Dear Member of Congress:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write today to explain our opposition to the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239 (AETA), a bill that amends the Animal Enterprise Protection Act (AEPA), now 18 U.S.C. § 43.  The AETA criminalizes First Amendment activities such as demonstrations, leafleting, undercover investigations, and boycotts.  The bill is overly broad, vague, and unnecessary because federal criminal laws already provide a wide range of punishments for unlawful activities targeting animal enterprises.

It’s important to let the reader know what conduct is criminal under current law, too.  What are the elements of the crime?  Setting them forth now is useful to make your point that the bill criminalizes speech.  The AEPA, which passed in 1992, created a penalty of $10,000 or 10 years to life imprisonment for any physical disruption that leads to $10,000 in damages to an animal enterprise.  AETA expands the class of criminal behavior in 18 U.S.C. § 43, by changing the term used to described activity “for the purpose of causing physical disruption” to activity “for the purpose of damaging or disrupting” an animal enterprise.  The overbroad class of “disruptive” activities apply to any and all activities that result in “losses and increased costs” in excess of $10,000.

 Lawful and peaceful protests that, for example, urge a consumer boycott of a company that does not use humane procedures, could be the target of this provision because they “disrupt” the company’s business.  This overbroad provision might also apply to a whistleblower whose intentions are to stop harmful or illegal activities by the animal enterprise.  The bill will effectively chill and deter Americans from exercising their First Amendment rights to advocate for reforms in the treatment of animals.

Alarmingly, the bill would also make the expanded crime a predicate for Title III federal criminal wiretapping.  This provision could be used for widespread domestic surveillance of animal rights organizations.  A court will be far more likely to find probable cause for a vague crime of causing economic damage or disruption to an animal enterprise than for a crime that requires some evidence that the organization plans to engage in activity causing illegal “physical disruption.”

While the bill provides an exemption for “lawful public, governmental, or business reaction to the disclosure of information about an animal enterprise,” that exemption applies only to claims of economic “disruption” and not claims of economic “damage.”  It also does not necessarily cover the entire range of expression protected by the First Amendment, which covers more than a lawful “reaction” to a “disclosure of information.”  Ordinary persons would not understand which activities are prohibited and which are lawful. 

The bill AETA also expands the types of facilities covered by the AEPA. The bill adds facilities that sell animals, expands the class of criminal behavior to include threatening conduct (which could have a chilling effect on legitimate whistleblowers) and expands the class of entities protected from the enterprise itself to persons connected to the enterprise.  Finally, AETA doubles the criminal penalties and criminalizes attempts to disrupt, which creates a greater danger of encompassing protected speech. 

Amendments to AEPA are unnecessary.  The Department of Justice has successfully used the existing Animal Enterprise TerrorismProtection Act to obtain indictments of members of animal rights organizations alleged to have engaged in violent behavior.  The ACLU urges you to oppose the Animal Enterprise Terrorism Act, S. 1926 and H.R. 4239. 

We thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Lisa Graves,
Senior Counsel on Legislative Strategy