Last week, the First Circuit Court of Appeals in Boston affirmed a lower court’s dismissal of the Center for Constitutional Rights’ (CCR) case, Blum v. Holder¸ challenging the Animal Enterprise Terrorism Act (AETA) as a violation of the First Amendment. The court held that plaintiffs lacked standing to challenge the law, because the risk that they might face prosecution was “too speculative.”
The AETA punishes “caus[ing] the loss of any real or personal property,” which includes profits. That is, the AETA criminalizes the goal of nearly every animal rights effort, as well as infinite non-animal rights efforts, since the AETA protects any business that uses or sells animal products and any business “connected to” such “animal enterprises.” This vague and overbroad law has cast a chill over the animal rights movement and is the centerpiece of a broader crackdown on animal rights activists that also includes state-level ag-gag laws punishing whistleblowing in animal agriculture.
In dismissing CCR’s case the First Circuit ignored the plain language of the statute, which allows for a terrorism prosecution when a person purposefully causes a business that uses or sells animal products to lose money, whether the loss is caused by peacefully distributing a flier or burning a business to the ground. Instead, the court relied on language within the AETA that “[n]othing in this [law] shall be construed to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.” In other words, a statute that appears to punish First Amendment protected activities is not subject to First Amendment challenge because Congress says the statute doesn’t violate the First Amendment. Because plaintiffs only alleged a desire to engage in First Amendment protected activity, the court held that they face no real risk of prosecution.
Moreover, without the government’s urging, and without the benefit of briefing on the issue, the First Circuit’s opinion adopts a new standard that calls into doubt a long line of cases allowing individuals who objectively fear prosecution under a criminal statute to challenge the constitutionality of that statute before they are actually prosecuted. The Supreme Court has long endorsed these “pre-enforcement challenges,” allowing doctors to challenge abortion bans, Vietnam War protestors to challenge restrictions on leafleting, and teachers to challenge state laws forbidding the teaching of evolution, all without requiring that the would-be challenger subject herself to a criminal prosecution before bringing suit. With little explanation, the First Circuit has now shut its doors to such challenges.
CCR is very disappointed with the opinion and is discussing next steps with the Blum plaintiffs.
Blum v. Holder was filed in the U.S. District Court for the District of Massachusetts. Professor Alexander Reinert, of the Benjamin N. Cardozo School of Law, along with David Milton and Howard Friedman of the Law Offices of Howard Friedman PC, are co-counsel on the case.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.
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