The Animal Enterprise Terrorism Act

Some people have been arguing that the Animal Enterprise Terrorism Act, 18 U.S.C. § 43 violates the First Amendment. (See, for instance, this column and the Complaint it links to.) I doubt that this is so, and I thought I’d briefly explain why.

In relevant part (and with some minor oversimplifications), the statute outlaws “(A) intentionally damag[ing] or caus[ing] the loss of any real or personal property (including animals or records) used by an animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise” or “(B) intentionally plac[ing] a person in reasonable fear of the death of, or serious bodily injury to that person [or a family member] … by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation,” “in connection” with a “purpose of damaging or interfering with the operations of an animal enterprise.”

“Animal enterprise” is defined to include “a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing,” as well as “a zoo, aquarium, animal shelter, pet store, breeder, furrier, circus, or rodeo, or other lawful competitive animal event,” and “any fair or similar event intended to advance agricultural arts and sciences.” A “rule of construction” provides that “[n]othing in this section shall be construed (1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment … [or] (2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference.” And “economic damage” is defined to “not include any lawful economic disruption (including a lawful boycott) that results from lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise.”

This strikes me as basically punishing vandalism of property, attacks on people, and speech that falls within the “true threats” exception to the First Amendment. Some have argued that it could be broader because it could punish boycotts and other constitutionally protected speech that causes financial loss to a business or academic institution because customers or suppliers decide to stop dealing with that entity, on the theory that lost profits would qualify as “loss of … personal property.” But I don’t think that the statute is fairly interpreted to cover that.

First, “loss of property” generally means destruction of property, and not loss of business income. And, second, even if there is some situation in which speech does cause destruction of property — e.g., causing perishable property to perish because shippers are persuaded (through means other than violence or true threats) not to ship it — the statute seems designed to exclude that. To be sure, one could read the “economic damage” limitation as applying only to “damage” (or only to the penalties section of the statute, which expressly refers to “economic damage”), and not “caus[ing] loss.” But between the definition of “damage,” the express provision protecting “expressive conduct (including peaceful picketing or other peaceful demonstration),” and the availability of an interpretation of “caus[ing] loss” that is limited to causing loss through means other than protected speech, the sensible interpretation of the statute is one that protects speech and focuses only on nonspeech conduct or on true threats.

At most, it seems to me that the First Amendment challenge would lead a court to interpret the statute narrowly, to apply to violence, vandalism, and true threats, as I described above — an interpretation that’s entirely consistent with the language, and that seems likely to be precisely what the statute has been generally understood as covering. I don’t think a court should or would interpret the statute more broadly, and strike it down as overbroad. And indeed United States v. Fullmer (3d Cir. 2009) seemed to take a similarly narrow view of the statute, though it dealt with a vagueness challenge rather than an overbreadth challenge. So the statute, as properly read and as likely to be read by courts, is constitutional.

Disclosure: Some of my colleagues in other departments at UCLA have been the targets of criminal attacks because of their research on animals.