Appellate Court: Encouraging Civil Disobedience is Not Protected Speech

by Will Potter on October 14, 2009

in Terrorism Court Cases

shac_7The conviction of the SHAC 7–animal rights activists hit with “terrorism” charges for publishing a website and vocally, unapologetically supporting direct action–has been upheld by a U.S. appellate court. It is a landmark free speech ruling that lowers the threshold of what types of conduct are protected by the First Amendment, and upholds a law that is so broad that it targets civil disobedience as “terrorism.”

As a brief introduction: The “SHAC 7” of Stop Huntingdon Animal Cruelty ran an effective campaign that had the sole purpose of putting Huntingdon Life Sciences, a notorious animal testing company, out of business. The campaign pressured corporations to sever ties with the lab. The SHAC 7 were never accused of breaking windows or releasing animals from labs, but they supported those who did. They published a website which posted news of both legal and illegal tactics, and supported all of it. The website had also posted names and addresses of individuals connected to the corporations targeted.

The ruling was issued today and, although there are many aspects that deserve attention, I want to walk through what I think are by far the most dangerous and troubling implications of this ruling–those related to the First Amendment:

[PDF of the SHAC appeal ruling]

Supporting and facilitating non-violent civil disobedience is not protected speech.

As part of their campaign, SHAC supporters were emailed about “electronic civil disobedience.” The email and message board posts included instructions on how electronically “sit in” on corporate web sites through emails, faxes and phone calls.

Now, one of the benchmarks in First Amendment law is what is called the Brandenburg standard. It holds that even the most controversial and inflammatory speech is protected as long as it not likely to incite “imminent and lawless action.” That is a very high threshold. In this court ruling—which, to the best of my knowledge and the attorneys I have spoken with is the first of its kind—the written word can be construed as promoting, or resulting in, imminent and lawless action.

To put it more plainly: Vocally supporting civil disobedience, explaining what it involves, and encouraging/facilitating people to take part is not protected speech.

This is so important let me say it again, another way: People who write about civil disobedience and encourage people to take part can be found convicted of a crime even if they do not take part in the civil disobedience.

This has dangerous implications far beyond this case. For instance, I wrote about the recent call by mainstream environmental groups for massive non-violent civil disobedience in defense of the environment. Under this reasoning, organizers of that event who published a website aren’t protected by the First Amendment.

[UPDATE: One person had this question, so others might as well: I am not at all saying that simply endorsing civil disobedience is now not protected speech. However, doing so and also facilitating civil disobedience is what the court ruled is not protected. So in the example above, the organizers promoted civil disobedience, encouraged it, set up a website telling people where to go and when, and there were people involved to specifically support those arrested. I think there is a very real danger of that type of conduct being affected by the reasoning presented in this ruling. That is what I had meant by the headline and preceding points.]

Fiery rhetoric is a “true threat” when illegal conduct has taken place in the same campaign.

Another measurement of whether speech is protected by the First Amendment is whether it is a true threat. Throughout the appellate court ruling, the court argued that SHAC’s speech did, in fact, constitute a true threat.

SHAC pressured corporations to divest and sever ties with HLS and “used past incidents to instill fear in future targets” (by publicizing illegal conduct, supporting that conduct). “In this regard, their actions meet the standard of a “true threat” as articulated in Watts, because viewed in context, the speeches, protests, and web postings, were all tools to further their effort.”

The court’s reasoning goes something like this: SHAC wants to close HLS, SHAC supports legal and illegal activity, therefore when SHAC targets a new corporation there is a true threat that the company will be the victim of illegal activity. So SHAC’s speech is not protected.

There are two huge problems with this. The first is that social movements throughout history have had both legal and illegal components. I have interviewed countless activists who only take part in legal protest, but vocally and unequivocally support illegal tactics, and recognize their role in the broader movement. The court argues that it doesn’t matter if you are not breaking the law; if you support illegal tactics, note their efficacy, and believe they play a role in the broader movement and your own campaigning, it is tantamount to a “true threat.”

The second problem is that no action by animal rights or environmental activists in the United States has ever resulted in physical injury or death. Not one. That’s by the admission of the FBI and DHS, along with groups that track animal rights crimes, like the Southern Poverty Law Center. It defies logic how even the most outlandish rhetoric can be construed as a “true threat” that places someone in reasonable fear of physical violence, when the movement has never engaged in physical violence.

The Animal Enterprise Protection Act and “animal enterprise terrorism” charges can be applied to First Amendment activity.

The court ruled that the defendants were guilty of “conspiracy” to commit animal enterprise terrorism because of:

    Speech—Josh Harper “wrote editorials and gave speeches praising militant tactics and direct action.”
    Running a website—Jake Conroy “designed and maintained multiple websites affiliated with SHAC–the primary tools of the campaign against Huntingdon.”
    Protest—Andy Stepanian told Kevin Kjonaas “that he could not explain over an unprotected phone line what protest activity he had planned for the following weeks.” (The court argues that this implied illegal activity).
    Computer encryption–Kjonaas and Gazzola used “encryption devices and programs to wipe their computer hard drives” and protect their email. “While alone this evidence is not enough to demonstrate agreement, when viewed in context, it is circumstantial evidence of their agreement to participate in illegal activity,” the court said. To most people, it is evidence of their intent to protect their privacy from FBI spying.

This Ruling is Bigger than the SHAC 7

This ruling is disappointing, to put it mildly, for the SHAC 7 defendants still behind bars. They will serve the remainder of their sentence in prison and, if this appellate court decision stands, be forever marked as “terrorists.”

But this case is much bigger than the SHAC 7, and it is bigger than the animal rights movement. The AETA 4 are facing terrorism charges for chalking slogans and protesting with masks. Climate groups are organizing massive civil disobedience campaigns. These movements continue to grow, and so does the crackdown against them.

This is critical time in American history. Corporations, working alongside ambitious prosecutors, are radically expanding cultural and legal conceptions of “terrorism” in order to push a political agenda. Mainstream animal and environmental groups, the press, civil liberties groups, they have all largely remained silent on this historic case. As a result, this appellate court has issued its sweeping ruling with impunity.

It is all too easy to weaken the First Amendment when it comes to the rights of “radicals” and “extremists.” It is even easier when no one is paying attention.

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