3rd Circuit Rejects Online Activists' Free-Speech Defense of Attacks on Animal Testing Firm

The First Amendment does not insulate animal rights activists from criminal liability when they use an Internet Web site to orchestrate a campaign of harassment, cyberattacks, vandalism and destruction of property, the 3rd U.S. Circuit Court of Appeals has ruled.

In United States v. Fullmer, a three-judge panel unanimously refused to strike down the Animal Enterprise Protection Act, rejecting arguments by six activists -- convicted for targeting Huntingdon Life Sciences, an animal testing firm -- who complained that the law had effectively criminalized their legitimate political protests.

The ruling upholds convictions and prison terms for six members of Stop Huntingdon Animal Cruelty, or SHAC, a group whose stated mission was to drive Huntingdon Life Sciences out of business.

One of the judges wrote he would have overturned the protesters' convictions on charges under the AEPA on non-constitutional grounds.

Writing for the court, 3rd Circuit Judge Julio M. Fuentes found that SHAC used its Web site to invite its supporters "to engage in electronic civil disobedience against Huntingdon and various companies associated with Huntingdon."

Electronic civil disobedience, Fuentes noted, "involves a coordinated campaign by a large number of individuals to inundate websites, e-mail servers, and the telephone service of a targeted company." It also includes the use of "black faxes" -- repeatedly faxing a black piece of paper to the same fax machine to exhaust the toner or ink supply.

Fuentes also found that while SHAC's organizers claimed on the Web site not to endorse any illegal activities, they had actually orchestrated illegal cyberattacks and harassment.

As a result, Fuentes said, the group's Internet activities were not merely political speech, but instead qualified as "true threats," which removes any First Amendment protection.

The 60-page decision marks the first time any federal appeals court has heard challenges to AEPA.

But a dissenting judge said that although he agreed with his colleagues that the law passed constitutional muster, he would have overturned all six convictions because the prosecutors failed to prove that the activists had conspired to commit the precise act the AEPA criminalizes -- "physical disruption to the functioning of an animal enterprise."

Instead, Judge D. Michael Fisher said, the government's evidence proved only that the six had "conspired together to put economic pressure on Huntingdon to close its facilities by targeting companies that did business with Huntingdon, as well as their employees, and furthered this goal through a campaign of intimidation and harassment."

Fisher noted that Congress revised the law in 2006 "to make 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 AEPA."

Convicted in a 2006 trial were Jacob Conroy, Lauren Gazzola and Kevin Kjonaas, all of Pinole, Calif., Darius Fullmer of Hamilton, N.J., Joshua Harper of Seattle, and Andrew Stepanian of Huntington, N.Y.

They were sentenced to prison terms ranging from one to six years. Conroy, Gazzola and Kjonaas remain behind bars.

In a partial dissent, Fisher said he would have upheld the defendants' convictions for interstate stalking, but would have overturned all of the AEPA convictions because the evidence of the alleged conspiracy failed to prove a violation of the original version of the law.

"I acknowledge that the government's case against these defendants would be much stronger if they were prosecuted under the current version of the AEPA. However, the version of the AEPA that the defendants were charged with violating did not prohibit mere interference with the operations of an animal enterprise nor did it proscribe targeting companies and employees that were affiliated with an animal enterprise and, therefore, proof that the defendants engaged in this type of conduct was not a sufficient basis for convicting them under the AEPA," Fisher wrote.

Fuentes, who was joined by visiting U.S. District Judge J. William Ditter Jr. of the Eastern District of Pennsylvania, found that the government had ample proof that the defendants were aware that their conduct was illegal and not legitimate political protest.

Huntingdon Life Sciences is a research corporation that uses animals to perform safety testing for companies seeking to bring products to market. It operates two laboratories in the United Kingdom and one in New Jersey.

Since the late 1990s, Huntingdon has been a prime target of animal rights activists as a result of the release of secretly recorded videos that allegedly depicted animal abuse.

A SHAC group formed in the United Kingdom was tied to attacks on a Huntingdon executive and a campaign of harassment aimed at the company's investors.

Here in the United States, prosecutors said, a small group of activists established a Web site to coordinate a similar campaign of harassment against any company that did business with Huntingdon.

Among the alleged victims of the campaign were Stephens Inc., an investment banking company; Chiron, a pharmaceutical client; Marsh Inc., an insurance broker; and Deloitte & Touche, an auditor, as well as the employees of those companies.

At trial, prosecutors focused on SHAC's use of a Web site to coordinate the activity of numerous activists.

According to court papers, the SHAC Web site 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 also said on the site that it "does not organize any such actions or have any knowledge of who is doing them or when they will happen," but that the group "encourage[s] people to support direct action when it happens and those who may participate in it."

Fuentes found that the Web site "often posted the organization's 'accomplishments,' which lauded both legal and illegal protest activity."

The illegal activity, Fuentes said, included a break-in at the Huntingdon lab in New Jersey, during which protestors broke windows and "liberated 14 beagles," in addition to overturning a worker's car; detonating a "stink bomb" in the Seattle office of a Huntingdon investor; destroying Bank of New York ATMs, windows and other property; sinking a yacht owned by the Bank of New York's president; launching repeated "paint attacks" in the New York offices of a Huntingdon investor; and "rescuing" dogs and ferrets from a Huntingdon breeder farm.

Lead defense attorney H. Louis Sirkin [pictured] of Sirkin Pinales & Schwartz in Cincinnati, who argued the case for Gazzola, could not be reached for comment.

But Robert Obler, a Lawrence, N.J., attorney who defended Fullmer, told The Associated Press that he expected the ruling will be appealed. "I'm fairly sure we will wind up in the U.S. Supreme Court," he said. "We knew all along we would."