December 29, 2011
Although many other countries allow expansive restrictions on what you can say, we in the U.S. have the First Amendment, which prevents the government from imposing such limits on speech (with only a few exceptions).
Because of these protections, we can rest assured that Congress won’t pass any laws that unconstitutionally restrict our freedom of speech.
That theory doesn’t always pan out in reality, though.
Exhibit 1: the Animal Enterprise Terrorism Act.
The AETA was created in 2006 with the passage of amendments to 1992’s Animal Enterprise Protection Act (AEPA), and the purported intent of both is to target terroristic acts by animal rights activists.
While AEPA was probably unconstitutional, the AETA certainly is.
The law criminalizes interstate travel or using the mail system “for the purpose of damaging or interfering with the operations of an animal enterprise” by doing one of the following:
- intentionally damaging or causing the loss of any property of an animal enterprise, or any property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise;
- intentionally placing a person in reasonable fear of the death or serious bodily injury by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or
- conspiring or attempting to do so.
None of this would be terribly vague if not for the definitions of some key terms.
For example, we don’t know what the “to do so” after “conspiring or attempting” means (yes, that’s exactly how the statute is written).
Also, “animal enterprise” can include “a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing.”
Okay…I’m having a hard time thinking of organizations that aren’t animal enterprises.
“Property” isn’t defined, but the Penalties section measures the severity of the punishment by “economic damage,” which includes “increased costs” and “lost profits.”
These points and more are explained by the Center for Constitutional Rights in their recently-filed lawsuit challenging AETA.
Hot Doc: Blum v. Holder
I’m honestly surprised it took this long for someone to challenge the law.
Maybe it’s less surprising if you consider the bad rap animal rights activists get, but AETA seems so clearly unconstitutional that one has to wonder why no individual or organization attempted an earlier challenge.
Defenders of the law will be quick to point out several clauses intended to assuage fears of unconstitutional applications.
Namely, there’s a section in the definition of “economic damage” that specifically excludes a “lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise.”
However, the ad nauseam use of the term “lawful” indicates that a judicial hearing is necessary to determine whether a boycott or a public information disclosure is acceptable under the law.
So, if you have to go to court if you’re sure that your public disclosure is lawful, you’d still probably think twice about that disclosure since there’s always the chance a judge will disagree.
Does that chill speech?
The last section of AETA – the other savings clause – basically states that the law shouldn’t be construed to prohibit constitutionally-protected speech.
Considering that Congress doesn’t have the power to prohibit constitutionally-protected speech in the first place, this section doesn’t make any sense.
In addition, as pointed out by the lawsuit, considering that there’s no clear marker defining what speech is constitutionally-protected, citizens are left to test the boundaries of the law themselves.
That is the textbook definition of “unconstitutionally overbroad.”
Lastly, other than being overbroad and vague, the complaint points out that AETA is a content-based restriction on speech (meaning that it specifically targets speech advocating for animal rights).
Think about it this way: AETA purports to target animal rights-based terrorism, but all of the terroristic acts contemplated by the law are already illegal on both the federal and state level.
And that would be fine if the law, as currently written, explicitly targeted only terroristic acts, but, as discussed above, it doesn’t.
Anyhow, the complaint’s case is pretty strong, and the only reason that I could see it failing is judicial biases – that is, the aforementioned bap rap that animal rights activists get.