When the animal rights group Stop Huntingdon Animal Cruelty (SHAC) posted news of both legal and illegal conduct on its website, and publicly supported a variety of tactics in the movement to shut down the notorious animal testing lab Huntingdon Life Sciences, they were acting as “generals” in a campaign of “terrorism,” the U.S. government argued before the Third Circuit Court of Appeals last Tuesday.
It doesn’t matter that the defendants, dubbed the SHAC 7, were never accused of breaking windows or gluing looks. It doesn’t matter that they were never accused of any act of physical violence. It doesn’t matter that they only endorsed a variety of tactics in words, speeches, and media interviews.
“This case was never fought on the basis of what actually happened, by and large,” said U.S. attorney Glenn J. Moramarco at the hearing. “This case was fought on the battleground of ‘should we be held responsible for what other people are doing.’”
In short, the government argued that the appeals court should uphold the SHAC 7 “terrorism” convictions based on guilt by ideological association. Or, as defense attorney Peter Goldberger said at the hearing, a theory of “vicarious culpability.”
“We just heard an oral argument,” Goldberger said, at the conclusion of the government’s remarks, “that the government still embraces the theory of this case, which is a complete misunderstanding of the robustness, strength and breadth of the First Amendment.”
Although the defense attorneys and two defendants who attended the appeal said the judges seemed to lean in their favor on a few key issues, the decision of the three-judge panel will probably not be released for at least 3-6 months, perhaps even longer.
Instead of recreating the step-by-step process of the appeal, here’s a look at some of the key arguments made by the government and the defense.
Expanding “Animal Enterprise Terrorism” Legislation
Soon after the SHAC 7 were convicted of “animal enterprise terrorism,” corporations and the politicians that represent them rushed through new federal legislation called the Animal Enterprise Terrorism Act. Although the existing law, the Animal Enterprise Protection Act, had just been used to convict these animal rights activists for running a website, supporters argued that the government’s hands were tied in cases like this.
The defense argued that it’s possible the SHAC 7 could have been convicted under the new law, but the previous law simply wasn’t broad enough. The new law could wrap in the loss of profits as “terrorism,” but the language in the previous law is more specific, focused on physical damage to physical property.
“What was lost was not something they used, but something [the corporations] wanted to have, which is profits,” Goldberger said.
Judge Fisher seemed to agree with that reasoning. “Isn’t the real problem,” Judge Fisher asked Moramarco, the government attorney, “that you were trying to fit conduct into the statute you had at the time?”
“Yeah,” Moramarco says, laughing. “There’s no question about that.”
But Judge Fisher said to Robert Stahl, a defense attorney, that the fact that the Animal Enterprise Terrorism Act was more specific doesn’t mean the previous statute isn’t applicable.
The Animal Enterprise Terrorism Act “was a drastic expansion,” Stahl responds, “not just a clarification.”
What About the Children?
The first statements were made by the defense attorneys, but it didn’t take long for judges to begin interrupting, as they tend to do, and shifting the discussion.
“Do you think posting addresses and information on children is appropriate?” Judge Fuentes asked H. Louis Sirkin.
“Some of that did happen,” Sirkin said. In any social movements, there are situations where some individuals go too far, he said. But the defendants only posted news of this received in anonymous communiqués, they did not endorse or incite such activity. And that point, incitement, is why this extremely controversial speech is still protected under Brandenburg.
Later in the hearing, Judge Ditter restarted that line of questioning by interrupting Robert Stahl to ask, “Do you have children?”
Those postings were a “product of the name and shame game,” Stahl said, and intended to out corporations with ties to the notorious lab.
“But what was the intent?” Ditter said. When Stahl begins to answer, he interrupts and asks again. “What was the intent?… Wasn’t the intent to create fear?”
No, Stahl said. There’s no evidence of that, there were no demonstrations at schools, no child was approached by an activist.
What the defense attorneys never mention, one of the SHAC defendants said afterwards, is that the personal information wasn’t posted because of any campaign strategy. It was posted because the group made a conscious decision to post every communiqué received, regardless of their personal views. They put all of the information out there, without censoring.
The Politics of Conflation
Throughout history, in every single social movement, there has been a diversity of tactics. Some people leaflet or lobby members of Congress. Some people break windows or throw Molotov cocktails. All in the name of the same cause.
The government, though, argued that vocally supporting illegal conduct–through words, not action–is tantamount to “embracing” those crimes, and is not protected speech. While many in the animal rights, environmental and other social justice movements can see the difference between someone who sneaks out to break windows at a McDonalds, and someone who writes for a pro-Animal Liberation Front website, in the eyes of the government it is all conflated.
“These people were not the mere messengers of someone else’s statements,” Moramarco said. “They are the leaders of SHAC… their plan was to engage in illegal direct action. That was their niche in the animal rights movement.”
Evidence of that, Moramarco said, is their use of PGP, an email encryption program. It is “pretty clear they were using PGP when going into their illegal mode,” he said.
But, as another attorney said after the hearing: Arguing that encrypting email means you are talking about crime is like arguing that pulling your blinds means you are beating your children.
Toner Terrorism and Thought Crime
Perhaps the most disturbing element of the appeal was hearing the government speak so candidly and succinctly about what kind of conduct should be prosecuted.
For instance, Darius Fullmer was a leader of the Animal Defense League in New Jersey. He sent emails to the defendants saying that, although his group is focused on anti-fur campaigning, he will try to get people to start showing up at protests. He also forwarded a SHAC email to his members which describe “Black Fax Mondays” (electronic civil disobedience where activists fax black pieces of paper to the targeted company, in hopes of draining their toner cartridges and tying up their fax machine lines.)
“That’s his embrace,” Moramarco said. “That one document is sufficient evidence.”
Similarly, Josh Harper made two speeches in which he supported the “black fax” tactic. One was to a local group in Seattle, the other was to activists in Little Rock. Those speeches, the government said, are enough for a conviction. Two speeches. Three years in prison.
Moramarco stretched even further in the case of Lauren Gazzola. He pointed to a radio interview in which Gazzola says, “We support property destruction, we support illegal action, we support home demonstrations and economic sabotage.”
In what might have been the boldest, most chilling argument made by the government in this case, Moramarco said that such a statement of her political beliefs and her personal views, such a statement about which tactics she believes are effective, was “tantamount to a confession.”