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.


6 Responses

  1. I have several problems with my colleague’s recitation of AETA evils. First, while my heart was stricken by the hypothetical of the grandmother from Long Island, a simple reading of the relevant act reveals that the actus reus must include some deprivation of real or personal property, or both, to a person or entity protected by the law. Thus, her merely snapping photos with her cell phone camera can not rationally constitute an offense under the AETA.

    It is true that this grandma might face state criminal trespass charges but the law has treated surreptitious entry onto private property for purposes other than those granted by the possessor or owner as both a criminal offense and a tort for a very long time. The grandma would be in the same position under existing law as, for example, those who enter abortion providing facilities under false pretenses to further their anti-choice agenda.

    And it’s worth noting that while the grandma hypothetical is the kind of problem that gets law students thinking and may illustrate a possible overbroad misuse of a law, the actual case I reported deals with far more dire acts (whether they can be proven or not).

    I also disagree that there can be any serious constitutional challenge to the AETA’s penalty provisions. Reasonable people, of course, may differ on the wisdom and efficacy of any criminal sanction. That’s a policy matter for the legislature to deal with. The Supreme Court, apart from death penalty issues, has largely abstained from creating a jurisprudence of proportionality and so have the highest state courts. Proportionality is more in the bailiwick of scholars than jurists. Federal criminal statutes based on the Commerce Clause generally provide for greater penalties than state laws addressing the same prohibited conduct, e.g., bank robbery, kidnapping.

    My colleague is quite correct that labeling a person a terrorist “has a deeply pernicious effect.” I suggest that is exactly why laws like AETA and access to abortion providing facilities are enacted. There is a great deal of difference between a serial, armed bank robber whose explanation for his activities is to quote the late and hardly lamented Willy Sutton and those who wish to derail lawful activity by non-democratic acts. The former with his penchant for violence is not a terrorist, the latter is. Dumb teens who engage in the suddenly popular “sport” of fence crashing are nuisances, not terrorists. Those who paint threatening words or symbols on mosques, synagogues, abortion facilities or facilities dealing with animals may well be.

    This is a terrific blog and one of the first sites I pull up each day.

  2. […] responsible need fear prosecution under AETA (Animal Enterprise Terrorism Act).  I have blogged elsewhere about the danger of AETA’s vagueness and its overbreadth and here is an example of what I […]

  3. […] in order.  First, AETA is a beast of a law.  As I have noted elsewhere, it runs afoul of both the Constitution and common sense. This dismissal did not reach the constitutionality of the law, just the unconstitutionality of the […]

  4. […] are in order. First, AETA is a beast of a law. As I have noted elsewhere, it runs afoul of both the Constitution and common sense. This dismissal did not reach the constitutionality of the law, just the unconstitutionality of the […]

  5. […] his excellent analysis, Pace Law Professor David Cassuto wrote on his Animal […]

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