Crime vs. Terrorism: The Case Against AETA

As one commenter recently noted, 4 animal rights activists were recently arrested and charged with suspicion of terrorism for their threats and harassment of University of California researchers (full story here).  I have not seen enough details to take a substantive position on the case but I do have something to say about the the Animal Enterprise Terrorism Act (AETA), the law under which the defendants were charged.  AETA is, in my view, one of the most dangerous laws this nation has ever enacted.  Here’s why:

The following scenario could happen tomorrow: A sixty-eight year old grandmother from Long Island gets tired of reading about the awful conditions in factory farms and determines to see for herself.  She receives permission from Big Food, Inc. to visit a company facility in New Jersey.  Big Food insists, however, that she take no pictures while inside and she agrees.   During the tour, the woman becomes sickened by the conditions under which the animals are housed and surreptitiously snaps a few pictures on her cell phone.  She then circulates the photos to an animal rights group for posting on the group’s website along with a plea that something be done to save the animals.

Did our Long Island grandmother break the law?  Absolutely.  She could be prosecuted for trespass, harassment and other violations, in addition to facing civil liability.  But thanks to AETA, she has become more than a mere lawbreaker.  She is now a terrorist.

AETA became law in November, 2006.  It was enacted ostensibly because industry groups feared violent attacks by animal rights “extremists.”  Yet, AETA’s predecessor, the Animal Enterprise Protection Act (“AEPA”), already contained harsh penalties for violent acts against animal enterprises.  AETA incorporates those penalties but also goes much further.

Under AETA, non-violent “interference” with an “animal enterprise,” which causes no economic damage and endangers no one, can land a person in prison for a year.  If economic damage results, the penalties increase dramatically.  For example, if our fictional grandmother’s behavior inspired acts of civil disobedience (e.g., forming human chains that prevented trucks from transporting animals in or out of the facility) that caused Big Food to lose money, she could face ten years.  Yet, if her deeds had been directed at a non “animal enterprise,” she would likely incur a fine and/or community service.  At best, this harsh, arbitrary and selective prosecution amounts to bad public policy.  At worst, it violates the Constitution.

To pass constitutional muster, a law cannot be vague or overbroad or impose cruel or unusual punishment.  It must also have a rational basis for existing.  AETA fails in all three categories.

First, it is both vague and overbroad.  As the law is written, virtually anything could be an “animal enterprise” and the supposedly criminal behavior of “interfering with” such enterprises is very poorly defined.  Despite good faith efforts to comply with the law, one could still be violating AETA without knowing or meaning to do so.

Second, AETA imposes disproportionate sentences far in excess of those imposed for similar behavior under other laws.  Indeed, its penalties dwarf those for crimes most of us would consider far more severe.  For example, it is hard to understand why someone protesting slaughterhouse conditions could land in jail for ten years while sex offenders usually do less than five.

Finally, AETA (re)criminalizes conduct that neither causes nor threatens bodily harm, economic damage, or even non-violent physical obstruction, and which is already illegal under existing state and federal law.  Such redundancy lacks any rational basis.  It seems more concerned with stifling dissent than protecting the public from terrorism.

Terrorism usually refers to the intimidation (terrorizing) of a civilian population through mass destruction, assassination or kidnapping.  A terrorist is someone who commits such acts.  Classifying standard-issue crimes – including civil disobedience – as terrorism conflates crime (the breach of a legal duty), and terrorism (the use or threat of violence to intimidate or cause panic, especially as a means of affecting political conduct).  All terrorists are criminals but not all criminals are terrorists.  Merging the two erodes normative protections that our founders painstakingly created to safeguard us from tyranny.

Under AETA, well-meaning citizens peacefully trying to bring about social change become the domestic equivalent of enemy combatants.  The danger here is not just that people like our grandmother from Long Island will become stigmatized and get imprisoned for long periods, though that by itself would be problem enough.  It is also that over time, the term terrorism will lose its meaning.

Terrorism should mean something.  We should fear it, do everything we can to suppress it, and punish it when it occurs.  When our government labels something a terrorist threat, the national response should be one of unity and singularity of purpose.

Yet, some activities classified as terrorism under AETA enjoy widespread sympathy and could also be constitutionally protected.  For example, organized protests against puppy mills or the treatment of veal calves could lead to prosecution under the Act.  Calling such protests terrorism has a deeply pernicious effect.  When the nature of the so-called terrorism becomes plain, we could find ourselves empathizing with the perpetrators.  That means we would become – in the eyes of our government – terrorist sympathizers.

So what has AETA wrought?  It has produced a legal regime that stifles free expression and labels dissent a terrorist act.  As a result, it has created a rogue nation of terrorists and terrorist sympathizers and opened a new front of the War on Terror.

We have met the new enemy.  And once again, it is us.

dnc