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Animal Rights and the Erosion of the First Amendment: AETA, Ag-Gag and Why You Should Care

It's not simply the curtailment of practices used by activists to expose animal operations; it's in fact the abridgment of the right of free speech guaranteed by the First Amendment.
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Last week the First Circuit Court of Appeals dismissed a lawsuit challenging the federal Animal Enterprise Terrorism Act. Last month the governor of Idaho signed into law a bill that makes it illegal to make any audio or video recordings of livestock operations without explicit permission. Each of these legal developments has the animal-rights community up in arms, but the impact will be felt far wider than among a small group of activists. It's not simply the curtailment of practices used by activists to expose animal operations; it's in fact the abridgment of the right of free speech guaranteed by the First Amendment.

The Animal Enterprise Terrorism Act is a federal law passed in 2006, under the conservative presidency of George W. Bush. Essentially, the act criminalizes anyone who travels in interstate or foreign commerce for the purpose of damaging or interfering with the operations of an animal enterprise in a way that "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." On its face, perhaps, the law is not overly broad. However, the problem comes in with the definition of "animal enterprise." Under the act, "animal enterprise is defined as:

(A) a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing;

(B) a zoo, aquarium, animal shelter, pet store, breeder, furrier, circus, or rodeo, or other lawful competitive animal event; or

(C) any fair or similar event intended to advance agricultural arts and sciences.

What this essentially means is that "animal enterprise" could be a grocery store that sells meat. It could be a gas station that stocks milk. Even worse, you or someone you know could be prosecuted under this act for opposing something that has nothing to do with animal rights. Technically, if you stood outside Walmart and protested worker treatment, you could be charged under AETA. Worst of all, if convicted, you could be facing up to 20 years in prison depending on the amount of economic damage done.

AETA is an impermissible curtailment of free speech, and this clearly affects more than just animal-rights activists. However, the First Circuit Court of Appeals chose not to address the free-speech issue and instead dismissed the case, Blum v. Holder, by stating that the plaintiffs lacked standing. In federal court, the concept of standing dictates that the plaintiff must demonstrate an "injury-in-fact" so that the court only hears real cases or controversies. In this case the federal court essentially claimed that plaintiffs' fears that free speech would be abridged were not "objectively reasonable" because by interpreting AETA narrowly, there would no chilling of speech. However, therein lies a giant problem: Although a federal judge believes that a federal statute should be interpreted narrowly, there is no guarantee for activists and others that prosecutors or other judges will feel the same way. The judge in this case rested his decision on a possible interpretation of an overly broad and vague statute that already suppresses the First Amendment's guarantee of free speech by its very terms.

The new Idaho ag-gag law and several others like it across the country similarly curtail free speech by criminalizing the recording of animal-rights abuses taking place at livestock operations.

The AETA decision, along with the passage of the most recent ag-gag bill, is part of a larger trend of the erosion of citizens' rights, including such issues as the growing lack of privacy under the U.S. government and the UK's attempted censorship of adult content. The setting up of animal-rights activists on the chopping block is the U.S. government's way of an under-the-radar, backhanded circumvention of the First Amendment and anti-censorship policy. Animal-rights activists are not an extremely popular group among the general public, nor are they loved, by any stretch of the imagination, by Big Agriculture. However, the impact of these laws and decisions will be felt far and wide, especially when, instead of animal-rights activists, it's so-called "spies" or some other type of individual that the government chooses to go after. The historical moment when any government attempts to silence its populace is when we need to be the most cognizant of the curtailment of our rights and choose instead to speak.