Blum v. Holder

744 F.3d 790

Sarahjane BLUM; Ryan Shapiro; Lana Lehr; Lauren Gazzola; Iver Robert Johnson, III, Plaintiffs, Appellants,

v.Eric H. HOLDER, Jr., Attorney General, Defendant, Appellee.

No. 13–1490.

United States Court of Appeals, First Circuit.

March 7, 2014.

Rachel Meeropol, with whom Alexis Agathocleous, Center for Constitutional Rights, Alexander A. Reinert, David Milton, and Howard Friedman were on brief, for appellants.

Matthew M. Collette, Attorney, Appellate Staff, Civil Division, with whom Stuart F. Delery, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Michael Jay Singer, Attorney, Appellate Staff, Civil Division, were on brief, for appellee.

Odette J. Wilkens, Christine L. Mott, Chair, Committee on Animal Law, Brian J. Kreiswirth, Chair, Committee on Civil Rights, and Kevin L. Barron on brief for The Association of the Bar of the City of New York, amicus curiae in support of appellants.

Matthew R. Segal, Sarah R. Wunsch, David J. Nathanson, and Wood & Nathanson, LLP on brief for American Civil Liberties Union of Massachusetts, American Civil Liberties Union, and National LawyersGuild, amici curiae in support of appellants.

Before LYNCH, Chief Judge, THOMPSON and KAYATTA, Circuit Judges.

LYNCH, Chief Judge.

Sarahjane Blum and four others are committed and experienced animal right activists. Although they have never been prosecuted or threatened with prosecution under the Animal Enterprise Terrorism Act (“AETA” or “Act”), 18 U.S.C. § 43, which criminalizes “force, violence, and threats involving animal enterprises,” they sued to obtain declaratory and injunctive relief that the statute is unconstitutional under the First Amendment.

The district court dismissed their complaint under Rule 12(b)(1), finding that these plaintiffs lacked standing because they have suffered no injury in fact as required by Article III. Blum v. Holder, 930 F.Supp.2d 326, 337 (D.Mass.2013). The court held that plaintiffs “failed to allege an objectively reasonable chill” on their First Amendment rights and, hence, “failed to establish an injury-in-fact.” Id. at 335. We affirm.

I.

In their complaint, plaintiffs allege three constitutional defects in AETA. First, plaintiffs allege that, both on their face and as-applied, subsections (a)(2)(A) and (d) of AETA are substantially overbroad in violation of the First Amendment. Plaintiffs maintain that subsection (a)(2)(A) must be read to prohibit all speech activity with the purpose and effect of causing an animal enterprise to lose profits and that subsection (d)(3) must be read to impose higher penalties on the basis of such loss.¹

Second, plaintiffs allege that, both on its face and as-applied, AETA discriminates on the basis of content and viewpoint, again in violation of the First Amendment. Plaintiffs argue that the Act, which conditions liability on acting with “the purpose of damaging or interfering with the operations of an animal enterprise,” ²18 U.S.C. § 43(a), discriminates on the basis of content by targeting core political speech that impacts the operation of animal enterprises and on the basis of viewpoint by privileging speech that is supportive of animal enterprises and criminalizing certain speech that is opposed to such enterprises.

Third, plaintiffs allege that, both on its face and as-applied, AETA is void for vagueness. Plaintiffs complain that various of the Act's key terms are so imprecise as to prevent a reasonable person from understanding what the statute prohibits, encouraging arbitrary or discriminatory enforcement.

None of the plaintiffs express any desire or intent to damage or cause loss of tangible property or harm to persons. Plaintiffs do allege both that they have an objectively reasonable fear of future prosecution and that they have presently refrained from engaging in certain activities protected by the First Amendment for fear AETA may be read to cover their activities and so subject them to future prosecution. Both that fear of future harm and that present self-restraint, they say, have already caused them to suffer injury in fact. They do not plead that they have received any information that law enforcement officials have any intention of prosecuting them under AETA. Indeed, the Government has disavowed, before both this court and the district court,³ any intention to prosecute plaintiffs for what they say they wish to do, characterizing plaintiffs' various AETA interpretations as unreasonable. Plaintiffs do not claim they have engaged in or wish to engage in activities plainly falling within the core of the statute, which is concerned with intentional destruction of property and making true threats of death or serious bodily injury. We describe what they do claim.

Plaintiff Sarahjane Blum alleges that she would like to, but has been deterred from acting to, lawfully investigate conditions at the Au Bon Canard foie gras farm in Minnesota, to create a documentary film, and to publicize the results of her investigation. She would also like to organize letter-writing and protest campaigns to raise public awareness and pressure local restaurants to stop serving foie gras.

Plaintiff Ryan Shapiro alleges that he would like to lawfully document and film animal rights abuses but is deterred from doing so. Shapiro continues to engage in leafleting, public speaking, and campaign work, but fears that these methods of advocacy are less effective than investigating underlying industry conduct.

Plaintiff Lana Lehr alleges that, but for AETA, she would attend lawful, peaceful anti-fur protests, bring rabbits with her to restaurants that serve rabbit meat, and distribute literature at events attended by rabbit breeders. Lehr alleges that, at present, she limits her animal rights advocacy to letter-writing campaigns, petitions, and conferences.

Plaintiff Iver Robert Johnson, III, alleges that he has been unable to engage in effective animal rights advocacy because others are chilled from engaging in protests out of fear of prosecution under AETA. Johnson does not allege that he has refrained from lawful speech activity on the basis of such fear.

Finally, plaintiff Lauren Gazzola alleges that she is chilled from making statements short of incitement in support of illegal conduct. Gazzola was convicted in 2004 under AETA's predecessor statute, the Animal Enterprise Protection Act (“AEPA”), for making true threats against individuals and for planning and executing illegal activities as a member of the United States branch of Stop Huntingdon Animal Cruelty. Her convictions were upheld on appeal. See United States v. Fullmer, 584 F.3d 132, 157 (3d Cir.2009).

II.

A. Statutory Framework

In 1992, Congress enacted AEPA, which criminalized the use of interstate or foreign commerce for intentional physical disruption of the operations of an animal enterprise. In 2002, Congress amended AEPA, increasing the available penalties. In 2006, in response to “an increase in the number and the severity of criminal acts and intimidation against those engaged in animal enterprises,” 152 Cong. Rec. H8590–01 (daily ed. Nov. 13, 2006) (statement of Rep. Sensenbrenner), Congress amended AEPA again, renaming it AETA.

In contrast to AEPA, AETA does not specifically limit its scope to physical disruption. AETA also criminalizes placing a person in fear of injury or death regardless of economic damage.⁴18 U.S.C. § 43(a)(2)(B). AETA makes clear that threats of vandalism, harassment, and intimidation against third parties that are related to or associated with animal enterprises are themselves substantive violations of the Act. Id. Finally, AETA makes available increased penalties. Id. § 43(b).

AETA is codified under the title “Force, violence, and threats involving animal enterprises.” Id. § 43. The Act consists of five subsections, four of which are relevant here. Subsection (a) of the Act defines “Offense”:

(a) Offense.—Whoever travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility of interstate or foreign commerce—

(1) for the purpose of damaging or interfering with the operations of an animal enterprise; and

(2) in connection with such purpose—

(A) 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;

(B) intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; or

(C) conspires or attempts to do so; shall be punished as provided for in subsection (b).

Id. § 43(a).

Subsection (b) sets out the penalties. Of significance here, AETA indexes available penalties to whether and in some instances to what extent the offending conduct results in “economic damage,” “bodily injury,” “death,” or a “reasonable fear of serious bodily injury or death.” Id. § 43(b).

Subsection (d) in turn defines various key terms.⁵ Most important here, subsection (d) defines “economic damage” as used in the penalties subsection as follows:

(3) the term “economic damage”—

(A) means the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated experiment, the loss of profits, or increased costs, including losses and increased costs resulting from threats, acts or vandalism, property damage, trespass, harassment, or intimidation taken against a person or entity on account of that person's or entity's connection to, relationship with, or transactions with the animal enterprise; but (B) does not include any lawful economic disruption (including a lawful boycott) that results...