gavel2Guest Commentary

by John Andren*

Does a federal law making it a crime to destroy personal property or threaten an individual with a “reasonable fear of death” unconstitutionally chill free speech? It’s not surprising that the animal rights movement, whose most radical factions are prone to that sort of criminal behavior, thinks such a law does violate the First Amendment.

In late 2011, a number of these activists sued to overturn the Animal Enterprise Terrorism Act (AETA), claiming that fear of prosecution had chilled their First Amendment rights to free speech and peaceful protest.

On March 18, Federal District Court Judge Joseph Tauro dismissed the suit, finding that the plaintiffs lacked standing to challenge the law.

WLF is a staunch advocate for free speech and wary of laws which may adversely affect that liberty. But as Judge Tauro succinctly explained, the AETA properly targeted non-expressive behavior, activities of the type in which the plaintiffs claimed they did not wish to engage.

A plain language reading of the statute shows that it only punishes damages and threats, or acts of physical harm that are carried out “intentionally.” Beyond that, the statute specifically states the no part of the statute should be construed “to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment.” Since the plaintiffs were only citing their desire to be free to peacefully advocate on the behalf of animals, it was clear to Judge Tauro (and anyone who bothered to read the statute) that there was nothing in the language that would lead them to reasonably believe their rights were at risk.

If their “advocacy” plans had included the vandalizing of a mink farm or threatening to burn down an individual’s house, as several animal rights advocates prosecuted under AETA have done, then they might have had the standing to sue. It’s unlikely, however, that such activities would receive any First Amendment protection.

Meanwhile, last Friday, other animal rights activists learned the hard way that their First Amendment right to petition the government is also not an absolute right.  For more than a decade, the producer of Ringling Brothers circuses (Feld Entertainment) has been in court defending against federal Endangered Species Act charges from activists alleging elephant mistreatment.  In 2009, the defendants prevailed at trial, and sued to recoup some of their $20 million in legal costs from the activist group plaintiffs.

Last December, one group settled with Feld Entertainment for $9.3 million.  On Friday, Federal District Court Judge Emmet Sullivan ordered other plaintiffs to pay Feld’s attorneys’ fees because of the frivolous nature of their original suit.

*John Andren is an intern with Washington Legal Foundation’s Legal Studies Division who graduated from George Mason University with an economics degree.