David Hoch* and Odette Wilkens**

March 9, 2007

Andrew Kohn's editorial,[1] for those who missed it, was an enthusiastic apologia defending and supporting the recently passed Animal Enterprise Terrorism Act (AETA).[2] It was an interesting essay, in which Mr. Kohn implied sympathy with animal rights causes and activists by at one point stating "[t]hose of us in the animal rights movement,"[3] but showed no such sympathy in his arguably odious characterization of animal rights activists, at one point in his paper, labeling these activists as "terrorists,"[4] a strange expression of camaraderie, indeed.

The Act in question has the ostensible intent to "provide the Department of Justice the necessary authority to apprehend, prosecute, and convict individuals committing animal enterprise terror."[5] Not to worry if you don't know what "animal enterprise terror" is, for it is too vague a term to mean anything either definable or adjudicable, but it seems under the Act to include anything which in any way interferes with the conduct of any commerce whatsoever, be it legal or illegal, involving animals or animal products. It also, as will be shown below, tramples upon First and Fourteenth Amendment rights, but in our war on terror, the first casualty is constitutionalism.

Pointing out that the law was passed under Congress' Commerce Clause power,[6] Mr. Kohn quite correctly asserts that "precious little will be able to escape the reach of this bill as ‘animal enterprises' can almost always make a plausible argument for influence on interstate and foreign commerce."[7] That is why this invidiously discriminatory Act, which also flagrantly chills constitutionally protected speech, should be opposed with vigor and, let us hope, efficacy.

AETA promotes the maximization of profits for all industries that use animals as commodities and inanimate disposables, and the minimization of interference with those enterprises by those concerned with the wretched suffering of animals. How does the Act pursue this end? It simply risks categorizing all animal activists who in any way "interfere" with "animal enterprises," as terrorists.

Mr. Kohn points out that the Act punishes any intentional act which, either by "damaging or causing the loss of any real or personal property," or placing a "person in reasonable fear of death or serious bodily injury to that person."[8] Mr. Kohn states that "[t]he most important word in the entire Act is ‘intentional,' " explaining it is "outrageous that animal terrorists believed intentionally harassing fast-food executive and/or his family is consistent with ethical behavior."[9] Leaving aside the fact that the nearly unanimous majority of animal rights activists would never dream of harassing anyone, let alone placing a person in reasonable fear of anything, he didn't mention that the American Civil Liberties Union (ACLU) requested that the phrase "loss of any real or personal property" be amended to say tangible property, because otherwise one might be found guilty of terrorism if she or he, by wholly nonviolent and constitutionally protected behavior, caused someone to lose profits.[10]

The legislative committee added the words "loss of profits" as a basis for liability in the penalty section of the Act, a decision Mr. Kohn understands the importance of, because he placed this phrase in italics in his editorial, stating that " ‘[l]oss of profits' is a blanket term that could apply to any number of activities undertaken by animal rights groups."[11] Leaving aside the ambiguity of that statement, Mr. Kohn's explanation that "there would be a level of reasonableness involved in this form of economic damage as it must be defined under a cloud of intentional behavior"[12] is truly remarkable. It seems reasonable to conclude that Mr. Kohn is presuming that animal activists will be treated fairly under an Act that was designed to imprison them for engaging in the nonviolent exercise of constitutionally permissible free expression.

He then asks if complaints about the Act are a publicity ploy by those "unable to effectively fight for animal rights because of their already marginalized status."[13] Mr. Kohn has employed both tortured logic and syntax in defending the equity of AETA.

He then assures the reader that the Act makes an exception for "lawful economic disruption (including a lawful boycott)."[14] However, the seeming exemptions for First Amendment rights are illusory, because the Act's language emphatically restricts the very rights it later alleges to protect. Stating that lawful boycotts are protected does not make it so. One person's boycott is another person's interference, which, under AETA, spells terrorism. Mr. Kohn further opines that "[t]he distinction between lawful loss of profits and those that create an economic damage seem readily apparent and contestable in a court of law."[15] This distinction is only readily apparent to Mr. Kohn and the four hundred twenty nine members of the House that never voted on the Bill. How then, did the Bill pass the House?

The House Judiciary Committee placed AETA on the suspension calendar, under which process, bills that are non-controversial can be passed by voice vote.[16] Then the vote on the bill was held hours earlier than scheduled, with what appears to have been only six Congresspersons present.[17] Five voted for the bill, and Dennis Kucinich, who said that "[t]his bill will have a real and chilling effect on people's constitutionally protected rights,"[18] voted against it. Was this a non-controversial bill, belonging on the suspension calendar? One hundred and sixty groups, including the National Lawyers' Guild, the Natural Resources Defense Council, the League of Humane Voters, the Physicians Committee for Responsible Medicine, and the New York City Bar Association opposed its passage.

Mr. Kohn admits that the universally respected Humane Society of the United States (HSUS) was also troubled by the chilling effect the bill would have on "a broad range of lawful, constitutionally protected, and valuable activit[ies] undertaken by citizens and organizations seeking change,"[19] but he dismisses the reservations of Kucinich, the HSUS, and the more than two hundred groups opposing the bill,[20] by explaining that "[a] chilling, however, is not an end. It is a cautionary flag that asks groups to carefully think about their decision before they act,"[21] and even more incredulously adds that "thoughtful groups should not have difficulty in either working around these new limitations or successfully litigating unconstitutional provisions of the Act."[22] Thoughtful groups might, however, find difficulty in working around these new limitations if their members are imprisoned for engaging in activities that, prior to AETA's passage, were protected by the Constitution.

Mr. Kohn posits a unique notion of governance, by essentially suggesting that the burden of assuring constitutional legislation falls on a vigilant citizenry, rather than its elected representatives in Congress.

The patina of "reasonableness" that Mr. Kohn casts over this Act, and his allusion to the ease with which its unconstitutional provisions might be litigated, are too facile. AETA does have a chilling effect on advocacy, that being the reason the law was passed, and no "cautionary flag" is justified when it means that people must pause or stop exercising their First Amendment rights, lest they go bankrupt defending themselves against unconstitutional charges, while the threat of extensive fines and incarceration hang over their heads like the sword of Damocles.

Mr. Kohn assures those suspicious of AETA that the political process can bring about "other bills with the power to counter such legislation,"[23] rationalizing his support of a bad bill by assuring us that future legislation can neutralize its detrimental consequences. He unsympathetically adds that positive change will not come "from the subversive fringe that look (sic) to disrupt society in the ill-fated hope of raising awareness and succeeding in their (sic) mission."[24]

In his concluding paragraph, Mr. Kohn counsels us to ask why we have AETA and "what can be done to overcome it,"[25] a strange query from an ardent defender of the Act. As an alleged member of the animal rights movement, he should know that this law was passed to chill constitutionally protected activities that would increase public awareness of the brutality employed by "animal enterprise" industries.

Space precludes a lengthy analysis of the Act's particulars, but a brief consideration of some of its other shortcomings may buttress the fact that Mr. Kohn was cavalier in dismissing the concerns of AETA's critics.

Under AETA, merely intending to engage in acts that cause no harm or damage, but interfere with an animal enterprise, may result in fine and imprisonment. For example, if two people living in different states exchange e-mails evidencing a clear intention to cause "economic damage" to an animal enterprise, by persuading customers to purchase less veal at a supermarket, their conduct may constitute both legal "attempt" and "conspiracy" under AETA, subjecting the e-mailers to electronic surveillance [18 USC Section 2516(1)(c)] and a fine and up to a year in prison.[26]

The law targets animal rights activists, subjecting them to stiffer criminal sanctions than others who commit identical "crimes" not aimed at animal enterprises. AETA's disproportionate penalties exceed the 2005 federal sentencing guidelines, and single out animal activists for negatively disparate treatment, in violation of equal protection guarantees under the Fourteenth Amendment.[27]

The language in AETA is unconstitutionally void for vagueness. The term "animal enterprise" is subject to countless interpretations, and the word "interfere," which suffers from similarly obfuscatory imprecision, could be used to chill and proscribe undercover investigations and whistle-blowing activities that expose illegal animal enterprises. It may also bar acts of civil disobedience. Under the provisions of this Act, Martin Luther King, Jr. might have been convicted of animal enterprise terrorism if a lunch-counter he sat at lost profits that day. The penalties for nonviolent acts of civil disobedience, such as sitting in front of an office door, are "…a fine or imprisonment for not more than one year, or both."[28]

The threshold of proof for alleged profit loss, the causing of which constitutes animal terrorism under AETA,[29] appears to be nil. Glaringly absent from the Act are provisions for restitution for wrongful arrest or prosecution, loss of reputation, lost wages, attorneys' fees, etc., although anyone wrongfully arrested under the Act risks being humiliated, disgraced, and permanently branded as a terrorist in the court of public opinion. The Act also serves as a predicate for wiretapping animal rights advocates [18 USC Section 2516(1)(c)], as intent to interfere with an animal enterprise appears to be sufficient cause to justify surveillance.

It is not likely that all legitimate protest activities will necessarily be exempted from prosecution under the Act. AETA's vague and overly broad wording would likely subject even lawful protestors to wrongful arrest and prosecution. So thought the ACLU, when in March, 2006, it argued that "…AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts. The bill is overly broad, vague, and unnecessary…"[30] The Act's boilerplate words assuring constitutional protections are not a panacea, but a Pandora's Box.

Mr. Kohn is entitled to his opinion of AETA, but as Bobby Kennedy once advised, "[w]isdom can only emerge from the clash of contending views,"[31] and in that spirit, this alternative assessment of the Act, for all the above-stated reasons, considers Mr. Kohn's dismissal of legitimate concerns regarding AETA to be unwise and naive.

Perhaps Congressman Dennis Kucinich, a Democrat from Ohio, best captured AETA's failings, when he said, "[m]y concern about this bill is that it does nothing to address the real issue of animal protection but, instead targets those advocating animal rights."[32] AETA is an unconstitutional and mean-spirited product of "animal enterprise" lobbying that should be overturned by wise judges serving as "a counter-friction to stop the machine,"[33] or repealed by a Congress which passed this bill through a glass darkly, but then came face to face with compassion.

*Adjunct professor who teaches an animal rights seminar at the University of Florida Levin College of Law.

** Executive Director of the Equal Justice Alliance located in Bethesda, Maryland.

[1] Andrew Kohn, The Animal Terrorism Enterprise Act: A positive for the animal rights movement?, Vt. J. Envtl. L., Dec. 14, 2007, http://www.vjel.org/editorials/2006F/Kohn%20HTML.html.

[2] The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 (2006).

[3] Kohn, supra note 1.

[4] Id.

[5] The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 , Preamble (2006).

[6] U.S. Const. art. I, § 8, cl. 2.

[7] Kohn, supra note 1.

[8] Id. (citing The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 § 2 (a) (2) (A-B) (2006)). Kohn's quotation of § (a) (2) (A) is not verbatim, as that section of the statute actually states "intentionally damages or causes the loss of any real or personal property… ."

[9] Kohn, supra note 1.

[10] Letter from Caroline Fredrickson & Mark Johnson, American Civil Liberties Union, to Honorable F. James Sensenbrenner & Honorable John Coyens, respectively Chair and Ranking Member of the House Judiciary Committee, ACLU Urges Needed Minor Changes to AETA, But Does Not Oppose Bill (Oct. 30, 2006), http://www.aclu.org/images/general/asset_upload_file809_27356.pdf.

[11] Kohn, supra note 1.

[12] Id.

[13]Id.

[14]Id. (citing The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 § (d)(3)(B) (2006)).

[15]Id.

[16] The Library of Congress, http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN03880:@@@S.

[17] Equal Justice Alliance, http://noaeta.org/report.htm.

[18] Congressman Dennis J. Kucinich, Statement of Congressman Dennis J. Kucinich (D-OH) on the Animal Enterprise Terrorism Act, http://www.greenisthenewred.com/blog/2006/12/01/kucinich-aeta-statement (posted on Dec. 1, 2006).

[19] Kohn, supra note 1 (quoting The Humane Society of the United States, Animal Enterprise Terrorism Act, at http://www.hsus.org/legislation_laws/federal_legislation/animals_in_research/animal_enterprise_terrorism.html (last visited Nov. 30, 2006).

[20] Equal Justice Alliance, AETA Opposition List, http://www.noaeta.org/opposition.htm.

[21]Kohn, supra note 1.

[22] Id.

[23] Id.

[24]Id.

[25]Id.

[26] The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 § 2 (b) (2006).

[27] U.S. Const. amend. XIV, §2.

[28] The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 § 2 (b)(1) (2006).

[29] The Animal Terrorism and Enterprise Act, Pub. L. No. 109-374 § 2 (d) (3) (A) (2006).

[30] Letter from Carolin Fredrick & Lisa Graves, American Civil Liberties Union, to Congress, Urging Opposition to the Animal Enterprise Act, S. 1926 and H.R. 4239 (Mar. 3, 2006), available at http://www.aclu.org/freespeech/gen/25620leg20060306.html. In October 2006, the ACLU inexplicably withdrew its opposition to the Act, although it still recommended several changes in the law. See Fredrickson & Johnson, supra note 9.

[31] Robert F. Kennedy, quoted in Dissent from Poverty-Kennedy: Civil Rights, The Daily Californian, Oct. 24, 1966.

[32] Kucinich, supra note 15.

[33] Henry David Thoreau, Walden and Civil Disobedience, 396 (1849).