September 3, 2014
A First Amendment challenge to the Animal Enterprise Terrorism Act is now before the U.S. Supreme Court, claiming that the law chills legitimate animal rights demonstrations.
The Center for Constitutional Rights filed the petition, asserting that the plaintiffs, a group of five animal rights activists, have standing to challenge the law in spite of the rule on standing announced in Clapper v. Amnesty International, a 2013 case. That rule requires that harm be “certainly impending” for plaintiffs to get standing.
Neither side briefed the Clapper rule in earlier stages of the litigation. But there were “basically…nonstop questions” about it from Chief Judge Sandra Lynch of the U.S. Court of Appeals for the First Circuit, said Shayana Kadidal, a senior managing attorney at CCR. Kadidal is counsel of record on the cert petition filed earlier this month in the case, Blum v. Holder.
“People say that oral argument is hard to prepare for because there will always be some unexpected question,” Kadidal said. “The great challenge is, ‘How do you prepare for an unexpected question?’”
Kadidal said the CCR attorney at the podium that day, Rachel Meeropol, told the panel thatClapper’s requirement does not apply to pre-enforcement challenges to criminal statutes, like the one brought in Blum.
Kadidal built on that answer in the cert petition. He argues the First Circuit should have granted standing to the Blum plaintiffs because they have “objectively reasonable” fear that the government will use the Animal Enterprise Terrorism Act, or AETA, to punish their protected speech.
CCR thinks the answer is so clear-cut that it wants the court to resolve the matter by summary disposition.
AETA prohibits anyone from intentionally causing loss of money or property to an institution that uses animals or animal products. The plaintiffs say the law is vague and overbroad and that it discriminates based on the content of their speech.
Though AETA has a “savings clause” that exempts activities protected by the First Amendment, the activists worry that the statute could still sweep up perfectly lawful speech. They say they have refrained from certain actions—such as creating a film about conditions at a foie gras farm, attending peaceful protests and bringing bunnies to restaurants that serve rabbit—because they do not know if the government would prosecute them.
Kadidal explains that Congress enacted AETA to curb violent acts of fringe activists, but called the law “a disproportionate response” to that problem.
“Because of the activities of a small portion of a larger political movement, [the law] allows a huge swath of this movement to be labeled as terrorists,” he said.
CCR was founded in 1966 to advance civil-rights efforts in the South, and now works on a variety of progressive issues out of its New York City office. Alexander Reinert, a professor at Benjamin N. Cardozo School of Law, and the Law Offices of Howard Friedman in Boston also are on the petition.
The First Circuit denied standing to the Blum plaintiffs in March after finding the harm they asserted was not “certainly impending.” The Supreme Court used that standard in Clapper, a case where lawyers, journalists and others claimed that government surveillance of international individuals threatened their communications. The justices found that argument—brought before former NSA contractor Edward Snowden made headlines—too speculative to let the case go forward.
To CCR, all the Blum activists need for standing is “objectively reasonable” fear of punishment. The First Circuit has long applied that test when plaintiffs claim a criminal statute is chilling their speech, and every other Court of Appeals uses similar language, Kadidal explained.
Clapper does not change that test unless it “silently overruled” 45 years of Supreme Court precedent, Kadidal wrote. He said it makes sense to have a separate standing analysis for challenges to surveillance programs.
“When Congress passes a surveillance statute, surveillance may or may not be directed at a particular individual as the ultimate result,” Kadidal wrote. “In contrast, when Congress passes a criminal statute, everyone is obligated to obey it.”
Kadidal wants the justices to “GVR” Blum, which is Supreme Court lingo for granting cert, vacating the lower court opinion and remanding the case without oral argument.
He says the June Supreme Court ruling in Susan B. Anthony List v. Driehaus shows that GVR is the best option. That case was a pre-enforcement challenge to a provision in the Ohio elections statute, and the justices declined to apply Clapper. The court used a lower threshold and reversed the Sixth’s Circuit’s dismissal.
Jamie Schuman is a freelance writer and graduate of The George Washington University Law School.