Direct Action and the First Amendment: Bottom-Up Activism and Top-Down Policy Change for Animals and the Environment - Jamie McLaughlin
Environmental, Natural Resources, and Energy Law LLM Candidate
Direct Action and the First Amendment:Bottom-Up Activism and Top-Down Policy Change for Animals and the Environment
For the first time in United States history, an environmental activist was shot and killed while protesting.Manuel Esteban Paez Terán, known as Tortuguita, was a member of Defend Atlanta Forest, a loose knit group of environmental activists protesting the police training complex to be built within Weelaunee Forest, a green space just southeast of Atlanta, Georgia.Tortuguita, a twenty-six-year-old nonbinary activist of Venezuelan descent, was shot and killed inside of their tent by law enforcement on the morning of Sunday, January 18, 2023.Following the shooting, several other activists involved in the protest were placed under arrest and charged under Georgia state law as environmental terrorists.Their direct actions included civil disobedience, camping in the forest to prevent its destruction, and alleged property crimes related to a protest march.
Harsh treatment and prosecution of environmental and animal activists is nothing new.In the 1980s, direct action environmental and animal advocates successfully impacted companies engaged in logging, animal research, fur, agriculture, and other industries, by calling attention to animal mistreatment and environmental degradation.These powerful industries retaliated by lobbying Congress to enact the federal Animal Enterprise Protection Act (“AEPA”) of 1992, legislation designed to allow prosecution of activists who targeted companies engaged in harming animals and the environment.Later, following the terrorist attacks of September 11, 2001, a renewed focus on extremism provided industry the opportunity to leverage the existing legislation to pass a more restrictive Act.The Animal Enterprise Terrorism Act of 2006 (AETA) amended and increased the scope of the AEPA.
The AETA expanded the potential victims covered under the Act and imposed new sentencing guidelines.Under the AETA, animal and environmental activists can be prosecuted as “terrorists” for what are essentially property crimes.The AETA serves to intimidate activists, chilling free speech and protest with the threat of a vague law that may brand an advocate as a terrorist.Shockingly, most people are unaware of the AETA’s existence. The AETA should be abolished, or at a minimum, the title of the Act should be modified to exclude “terrorism.”
Overcharging and Underdelivering
AETA prosecution overcharges animal and environmental activists, who if convicted, are branded terrorists for life, but is the United States safer as a result?Probably not.Advocating for or conducting illegal activities is sometimes part of direct action.However, while some direct actions are illegal, a reasonable person would not interpret them to be terrorist activities.As discussed below, both AETA, and its predecessor AEPA, go too far.
In U.S. v. Fullmer, defendants were charged under the AEPA for direct action against Huntingdon Life Sciences (“Huntingdon”).While defendants were prosecuted under the AEPA (prior to the 2006 amendment creating the AETA), Fullmer illustrates the court’s interpretation of the Act. Huntingdon provided animal testing lab services for pharmaceutical, agricultural, veterinary and medical products.After an undercover activist obtained video of a lab worker abusing animals, including punching and shaking beagles who were being used as toxicity test subjects, activists targeted Huntingdon through direct action.
The activists were a loosely affiliated group known as Stop Huntingdon Animal Cruelty (“SHAC”). The tactics they were prosecuted for included protesting, black faxing (faxing black pages to corporate fax machines to deplete the ink), phone calls, emails, letter writing, gluing locks shut, graffiti, and animal rescue (removing14 beagles from a lab, and taking dogs and ferrets from a Huntingdon lab animal breeder).While property destruction, theft (animals are property under current US law), and these other activities may be illegal under certain circumstances, it is difficult to reasonably equate them with terrorism.
This is not to say that all illegal direct action fails to instill fear or terror, particularly for targeted individuals.In Fullmer, activists protested at the homes of targeted persons affiliated with Huntingdon, including partners, investors and insurers.More aggressive direct action included overturning an employee’s car, breaking ATMs, sinking a yacht, breaking windows of homes and offices, bomb threats, throwing paint, spraying cleaning fluid in one person’s eyes (resulting in no long-term damage), stalking, personal threats to family members, and even sending an undertaker to collect a (still living) target.
Aggressive direct actions such as these may not invoke sympathy for those being prosecuted, and may fit the dictionary definition of terrorism, but such actions are not the terrorism of our collective memory.We know terrorist activity when we see it:Lockerbie, Oklahoma City, September 11, too many mass shootings to list.Murderous intent was the common denominator of those terrorist acts.Real terrorist activities sharply contrast with the direct actions of animal and environmental activists.Yet, after SHAC members were convicted in Fullmer, Dr. John Young, chairman of the biomedical research organization Americans for Medical Progress, applauded harsh sentences imposed upon the young activists, stating “our nation’s law enforcement system will not tolerate terror tactics that include threatening e-mails, telephone calls, vandalism and attacks on the privacy of researchers’ homes.”Labeling such activities as terrorism goes too far.
The Terror is in the Title, and the Title Must Be Changed
The 1992 Animal Enterprise Protection Act was enhanced and renamed the Animal Enterprise Terrorism Act in 2006.Although found in the Act’s 2006 revised title, the word “terrorism” is nowhere else used within the AETA.In United States v. Johnson, the Third Circuit determined that branding AETA violators as “terrorists” based on the title of the Act was not a violation of their substantive due process rights.In Johnson, animal activists traveled from California to Illinois where they freed mink from cages on a fur farm, and damaged farm property.Defendants were charged under the AETA, and they contended that being labeled a terrorist for non-violent property crimes violated their substantive due process rights.The court determined there is no liberty interest to not be labeled as a terrorist under the AETA.The court instead used rational basis analysis reasoning that being labeled a terrorist is a “harmless” non-fundamental liberty. The court noted that Congress intended that the AETA allow prosecution of direct action such bombings, death threats, arson, and so the use of the word “terrorism” in the title of the statute was not arbitrary.Although the Johnson activists committed non-violent acts, the AETA prosecutes both violent and non-violent acts.Thus, those convicted for non-violent acts are subjected to the AETA and labeled as terrorists due to the “terrorism” title.
Being convicted under a terrorism statute means that activists will have their cases reviewed by a government counter-terrorism employee who must determine what penal facility an AETA convict will be sent to.In Johnson, prosecutors attempted to soft pedal this by noting that the person reviewing the case will consider the entirety of the circumstances in determining the facility and those convicted under the AETA are not automatically assigned to high security prison units.However, overburdened prison system employees are prone to mistake.A Federal Bureau of Prisons’ (“BOP”) 2020 audit indicates that the BOP frequently miscategorized the security risk of incoming inmates.The audit indicated that over 300 international terrorists went undetected for enhanced monitoring during their incarceration.This is because they were sent to prison for criminal charges not labeled as terrorist activities.More than 40 inmates who had a terrorism nexus were released by BOP “without notifying the FBI, because, according to the BOP, it did not believe it had sufficient information to consider these 40 individuals to be terrorist inmates.”
Furthermore, the BOP “often had to rely on media coverage or an internet search to identify the individual’s ties to terrorism.”BOP estimated that the terrorism nexus for between 80-90 percent of arriving inmates was discovered by “public record searches prior to or upon the individual’s arrival at BOP institutions.”The Department of Justice recommended that the BOP create procedures to identify terrorists who require enhanced monitoring.This audit indicates that the identification of which incarcerated individuals are labeled as terrorists is neither uniform nor accurate.
As such, it is entirely possible that in this overburdened system, an activist convicted under AETA will inadvertently be branded a terrorist.The BOP Designation and Sentence Computation Center (“DSCC”) determines the facility designation for all prisoners taking into consideration management variables, public safety factors, level of security and supervision required.The DCSS can assign inmates to Communication Management Units (“CMU”) which are reserved for certain prisoners, including those convicted of terrorism-related offenses.CMUs subject prisoners to increased monitoring of mail and telephone communications, and limited live-monitored social visits.Because there are only two CMUs in the US, anyone assigned there may end up far from friends and family. Therefore, prisoners labeled terrorists under the AETA risk designation to prisons where their communications and privileges are limited.
Liberty is a fundamental right, and prisoners deserve fair treatment in their confinement based on an accurate assessment of their status and their risk to others when in prison.Being branded a terrorist under the AETA merely because of its title may impact the liberty interest of those convicted under the statute in unfair ways given the range of quality of prisons and restrictions applied to certain types of prisoners. As discussed below, policy change is required to remove the word “terrorism” from the Act, thus avoiding undue burdens to the liberty interest of incarcerated persons branded as terrorists under the Act.
Both Top-Down and Bottom-Up Approaches to Change are Required
The overcharging potential of the AETA highlights the disconnect between existing policy and cultural shift.Both top-down policy change, and bottom-up cultural shifts are required in tandem to bring meaningful change for animals and the environment, while still protecting the rights of activists. This article recommends two changes:
First, the term terrorist should be removed from the AETA title.Statistics indicate that a terrorism label specifically for environmental and animal activists is unnecessary.The FBI Strategic Intelligence Assessment and Data on Domestic Terrorism contains a category for animal rights and environmental violent extremism.The October 2022 Assessment revealed that the animal and environmental activism category of domestic terrorism investigations by investigative classification totaled 1% of investigations for the years 2020 and 2021.In contrast, 2021 investigations for racially or ethnically motivated violent extremism totaled 19%, anti-government or anti-authority violent extremism 38%, and anti-riot laws/civil unrest was 31% (due to the January 6 insurrection).Clearly, based on this data, animal and environmental activists are not a high domestic terrorism threat.
It is possible that the harsh penalties imposed by the AETA are working, and that the decrease in activist prosecution is the direct result of the statute’s success.However, direct action on behalf of animals and the environment has changed drastically since 2006.Activists are using more creative techniques that garner public support.For example, the right to rescue is becoming a culturally acceptable concept, particularly when no violence is involved in removing an economically worthless but critically injured animal from certain death and disposal on a factory farm.While such action is potentially subject to prosecution under the AETA, a jury will make the final decision.When faced with nonviolent activists, social injustice, or a critically injured animal that is certain to be thrown in the trash, a jury must apply the AETA as instructed.Reasonable jury members will struggle to find guilty of terrorism those activists who are charged for removing a dying animal or camping illegally.Removing terrorism from the Act’s title relieves this jury pressure and protects activists from being overcharged.
Second, and preferably, the AETA should be eliminated altogether to protect animal and environmental activists from being overcharged. Congress must be reminded of the difference between terrorists with murderous intent who pose an imminent threat, versus animal and environmental activists who may commit property crimes. Direct actions such as undercover investigation of breeding facilities, labs, slaughterhouses and factory farms are necessary to discover violations of animal welfare and environmental degradation when government agencies are either unable or unwilling to enforce.A recent undercover investigation by People for the Ethical Treatment of Animals (“PETA”) exposed numerous Animal Welfare Act (“AWA”) violations at the Envigo beagle breeding facility in Cumberland, Virginia.USDA’s Animal and Plant Health Inspection Service (“APHIS”) failed to enforce against Envigo after documenting over 60 AWA violations in four visits from July 2021 to March 2022.Over half of the documented violations were categorized as direct or critical, with beagles facing immediate harm.PETA’s undercover investigation ultimately led to a criminal investigation by the Department of Justice.
The AETA must be abolished to protect organizations and individuals who do this important work.Whether the solution is to amend the Act’s title, or to altogether abolish the AETA, public pressure should be brought to bear on Congress to make these changes.
Industry has successfully lobbied Congress to silence activists by creating lifetime personal consequences for individuals who dare to challenge industry practices.Yet animal and environmental activists have been using direct action for decades, slowly moving the needle on important issues.In 2006, Congress created an immediate, top-down policy shift by enacting the AETA to further benefit those industries that negatively impact animals and the environment.However, public reaction to direct action increasingly shows a bottom-up cultural shift favoring activism.Widespread support for brave direct action is on the rise, and it is just such cultural shifts in ideology that prove sustainable in the long term. It is time for Congress, with the stroke of a pen, to reverse their sweeping change that branded activists as terrorists.The AETA should be abolished, or at a minimum, the title of the Act must be amended to remove any reference to terrorism while creating clear parameters that do not infringe upon the First Amendment rights of activists.
 James Factora, Queer “Cop City” Protestor Tortuguita Fatally Shot by Law Enforcement in Atlanta, Them (Jan. 23, 2023), https://www.them.us/story/tortuguita-shot-killed-atlanta-police-cop-city.
 Kiara Alfonseca, What is Atlanta’s ‘Cop City’ and Why are People Protesting It?, ABC (Jan. 29, 2023), 6:03 AM, https://abcnews.go.com/US/atlantas-cop-city-people-protesting/story?id=96716095.
 Steven Donziger, Environmentalist Manuel Esteban Paez Terán’s Death is Part of a Disturbing Trend, Guardian (Feb. 2, 2023, 6:11 AM), https://www.theguardian.com/commentisfree/2023/feb/02/manuel-esteban-paez-teran-climate-activist-killed-atlanta-police.
 Char Adams, What is ‘Cop City’? How Opposition to an Atlanta Police Center Prompted National Demonstrations, NBC (Jan. 26, 2023, 8:35 AM),https://www.nbcnews.com/news/nbcblk/what-is-cop-city-atlanta-police-protests-rcna67291.
 18 U.S.C. § 43. Force, violence, and threats involving animal enterprises.The Animal Enterprise Protection Act of 1992 was amended in 2006 and retitled the Animal Enterprise Terrorism Act.
 John E. Lewis, Testimony Before the Senate Judiciary Committee, Washington DC (May 18, 2004)https://archives.fbi.gov/archives/news/testimony/animal-rights-extremism-and-ecoterrorism. Assistant FBI Director Lewis testified before Congress, claiming that new legislation was needed to prosecute animal and environmental “terrorists.”
 18 U.S.C. § 43.
 584 F.3d 132 (2009).
 Laura Mansnerus, Animal Rights Advocates Given Prison Terms, NY Times (Sept. 13, 2006) https://www.nytimes.com/2006/09/13/nyregion/13animal.html.
 NGOs focused on Constitutional law and civil rights have opposed the AETA.See Animal Rights “Terrorism” Law Violates First Amendment, Attorneys Say, Ctr. for Const. Rights (April 2, 2014), https://ccrjustice.org/home/press-center/press-releases/animal-rights-terrorism-law-violates-first-amendment-attorneys-say; ACLU Letter to Congress Urging Opposition to the Animal Enterprise Act, S. 1926 and H.R. 4239, ACLU, https://www.aclu.org/letter/aclu-letter-congress-urging-opposition-animal-enterprise-act-s-1926-and-hr-4239?redirect=cpredirect/25620 (accessed March 13, 2023).
 United States v. Johnson, 875 F.3d 360, 372 (2017).
 Office of the Inspector General U.S. Department of Justice, Audit of the Federal Bureau of Prisons’ Monitoring of Inmate Communications to Prevent Radicalization 9 (March 2020), https://oig.justice.gov/sites/default/files/reports/a20042.pdf.
 Id. at i.
 Id. at 10.
 Id. at 10-11.
 Custody and Care: Designations, Fed. Bureau of Prisons, https://www.bop.gov/inmates/custody_and_care/designations.jsp (accessed March 13, 2023).
 Legal Resource Guide to the Federal Bureau of Prisons, U.S. Dept. of Justice
Fed. Bureau of Prisons 17 (2019), https://www.bop.gov/resources/pdfs/legal_guide_march_2019.pdf.
 Id. at 19.
 Strategic Intelligence Assessment and Data on Domestic Terrorism, Fed. Bureau Investigation
Dept. Homeland Sec. (Oct. 2022),
 Id. at 20.
 Farhad Manjoo, Rescuing Farm Animals From Cruelty Should Be Legal, NY Times (Feb. 14, 2023), https://www.nytimes.com/2023/02/14/opinion/foster-farms-chicken-slaughterhouse-animal-cruelty.html.
 Envigo was acquired by Inotiv in Nov. 2021.See Inotiv, Inc. completes purchase of Envigo, Inotiv, https://www.inotivco.com/news/inotiv-inc-completes-purchase-of-envigo (accessed March 13, 2023).
 Desperate Dogs Warehoused and Bred in Prison-Like Factory That Sells Them for Experimentation, PETA,https://investigations.peta.org/dog-beagle-breeding-mill-envigo/ (accessed March 13, 2023).
 Sarah N. Lynch & Rachael Levy, Exclusive: US Probe of Dog Breeder Scrutinizes Why USDA Left Thousands of Beagles to Suffer, Reuters (March 9, 2023)https://www.reuters.com/legal/us-probe-beagle-breeder-envigo-scrutinizes-top-animal-welfare-officials-inaction-2023-03-09/.