Image by Tomas Castelazo— Wikimedia

Did you know that throwing a rock through the window of a Whole Foods could be punished as a federal crime of terrorism?  An Assistant United States Attorney admitted as much last year, when defending the little-known Animal Enterprise Terrorism Act (commonly known as the AETA) against a constitutional challenge by the Center for Constitutional Rights.

The AETA is a piece of designer legislation passed quietly in 2006 and used a handful of times since then, primarily to punish activists who release animals from fur farms. While there is no single, unifying definition of “terrorism” in federal or international law, there is consensus in the academic literature identifying violence or acts dangerous to human life as universally accepted components, and this consensus is generally mirrored in federal law, including in the Foreign Intelligence Surveillance Act, the USA Patriot Act, the Homeland Security Act, and the federal terrorism sentencing enhancement. And yet, the Animal Enterprise Terrorism Act has little to do with violence (unless we’re talking about preventing violence against animals by releasing them from fur farms and other facilities). It prohibits using a facility in interstate commerce (think: traveling across state lines, using a cell phone, or researching something on the internet) for the purpose of “damaging or interfering” with the operations of an animal enterprise and, in connection with that purpose, “intentionally damag[ing] or caus[ing] the loss of any real or personal property (including animals and records) used by an animal enterprise.”

The AETA defines “animal enterprise” incredibly broadly, as “a commercial or academic enterprise that uses or sells animals or animal products for profit, food or fiber production, agriculture, education, research, or testing.” Whole Foods is a commercial enterprise that sells animal products—as is every other non-vegan restaurant, grocery store, and clothing store in the country. Throwing a rock through its window is intentionally damaging its property, and doing so after you found the address using your smart phone fulfills the interstate commerce requirement. 

That’s how easily the AETA turns an act of vandalism into terrorism.

The word “terrorism” doesn’t generally jump into most people’s minds when they hear about vandalism at a grocery store. But what is and is not considered terrorism has less to do with what the activity is and more to do with who did it. Consider Dylann Roof, the white supremacist accused of murdering nine Black parishioners at the historic Emanuel African Methodist Episcopal Church. Roof’s act was certainly violent and political, but the FBI does not consider his actions terrorism—despite reports that the death toll from right-wing extremists is nearly twice as high as the number of people killed by those to whom the “terrorist” label is more readily attached: Islamic extremists. Meanwhile, just a month after the FBI director dismissed the idea of Dylann Roof as a terrorist the FBI announced an indictment under the AETA of two animal rights activists—for vandalism and freeing animals from fur farms—in a press release that used some iteration of the word “terrorism” six times.  The murder of twenty elementary school children and six adults by white, non-Muslim, 20-year-old Adam Lanza at Sandy Hook Elementary School? Not terrorism. Murders of 14 people, with 22 seriously injured, by a Muslim couple in San Bernardino, California? Terrorism.

Far too readily, when our society decides what is and is not terrorism, the answer depends not on what happened, but on who was the perpetrator—and whether their politics or their identities are marginalized.

In the context of the AETA, the only federal judge who has considered the legitimacy of applying the terrorism label explained it as follows: (1) Congress passed the AETA to address harassment and threats of violence against individuals associated with animal enterprises; (2) the law covers some non-violent property damage, but it also prohibits violence and intimidation (in a separate subsection); therefore (3) it is rational for a law about non-violent property damage to include the word “terrorism.”

The above analysis, by the Honorable Amy J. St. Eve of the Northern District of Illinois, was issued in response to a substantive due process challenge to a recent AETA indictment against Kevin Johnson and Tyler Lang, who each faced ten years in federal prison for releasing thousands of mink from a fur farm, vandalizing farm vehicles, and spray-painting “Liberation is Love” on the barn wall.  Johnson and Lang have appealed to the Seventh Circuit, arguing that the AETA violates substantive due process because it irrationally labels their criminal, but non-violent, conduct “terrorism.” A decision is expected shortly. (Disclosure: CCR represents them).

Substantive due process is a constitutional catch-all.  Even where governmental action doesn’t infringe on fundamental rights or classify individuals in a way that raises equal protection concerns, infringements on an individual’s liberty or property must be rationally related to a legitimate government interest. The Seventh Circuit has previously relied on this principle when considering whether a school district can constitutionally prohibit its bus drivers from wearing moustaches (it can’t), whether an off-duty police officer can be disciplined for taking a 17-year-old for a motorcycle ride (he can), and whether a school can require boys (but not girls) on the school basketball team to wear their hair short (probably not).

On appeal in Johnson and Lang’s case, the Government has argued that it doesn’t matter if irrationality is afoot, because the appearance of the word “terrorism” in the Animal Enterprise Terrorism Act’s title is meaningless; it doesn’t have any impact on the defendants. Indeed, the government promised that, despite indicting defendants for “animal enterprise terrorism,” it would never refer to them as terrorists at trial or in any other context—though it did exactly that to other AETA defendants in the press release mentioned above.

Either way, a conviction for “animal enterprise terrorism” as opposed to “damage to property” seems pretty darn meaningful on its face, given what friends, prospective employers, and the public might assume about the underlying criminal conduct, but that’s not even the half of it. After some initial obfuscation, the Government conceded that the word “terrorism” in the Act’s title would prompt the counter-terrorism unit of the Bureau of Prisons to consider any individual convicted under the AETA for placement in a Communication Management Unit.

CMUs are special units within the federal prison system designed to segregate certain prisoners, including those convicted of a crime “related” to terrorism, from the general prison population. Prisoners in the CMUs are subjected to onerous communications restrictions, including a total ban on contact visitation, limited telephone access, and the ultra-creepy knowledge that everything one says or writes is recorded for review and analysis by counter-terrorism officials. Technically, being eligible for placement in a CMU doesn’t mean a prisoner will necessarily be sent there. But as documents filed in a constitutional challenge to the CMUs disclose, between 2006 and 2014 only 205 prisoners were even considered for CMU placement, and 175 of them were so designated. (Disclosure No. 2: also our case).

Confronted with the fact that being convicted of animal enterprise terrorism does significantly increase one’s chance of going to a CMU, and thus renders Congress’s use of the word constitutionally meaningful, the Government’s fallback position is that it is rational to call vandalism “terrorism,” because people who vandalize property are part of the animal rights “extremist movement” and others in that movement have engaged in acts of violence and harassment that could more rationally be called terrorism. This ignores the fact that the law does not require an animal-related purpose: throwing a rock through the window of a Whole Foods is animal enterprise terrorism even when motivated by the price of their food rather than by the animal blood on their hands; this category of “terrorists” are unlikely to have any connection to any extremist movements.   But even when used against animal rights activists, this is a pretty huge leap, especially given that such activists “have generally refrained from harming individuals” and “most . . . eschew physical violence directly targeting people or animals.” And even if the purported violence of the animal rights movement weren’t mythical, this rationale amounts to labeling activists terrorists not because of what they, individually, have done, but because they share political beliefs with others who have engaged in such conduct.

Though admittedly somewhat novel, there is precedent for Johnson and Lang’s due process challenge. The “right not to have a misleading label attached to one’s serious crime” has been repeatedly recognized in the context of challenges by individuals subject to sex offender registry requirements, whose underlying crime involves no sexual component.  As one Ohio appellate court reasoned:

[i]magine that the General Assembly, desiring to enable the public to protect itself from the risks represented by convicted felons living within their midst, were to enact a statute designating all persons convicted of felonies as “murderers,” with registration and reporting requirements, so that neighbors would wind up being advised that John Jones, a “murderer,” is now living on their block. John Jones is, in fact, a person who has been convicted of an esoteric election-law felony. It is the misnaming, or mis-characterization, of the offense, that is unreasonable and arbitrary.

Of course, in the context of animal rights activism the disconnect is not actually arbitrary at all. The AETA was passed at the urging of just who you would expect: the National Association for Biomedical Research, Fur Commission USA, Pfizer, United Egg Producers, National Milk Producers Federation, American Meat Institute, and other powerful animal industries. But the law is more than just a gift to powerful industries.

In a society where whether or not something is called “terrorism” depends more upon the identities of the perpetrators or the popularity of their beliefs than upon how much harm they have caused, the targeting as “terrorists” of activists whose very purpose is to oppose and stop violence against animals is a powerful cultural signal.  And those concerned with the abuse of terrorism labels, the misguided use of law enforcement resources, and the demonization of unpopular groups should pay close attention to where it points.