A Discussion On Animal Liberation And Watering The Tree Of Liberty

A 2009 opinion of the Third Circuit in United States v. Fullmer tests the current interpretation of the Brandenburg-based limits of First Amendment protection for political speech.

Defendants were organizers of Stop Huntington Animal Cruelty (SHAC), which targeted Huntington Life Sciences for demonstrations and encouraged political action against its officers, directors, investors, and those who do business with Huntington. Defendants were convicted of conspiracy to violate the Animal Enterprise Protection Act (AEPA) and the Interstate Stalking statute. The subject was on Congress' mind: in 2006 it had amended the AEPA to make clear that threats and harassment against third parties who are related to or associated with animal enterprises were themselves substantive violations of the AEPA.

At issue in Fullmer: did the First Amendment constrict the construction of the two criminal statutes with which the defendants were charged?

SHAC's website said:

We operate within the boundaries of the law, but recognize and support those who choose to operate outside the confines of the legal system…. SHAC does not organize any such actions or have any knowledge of who is doing them or when they will happen, but [SHAC] encourage[s] people to support direct action when it happens and those who may participate in it.

Unlawful actions, such as burglary, theft, economic disruption, cyber attacks, and assault were lauded after the fact on the SHAC website. Puppy dogs were "liberated". Addresses, license plates, names and locations of childrens' schools were published on-line, just as abortion doctors' home addresses and photos are published on anti-abortion activists' websites. Homes were vandalized, yachts sunk, threatening messages left. In England, the CEO of Huntingdon UK was physically assaulted by three masked men in front of his home. He suffered cracked ribs and stitches in his head. Cyber attacks cost Huntingdon about $500,000.

Defendants could be inferred to have agreed to and performed an overt act to cause "physical disruption" and "economic damages" in violation of the AEPA. They could be found guilty of conspiracy to commit Interstate Stalking, in that people connected with Huntington were harassed and intimidated.

SHAC's website was political speech within the rubric of the First Amendment. It was intended to contribute to the "marketplace of ideas" and to urge others to action. That many may find it offensive and uncomfortable, that it is provocative, that it may induce a condition of unrest and stir people to anger is precisely why it is political speech. Terminiello v. Chicago, 337 U.S. 1 (1949) held that speech "best serves its high purpose when it induces a condition of unrest . . . and stirs people to anger." In Iran they hang you. In the USA you end up being Rush Limbaugh.

Brandenburg v. Ohio, 395 U.S. 444 (1969) sets the limits of constitutional protection for provocative speech. Speech, which urges others to violence or lawless action at some unspecified time and place, falls within the embrace of the First Amendment. Merely teaching the "moral propriety or even moral necessity for a resort to force and violence" is insufficient. Speech which directly motivate others to impending violence crosses the line. A peril to "Water the Tree of Liberty" is standard fare. To constitute an unprotected "true threat" rather than mere "political hyperbole" the speaker needs to specify whose blood to be spilled. Watts v. United States, 394 U.S. 705 (1969). In Brandenburg, the defendant Ku Klux Klan member lead a KKK rally in which he firearms were carried, hoods were worn, and "revengance" toward blacks, Jews and the government were raised as the necessary push-back to continued racial and religious equality.

The prior standard, created by Justice Holmes in Schenk v. United States, 249 U.S. 47 (1919) withdrew First Amendment protection from speech which had a "tendency" to cause a "clear and present danger" of causing an evil that Congress intended to prevent. A leaflet which encouraged draftees to assert their legal rights, and which argued that World War I was fought merely to protect Wall Street's anglophile favored few, was found to be in violation of the Espionage Act of 1917. How different our nation would be had Martin Luther King been subjected to these limitations.

The AHEA was found in Fullmer to be constitutional on its face, and as applied. The website was not as inciting of violence as the KKK statements in Brandenburg. Direct incitement is not clear in Fullmer.

This article is for informational purposes only and does not constitute legal advice. For your specific situation consult an attorney licensed in your jurisdiction.