Radio as Animal Enterprise — Some Further Thoughts on AETA

The Earth Liberation Front claimed responsibility for downing two towers in Snohomish County, Washington.  The ELF statement declared that: “AM radio waves cause adverse health effects including a higher rate of cancer, harm to wildlife, and that the signals have been interfering with home phone and intercom lines.”  No one was injured but the property damage was apparently significant.  Read about it here.

The government has labeled ELF a domestic terrorist threat and acts like these domestic terrorism.  My question is whether those 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 we have an example of what I mean.

AETA targets anyone who damages or interferes with “the operations of an animal enterprise.”  “Animal enterprise” includes: “a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing.”   Since radio stations undoubtedly use animal products (e.g. a leather couch or chair), does that make them animal enterprises?  Does that mean that those responsible for destroying the towers violated AETA?  Since the ELF statement indicates that they committed the act partly to protect wildlife, does that make it appropriate to prosecute them under AETA?

What if an anti-choice zealot bombs an abortion clinic to protect unborn humans?  Abortion clinics are animal enterprises under AETA’s definition as well.  Should AETA reach that action?  If not, is it because one act aimed to protect animals and one to protect fetuses?  And does that mean terrorism done to protect animals is worse than terrorism done to protect fetuses?  Does that mean some terrorism is worse than others because of its ideology rather than the nature of the perpetrated acts?  Does it seem right, proper (or constitutional) to have this type of content-based discrimination?

–David Cassuto

16 Responses

  1. Excellent points to consider. The AETA is such an awkward piece of legislation. Not to mention that it totally gags free speech – If I say something against McD’s crappy burgers, and they suffer damage I’m a “terrorist”. Pleeze!

    It’s a ridiculous law – Meant only to serve unjust corporate interests.

  2. One of the worst things about AETA is that its vagueness creates so much uncertainty about its coverage. In a world full of very poorly drafted laws, the ineptitude underlying this one stands out.

  3. Certainly this act could have been better drafted and in its present form, assuming its constitutionality is upheld, judicial interpretation will be necessary although not necessarily frequent. What’s new about laws that need a hefty amount of judicial analysis?

    I don’t view this as a content-based restriction on speech from my now almost forty years in the First Amendment arena. Motive to commit a crime has been upheld as the basis for both enhanced criminal sanctions and laws that protect certain facilities such as abortion clinics. There is a categorical difference between an anti-Choice act of violence against an abortion clinic and a bombing of a dental clinic because the perpetrator’s dentures were poorly crafted.

    The bombing referred to by my colleague is certainly an act of terrorism within the common meaning of the term – it is an attempt to influence, change or intimidate, not the usual crime for profit or, occasionally, revenge. That the perpetrators who admitted guilt (I never use the word “responsibility” for these criminals) state that the tower emissions harmed animals adequately and fairly brings their act within the purview of the AETA.

    It is axiomatic that a law is not constitutionally flawed because the legislature, for whatever reasons, chose to address one evil rather than comprehensively seek to deal with many.

    We will be covering the AETA and the Supreme Court case in my First Amendment seminar this semester and I hope different views are vigorously presented.

  4. The issue is not whether motive is an acceptable tool for determining the nature of a crime. It is rather that, when 2 acts both fit the definition and only one is punished because the prosecutor feels one motive for terrorism is worse than another, then the law’s aim and its coverage do not agree and enforcement becomes wholly arbitrary. That is the case here. If both the clinic and tower bombings were of animal enterprises, then both acts theoretically violate AETA. Indeed, any and all acts of violence that meet the state’s definition of terrorism likely violate AETA. Yet the law will be implemented selectively based on a subjective determination of whether the perpetrator’s motivation was sufficiently focused on animal protection. Herein lies a crucial flaw. Either AETA is all-encompassing, in which case it is irrelevant and silly (by its terms, only vegan enterprises are exempt from protection, a fact that arguably gives those vegan enterprises an equal protection claim) or it encourages a form of selective and unpredictable law enforcement. The latter is mighty problematic.

  5. How different is it when a decision is made to prosecute for a crime based upon a particular motive and not even include the more generic crime as a subordinate charge? How different is it to federally prosecute someone for espionage when there are state criminal charges related to the person’s activities which by agreement are not brought? Discretion is at the heart of prosecution and bad decisions are made. So are good ones.

    How would a vegan enterprise get standing to argue that AETA was underinclusive when under no set of facts could the vegan person or organization come under AETA?

  6. I don’t understand your first query but as far as I can tell neither it nor your second is analogous to AETA, where there is only one law under discussion. Either one has notice of those who fall under the law’s protection or one does not. Here one does not unless it applies to the whole world save vegans. In that latter case, I agree there is a threshold standing issue for those excluded from the law’s protection but that does not mean there is no claim — just that they would have trouble asserting it. And it certainly makes the law utterly inane.

  7. I’m not in a position to agree or not as to whether this law is “inane.” Perhaps by the end of the semester I will be enlightened. But I do know that inanity is no basis for finding a law unconstitutional and to the extent that readers of this dialog are not beneficiaries 🙂 🙂 of a law school education, the distinction is worth highlighting.

  8. Inanity, no. Vagueness, overbreadth and impingement on the First Amendment, yup. Inanity is a reason for repeal and for laws never to have been passed.

  9. […] this piece on a recent action by the Earth Liberation Front. The article can also be viewed at its place on the Animal Blawg […]

  10. Obviously I don’t have the benefit of a legal education – And only after reading the comments (arguments) several times over, do I understand the issues better. In laymen’s thoughts I agree that the AETA doesn’t make sense because it can’t/doesn’t distinquish “animal enterprise” from “abortion clinic”, or radio tower. This is a new perspective for me…

    And the other complication, (which if I understand correctly), excludes vegans from protection of this law… Because by definition vegans don’t “profit” from animals, and therefore would never suffer damages.

    I always thought it was a bad law because it “just” impeded 1st Amendment Rights, for special interests. Now I see what an arbitrary law it is on many other levels as well. I intend to learn a bit as your thoughtful minds sort it out. – 🙂

  11. It’s great to have you aboard, Bea. And you do indeed grasp the legal/ethical dilemma under debate.

  12. Hey I used to rally with PETA way back, but I never participated in destroying public or private property. I believe in peaceful protesting.

    Do we understand how difficult it is to pass any animal protection bills at all. I believe as long as they can confine this law to animals and not include people “vegans” it will be ok. Its never right to do wrong in order to do right, never. Two wrongs dont make a right. It is never ok to kill or destroy property for any reason.

    Extremists never help the cause even though thats a clear intention. I was just wondering what was wrong with the law before this group? Were people getting away scott free for blowing up research facilities in the name of animal protection?

    I dont see the need for it, but if we have it we can at least keep extremism from gaining popularity. It would make organizations spend resources on effective means of influence. Spreading fear is not an answer. Distributing facts and truth gets results.

  13. Just for clarification here: no one is advocating violent, dangerous protests and no one was getting away scott free for blowing up research facilities, nor does anyone believe they should. One of the problems with this legislation is that it is meant to apply to animal enterprises, which could be any number of things. Therefore you can’t really confine it to animals, if you believe this is proper, which I don’t, because I don’t believe people advocating for animals are any more dangerous and deserve harsher punishments than those advocating for other causes. It leaves prosecution of the law so varied that it doesn’t reach the actual aim of thwarting these types of violent protests for animals. Also, those engaged in this type of violence against animal enterprises don’t seem to care much about the legality of their actions anyway. Before this statute was enacted there were other ways to prosecute them and yet they continued with these activities. If you want to prosecute people for blowing up a building, great, but considering how many buildings use animal products and therefore can be termed ‘animal enterprises’, it makes the determination of whether to prosecute under this statute or other criminal statutes instead, difficult if not completely ridiculous since it will be up to the subjective determination of the prosecution. Perhaps this is a very bad, incorrect analogy, but suppose wording in hate crime legislation said you could be prosecuted for crimes against someone based on their “values”, “beliefs” or “physical appearance”. Obviously legislators can say that it was meant to focus on race, religion, ethnicity, gender and disability. But what if I hate red heads and target them. This is a physical appearance. What if I don’t like people who believe in aliens. Why shouldn’t I be prosecuted too under this vague hate crime legislation. Clearly this is an extreme analogy, but the point is that AETA is so vague it can be applied to almost everything, and therefore can target people it wasn’t intended to, so why do we even have it at all. Finally, the statute also targets non violent physical obstruction of an animal enterprise. Imagine the many ways you can theoretically obstruct an enterprise non violently. It also targets those who intentionally cause the loss of any real or personal property (including animals). Again, imagine the myriad of ways this can be done with peaceful means and non violence.

  14. Matthew Strugar, of the Center for Constitutional Rights, made a similar argument in San Jose Federal Court on July 13 (when he made the oral arguments on the constitutional challenge to the AETA statute). Basically, EVERYTHING is an animal enterprise, therefore the statute is both content-based and opens itself to selective prosecutions. Since the law passed in 2006, I’m sure we can find dozens of examples of department stores, hardware stores, or mini-malls that were vandalized by teenagers. The suspects may have been apprehended and prosecuted, but certainly not federally. Keep in mind that almost any business vandalized meets the threshold of inclusion under AETA (uses or sells animal products or does business with an animal enterprise).

    The AETA was promoted steadfastly by the Foundation for Biomedical Research, and the animal-testing pharmaceutical lobby (Merck was a big funder, etc.) It is so clearly designed to influence the public consciousness, curtail the chances of fair trials amid terrorism rhetoric. It should be rejected. There are a number of petitions folks can sign. Here is a recent petition to key members of Congress demanding a repeal of vague, over-broad, content-based, and unconstitutional law:

  15. […] cautious optimism, a few cautionary words 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 […]

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