACING THE CHALLENGE OF ANlMAL RIGHI S 188 2004 Someone who sets fire to an empty abortion clinic or torches a vacant synagogue causes no physical injury to any sentient being but to suppose that those acts of arson are nonviolent distorts what violence means 52 See eg Gary L Francione Abolition of Animal Exploitation The Journey Will Not Begin While We Are Walking Backwards ABOLlTIONISTONLlNE p x L quot i 39 quot V issu 7 39 iabolition ofanimalexploitation2006shtml last visited Jan 11 2007 Not only is violence problematic as a mor matter it is unsound as a practical strategy Jeff Perz Exclusive NonViolent Action Its Absolute Necessity for Building a Genuine Animal Rights Movement ABOLlTIONISTONLINE httpwwwabolitionist onlinecomarticleissue057exclusivenonviolentjeffperzshtml last visited Jan 11 2007 REGAN supra note 61 at 191 Until animal rights advocates have done the demanding nonviolent work that needs to be done the use of violence in my judgment is not morallyjusti ed It is also a tactical disaster JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 261 Militant activists appear to share with some animal rights philosophers a moral compass pointing toward acceptance of property destruction as nonviolent action because it is not directed against beings that can suffer ALF for example carries out direct action against animal abuse in the form of rescuing animals and causing financial loss to animal exploiters 63 Those who act in the group s name64 use violence against property to save as many animals as possible and directly disrupt the practice of animal abuse65 ALF s credo however mandates a nonviolent campaign activists taking all precautions not to harm any animal human or otherwise 6396 Thus while ALF has been described as one of the most active extremist elements in the United States 67 and the most dangerous of domestic terror threats 68 the group s philosophy and precautions have prevented the loss of any human life during any of its direct actions 69 These usually involve vandalism theft or release of animals ALF s tactics have less frequently included arson and the occasional use of explosive devices 71 Although largescale property destruction is only a small part of animal rights extremism such destruction still induces fear Industry groups estimate that damages from acts of major vandalism since 1993 exceed 45 million72 In that sense militant animal protectionism certainly merits definition as intimidation Even so it falls outside the Patriot Act definition of domestic terrorism Militant activists target particular enterprises not 70 53 Animal Liberation Front The ALF Credo and Guidelines hnp x x x 39 quot 39 L mm Al Pmnr nlficredoihtm last visited Jan 31 2007 hereinafter ALF Credo 54 Whether ALF in the United States can be characterized as an organization or as an umbrella ideology or cause is an issue still being debated DO REPORT supra note 31 at 6 55 ALF Credo supra note 63 56 Id 57 EcoTerrorism and Lawlessness Hearing supra note 20 at 50 53 ALEC REPORT supra note 25 at 22 59 DO REPORT supra note 31 at 16 701d at 15 categorizing 76 percent of incidents attributed to animal rights extremists between 1977 and 1993 as minor property damage or theftrelease of animals 71 National Security Threats Hearing supra note 20 at 26 72 See EcoTerrorism and Lawlessness Hearing supra note 20 at 50 citing estimates of Fur Commission and National Association for Biomedical Research JOHNSON FMT 332008 83702 AM 262 OREGON LAW REVIEW Vol 86 249 civilian populations Militant activists activities have not involved taking human lives although they have included threats and harassment73 AETA s enactment however suggests that the terrorism label adheres equally to vandals in empty research labs and hijackers in fully loaded passenger planes a consequence that seems absurd At the same time a distinction based on the use of force against human beings poses another problem Violence against another human being does not inevitably make the aggressor a terrorist Battery is not a terrorist act If mass destruction assassination or kidnapping are prerequisites for the terrorist label74 then that designation should not also apply to trespassers and thieves even if their actions result in significant property damage Further if the definition of terrorism includes coercion of a civilian population75 it is difficult to argue that property destruction without more should qualify One cannot coerce property hence force directed against property or the fear that destruction of property may invoke must be sufficiently extreme before application of the terrorist label becomes reasonable76 Under AETA however punishment for animal enterprise terrorism is possible even if the offense results in no economic damage or bodily injury77 Use of the law against an act that implicates neither of the two most common components of a terrorism definitioniviolence and political purposemiwould expand the legal meaning of terrorism dramatically As Professor Mark Rowlands applying a terrorism definition similar to that used by the FBI79 notes at most only a tiny 73 See eg Huntingdon Life Sciences Inc v Stop Huntingdon Animal Cruelty USA Inc 29 Cal Rptr 3d 521 531733 Cal Ct App 4th Dist 2005 74 18 USC 23315B 2006 75 23315Bi 5 See ROWLANDS supra note 61 at 189 77 43 b 171A specifying punishment of ne or imprisonment under this 39 if the offense does not instill in another the reasonable fear of serious bodily injury or death and results in no economic damage or bodily injury 73 See Perry supra note 41 at 251 citing ALEX P SCHMID POLITICAL TERRORISMZ A RESEARCH GUIDE TO CONCEPTS THEORIES DATA BASES AND LITERATURE 119752 1983 cataloging elements of over 109 terrorism d efinitions 79 The FBI applies the definition of terrorism found in 28 CPR 0851 2007 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 263 fraction of extreme animal rights action qualifies as terrorism 80 Thus the breadth of AETA s definition of terrorism is questionable especially since as AETA s drafters noted the federal definition of terrorism requires the death of or harm to people an element not characteristic of ecoterrorists 81 Moreover given the divergent treatment of abortion opponents under FACE discussed below AETA s application of the terrorism label to criminal trespass or acts of simple vandalism is unjustifiable C AntiabortionIn uenced Violence The crimes against abortion clinics providers and staff carried out at the height of the antiabortion movement surpass in severity and frequency even those of the most militant balaclavawearing animal rights extremist82 FBI data for 1977 to 1993 document the following incidents of violence attributed to animal rights extremists one assassination attempt83 twentynine threats against individuals fourteen firebombings twentyone arson attacks sixteen bomb threats nine bomb hoaxes twenty six incidents of major property damage 160 incidents of vandalism and seventyseven thefts or animal releases84 In contrast antiabortion extremists committed at least one murder three attempted murders two kidnappings seventytwo butyric acid attacks eightyeight incidents of assault and battery twentyeight bombings 113 arson attacks sixtyone attempted bombings or arson attacks and 543 incidents of vandalism 30 ROWLANDS supra note 61 at 193 31 ALEC REPORT supra note 25 at 15 32 See EcoTerrorism and Lawlessness Hearing supra note 20 at 50 Despite the destructive aspects of the Animal Liberation Front s operations it discourages acts that harm any animal human an no uman and has generally adhered to this mandate 33 DO REPORT supra note 31 at 16 The report provides no information on the subject of the alleged attempt It emphasizes however that there is no evidence to indicate that rearms were used during the course of any of the documented incidents in the United States Id at 15 34 Id at 15716 The report presents data on 313 incidents over a 16year period The report does not include demonstrations sitins and other protests and notes that because the types of conduct documented often overlap in any given incident total of the activities would far exceed the incident total and therefore is not stated Id at 15 JOHNSON FMT 332008 83702 AM 264 OREGON LAW REVIEW Vol 86 249 during this period85 In addition antiabortion extremists issued 166 death threats86 An additional murder of a clinic owner and abortion provider may have been abortion relatedg7 In total instances of antiabortiondriven Violence outnumbered incidents of animal rightsdriven Violence three to one Table 1 compares the frequency of these crimes TAB LE 1 COMPARISON OF ANIMAL RIGHTS AND ABORTION EXTREMIST VIOLENCE 1977499388 Animal Rights Antiabortion Extremists Extremists ACTIONS AGAINST PEOPLE Murders 1 Attempted Murders 1 3 Kidnappings 2 Butyric Acid Attacks 72 Assault and Battery Incidents 88 Threats 29 166 ACTIONS AGAINST PROPERTY Bombings 14 28 Arson Attacks 21 113 Attempted Bombing or Arson 61 Major Property Damage 26 Minor Property Damage 160 543 Thefts 77 Bomb Hoaxes 9 11m may 2 Total Incidents 337 1079 35 NAT L ABORTION FED N NAF VIOLENCE AND DISRUPTION STATISTICS INCIDENTS OF VIOLENCE amp DISRUPTION AGAINST ABORTION PROVIDERS IN THE US amp CANADA available at p 39 nra nub J quot 39 1 1 1 1 1 v lull 39139 J J T 36 Id 37 Police categorized a second murder of a clinic owner and abortion provider as a bungled robberyi PATRICIA BAIRDWINDLE amp ELEANOR Ii BADER TARGETS OF HATRED ANTIABORTIONTERRORISM 352 2001 33 These statistics re ect DO and National Abortion Federation data See supra notes 8amp85 and accompanying text JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 265 The annual number of murders of abortion providers peaked at four in 1994 when FACE was enacted89 The year 1994 also saw eight attempted murders fifteen successful or attempted bombings or arson attacks eight acid attacks and fiftynine death threats90 Yet under FACE this conduct was not defined as terrorism FBI Director William H Webster refused to categorize the violence as terrorism because its intent was not to shift or overthrow the government but rather to further a social objective91 When leaders of the prochoice movement heavily criticized Webster s statements as clinic violence intensified he eventually allowed that if the terrorism label were applied in a semantical term I m not going to quarrel with it FACE s title however remained neutral like that of AEPA AETA s predecessor While animal rights extremists have continued to use violent tactics since 1993 they have not taken lives AETA s creators however presented their model legislation as necessary to protect against a threat comparable to that of alQaeda93 Despite the FBI s acknowledgment of the effective deterrence that successful prosecutions under existing criminal laws had achieved94 ALEC posited a risingiand deadlyi wave of domestic terrorism 95 attributable to animal rights and environmental extremists Notably it has been a matter of ALF doctrine that no person may be killed or seriously injured in the pursuit of fulfilling a mission However this principle seems to be largely ignored by the highly extreme wings of the organization As former ALF spokesman Kevin Jonas said When push comes to shgye we re ready to push kick shove bite do whatever to Wll39l 39 See NAT L ABORTION FED N supra note 85 91 Blasts Not on FBI Terrorism List NY TIMES Dec 5 1984 at A23 d Magnuson Explosions over Abortion TIME Jan 14 1985 at 16 highlighting that one focus of controversy has been the FBI s reluctance to label clinic bombings as terrorist acts 93 See ALEC REPORT supra note 25 at 9 94 National Security Threats Hearing supra note 20 at 26 95 ALEC REPORT supra note 25 at 4 96 Id at 8 footnote omitted JOHNSON FMT 332008 83702 AM 266 OREGON LAW REVIEW Vol 86249 ALEC went on to speculate that the most extreme elements of militant specialinterest activist groups might splinter off and start escalating the violence of their attacks If their voice isn t heard by burning buildings perhaps it may be heard by cutting throats 7 While militant animal rights protectionists likely will continue destroying property to cause economic harm they are unlikely to begin using deadly violence like that occurring at the height of antiabortion extremism Hence the application of the terrorism label to animal rights extremists is inconsistent at best If AETA withstands constitutional scrutiny a result that seems probable Congress should amend AETA to restore its original title and remove the terrorist label Alternatively Congress might consider changing FACE s title to the Freedom from Abortion Clinic Terrorism Act Terrorism s definitional malleability promotes politicization of the term as the RAND report cited in Part I suggests98 The terrorism label is politically loaded attachable at political will to political extremists common criminals and authentic lunatics 99 The label defies removal100 Thus if as ALEC suggested in promoting its model bill criminal law should call a terrorist a terrorist 101 lawmakers and courts should take care that it does so consistently III CONSTITUTIONAL ANALYSIS Abortion opponents wasted no time in contesting FACE s constitutionality1m Despite a barrage of legal challenges however each of the nine US Courts of Appeals that has considered a FACE case on constitutional grounds has upheld it and the Supreme Court to date has refused to consider cases 97 Id at 11 positing rising trend of future violence by members of Earth Liberation Front cf id at 9 predicting that violence of ALF actions will also increase 93 See JENKINS supra note 48 at 2 99 Id at 9710 100 Id at 2 Terrorism can mean just what those who use the term want it to meanialmost any violent act by an opponent 101 ALEC Press Release supra note 12 102 Regina R Campbell Comment FACE ng the Facts Does the Freedom of Access to Cl39mic Entrances Act Violate Freedom ofSpeech7 64 U CIN L REV 947 964 1996 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 267 challenging FACE103 Since FACE and AETA implicate largely the same constitutional concerns FACE provides a useful predictor for future AETA challenges This Part compares the two statutes against the body of FACE case law A Commerce Clause Analysis Like FACE AETA draws its regulatory authority from the Commerce Clause104 Thus it is important to examine brie y AETA s vulnerability to a Commerce Clause challenge FACE has survived several Commerce Clause attacks105 and the Supreme Court has shown no willingness to alter what appears to be the general agreement that FACE is a proper exercise of the commerce power106 One example of that apparent consensus is Hoffman v Hunt in which the Fourth Circuit found that FACE regulates activityi the blocking of clinic entrancesithat is connected closely to interstate commerce107 Accordingly the court held that Congress had authority under the Commerce Clause to enact FACE1 8 The Fourth Circuit earlier had upheld FACE against a similar challenge in American Life League Inc v Reno109 Reexamining its reasoning in light of the Supreme Court s decision to narrow the scope of Congress s commerce power in United States v Lopez110 the Fourth Circuit in Hoffman again found that the provision of reproductive health care services 103 United States v Bird 401 Fi3d 633 634 5th Cir 2005 Norton vi Ashcroft 298 Fi3d 547 552 6th Cln 2002 United States v Hart 212 Fi3d 1067 1073 8th Cin 2000 United States v Gregg 226 Fi3d 253 256 3rd Cir 2000 United States v Wilson 154 Fi3d 658 660 7th Cln 1998 United States v Weslin 156 Fi3d 292 294 2d Cln 1998 Hoffman vi Hunt 126 Fi3d 575 589 4th Cln 199739 Terry vi Reno 101 Fi3d 1412 1413 DC Cir 1996 Cheffer vi Reno 55 Fi3d 1517 1519 11th Cln 1995 The Supreme Court denied petitions for certiorari in each case 104 See 18 USC 43a 2006 105 Blum Redlich supra note 6 at 507 106 See Norton vi Ashcroft 537 US 1172 2003 denying petition for certiorari see also Nicole Huberfeld Be Not Afraid of Change Time to Eliminate the Corporate Practice of Medicine Doctrine 14 HEALTH MATRIX 243 284785 2004 discussing reasoning in line of cases upholding FACE under the Commerce Clause 107 126 Fi3d 575579 4th Cln 1997 103 Id at 588 109 47 Fi3d 642 4th Cln 1995 110 514 US 549 1995 JOHNSON FMT 332008 83702 AM 268 OREGON LAW REVIEW Vol 86 249 substantially affects interstate commerce111 Unlike the connection to commerce of handguns in schools which the Supreme Court in Lopez found insufficient to support the Gun Free School Zones Act of 1990112 the obstruction of clinic entrances could provide a rational basis for Congress to conclude that the regulated activity affects interstate comrnerce 113 Women travel across state lines seeking reproductive health services Medical supplies also move through interstate commerce114 Thus the court found sufficient authority under the commerce power for Congress to enact FACE115 Similar reasoning should support AETA against a Commerce Clause challenge although the commerce connection is less apparent Professor John Nagle notes that it is easier to make the link between abortion clinics and interstate commerce than between abortion protesters and interstate commerce 116 Similarly the relationship between the Commerce Clause and the activity of animal rights activists is more obscure than that between the Commerce Clause and the activity of animal enterprises117 AETA prohibits using interstate commerce to damage the property of any animal enterprise or anyone connected with an animal enterprise Thus like FACE AETA addresses a typically interstate activity by regulating typically intrastate actors 118 Offenses under AETA committed solely by intrastate actors would appear beyond reach Criminalizing conspiracy to commit any of AETA s enumerated offenses119 helps AETA avoid such a narrowing construction Moreover the prevalence of electronic communications in modern activism affords AETA another nexus with interstate 111 Hoffman 126 F3d at 588 112 Lopez 514 US at 55943 113 Hoffman 126 F3d at 583 quoting Am Life League Inc 47 F3d at 647 114 115 Id at 588 115 John Copeland Nagle The Commerce Clause Meets the Delhi Sands Flower Loving Fly 97 MICH L REV 174 210 1998 emphasis added 117 C United States v Wilson 73 F3d 675 692 7th Cir 1995 Coffey J dissenting FACE applies to the activity of the demonstrators not to the activity of the clinic itself A federal statute that thus regulates purely noncommercial activity while at the same time absent jurisdictional language is unprecedented 113 Nagle supra note 116 at 210 emphasis added 119 18 USC 43a 2C 2006 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 269 commerce The Internet and email are essentially instruments of interstate commerce120 Activists use of these and other communication tools for organizing publicizing or expressing support for violent actions easily could bring them within AETA s reach121 B First Amendment Analysis ContentNeutrality Just as our society enshrines free expression as the transcendent value that the Supreme Court first recognized in Speiser v Randall122 our First Amendment jurisprudence establishes contentneutrality as the beacon of freedom of speech analysis Even those whose speech is not threatened may be heard to declare against contentbased restrictionsm Indeed the distinction between contentbased and contentneutral restrictions determines nearly every modern free speech case124 The distinction turns on whether the government s regulation of certain speech stems from its disagreement with the message of that speech125 Disagreement with the speech s subject matter or the speaker s point of view is a presumptively invalid basis for restricting freedom of expression126 A statute challenged as a contentbased regulation therefore provides the starting point for analysis and determines the appropriate level of scrutiny 120 See Kiera Meehan Note Installation of Internet Filters in Public Libraries Protection of Children and Staffvs the First Amendment 12 EU PUB INT LJ 483 490 2003 The Internet like railways and highways is by its very nature an instrument of interstate commerce 121 See eg HuntinngH Life Sciences Inc v Stop Hun ngdon Animal Cruelty USA Inc 29 Cal Rptri 3d 521 530 Cal Ct App 4th Dist 2005 Certain entries SHAC USA published on its Internet Web site constituted a credible threat of violence United States v Mathison Crim No 95085FVS ED Wash 1995 i 122 357 US 513 526 1958 123 See Dombrowski vi Pfister 380 US 479 486 1965 Because of the sensitive nature of constitutionally protected expression we have not required that all of those subject to overbroad regulations risk prosecution to test their rights For free expressioniof transcendent value to all society and not merely to those exercising their rightsimight be the loseri 124 Erwin Chemerinsky Content Neutrality as a Central Problem of Freedom of Speech Problems in the Supreme Court s Application 74 8 CAL L REV 49 53 2000 125 Hill vi Colorado 530 US 703 719 2000 citing Ward vi Rock Against Racism 491 US 781 791 1989 126 RIAIV v City of St Paul 505 US 377 382 1992 JOHNSON FMT 332008 83702 AM 270 OREGON LAW REVIEW Vol 86 249 I FACE s Incidental Effect on Protected Expression 127 FACE does not apply directly to speech Even so a statute that regulates only conduct that the First Amendment does not protect may affect some conduct with protected elements128 Thus in Norton v Ashcroft the most recent published appellate opinion to have examined FACE under the First Amendment129 the Sixth Circuit began with an assessment of contentneutrality In Norton antiabortion activists sought declaratory and injunctive relief after federal agents advised them that picketing praying and counseling on the sidewalk outside an abortion clinic put them at risk of violating FACE130 The court upheld FACE as content neutral despite the implication that FACE impinged protected expression131 FACE the court explained proscribes interference with access to reproductive health services regardless of the reason1 e court cited the prosecution under FACE of a prochoice protester who made a threatening phone call to an antiabortion facility as an example of the law s indifference to content133 Further the court suggested that clinic workers on strike might face prosecution under FACE if they blocked clinic entrances despite protesting for reasons entirely unrelated to abortion134 The Norton court also found it irrelevant that antiabortion protesters faced greater frequency of prosecution under FACE than did those demonstrating for choice135 In support of this proposition the Norton court cited the Seventh Circuit case United States v Sodernd in which the court reasoned that 127 Norton vi Ashcroft 298 FM 547 552 6th Cir 2002 128 129 In the most recent federal case to examine FACE at the circuit court level the Fifth Circuit vacated a decision nding FACE unconstitutional under the Commerce Clause See United States v Bird 401 Fi3d 633 634 5th Cir 2005 130 Norton 298 Fi3d at 551 131 Id at 553 132 133 Id citing United States v Mathison Crim No 95085FVS EIDI Wash 1995 Daniel Adam Mathison was charged with one count of violating FACE and one count of making an unlawful interstate communication after he allegedly called a pregnancysupport service and told the operator that he had a gun and intended to shoot abortion protestors outside clinics M an Indicted for AntiAbortion Threats OREGONIAN Apr 13 1995 at 16 134 135 Id JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 271 antiabortion protesters are more likely to face prosecution because it is mainly they who are interfering with the provision of pregnancyrelated services just as it was Vietnam War protesters who burned their draft cards 136 Like those Vietnamera activists modern protesters using violent forms of expression face the question of whether their conduct equals speech137 Conduct that does not communicate does not receive heightened scrutiny138 The court in Norton however did not need to apply the test set out in Spence v Washington13 to determine whether the conduct prohibited under FACEiforce threat of force or physical obstructionmi was communicative Neither actual or threatened force nor obstruction had occurred141 Rather the court recognized that FACE affected the nonverbal conduct of peaceful but unobtrusive picketing 142 It considered FACE under the intermediate scrutiny appropriate to contentneutral regulations of communicative conduct143 applying the fourpart test articulated in United States v O Brien144 Under O Brien which applies to conduct that is intended to convey a particularized message and likely to do so the Sixth Circuit first found that FACE furthered an important governmental interest unrelated to suppression of free expression safeguarding access to reproductive health servicesm ext the court concluded that FACE ameliorated any incidental hindrance of expressive conduct146 by expressly excluding protected speech and leaving ample alternative channels for communication147 Perceiving no greater restriction on First Amendment freedoms than 135 82 Fi3d 13701376 7th Cln 1996 137 See eg Texas vi Johnson 491 US 397 4024M 1989 133 See United States v O Brien 391 US 367 376777 1968 139 See 418 US 405 410711 1974 140 18 use 248a 2006 141 Norton v United States 298 FM 547 55152 6th Cir 2002 142 Id at 552 143 Id at 553 144 391 US 367 377 1968 145 Norton 298 Fi3d at 553 146 18 use 248d1 2006 147 Norton 298 Fi3d at 553 JOHNSON FMT 332008 83702 AM 272 OREGON LAW REVIEW Voli 86249 necessary the court found that FACE satisfied O Brien s requirements148 2 AETA S ContentNeutrality Like FACE AETA s regulation appears content neutral because it excludes viewpointbased discrimination against protected protest activities149 AETA prohibits two broad categories of action First it proscribes propertybased conduct intended to damage or interfere with animal enterprises including causing the loss of property animals or records used by those enterprises or the people or entities connected to them 0 Second AETA addresses personal attacks including the intentional placement of another person in reasonable fear of death or serious injury 1 As the Supreme Court noted in NAACP v Claiborne Hardware C0152 the Constitution affords violence no protection whether or not the violent actor intends by his conduct to express a message153 Thus while AETA s second proscribed category assault is not by any stretch of the imagination expressive conduct protected by the First Amendment as the Court described assault in Wisconsin v Mitchell AETA s first category of prohibited action regarding propertybased conduct potentially could support a statutory interpretation that includes protected conduct 154 Damage of another person s property of course is clearly outside the First Amendment s protection even if one demonstrates by that conduct intent to convey a particularized message The status of AETA s purpose element appears somewhat less certain A violator must intend to damage or interfere with the operations of an animal enterprise 155 AETA leaves interfere with undefined but AETA s offense element which shadows the purpose provision prohibits 148 Id 149 43e2 248d24 150 43a172A4 151 43a2B4 152 458 Us 886 1982 153 Id at 916 154 508 Us 476 484 1993 155 43a14 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Camequemes 273 damaging or causing the loss of an enterprise s property 6 AETA bridges these provisions by defining the offense as prohibited conduct done in connection with the requisite purpose 7 Thus an actor would appear to violate AETA if in connection with the purpose of damaging an animal enterprise he or she intentionally damaged the property of that enterprise As AETA s purpose element captures both damaging and interfering with it therefore seems plausible that the conduct described in my previous sentence would trigger AETA s penalties equally if interfere with replaces damage Applying such a statutory construction would subject an actor to prosecution under AETA if in connection with the purpose of interfering with an animal enterprise he or she intentionally interfered with the property of that enterprise As Part IIB explained militant animal protectionists attempt at minimum to accomplish exactly that sort of interference They intend violent conduct to convey unambiguous messages critical of those who they contend exploit animals for profit 8 Some prominent animal welfare organizations appear to share this purpose although they denounce violence and militant tactics159 If organization members engage in the protest activities traditionally entitled to constitutional protection such as boycotts picketing or lea eting1 and that conduct is construed as interference with the property of an enterprise AETA would implicate the First Amendment interests surrounding symbolic speech The enterprises targeted by such activity often conduct research involving vivisection or animal experimentation methodologies which a California Court of Appeals noted are 15quot 43a2AA 157 43a2A 153 After breakins or trespasses typical messages left behind in the form of graffiti on walls and windows include Animal Auschwitz and Meat is Murder DO REPORT supra note 31 at 12 n10 159 See EQUAL JUSTICE ALLIANCE ANIMAL ENTERPRISE TERRORISM ACT AETA OPPOSITION LIST 2007 httpwwwnoaetacomAETAOppositionList pdf listing some 200 organizations including the ASPCA Humane Society of the United States National Lawyers Guild and Natural Resources Defense Council 150 See NAACP v Claiborne Hardware Co 458 US 886 909 1982 upholding boycott as a form of protected speech Martin v City of Struthers 319 US 141 14647 1943 upholding pamphleteering Thornhill v Alabama 310 US 88 104 1940 upholding peaceful picketing JOHNSON FMT 332008 83702 AM 274 OREGON LAW REVIEW Vol 86 249 areas of Widespread public concern and controversy 161 In Huntingdon Life Sciences Inc v Stop Huntingdon Animal Cruelty USA Inc a trespass and harassment suit against protestors of an animal testing laboratory and its employees the court emphasized that commenting on matters of public concern is core political speech162 Accordingly the viewpoint of animal rights activists contributes to the public debate 163 Because AETA affects this protected expression AETA must Withstand the intermediate scrutiny applicable to contentneutral regulations under O Brien s balancing of interests test AETA is likely to Withstand this step in the analysis Nonviolent advocates for animals may agree in principle with the militants of the ALF WhO seek to in uence behavior by affecting the economics of corporations who profit from the misery and exploitation of animals 164 But the notoriety of violent activism associated with the animal rights and like that 1 with extremist opponents of abortioniincreases the likelihood that courts will accept AETA s facial neutrality and exclusion clause as vouchsafing protest speech While abortioninspired violence has taken lives and animal rightsinspired violence has emphasized property damage courts probably will find this a distinction Without a difference The California Supreme Court for example has explained that actual or threatened violence can play no part in the marketplace of ideas 16395 Regardless of its motivation violence is coercion through unlawful conduct not persuasion by expression166 As Justice Rehnquist observed in his dissent in Smith v Goguen one WhO burns down the factory of a company Whose products he dislikes can expect his First Amendment defense to a consequent arson prosecution to 151 Huntmgdon Life Sciences Inc v Stop HuntinngH Animal Cruelty USA Inc 29 Cal Rptr 3d 521 536 Cal Ct App 4th Dist 2005 152 Id at 535736 citing Schenck v ProChoice Network 519 US 357 377 1997 153 Id at 536 154 ALF Credo supra note 63 155 In re MS 896 P2d 13651373774 1995 156 Huntingdan Life Sciences Inc 29 Cal Rptr 3d at 538 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 275 67 The same reasonin 168 be given short shrift by the courts probably will apply in consequent prosecutions under AET The government s interest in protecting individuals from fear of violence excludes both threatened and actual violence from First Amendment protection169 Additionally courts likely will find that AETA serves other important governmental interests If maintaining access to reproductive health services170 and reducing disincentives for doctors to provide those services are important interests171 for example then protecting medical research and food production facilitiesithe first and fourth most targeted types of enterprises victimized by animal rights extremists during the 1977 June 1993 period mzican be expected to survive intermediate scrutiny C First Amendment Analysis Vagueness and Substantial Overbreadtlz Challenges to FACE included claims that it was both unconstitutionally vague and substantially overbroad173 There was serious concern that ambiguity and potentially farreaching enforcement would chill protected speech174 Commentators likewise argued that FACE could inhibit peaceful protests175 FACE explicitly excluded peaceful 157 Smith v Goguen 415 US 566 594 1974 Rehnquist J dissenting 1 53 See generally Moore supra note 24 at 270771 If the Act focused on conduct rather than on a message it would likely survive constitutional scrutiny even though a particular message may be regulated Without the politically motivated language in the model bill that became AETA the statute has a much greater probability of withstanding constitutional scrutiny 159 RAV v City of St Paul 505 US 377 388 1992 170 Norton v United States 298 F3d 547 553 6th Cir 2002 171 See H R REP NO 103306 at 3 1993 as reprinted in 1994 USCCAN 699 6997700 172 D0 REPORT supra note 31 at 11 Protecting access to medical and food production facilities may be interests of suf cient importance to satisfy intermediate scrutiny but it seems less clear that protecting access to fur retailersithe second most targeted type of enterpriseishould support restricting activist speech 173 Campbell supra note 102 at 977 174 175 Angela Hubbell Comment FACE ing the First Amendment Application of RICO and the Clinic Entrances Act to Abortion Protestors 21 OHIO NU L REV 1061 1078 1995 citing Michael W McConnell Rule of Law Free Speech Outside Abortion Clinics WALL ST J Mar 31 1993 at A15 JOHNSON FMT 332008 83702 AM 276 OREGON LAW REVIEW Vol 86249 picketing or other peaceful demonstration 176 but left peaceful protest undefined177 Given the Supreme Court s recognition that because First Amendment freedoms are delicate and vulnerable as well as supremely precious in our society and that the threat of sanctions may deter their exercise almost as potently as the actual application of sanctions 178 opponents appeared to have good grounds for challenging FACE179 Despite its potential chilling effects however FACE survived numerous attacks based on vagueness and overbreadth180 The Sixth Circuit in Norton simply agreed with its sister circuits in upholding FACE against a vagueness challenge181 and the court s analysis of potential overbreadth took one short paragraph182 Several elements of FACE compelled this determination First FACE prohibits only a limited range of conduct183 none of which is constitutionally protected Second FACE sets out prohibited conduct in plain language much of it lifted from state and federal statutes that courts already have upheld against vagueness challenges184 Finally FACE expressly forbids any construction that would interfere with activity protected under the First Amendment185 These three elements and even some of the same language also are found in AETA AETA borrows FACE s exclusion clause trimming only a provision against construction that would interfere with state regulation of abortion186 Thus both statutes expressly disclaim interference with protected expressive con uc 176 18 use 248d1 2006 177 Hubbell supra note 175 at 1078 173 NAACP v Button 371 US 415 433 1963 179 See generally Michael Stokes Paulsen amp Michael W McConnell The Doubtful Constitutionality of the Clinic Access Bill 1 VA J SOC POL Y amp L 261 28amp89 1994 130 Norton v United States 298 Fi3d 547553 6th Cin 2002 131 Id 132 Id at 5554 133 Id 134 Campbell supra note 102 at 978 citing S REP NO 103117 at 22723 30 1993 135 18 USC 248d172 2006 136 See 248d4 No similar provision appears in AETA to indicate that states wishing to provide greater restrictions on animal cruelty could do so JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 277 Additionally FACE and AETA employ much of the same plain language in describing their offenses FACE subjects to penalties anyone who intentionally damages or destroys the property of a facility because such facility provides reproductive health services w7 Similarly AETA permits the prosecution of anyone who intentionally damages or causes the loss of any real or personal property used by an animal enterprise 188 A notable difference is that AETA lacks the kind of motive clause on which some defendants and commentators have challenged FACE as a contentbased regulation189 Courts have upheld such clauses as proper examples of filtering out conduct that Congress believes need not be covered by federal statute ensuring that laws do not federalize a slew of random crimes that might occur in the vicinity of targeted conduct190 AETA declines to test judicial acceptance of motive clauses and likely eliminates the possibility of successful challenge on a motive theory by prohibiting intentional damage of animal enterprises rather than for example prohibiting intentional damage of enterprises because such enterprises experiment with or upon exhibit sell slaughter or otherwise use animals Finally both FACE and AETA penalize the constitutionally unprotected use of threat or force to intimidate191 Under these circumstances AETA is unlikely to be struck down as vague or substantially overbroad Just as FACE leaves undefined the term peaceful protest AETA also fails to resolve the meaning of important terms As noted above AETA neglects to specify the meaning of interfere with Additionally AETA does not make clear what it means to damage an animal enterprise Such obscurity already has generated a profound chilling effect among animal rights advocatesm A key reason is that AETA includes a 137 248a3 183 43a2A 139 See eg Roe v Aware Woman Ctr for Choice Inc 253 F3d 678 683 11th Cir 2001 United States v Dinwiddie 76 F3d 913 922723 8th Cir 1996 Hubbell supra note 175 at 1076777 190 Dinwiddie 76 F3d at 923 See also eg Wisconsin v Mitchell 508 US 476 487788 1993 191 43a2B 24382 192 Andrew Kohn Editorial The Animal Enterprise Terrorism Act A Positive for the Animal Rights Movement VT J ENVTL L Dec 14 2006 available at httpvj elorgeditorialsED10055html JOHNSON FMT 332008 83702 AM 278 OREGON LAW REVIEW Vol 86249 definition of economic damage in its penalty section There AETA defines economic damage as The replacement costs of lost or damaged property or records the costs of repeating an interrupted or invalidated experiment the loss of pro ts or increased costs including losses and increased costs resulting from t reats acts or vandalism property damage trespass harassment or intimidation taken against a person or entity on account of that person s or entity s connection to 19r3elationship with or transactions with the animal enterprise Although the penalty section is not implicated until AETA s offense elementsithe intentional damage or loss of property or the placing in reasonable feariare met fear that causing an animal enterprise to lose profits might invoke AETA has spread rapidly among the animal rights community Given AETA s use of the terrorist label and potential punishment of life imprisonment assurances that reading such vagueness and substantial overbreadth into AETA is untenable can do little to dispel the chill Many animal rights and free speech advocates worry that organizing a boycott of factoryfarmed eggs picketing a circus or visiting a website offering to send emails or faxes imploring a company to end its animal experimentation have become acts of terrorism194 Moreover while AETA s exclusion clause ostensibly should have reduced the law s disconcerting effect the clause s wording instead appears to have enhanced it The clause excludes peaceful picketing or other peaceful demonstration 195 As explained above however if interfering with the property of an animal enterprise offends AETA and such interference is accomplished through picketing or other forms of nonviolentialbeit disruptiveidemonstration then such protected speech would seem to fall outside AETA s allowance for peaceful activity 193 43d3 emphasis added 194 See e g Will Potter Analysis of the Animal Enterprise Terrorism Act Using Terrorism Rhetoric to Chill Free Speech and Protect Corporate Profits GREENISTHENEWREDCOM Oct 10 2006 updated July 2007 at 275 httpwww 39 I 39 39 1nm pdf last visited Sept 15 2007 195 43d1 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 279 IV CHILLING EFFECTS OF THE FACEAETA APPROACH A Discouraging Protest The threat of punishment chills196 Utilitarians consider such deterrence a fundamental objective of criminal law when applied to conduct deemed outside social norms197 A prohibition that inspires a fear of punishment for protected activity however creates a pernicious chilling effect Harvard Law School Professor Frederick Schauer described the consequences of this effect for protected speech Deterred by the fear of punishment some refrain from saying or publishing that which they lawfully could and indeed should 198 A law s constitlr igtional validity does not diminish the force of this ef ec AETA appears to create this chilling effect while avoiding vagueness substantial overbreadth or contentbased discrimination raising the question of whether fear that deters speech is simply an unfortunate side effect of a valid law One danger of side effects is that their consequences may turn out to be more severe than the maladies they purport to relieve These may include both individual and societal harms200 The violent acts of protesters of course carry serious societal harms of their own whether they are murders committed by militant antiabortionists or multimillion dollar fires set by militant animal protectionists This Comment does not defend those acts201 It seems likely however that if both violent activists and nonviolent protesters target the same enterprises then 196 See Schauer supra note 9 at 70L01i 197 See JEREMY BENTHAM Ofihe Principle of Utility in AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 1 15716 I Hi Burns amp Hi LIAI Hart eds Oxford Univ Press 1996 1970 193 Schauer supra note 9 at 693 199 See Note The Chilling Effect in Constitutional Law 69 COLU39M L REV 808 814 1969 200 See id 201 See generally 3 ROSCOE POUND J URISPRUDENCE 67 1959 As explained in Part IIiBi the property destruction that AETA labels as terrorism presents a larger philosophical problem It is more difficult to argue that property crimes so affect the activities of the state necessary to its preservation that the individual interest even when put as a social interest in free belief and free speech may have to give way Id JOHNSON FMT 332008 83702 AM 280 OREGON LAW REVIEW Vol 86249 members of the nonviolent group will feel that a law protecting those enterprises against the conduct of those in the violent group may nevertheless apply to them in some way Fear of association with the violent group is likely to inhibit nonviolent expression on the same subject Our society has a fundamental interest in avoiding such constraints202 whether their effects are felt by associations or individuals Roscoe Pound described the social interest in freedom of the individual will 203 as an interest deserving of protection or at least of careful consideration before any such constraints deemed unavoidable are applied If one will is to be subjected to the will of another through the force of politically organized society it is to e done upon some rationa asis w ic the person coerced if reasonable could appreciate It is to be done upon a reasoned weighing of the interests invozlg4ed and a reasoned attempt to reconcile them or adjust them A seemingly rational response to this argument is that lawful protesters need not fear laws that do not apply to them FACE and AETA disclaim any intent to infringe expressive conduct protected under the First Amendment AETA expressly excludes lawful economic disruption including a lawful boycott that results from lawful reaction to the disclosure of information about an animal enterprise from its definition of economic damage for punishment purposes206 Assuming a mistake and costfree legal system relying on a law s express limitations would be a reasonable response But a protester who knows that AETA is inapplicable must consider the risk that a court may find the law apposite207 Schauer explains that this possibility may be translated into a fear that lawful conduct may nonetheless be punished because of the fallibility inherent in the legal process 208 But AETA likely would invoke fear even under a awless adjudicative process in which innocence equaled acquittal An accused party still would pay the costs of defense as well as 202 See NAACP v Claiborne Hardware C0 458 US 886 9334 1982 203 POUND supra note 201 at 318 204 Id 205 18 USC 43e1 248d 1 2006 20quot 43d3b 207 See Schauer supra note 9 at 69495 203 Id at 695 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 281 mental and temporal tolls The legal process inevitably produces a chilling effect which varies only to the degree a party is willing to bear the risk209 Attaching a stigmatic label heightens this intimidation210 An accusation may taint a reputation with the suspicion of culpability even if charges or lawsuits ultimately are resolved favorably Imagine for example an unsuccessful defendant deemed a sex offender in a sexual harassment suit Even if not required to register in a database tracking convicted pedophiles and molesters such a defendant likely would find the label a significant hardship211 Protest groups well understand the communicative force of carefully applied identities212 Application of the terrorist label and AETA s authorization of increasing penalties based on economic damage already have produced a pronounced chilling effect FACE imposed similar penalties on essentially the same crimes directed at abortion clinics and successfully reduced clinic attacks213 Even without applying a stigmatizing label however FACE also shrank the numbers of antiabortion protesters willing to demonstrate at clinics or engage in nonviolent civil disobedience214 F criminalized only unprotected conduct and expressly excluded 209 See id at 700701 210 Sedima v lmrex Co 473 US 479 504 1985 Marshall J dissenting see also eg Antonio J Califa RICO Threatens Civil Liberties 43 VAND L REV 805 834 1990 describing intimidating effect of racketeer label 211 The model bill that inspired AETA included just such a registration provision It would have created a national registry in which a person who is convicted of or pleads guilty to an act that violates any section of the Animal and Ecological Terrorism Act shall be registered with the Attorney General on a form prescribed by the Attorney General ALEC REPORT supra note 25 at 24 The proposed registry would have required the name a current residence address a recent photograph and signature of the offender and written notice to the Attorney General regarding any change in name or residence address within thirty 30 days of making the change Id ALEC s proposed bill also directed the Attorney General to create a website containing the information set forth in this paragraph for each person who is convicted or pleads guilty to a violation of this Act Id The offender s personal information would have remained in the registry for no less than three 3 years at which time the registrant may apply to the Attorney General for removal after a hearing on the application for removal Id The enacted law did not include these provisions 212 See LAURENCE H TRIBE ABORTION THE CLASH OF ABSOLUTES 172 1990 noting that Operation Rescue s carefully chosen name again illustrates the power that many ascribe to labels 213 BAIRDWlNDLEamp BADER supra note 87 at 324 214 JOHNSON FMT 332008 83702 AM 282 OREGON LAW REVIEW Vol 86249 protected speech but the law still decreased the desire to participate in legal protestm This is an example of the chilling effect s force Those who would express their views must make difficult choices between nonexercise of fundamental rights and confrontation of fundamental fears216 Even so FACE probably has chilled protest speech with less force than some opponents predicted217 Uneven enforcement may be partly responsible218 Between FACE s enactment in May 1994 and September 1998 violence and intimidation at clinics remained high219 Prosecutors however brought only fortysix cases under FACE during this time period220 As clinic violence continued abortion supporters attributed the apparent reluctant enforcement of FACE to the law s con ict with the beliefs of some law enforcement officials221 If clinics lost some ability to control antiabortion extremists to reluctant prosecutors in FACE cases however they regainedi and increasedithat control through the novel application of the Racketeer In uenced and Corrupt Organizations Act RICO ZZZ to antiabortion protesters In National Organization for Women Inc v Seheidlerm NOW and two women s health organizations sued abortion opponents alleging a conspiracy to shut down abortion providers224 Lower courts 215 See eg Ana Puga Abortion Foes Meet Justice Department Aide BOSTON GLOBE Oct 19 1994 at 84 NAT L LEGAL FOUND FREEDOM OF ACCEss TO CLINIC ENTRANCES ACT FACE httpwwwnlfnetResourcesissuesfacehtml last visited Jan 25 2007 This provision of the United States Code is being used to squelch legitimate political protest activity 215 See Schauer supra note 9 at 693 217 See Gina Holland Supreme Court Abortion Protest Case Worries Both Sides PITTSBURGH POSTGAZETTE Dec 52002 at A10 reporting statement of Joseph Scheidler founder of ProLife Action Network author of Closed 99 Ways to Stop Abortion and appellant in Scheidler v National Organization for Women Inc discussed in this section that abortion foes feared being found guilty of racketeering more than trespass or other less serious crimes 218 BAIRDWlNDLEamp BADER supra note 87 at 32425 219 Id at 325 220 Id 221 See Campbell supra note 102 at 98039 Robert Pear Abortion Cl39mic Workers Say Law is Being Ignored NY TIMES Sept 23 1994 at A16 222 18 USC 1961 2006 223 765 F Supp 937 ND 111 1991 affd 968 F2d 612 7th Cir 1992 rev d 510 US 249 1994 224 Id at 938 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 283 rejected the plaintiffs argument that donations to antiabortion protest groups were racketeering income received in pursuit of an economic purpose under RICOM Construing RICO to require a profitmaking motive both the US District Court for the Northern District of Illinois and the Seventh Circuit found in favor of the protesters226 The Supreme Court unanimously reversed227 Finding no economic motive requirement in the statute the Court explained that an enterprise must have merely a detrimental in uence on interstate commerce to warrant civil liability under 228 The Court s decision sparked an explosion of commentary229 Some warned that branding protesters as racketeers along with the possibility of liability for treble damages and crippling attorneys fees would increase the chilling effect0 Antiabortion protesters feared racketeering charges more than charges of trespassing or other less serious crimes1 RICO s penalties including the ability to compel forfeiture of assets make it difficult to measure the independent chilling effect 225 Hubbell supra note 175 at 1064765 226 NOW 765 F Supp at 94439 NOW 968 PM at 630731 227 NOW 510 US at 262 223 See id at 256758 The Court specifically declined to address First Amendment implications of its holding noting that although respondents and amici had argued that application of RICO to antiabortion protesters could chill legitimate expression protected by the First Amendment i i i the question presented for review asked simply whether the Court should create an unwri en requirement limiting RICO to cases where either the enterprise or racketeering activity has an overriding economic motive Id at 262 H6 229 Jaime I Roth Comment Reptiles in the Weeds Civil RICO vs the First Amendment in the An39mial Rights Debate 56 U MIAMI L REV 467 479 2002 citing a number of articles 230 See eg Brian J Murra Note Protesters Extortion and Coercion Preventing RICO from Chilling First Amendment Freedoms 75 NOTRE DAME L REV 691 744 1999 The stigmatic label of racketeer affixes to anyone against whom a RICO claim is broughtieven if that person s First Amendment rights are ultimately vindicated i 231 Holland supra note 21739 see ProLife Protestors No Longer Racketeers Says Concerned Women for America US NEWSWIRE Feb 26 2003 After years and years of litigation and the disgrace of being declared a racketeer Joe Scheidler i i i s 39 been vindicated statement of Sandy Rios President Concerned Women for America But see Campbell supra note 102 at 96142 contending that potential application of civil RICO to abortion protestors had minimal effect on clinic violence JOHNSON FMT 332008 83702 AM 284 OREGON LAW REVIEW Vol 86 249 of the deprecatory racketeer labelm Anecdotal evidence however suggests that the label sti ed political activism and contributed to a decline in political organizing in the antiabortion context Drafters of AETA s model bill sought the ability to apply forfeiture to the aboveground animal welfare organizations that they accused of promoting ALF actions3 The drafters success in achieving AETA s passage increases the potential for application of RICOlike penalties to protestors at laboratories circuses and furriers Animal enterprises already have employed such tactics aggressively and effectively to combat nonviolent protest activity4 In Huntingdon Life Sciences Inc v Rokke for example the US District Court for the Eastern District of Virginia upheld a RICO claim against an activist WhO released video documentation of conditions in a vivisection facility to PETA5 The activist a PETA employee got a job in the facility and began an eightmonth undercover investigation of animal abuse6 She brought her findings to PETA which used them to publicize alleged abuse and to support an animal cruelty complaint filed with the US Department of Agriculture 7 During the activist s surreptitious investigation she received a salary from the facility She remained a PETA employee during her time in the facility and continued to earn a salary from that organization Huntingdon Life Sciences characterized PETA s employment of the activist as part of a longterm pattern of 232 See generally Chaplinsky v New Hampshire 315 US 568 574 1942 Argument is unnecessary o emonstrate that the appellation damned racketeer is an epithet likely to provoke the average person to retaliation 233 ALEC Press Release supra note 12 One difficulty in using basic vandalism trespassing and destruction of property laws lies in the states inability to enter asset forfeiture proceedings 234 See Xavier Beltran Note Applying RICO to EcoActivism Fanning the Radical Flames of EcoTerror 29 BC ENVTL AFF L REV 281 292798 2002 Press Release Simon Ward Fur Comm n USA Second RICO Suit Filed Against Fur Protesters Aug 8 199 httpwwwfurcommissioncomnewsnewsE54htm last visited Sept 11 2007 235 986 F Supp 982 ED Va 1997 235 Id at 98485 237 Application of the RICO Law to Nonviolent Advocacy Groups Hearing Before the Subcomm on Crime ofthe H Comm on the Judiciary 105th Cong 1247 26 1998 hereinafter RICO Hearing statement of Jeff Kerr General Counsel People for the Ethical Treatment of Animals JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 285 investment in racketeering activity238 The court agreed239 The lawsuit settled for an undisclosed amount but Huntingdon had sought damages and legal fees of over 10 million240 The Supreme Court recently turned from an expansive view of civil RICOZ41 pleasing a broad collection of supporters of First Amendment freedomsZ42 AETA s use of the terrorist label and punishments based on economic damages however threatens to repeat RICO s chilling consequences The seemingly endless controversy surrounding the pursuit and punishments of terrorists suggests strongly that the stigma of potential prosecution as either a terrorist or terrorist conspirator will prove a more effective protest deterrent than prosecution as a racketeer Moreover the anonymous nonhierarchical nature of extremism in the environmental or animal rights contexts prevents concerned citizens who participate in peaceful protests such as picketing at timber sales or lea eting in front of vivisection labs from knowing whether they have entered inadvertently into association with violent extremistsZ43 If the risk of a civil RICO suit can make nonviolent protesters reluctant to speak out on politically unpopular subjects then the risk of a charge of conspiring to commit terrorism may be significantly greater in our post 911 climateZ44 If one fears the 233 Rokke 986 F Supp at 989 239 Id at 990 240 See RICO Hear39mg supra note 237 at 125727 241 See NOW 126 S Ct 1264 2006 a case involving nearly twenty years 0 litigation including i i three separate visits to the United States Supreme ourt Autumn Nero Note Where Are We Now Cl39mic Protection in the Wake of Scheidler v National Organization for Women Inc 21 WIS WOMEN S Li 73 75 2006 242 See Daniel B Kelly Recent Development Defining Extortion Rico Hobbs and Statutory Interpretation in Scheidler v National Organization for Women Inc 123 S Ct 1057 2003 26 HARV JiL amp PUB POL Y 953 954 HS 2003 The American Civil Liberties Union actor Martin Sheen People for the Ethical Treatment of Animals and even some organizations that support abortion rights have advocated lifting the threat of harsh penalties for prolife demonstrators because a ruling against the protesters threatened their causes with harsh penalties for demonstrating 243 See Beltran supra note 234 at 304 See eg Burnett v Al Baraka lnv amp Dev Corp 274 F Supp 2d 86 103 D DC 2003 The use of the privileged medium of a lawsuit to publicly label someone an accomplice of terrorists can cause incalculable reputational damage Placing that person in a situation in which he must retain counsel and defend himself has dramatic economic consequences as well JOHNSON FMT 332008 83702 AM 286 OREGON LAW REVIEW Vol 86 249 stigma of a criminal conviction over the threat of a civil penalty one is likely to fear the charge of terrorism more than the charge of trespass Both sides of contentious issues freely employ this heightened deterrent effect applying war against terrorism rhetoric to everything from lawful protestsZ46 to children s movies2 The danger to protected speech arises when such rhetoric becomes law Even though well intentioned a law that characterizes the conduct of radical members of a broad ideological group cannot help but impute to mainstream members Justice Black in American Communications Ass n v Douds described this consequence Laws aimed at one group however rational these laws may be in their beginnings generate hatreds and prejudices which rapidly spread beyond control Too often it is fear which inspires such passions and nothin is more reckless or contagious In the resulting hysteria popular indignation tars with the same brush all those who have ever been associated with any member of the group under attack or who hold a view which though supported by revered Americans as essential to democracy has been adopted by that group for its own purposes The reluctance of some sympathetic to the animal rights cause to participate in nonviolent protest for fear of con ation with 245 Attorney Fay Clayton who successfully obtained the nationwide injunction preventing antiabortion groups from interfering with women seeking abortions and other medical services from clinics that was recently overturned in NOW v Scheidler called the groups an enterprise of terrorists that operates much like al Qaedai Michele Keller Latest NOW vi Scheidler Decision Violence and Intimidation at Women s Clinics Not Protected Speech 34 NAT L NOW TIMES Jun 30 2002 at 539 cf ALEC REPORT supra note 25 at 9 Animal Liberation Front has an intriguing form of operation much like that of alQaeda 245 Picketers who met regularly outside a Portland Oregon fur showroom prompted the storeowner to express his hopes that antifur protestors will be prosecuted as terrorists under AETA Patton supra note 2 Nike CEO Philip H Knight publicly condemned fair trade advocacy group Global Exchange for using what he called terrorist tactics in a national campaign of protest and publicity RANDY SHAW RE IMING AMERICA NIKE CLEAN AIR AND THE NEW NATIONAL ACTIVISM 41 1999 247 Marc Morano New Movie Called Soft Core EcoTerrorism for Kids CNSNEWSICOM May 1 2006 httpwwwicnsnewsicomSpecialReportsarchive 200605SPE20060501aihtml 243 Susan Dente Ross An Apologia to Radical Dissent and a Supreme Court Test to Protect It 7 COMM L amp POL Y 401 419725 2002 249 339 US 382 44849 1950 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 287 violent extremists in the animal rights movement suggests that Justice Black s observation is accurate0 B Reducing Economic Incentive to Invest in Social Welfare An easier justification for placing protected speech at risk might exist if AETA added any protections not already present in existing criminal law1 AETA however merely criminalizes already prohibited conduct At the same time AETA stigmatizes animal rights supporters as a class by branding a small subgroupimilitant extremistsiwith a label appropriate for perhaps the most grave of modern criminal threatsm The unstated justification driving this stigmatization appears to be the goal of reducing or eliminating economic burdens of responding to protesters3 A chilling effect on protest is likely to contribute positively to the bottom lines of formerly targeted enterprises although one longterm consequence of a stigmatizing approach may be to drive some animal rights supporters toward violent forms of expression254 One bottomline benefit would be a reduction in the costs of security to respond to protesters The expenses of counterpublicity and legal fees also would likely abate along with concerns of customers disturbed by protests When PETA distributed documentary videos of an animal testing facility for example a major customer of that enterprise withdrew its businessm PETA General Counsel Jeff Kerr asserted before a 250 See REGAN supra note 61 at 191792 251 See Marquis amp Weiss supra note 19 questioning need for new law to combat specialinterest extremism i 252 National Security Threats Hearing supra note 20 at 23725 describing al Qaeda and related groups 253 See generally Eddy supra note 53 at 277791 criticizing protectionist approaches of State laws based on AETA s model act 254 The wellestablished relationship between availability of nonviolent avenues for dissent and application of violence suggests that AETA risks exacerbating the problem it attempts to solve See Note Safety Valve Closed The Removal of Nonviolent Outlets for Dissent and the Onset of AntiAbortion Violence 113 HARV L REV 1210 1221725 2000 255 RICO Hearing supra note 237 at 130 statement of Jeff Kerr General Counsel People for the Ethical Treatment of Animals explaining that one of the lab s customers to whom we submitted our investigation results immediately suspended all testing with Huntmgdon and conducted its own investigation saying The attitudes and behavior shown by lab technicians on the PETA undercover investigation tape are unacceptable to us The behaviors documented on JOHNSON FMT 332008 83702 AM 288 OREGON LAW REVIEW Vol 86 249 House subcommittee that negative publicity prompted the facility to engage the largest law firm in Boston to file an eightypage complaint against PETA6 Kerr testified that although the suit ended in an undisclosed settlement after six months of litigation PETA s documentary evidence helped bring about twentythree counts of violations of the Animal Welfare Act against the facility7 Protests also can launch consumer boycotts that carry severe costs8 The boycott of white merchants in Claiborne County Mississippi which gave rise to litigation that reached the Supreme Court in Claiborne Hardware Co259 provides one well known example Reviewing lower court findings in his 1982 majority opinion Justice Stevens described boycottrelated business losses including lost earnings and goodwill as exceeding 900000260 Attorney s fees for the resulting litigation brought the total cost to over 125 million261 The rhetoric used to describe protests often parallels that of some boycotts262 The goals of protests and boycotts may relate as well The Court in Claiborne described these similarities noting the Court s holding in Thornhill v Alabama that picketing with the express purpose of discouraging customers and thereby harming business sales was constitutionally videotape included Huntmgdon employees screaming and shaking their fists in the faces of strappeddown prima es 255 See id at 130731 257 Id at 131 253 In one notable case Danish dairy company Arla Foods Amba saw annual sales in the Middle East drop from 430 million to near zero in the backlash against Danish products that followed the appearance of caricatures of the prophet amnla in a Danish newspaper Richard Et tenson et al Rethinking Consumer Boycotts 47 MIT SLOAN MGMr REV 6 6 Summer 2006 259 NAACP v Claiborne Hardware Co 458 US 886 890 1982 2 50 Id at 893 2 51 Id 2 52 Compare Earth Liberation Front statement that the only way to stop the continued destruction of life is to take the pro t motive out of killing Brad Knickerbocker Firebrands of Ecoterrorism Set Sights on Urban Sprawl CHRISTIAN SCI MONITOR Aug 6 2003 at 1 with 1930s pamphlet calling for boycott of silk imported from fascist Japan stating that if your stockings are silk they helped murder thousands of babies and women workmen and peasants of China Lawrence B Glickman As Bas39mess Ethics Fall ConsumerActivism Rises BOSTON GLOBE July 31 2005 at F12 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 289 protected263 Open and vigorous efforts to increase public awareness of offensive business practices likewise receive First Amendment protection as the Court in Organization for a Better Austin v Keefe explained264 Prescient enterprises might avoid or reduce costs associated with countering such efforts by listening to the shouts of protesters when they call for business improvements that can benefit society Ignoring or suppressing protesting voices may remove a catalyst that serves to increase an enterprise s drive to improve products production methods or working conditions unnecessarily hindering social welfare and ironically increase the likelihood that business opportunities will pass unnoticed Harvard Business School Professor and former Harvard Business Review editor Theodore Levitt described this buggywhip industry practice in his nowclassic 1960 paper Marketing Myopia discussing petroleum producers entrenched resistance to demands that they change course The oil industry is trying to improve hydrocarbon fuels rather than to develop any fuels best suited to the needs of their users whether or not made in different ways and with different raw materials from oi Companies that are working on exotic fuel substitutes which will eliminate the need for frequent refueling are heading directly into the outstretched arms of the irritated motorists They are riding a wave of inevitability not because t ey are creating something which is technologically superior or more sophisticated but because the are satisfying a powerful customer need They are also eliminating noxious odors and air pollution For their own good the oil firms will have to destroy their own highly profitable assets No amount of wishful t inking can save them rom tzhwe necessity of engaging in this form of creativedestruction 2 53 Claiborne Hardware Co 458 US at 909 citing Thornhill v Alabama 310 US 88 89 1940 254 402 US 415 419 1971 2 55 Proffesor Levitt s paper sold some 850000 reprints placing it among the best selling Harvard Business Review articles of all time Louis Lavelle Theodore Levitt Dead at 81 BUS WEEK June 29 2006 available at httpwwwbusinessweekcom printjbschoolscontentjun2006bs20060629752117b5001htm 2 56 Theodore Levitt Marketing Myopia 53 HARV BUS REV 26 39 44 Septr Oct 1975 JOHNSON FMT 332008 83702 AM 290 OREGON LAW REVIEW Vol 86249 Levitt s reasoning indicates that encouraging rather than discouraging peaceful protest may produce quantifiable benefits for both society and business Although this Comment does not probe that theory extensively the next Section proffers one prominent example as an indication that additional exploration might prove fruitful C Decreasing LongTerm Competitiveness by Rationalizing Economic Protectionism Examining FACE and AETA under an economic lens reveals another similarity between the two laws Destructive violent protests whether they concern abortion or animal rights have a negative cost impact on business They increase expenses raise entry barriers and decrease the number of competitors267 These negative economic effects have prompted some commentators to suggest creative remedies beyond civil RICO including applying the force of antitrust law to nonviolent protestersZ68 Businesses however also pay when laws intended to reduce the anticompetitive effects of illegal protests chill protected speech Costs take the form of opportunities missed and resources wasted on resisting calls for improvements that once implemented may provide positive returns Discouraging protest may foster rather than prevent damage to economic value Oregon s own Fortune 500 global sports and fitness company provides a notable example of a vigorous nonviolent protest that ultimately benefited both society and business Nike Inc initially responded to what became a storm of discontent over its overseas labor practices with strict denials and attacks on its critics269 Founder and Chief Executive Officer Philip H Knight directed his most aggressive responses toward fair trade advocates Global Exchange condemning the group s national campaign of protest and publicity as constituting terrorist tactics Z70 Nike resisted taking responsibility for conditions in contract factories that fabricated its products denied claims of 2 57 Melanie K Nelson Comment The Anticompetitive Effects of AntiAbortion Protest 2000 U CHI LEGAL F 327 349 2 53 See eg id at 356 2 59 See SHAW supra note 246 at 24725 270 Id at 41 JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Consequenses 291 abuse and exploitation and refused calls for independent monitoringZ71 Sales stumbled as negative publicity peakedZ72 Mr Knight characterized himself as the poster boy on globalization 73 The company s evolving response suggests the folly of discouraging nonviolent protest Dropping the strategy of denial and activist suppression Nike began to overcome the backlash and eventually took the industryfirst step of disclosing the names and locations of its more than 700 contract factoriesZ74 Labor activists prize such information because it allows independent assessment of working conditions Nike described its embrace of a more responsive strategy as learning the hard way 276 Workers rights advocates who campaigned against the company s practices grudgingly praised its steps toward correcting what they called countless abuses that labor advocates have struggled to bring to light for years 277 Shareholder advocates too must have been pleased to see the quantifiable economic benefits that accompanied improvements of at least some degree in the working conditions in overseas footwear and apparel factories A leading socially responsible mutual fund for example considered Nike an acceptable 271 See Rachel Stevenson Bus39mess Analysis Global Brands Learn to Mind Gap in Public Mood on Ethical Trade lNDEP LondonMay 182005 at 57 272 Special Report The Best amp Worst Managers ofthe Year BUS WEEK Jan 10 2005 at 64 In early 2000 kids stopped craving the latest basketball sneaker Nike s image took a huge hit from its labor practices Sales slumped and costs soared 273 Jeff Manning Asian Labor Pro ts Nike but Abuses Have a Price BIRMINGHAM NEWS Alai Nov 26 1997 at 1C 274 Rukmini Callimachi Nike No Longer Sneaky About Factories COURIER MAIL Queensli April 14 2005 at 28 Nike eventually admitted to countless abuses that labor advocates had struggled to bring to light for years Educating for Justice Vi r iNike Discloses Factor Locationsl http www reducatingforjusticeorgstopnikesweatshopsihtm last visited J an 17 2007 275 Laura Smitherman Nike Gets a Good Report Card AntiSweatshop Watchdogs Say Apparel Maker is Doing Better BALT SUN Aug 19 2005 at 1E 275 Stevenson supra note 271 at 57 lt has taken a long time to get to this point at Nike and we have made many mistakes For many years we were defensive about it and saw it as just a PR problem Now we see it as art of the way we run our business quoting Nike VicePresident of Corporate Responsibility Hannah Jones 277 Educating for Justice supra note 274 JOHNSON FMT 332008 83702 AM 292 OREGON LAW REVIEW Voi 86 249 investment after improvements were made278 Nike began to consider its own corporate responsibility to be a performance enhancement not merely a reputation protectorZ79 As the Nike example indicates nonviolent protest can catalyze business growth Violent forms of expression carry destructive consequences that compel their prohibition but if targeting the violent discourages the nonviolent the risk may be harm to the economic interests that protectionist statutes like AETA purport to safeguard CONCLUSION Laws of general application are used to convict arsonists thieves murderers trespassers and vandals every day The special interests that some who commit these crimes share provide no insulation from prosecution Nor does the zealous commitment of extremists to causes that others advocate for with equal but nonviolent force indicate a need for particularized law enforcement tools General laws can protect against violent extremism without risking the stigmatization of the interests that militant activists support The industryspecific protectionism that AETA provides on the other hand besmirches a whole movement by characterizing its fringe element in highly charged prejudicial terms As the example of FACE proves merely criminalizing in express terms a specific application of ordinary criminal conduct can generate a chilling effect on related but innocent conduct Association of an in ammatory label such as terrorism with that process is likely to compound the chilling effect on protected protest speech Indications of such augmentation are already apparent Congress should recognize that statutory savings clauses provide little or no reassurance to mainstream activists for animal rights or any other issue Characterizing conduct under misapplied pejorative labels and coupling the characterization 273 Smitherman supra note 275 at 1E 279 Michael Skapinker Nike Ushers In a New Age of Corporate Responsibility FIN TIMES London Apr 20 2005 at 11 The company sees business benefits from its new openness The Nike Considered shoe range is an example Designed in an attempt to meet consumer demand for a product containing fewer toxic chemicals the shoe the company ended up making consumed less material and energy JOHNSON FMT 332008 83702 AM 2007 Cages Clinics and Camequemes 293 with harsh penalties practically ensure a chilling effect however precise the regulation Justice Marshall dissenting in Amett v Kennedy pointed out that ultimate vindication is of little consequenceifor the value of a sword of Damocles is that it hangsinot that it drops 280 Courts should treat AETA with the caution such an implement requires distinguishing between protest activity and terrorism in unequivocal terms in their decisions on AETA and any future similar laws aimed at protecting other industries Activists who commit crimes in support of their causes can neither hide from existing law nor find safe haven for their actions within the Constitution Justice Douglas made this clear in Samuels v Mackell emphasizing in his concurrence that the use of weapons gunpowder and gasoline may not constitutionally masquerade under the guise of advocacy 281 AETA was not necessary to protect against such threats Its passage devalues critical commentary on the hardship of animals in experimentation food production product testing and entertainment Society should hear these unpleasant but necessary expressions The Constitution safeguards them That fact makes AETA s Damoclean sword a threat of considerably graver concern 230 416 US 134231 1974 Marshall J dissenting 231 401 US 66 75 1971 Douglas J concurring JOHNSON FMT 332008 83702 AM 294 OREGON LAW REVIEW Vol 86249
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