Blum et al v. Holder

Filing 45

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM and ORDER(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SARAHJANE BLUM; RYAN SHAPIRO; *
LANA LEHR; LAUREN GAZZOLA; and *
IVER ROBERT JOHNSON III,
*
*
Plaintiffs,
*
*
v.
*
*
ERIC HOLDER, in his official capacity as *
Attorney General of the United States of
*
America,
*
*
Defendant.
*

Civil Action No. 11-12229-JLT

MEMORANDUM
March 18, 2013
TAURO, J.
I.

Introduction
Plaintiffs Sarahjane Blum, Ryan Shapiro, Lana Lehr, Lauren Gazzola, and Iver Robert

Johnson III, dedicated animal rights activists, bring this facial and as-applied challenge to the
Animal Enterprise Terrorism Act (“AETA”),1 a criminal statute that prohibits acts of violence
against animal enterprises and the persons and entities connected with those enterprises. Plaintiffs
argue that the AETA is overly broad and discriminates on the basis of content and viewpoint, in
violation of the First Amendment to the Constitution, and is impermissibly vague, in violation of
the Fifth Amendment. Before the court is Defendant U.S. Attorney General Eric Holder’s motion
to dismiss the complaint for lack of standing and failure to state a claim. After carefully

1

18 U.S.C. § 43 (2006).
1

considering both sides’ oral arguments and written briefs,2 the court concludes that Plaintiffs lack
Article III standing to bring their challenges. Accordingly, Defendant Holder’s Motion to Dismiss
[#11] is ALLOWED.
II.

Factual Background3
Each plaintiff has a strong, personal commitment to animal rights advocacy. In total, they

have devoted more than eighty years to animal rights efforts, and some of the plaintiffs have
dedicated their life’s work to advancing the humane and ethical treatment of animals. Their efforts
span a wide range of issues and tactics. Plaintiffs have fought to improve conditions for rabbits,
ducks and geese, and dolphins and other cetaceans. They have exposed cruelties in the foie gras
industry, educated the public about slaughter and factory farming, and organized public charities
and anti-fur protests. They have engaged in letter-writing campaigns, public protests, and lawful
picketing, and undertaken non-violent acts of civil disobedience. Because Defendant Holder
challenges Plaintiffs’ Article III standing to sue, the court summarizes each plaintiff’s prior
activities and future intentions regarding animal rights advocacy in some detail.
a.

Sarahjane Blum

Blum has devoted twenty-three years to animal rights advocacy.4 After one year of
college, she decided to delay her education to throw herself full-time into her animal rights work.5
Her early efforts focused on an anti-fur campaign spearheaded by the New York City Animal

2

The court acknowledges the helpful contributions of amici on both sides of these important
constitutional issues.
3
The facts are presented as alleged in the Complaint [#1] and in the light most favorable to
Plaintiffs.
4
Compl. ¶ 14 [#1].
5
Compl. ¶ 68.
2

Defense League (“NYC ADL”).6 She participated in lawful public demonstrations, engaged in
non-violent civil disobedience, and led trainings on non-violence and advocacy.7
After three years traveling the country to engage in animal-specific campaigns and public
speaking, Blum shifted her focus to exposing the cruelties of the foie gras industry.8 She cofounded GourmetCruelty.com, a grassroots coalition, with Plaintiff Shapiro. The coalition
conducted a nationwide investigation of foie gras farms, and Blum personally visited one farm
many times, both during the day, when the farm was open to the public, and at night.9 At the end
of their investigation, Blum, Shapiro, and other organizers “rescued and rehabilitated” a number
of animals from the foie gras farm.10
Blum’s work culminated in the release of a short documentary, Delicacy of Despair:
Behind the Closed Doors of the Foie Gras Industry. She openly acknowledged her role in both
the undercover investigation and the open rescue operation, which led to her arrest in 2004 for
trespassing.11
Although Blum remains committed to her efforts to expose the practices of the foie gras
industry, her willingness to engage in activism has declined significantly in the past several years.
In 2006, seven members of the United States branch of Stop Huntingdon Animal Cruelty12
(“SHAC”) were convicted of violating the Animal Enterprise Protection Act of 1992 (“AEPA”),13
6

Compl. ¶ 69.
Compl. ¶¶ 69-70.
8
Compl. ¶ 75.
9
Compl. ¶¶ 77-78.
10
Compl. ¶ 79.
11
Compl. ¶¶ 79, 81.
12
Although Plaintiffs refer to the organization as “Stop Huntington Animal Cruelty,” the court
notes that the correct spelling is “Huntingdon.” See United States v. Fullmer, 584 F.3d 132, 137
(3d Cir. 2009).
13
18 U.S.C. § 43 (1992).
7

3

the predecessor statute to the AETA, and sentenced to between one and six years in prison. Blum
had worked closely and developed friendships with several of the defendants, and she was
shocked and devastated by their prosecution and imprisonment as terrorists.14 She became even
more concerned when Congress passed the AETA in 2006. Blum had knowingly violated the law
through acts of civil disobedience in the past, but she did not want to risk prosecution and
sentencing as a terrorist under the AETA.15 For a combination of reasons, including depression
caused by her friends’ imprisonment, fear of prosecution, and increased responsibilities as her
mother’s caretaker, Blum withdrew from advocacy.16
Recently, Blum has decided to reengage in animal rights activism. The Minneapolis
Animal Rights Collective has approached her, hoping to learn from her expertise in raising public
awareness of the foie gras industry and pushing for a ban on foie gras production.17 To assist its
efforts, Blum would like to lawfully investigate conditions at the Au Bon Canard foie gras farm in
Minnesota by obtaining permission to enter the farm and document conditions, entering the farm
during the day while it is open to tours, and documenting conditions visible from public property.
She would like to publicize the results of her investigation online and at local and national events
and organize letter-writing and protest campaigns to raise public awareness and pressure local
restaurants to stop serving foie gras.18 But Blum has refrained from undertaking any of these
actions for fear of prosecution under the AETA.

14

Compl. ¶ 82.
Compl. ¶ 83.
16
Compl. ¶ 84.
17
Compl. ¶ 86.
18
Compl. ¶ 87.
15

4

Blum would also like to resume her work as a public speaker. In 2010, she received an
invitation to speak at an animal rights conference in Seattle. She wanted to show Delicacy of
Despair, but she refrained from doing so, as she has refrained on other occasions, for fear that if
she successfully convinces people to stop buying foie gras, the farms will lose profits and she will
be vulnerable to prosecution under the AETA for causing a loss of personal property.19 Blum
would like to speak openly and specifically about her belief that undercover investigation and
open rescue are effective advocacy tools, even if sometimes illegal.20 But she feels chilled from
doing so for fear of prosecution. In short, passage of the AETA has chilled Blum’s speech and left
her feeling inadequate as an animal rights activist.21
b.

Ryan Shapiro

Shapiro has spent twenty years furthering animal rights causes.22 He began as a member of
his high school’s Animal Rights Club, where he focused on vegetarian outreach and anti-factory
farming issues.23 Shapiro subsequently earned a film degree from New York University’s Tisch
School of the Arts, where he coordinated an anti-fur campaign in 1995 and co-founded the NYC
ADL. He also co-founded an NYU organization, Students for Education and Animal Liberation
(“SEAL”), which remains active under a different name.24 Through these groups, Shapiro
organized non-violent civil disobedience and lawful protests at fur stores, circuses, laboratories,

19

Compl. ¶ 91.
Compl. ¶ 88.
21
Compl. ¶ 94.
22
Compl. ¶ 15.
23
Compl. ¶ 100.
24
Compl. ¶ 101.
20

5

and universities. He participated in outreach efforts, led civil disobedience trainings, and spoke at
grassroots animal conferences across the country.25
In 2001, Shapiro moved to Washington, D.C., where his advocacy focused on
investigation and public education relating to the foie gras industry. He joined forces with Plaintiff
Blum to spearhead a bi-coastal movement to ban foie gras.26 Like Blum, Shapiro was arrested in
2004 for his involvement in open rescue, pleaded guilty to misdemeanor trespass, and was
sentenced to perform community service.27 He has been arrested many times in relation to his
animal rights work.28
During the anti-foie gras campaign, Shapiro became convinced that animal rights activists
should focus on issues of factory farming. He concluded that exposing the actual conditions on
these farms through video documentation was the most effective way to garner change, more
effective than either the civil disobedience or public protest he had undertaken in the past.
Because of his background in film and experience with the anti-foie gras campaign, Shapiro felt
particularly qualified for this work.29 But the arrest and prosecution of SHAC members stunned
him as well. He had lived and worked with several of the defendants, and he worried that peaceful
protest and civil disobedience had become too risky. In particular, he worried that he may have
been charged as a terrorist for his 2004 open rescue, had it occurred just years later.30
Shapiro’s concerns led him to withdraw significantly from animal rights advocacy. Instead,
he pursued a Ph.D., focusing on national security conflicts over animal protection and the
25

Compl. ¶ 102.
Compl. ¶ 104.
27
Compl. ¶ 105.
28
Compl. ¶ 102.
29
Compl. ¶ 106.
30
Compl. ¶¶ 107-08.
26

6

marginalization of animal protectionists as security threats.31 He still engages in leafleting, public
speaking, and campaign work, but he worries that these methods are less effective than exposing
the underlying industry cruelties.32 He would like to lawfully document animal rights abuses, but
he has refrained from doing so out of fear of prosecution under the AETA.33 The AETA has
chilled him from participating in lawful protest and investigation of animal cruelty.34
c.

Lana Lehr

Lehr has approximately fifteen years of experience as an animal rights activist.35 She is the
founder and managing director of RabbitWise, an all-volunteer, public charity committed to the
proper care and treatment of companion rabbits. RabbitWise focuses on improving rabbit
retention rates, educating owners on best practices, and advocating for general rabbit welfare.36
Lehr had worked with Friends of Rabbits, a non-profit organization focused on rescue and care,
but her desire to focus on a wider range of issues, including experimentation and use of rabbit fur,
led her to found RabbitWise.37
RabbitWise has provided Lehr with numerous advocacy opportunities. In 2005, the
organization convinced a hotel to cancel an Easter “rabbit raffle” when Lehr learned that the hotel
did not have a permit to raffle live animals. When another hotel planned a “bunny brunch,” using
live rabbits as decorations, Lehr convinced it to allow RabbitWise members to attend the brunch
with information on rabbit care. The hotel later informed Lehr that it would not feature live
31

Compl. ¶ 110.
Compl. ¶ 111.
33
Compl. ¶ 111.
34
Compl. ¶ 115.
35
Compl. ¶ 116.
36
Compl. ¶ 117.
37
Compl. ¶ 120.
32

7

animals at future events. These successes encouraged Lehr to organize a letter-writing campaign
to hotel chains explaining the repercussions of rabbit giveaways. Her efforts resulted in a local
county ordinance prohibiting distribution of live animal prizes on county property.38
Lehr has also participated in anti-fur campaigns. She organized monthly protests in front
of a store that sells fur and sometimes brought rabbits with her to facilitate meaningful interaction
and education. All of the protests that Lehr attended were completely lawful and properly
permitted.39 She has never engaged in civil disobedience or been arrested.40 Indeed, she pays
particular attention to the legality of the events she attends because, as a licensed psychotherapist,
she worries that an arrest would cause her to lose her license and livelihood. She must renew her
license annually and is routinely asked whether she has been arrested.41
The AETA has chilled Lehr’s participation in advocacy efforts. She has stopped attending
anti-fur protests for fear of prosecution. She no longer brings rabbits with her to restaurants that
serve rabbit meat. Although Lehr would like to continue attending lawful, peaceful protests, she
has not attended any anti-fur or animal rights protest since 2009. She has stopped passing out
literature at events attended by rabbit breeders and limits her advocacy to letter-writing
campaigns, petitions, and conferences.42
d.

Lauren Gazzola

Gazzola has devoted at least fifteen years to animal rights activism.43 While attending
NYU, she worked with Plaintiff Shapiro in the NYC ADL and SEAL. She focused primarily on
38

Compl. ¶ 121.
Compl. ¶ 124.
40
Compl. ¶ 125.
41
Compl. ¶ 128.
42
Compl. ¶¶ 126-28, 130-31, 133.
43
Compl. ¶ 135.
39

8

fur use and vivisection, and she has participated in both lawful protests and non-violent acts of
civil disobedience. She has been arrested on several occasions.44
During her last year of college, Gazzola interned with In Defense of Animals, a national
animal rights organization. She secured a full-time position with the organization after college and
worked there for approximately six months.45 She then moved on to SHAC, where from 2001 to
2004 she organized protests, drafted educational materials and press releases, gave interviews,
conducted Internet research on Huntingdon and affiliated companies, and collaborated with other
organizers to steer the direction of the SHAC campaign.46 Gazzola was arrested and convicted
under the AEPA in 2004 for her involvement with SHAC, including for making true threats
against individuals and for planning and executing SHAC’s illegal activities.47 She was sentenced
to fifty-two months in prison and is currently on probation.48
Having served her sentence, Gazzola would like reimmerse herself in lawful animal rights
campaigns protected by the First Amendment. She understands that the First Amendment protects
theoretical advocacy of illegal action and expressions of support for violations of the law. She also
understands that the First Amendment protects lawful residential protests, as long as they comply
with municipal and state ordinances.49 But the AETA, and her previous arrest, have chilled her
from engaging in advocacy that involves both of these tactics. For example, in 2011 she received
an invitation to speak at a law school about her AEPA criminal conviction. She said that, “I’d do

44

Compl. ¶¶ 135-36.
Compl. ¶¶ 137-38.
46
Compl. ¶ 138.
47
Compl. ¶¶ 139-41; see United States v. Fullmer, 584 F.3d 132, 157 (3d Cir. 2009).
48
Compl. ¶ ¶ 134, 139.
49
Compl. ¶ 142.
45

9

it again. It was all worth it.”50 She wanted to conclude by adding, “So go do it,” but she refrained
for fear that this statement could serve as evidence of a conspiracy to violate the AETA.51 The
AETA has chilled her from participating in provocative advocacy that seems to her obviously
protected by the First Amendment.
e.

Iver Robert Johnson III

Johnson first came to animal rights advocacy about ten years ago, when he was in middle
and high school.52 He organized and attended weekly, lawful anti-fur protests at a department
store and participated in some acts of peaceful civil disobedience. He attended protests at
circuses, rodeos, and fur farms.53
After graduating from high school in 2001, Johnson worked part time as a delivery driver
for a vegan restaurant and devoted most of his energy to the emerging SHAC campaign. A native
of Chicago, Johnson became a leader in the SHAC Chicago movement. He organized weekly
protests of businesses associated with Huntingdon Life Sciences, which usually drew between ten
and twenty protestors.54 He also organized several regional SHAC demonstrations each year.
These attracted between one and two hundred people.55 Johnson’s SHAC advocacy focused
primarily on lawful and peaceful picketing, public education, and outreach.56 He has been arrested
many times for disorderly conduct and similar offenses.57

50

Compl. ¶ 146.
Compl. ¶ 147.
52
Compl. ¶ 18.
53
Compl. ¶¶150-51.
54
Compl. ¶¶ 152-53.
55
Compl. ¶ 154.
56
Compl. ¶ 155.
57
Compl. ¶ 157.
51

10

Since the 2006 convictions of the SHAC members, Johnson has faced significant obstacles
to his advocacy efforts. He attended a 2007 protest in Chicago when Huntingdon Life Sciences
sought to be re-listed on the New York Stock Exchange. Upon arrival, Johnson encountered
more than forty police officers in riot gear and not a single other protestor.58 Johnson spent
approximately six months organizing protests attended by only four or five people. The activists
that he reached out to said they were too afraid of terrorism charges to protest.59 In response,
Johnson shifted his focus from lawful protest to public education and support for imprisoned
animal rights activists.60
Johnson moved to New York City in 2011 to attend the New School.61 He had hoped to
recommit himself to animal rights activism. Unfortunately, Johnson has not found an active animal
rights community in which to participate. Local activists are chilled from engaging in protests out
of fear of prosecution under the AETA. Johnson has attended individual protests, but he has not
found sustained and carefully planned campaigns. After delaying his education and devoting more
than a decade to animal rights, Johnson feels dismayed at the effect the AEPA and AETA have
had on his community.62
III.

Analysis63

58

Compl. ¶ 158.
Compl. ¶ 158.
60
Compl. ¶ 159.
61
Compl. ¶ 160.
62
Compl. ¶ 161.
63
“For purposes of ruling on a motion to dismiss for want of standing, both the trial and
reviewing courts must accept as true all material allegations of the complaint, and must construe
the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501-02 (1975);
see Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 104 (1st Cir. 1995) (explaining that the
appropriate standard of review “differs little from that used to review motions to dismiss under
Fed. R. Civ. P. 12(b)(6)”).
59

11

Defendant Holder moves to dismiss Plaintiffs’ complaint under Rule 12(b)(1) for lack of
subject matter jurisdiction. He argues that Plaintiffs lack Article III standing to sue because they
have not alleged any specific, actual harm suffered. He also asserts that their claims are not ripe
for review because they have not alleged any concrete plan to engage in proscribed activity.
Every plaintiff bringing suit in federal court must establish Article III standing. Standing
consists of both constitutional and prudential dimensions. To satisfy the constitutional aspect, a
plaintiff must establish three elements.
“First, the plaintiff must have suffered an ‘injury in fact’–an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) ‘actual or
imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal
connection between the injury and the conduct complained of–the injury has to be
‘fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result
[of] the independent action of some third party not before the court.’ Third, it must
be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by
a favorable decision.’ ”64
Over this constitutional framework, the Supreme Court has laid several prudential limitations on
standing. These include “ ‘the general prohibition on a litigant’s raising another person’s legal
rights, the rule barring adjudication of generalized grievances more appropriately addressed in the
representative branches, and the requirement that a plaintiff’s complaint fall within the zone of
interests protected by the law invoked.’ ”65
A plaintiff always must establish the constitutional elements of standing.66 In certain
situations, however, courts relax the prudential requirements. Most relevant here, the Supreme
Court has relaxed the prohibition on raising the rights of others in the context of pre-enforcement
64

Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 46 (1st Cir. 2011) (quoting Ariz. Christian
Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 (2011)).
65
Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir. 2005) (quoting Allen v. Wright, 468
U.S. 737, 751 (1984)); see Nat’l Org. for Marriage, 649 F.3d at 46.
66
Osediacz, 414 F.3d at 141.
12

facial challenges.67 Because a facial challenge necessarily implicates the rights of others, relaxing
this prudential requirement allows important First Amendment cases to proceed.68 Nevertheless,
“the constitutional requirements apply with equal force in every case.”69
Thus, every plaintiff bringing a pre-enforcement facial challenge to a criminal statute must
establish an injury-in-fact. This presents a challenge for Plaintiffs because “[b]y definition, . . . the
government has not yet applied the allegedly unconstitutional law to the plaintiff, and thus there is
no tangible injury.”70 Plaintiffs therefore have two options. First, they may allege “an intention to
engage in a course of conduct arguably affected with a constitutional interest, but proscribed by
[the] statute,” where “there exists a credible threat of prosecution.”71 Second, they may allege that
they are “chilled from exercising [their] right to free expression or forgoe[ ] expression in order to
avoid enforcement consequences.”72
In each case, the issue turns on whether there is a credible threat of enforcement.73 In
other words, “fear of prosecution must be ‘objectively reasonable.’ ”74 “Determining objective
reasonableness demands a frank consideration of the totality of the circumstances, including the
nature of the conduct that a particular statute proscribes.”75 Although a court “will assume a

67

Id. at 140-41.
Id.
69
Nat’l Org. for Marriage, 649 F.3d at 46.
70
Id. at 47.
71
Mangual v. Rotger-Sabat, 317 F.3d 45, 56-57 (1st Cir. 2003) (quoting Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
72
Id. at 57 (quoting N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir.
1996)).
73
N.H. Right to Life, 99 F.3d at 14.
74
Mangual, 317 F.3d at 57 (quoting R.I. Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 31
(1st Cir. 1999)).
75
R.I. Ass’n of Realtors, Inc., 199 F.3d at 31.
68

13

credible threat of prosecution in the absence of compelling contrary evidence,”76 a plaintiff must
allege an intention to engage in activity “that could reasonably be construed to fall within the
confines” of the act.77 A subjective chill does not suffice.78 Rather, the plaintiff “must establish
with specificity that [he or] she is ‘within the class of persons potentially chilled.’ ”79 Thus, to
determine whether Plaintiffs have alleged an objectively reasonable chill, this court must make an
initial determination of whether a reasonable reading of the AETA would proscribe their proposed
conduct.80
After carefully considering Plaintiffs’ allegations, this court concludes that they have failed
to allege an objectively reasonable chill and, therefore, failed to establish an injury-in-fact. The
court does not doubt Plaintiffs’ deeply held commitment to animal welfare or the sincerity of their
personal fear of prosecution under the AETA. Nevertheless, Plaintiffs have not alleged an
intention to engage in any activity “that could reasonably be construed” to fall within the statute.81
In reaching this conclusion, the court focuses primarily on two of the AETA’s five
subsections. First, the AETA defines the offense as follows:
Whoever travels in interstate or foreign commerce, or uses or causes to be used
the mail or any facility of interstate or foreign commerce–
(1) for the purpose of damaging or interfering with the operations of an
animal enterprise; and
76

N.H. Right to Life, 99 F.3d at 15; see Mangual, 317 F.3d at 57.
Ramirez v. Sanchez Ramos, 438 F.3d 92, 99 (1st Cir. 2006); see Osediacz v. City of Cranston,
414 F.3d 136, 141 (1st Cir. 2005).
78
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1152 (2013); Laird v. Tatum, 408 U.S. 1, 1314 (1972); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 47 (1st Cir. 2011).
79
Nat’l Org. for Marriage, 649 F.3d at 47 (quoting Osediacz, 414 F.3d at 142).
80
See Ramirez, 438 F.3d at 99; R.I. Med. Soc’y v. Whitehouse, 66 F. Supp. 2d 288, 302 (D.R.I.
1999), aff’d, 239 F.3d 104 (1st Cir. 2001).
81
Ramirez, 438 F.3d at 99.
77

14

(2) in connection with such purpose–
(A) intentionally damages or causes 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;
(B) intentionally places a person in reasonable fear of the death of,
or serious bodily injury to that person, a member of the immediate
family (as defined in section 115) of that person, or a spouse or
intimate partner of that person by a course of conduct involving
threats, acts of vandalism, property damage, criminal trespass,
harassment, or intimidation; or
(C) conspires or attempts to do so;
shall be punished as provided for in subsection (b).82
After establishing penalties, restitution, and statutory definitions, the AETA concludes with rules
of construction.

Nothing 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
to the Constitution;
(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; or
(3) to provide exclusive criminal penalties or civil remedies with respect to the
conduct prohibited by this action, or to preempt State or local laws that may
provide such penalties or remedies.83

82
83

18 U.S.C. § 43(a) (2006).
18 U.S.C. § 43(e) (2006).
15

Read straightforwardly, the AETA criminalizes: 1) intentionally damaging or causing the
loss of real or personal property; 2) intentionally placing a person in reasonable fear of death or
serious bodily injury; and 3) conspiring or attempting to commit either of these two acts.
And this is how both the AETA and its predecessor AEPA have been enforced. For
example, the Third Circuit affirmed SHAC members’ convictions under the AEPA of conduct
including campaigns of intimidation and harassment, unlawful electronic civil disobedience, and
true threats, such as threatening to burn someone’s house down.84 As another example, two
defendants pleaded guilty to violating the AETA by allegedly trespassing on a mink farm,
releasing 500 animals, and vandalizing the property.85 Plaintiffs have not directed this court to any
case charging as an AETA violation the type of conduct in which they seek to engage.86
Plaintiffs have not alleged an intention to engage in any activity prohibited by the AETA.87
The conduct they seek to participate in - lawful and peaceful advocacy - is very different:
documenting factory conditions with permission, organizing lawful public protests and letterwriting campaigns, speaking at public events, and disseminating literature and other educational
materials. None of Plaintiffs’ proposed activities fall within the statutory purview of intentionally
damaging or causing loss of real or personal property or intentionally placing a person in
reasonable fear of death or serious injury.
Plaintiffs’ main argument to the contrary, that “personal property” must be read to include
loss of profits, is unavailing. First, the court must read the term “personal property” in light of the
84

See United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009).
See United States v. Viehl, No. 2:09-CR-119, 2010 WL 148398, at *1 (D. Utah Jan. 12, 2010).
86
See Compl. ¶¶ 53-66.
87
See Osediacz v. City of Cranston, 414 F.3d 136, 141 (1st Cir. 2005) (“It is, therefore, not
surprising that . . . the party mounting a facial challenge at the very least desired or intended to
undertake activity within the compass of the challenged statute.”).
85

16

words around it, specifically “animals or records” and “real property.”88 In this context, personal
property cannot reasonably be read to include an intangible such as lost profits. Second, the
definitions section of the statute specifically defines the term “economic damage” to include “loss
of profits.”89 The court cannot reasonably read these two distinct terms - “personal property” and
“economic damage” - to have the same meaning.
The AETA’s rules of construction dispel any remaining doubt about the plain meaning of
the statutory offense. Rather than exempting otherwise prohibited conduct, as Plaintiffs propose,
the rules provide that any ambiguities be resolved in favor of granting full First Amendment rights.
But Plaintiffs do not present an ambiguous case. Indeed, the rules of construction explicitly
confirm the plain meaning of the offense: it does not prohibit “peaceful picketing” and “other
peaceful demonstration.”90 Because by their own allegations Plaintiffs seek to engage only in
lawful conduct protected by the First Amendment, they have failed to allege an objectively
reasonable chill.91
III.

Conclusion92
This court recognizes the significance of Plaintiffs’ challenges to the AETA’s

constitutionality. An allegation that a statute chills fundamental First Amendment rights is very
serious, and the court accords their challenge careful scrutiny and attention. The court also
appreciates that, in pre-enforcement challenges, issues of standing may appear to blur into
88

See 18 U.S.C. § 43(a)(2)(A) (2006).
See 18 U.S.C. § 43(d)(3) (2006).
90
See 18 U.S.C. § 43(e)(1) (2006).
91
The court notes that Plaintiff Johnson does not appear to feel chilled at all. In addition to failing
to establish an injury-in-fact, his claims raise concerns about causation and redressability.
92
Because the court concludes that Plaintiffs lack standing, it need not reach Defendant Holder’s
ripeness argument or the merits of the case.
89

17

determination of the merits.93 Nevertheless, even in this sensitive context, Plaintiffs must establish
all of the constitutional requirements for Article III standing. Although Plaintiffs personally fear
prosecution under the AETA, they have failed to establish an objectively reasonable chill on their
First Amendment rights. Where Plaintiffs seek to engage in lawful and peaceful investigation,
protest, public-speaking, and letter-writing, the court cannot reasonably conclude that these
actions fall within the purview of a statute requiring intentional damage or loss to property or
creation in an individual of a reasonable fear of death. Because Plaintiffs have therefore failed to
establish Article III standing, Defendant Holder’s Motion to Dismiss [#11] is ALLOWED.

AN ORDER HAS ISSUED.
/s/ Joseph L. Tauro
United States District Judge

93

See, e.g., R.I. Med. Soc’y v. Whitehouse, 66 F. Supp. 2d 288, 302 (D.R.I. 1999).
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