The Boundaries of Free Speech and Press

This morning I've posted two blogs about free speech and the press on trial. Yesterday, the Supreme Court affirmed the appeals court's reversal of the jury verdict in favor of the father of a deceased veteran. The son's funeral had been picketed by the defendants, fundamentalists there to protest the military's position on gays. Justice Alito dissented, sating that the picketers had crossed the line, stepping out from behind the First Amendment's shield and opening themselves up to the damage award the jury saw fit to award the father-plaintiff.

In a second posting, I note the decision of a French court this week to dismiss the criminal-libel charges against a law professor/journal editor, brought by another academic, who objected to the book review of her tome, which he ran in his journal.

In earlier postings, I have also raised the issue of incitement which --- like libel, kiddie porn, and a few other exceptions --- is beyond the bounds of First Amendment protection. This exception has been in the spotlight lately due to the shooting of a Congresswoman in Arizona and its possible incitement by Sarah Palin's "Don't retreat... reload" motto. The most notable incitement case of recent years is the criminal prosecution of certain animal-rights radicals in a federal court in New jersey. Here is my account of that case from one of my books:


Stop Huntington Animal Cruelty (SHAC)
Huntingdon Life Sciences is a research corporation that performs testing for companies seeking to bring their products to market. The testing that Huntingdon provides to its clients is mandated by the laws and regulations of the United States and Europe to ensure the safety and efficacy of pharmaceuticals, agricultural products, veterinary products, and medical implants. Huntingdon has three laboratories, two in the United Kingdom and one in New Jersey. All Huntingdon laboratories use animals as test subjects. Approximately eighty-five percent of the animals used by Huntingdon are rats and mice, and the remaining fifteen percent is composed of other species, including fish, dogs, monkeys, and guinea pigs.
In the late 1990s, an individual posing as a laboratory technician videotaped the conditions inside a Huntingdon laboratory in the United Kingdom. The footage, which depicted animal abuse, became public when it was used in a television program, igniting protests against Huntingdon by a number of animal rights organizations. At about the same time, Stop Huntingdon Animal Cruelty was formed in the United Kingdom (SHAC-UK). The organization's mission is to close Huntingdon laboratories.
Immediately after SHAC-UK formed in November 1999, the organization published a newsletter that listed the names and addresses of the Huntingdon directors in the United Kingdom. Following the publication of the newsletter, animal rights protestors subjected the Huntingdon directors to an ongoing campaign of harassment, including vandalizing their homes and cars.
In February 2001, the Chief Operating Officer and Managing Director of Huntingdon, Brian Cass, was physically assaulted by three masked individuals in front of his home in England. Cass suffered cracked ribs, several lacerations, and a four-inch gash on his head that required nine stitches. David Blinkinsopp, who had been identified in video footage of SHAC-UK protests in front of Huntingdon, was convicted of the assault. The remaining two assailants were never identified.
SHAC-UK's campaign evolved to include companies and individuals who were associated with Huntingdon, such as suppliers and customers. In addition, SHAC-UK began to target Huntingdon's shareholders, demanding that the shareholders sell their stock in Huntingdon or face twenty-four hour demonstrations at their homes. Because the laws in the United Kingdom require companies to publish the names and addresses of their shareholders, Huntingdon relocated its financial base to the United States in an effort to protect its shareholders. SHAC then formed a branch in the United States to target the New Jersey-based branch of Huntingdon. The New Jersey branch of SHAC is one of the defendants in this action, along with six individuals… thus, “the SHAC 7.”
SHAC’s Website
SHAC's primary organizing tool was its website, through which members coordinated future protests. It also published information about protests that had previously taken place. The website included a page dedicated to the concept of “direct action,” which all parties to the 2006 criminal prosecution and subsequent appeal conceded was a type of protest that included the illegal activities that ended in a grad jury indictment. With regard to its position on the use of direct action, SHAC stated the following on its website:
We operate within the boundaries of the law, but recognize and support those who choose to operate outside the confines of the legal system.
Big business has shown time and time again their lack of concern for ethics, instead focusing their attention on their profit. Often, simply targeting said business proves fruitless. However, as above ground activists have successfully targeted [Huntingdon]'s financial pillars of support, underground activists have too targeted [Huntingdon]'s pocketbooks. Unidentified individuals as well as underground cells of the Animal Liberation Front and the Earth Liberation Front have engaged in economic sabotage of [Huntingdon] and their associates.

They have also spent their time directly intervening and liberating the animals who are slated to die inside of [Huntingdon]. Animals have been liberated from breeders as well as the laboratories themselves.

SHAC does not organize any such actions or have any knowledge of who is doing them or when they will happen, but [SHAC] encourage[s] people to support direct action when it happens and those who may participate in it.

The website often posted the organization's “accomplishments,” which lauded both legal and illegal protest activities. The illegal activities included, among other things:
• 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.
The website also posted “anonymous” bulletins of successful, but illegal, protest activities. In this capacity the site postured as a mere conduit of information, roughly analogous to a news medium’s website. One such anonymous bulletin stated:

Late last night, August 30th, we paid a visit to the home of Rodney Armstead, MD and took out two of his front windows ... gave him something to labor over this Labor Day weekend. Rodney serves as an officer and agent of service for “Medical Diagnostic Management, Inc.,” a scummy little company [associated with Huntingdon]. Any ties with [Huntingdon] or its executives will yield only headaches and a mess to clean up.

The name and home address of Dr. Armstead followed. However, shedding the mask of neutrality, this bulletin was prefaced by SHAC's statement that it was “excited to see such an upswing in action against Huntingdon and their cohorts. From the unsolicited direct action to the phone calls, e-mails, faxes and protests. Keep up the good work!” Similar bulletins included photographs of extensive vandalism of the homes of people indirectly affiliated with Huntingdon, such as employees of Bank of New York. These bulletins almost always contained a disclaimer that “all illegal activity is done by anonymous activists who have no relation with SHAC.”
The SHAC website also posted a piece called the “Top 20 Terror Tactics” that was originally published by an organization that denounced the use of animals in medical research and testing. With its standard disclaimer about SHAC not organizing illegal activity, SHAC re-published the list on its website. Some of the tactics included abusive graffiti, posters, and stickers on houses, cars, and in neighborhoods of targeted individuals; invading offices, damaging property, and stealing documents; chaining gates shut or blocking gates with old cars to trap staff on site; physical assaults against the targeted individuals, as well as their partners, including spraying cleaning fluid into their eyes; smashing windows in houses when the occupants are home; flooding houses with a hose attached to an outside tap inserted through a letterbox or window while the home is unoccupied; vandalizing personal vehicles by gluing locks, slashing tires, and pouring paint on the exterior; smashing personal vehicles with a sledgehammer while the targeted individual is inside; firebombing cars, sheds and garages; bomb threats to instigate evacuations; threatening telephone calls and letters, including threats to injure or kill the targeted individual, as well their children and partners; abusive telephone calls and letters; ordering goods and services in the targeted individual's name and address; and arranging for an undertaker to collect the target's body. Following the list, the SHAC website stated, “Now don't go getting any funny ideas!”
The website had a series of links dedicated to educating activists on how to evade investigators. These links were entitled, “Ears and Eyes Everywhere,” “Dealing with Interrogation,” “When an Agent Knocks,” and “Illegal Activity.” In these sections of the website, SHAC advised its protesters to “never say anything over the phone, email or in your house or car that you wouldn't want the authorities to hear. If you need to discuss sensitive information, do it in a remote location. Burn anything with sensitive information on it.... Visit www. pgp. com and download an email encryption program to protect your email conversations.” “PGP” stands for “pretty good privacy,” and that encryption device was generally effective at protecting e-mail conversations from outside monitoring. PGP is also used to erase data from hard drives. The software was found on eight of the nine computers at SHAC's de facto headquarters, which three of the defendants also called home.
Through its website, SHAC also invited its supporters to engage in electronic civil disobedience against Huntingdon and various companies associated with Huntingdon. Electronic civil disobedience involved a coordinated campaign by a large number of individuals to inundate websites, e-mail servers, and the telephone service of a targeted company. Electronic civil disobedience also included the use of “black faxes,” repeatedly faxing a black piece of paper to the same fax machine to exhaust the toner or ink supply. SHAC sponsored electronic civil disobedience campaigns on the first Monday of every month. It reminded its supporters that electronic civil disobedience was illegal, and therefore supporters should only participate if they “are like Martin Luther King and are ready to suffer the consequences ... or if [the supporters] want to live to fight another day, do the electronic civil disobedience from a public computer that cannot be traced....”
Another way that SHAC encouraged the use of electronic civil disobedience was through its “Investor of the Week” feature, which highlighted a company associated with Huntingdon by publishing the company's contact information. SHAC told its supporters to “Take advantage of pay phones! Especially with toll free numbers! [sic]”
The website also provided a link to a black fax for their personal use. Alternatively, the website noted that supporters could just use black paper to “give your target's fax machine a run for its money ... or ink!” The website explained how a supporter could block his phone number so that it would not appear on the fax or telephone line's caller identification. In addition, the website explained how to prevent the targeted company's servers from blocking e-mails, and provided a link to encryption devices that ostensibly masked the sender.
One specific example of SHAC's coordination of electronic civil disobedience, cited by the U.S. Court of Appeals in its 2009 review of the case, is an e-mail from “shacuse@ envirolink. org” that was disseminated on October 26, 2003. The subject line of the e-mail was “Electronic Civil Disobedience,” and it advised SHAC supporters that on the following day, SHAC's website would provide a link to the SHAC-Moscow website where “electronic civil disobedience will be taking place.” The e-mail stated that “participation is mandatory,” and that by taking part in the coordinated electronic civil disobedience, supporters would “help ... halt the ever important web medium for particular companies sponsoring Huntingdon.” Participation would also “send[ ] a loud message that no silly injunctions or crooked politicians can derail the campaign to close Huntingdon.”
Indictments and Trial
An indictment was filed against the SHAC7 in the U.S. District Court of New Jersey in its Trenton courthouse on May 20, 2004. On September 16, 2004, the government filed a superseding indictment. On September 16, 2004, SHAC, Kjonaas, Gazzola, Conroy, Harper, Stepanian, and Fullmer were charged in a superceding indictment. Count One of the indictment charged that all six individual defendants conspired to violate the Animal Enterprise Protection Act, 18 U.S.C. § 43. Count Two charged SHAC, Kjonaas, Gazzola, and Conroy with conspiring to commit interstate stalking in violation of 18 U.S.C. § 2261A(2) and 18 U.S.C. § 371. Counts Three, Four, and Five charged SHAC, Kjonaas, Gazzola, and Conroy with substantive interstate stalking of Sally Dillenback, Marion Harlos, and Robert Harper, respectively. Count Six charged SHAC, Kjonaas, Gazzola, Conroy, and Harper of conspiring to use a telecommunications device to abuse, threaten, and harass in violation of 18 U.S.C. § 371 and 47 U.S.C. § 223(a)(1)(c).
[Photos “Jake1”, “Darius1”, “Lauren1”, “Josh1”, “Kevin1”, and “Andy1” here]

The three-week trial began in early February 2006. The government presented a parade of corporate witnesses who described in graphic detail the patterns of harassment to which they had been subjected. SHAC didn’t confine its campaign to Huntingdon’s New Jersey employees. It targeted the management of service providers, shareholders of corporations holding a block of Huntingdon’s stock, and anyone else who seemed to be supporting their bete noir.
Andrew Baker
SHAC’s website said of Andrew Baker, chairman of Life Sciences Research, a Huntingdon holding company,
If there is one man on whom you could place the most blame for [Huntingdon's] crimes since 1998, it is him. For the last four years since he watched little dogs getting punched in the face, Baker has put his all into keeping Huntingdon afloat. Not an easy job. As a trained chartered accountant Baker is skilled at pulling the financial strings of companies he is in charge of.... He currently works out of a NJ office called Focused HealthCare Partners LLC-which acts as a general partner for healthcare startups ... or failing labs like Huntingdon.... Baker has been essentially reduced to scrambling full time to save Huntingdon. He has nothing else going for him. If [Focused HealthCare Partners] is the vehicle he uses to support Huntingdon, [Focused HealthCare Partners] is the company we must dismantle.

Placed into evidence was this posting from the SHAC website:

Despite driving winds, rain, and cold weather 75+ activists gathered at [address redacted by the court] to protest the home of Andrew Baker CEO to Huntingdon. Andrew Baker is at the top of our “SH&)%;!” list for his lead in trying to save Huntingdon from certain closure. This was the largest and angriest of the 3 days of protest.... Andrew you and all your senior management and “science” staff have no idea what we have in store for you! Murderers, lairs [sic], thieves, and perverts deserve to be treated as such. In the near future when we see you in the gutter stripped of all your riches and fabricated respect, the only handout you will get is our spit!

Baker himself testified that protestors also targeted his daughter's New York apartment. He stated that vandals “plastered” the front door of her apartment “with posters and pictures ... depicting [his] death.”
The website added, “So, apparently Andy is bi-coastal (as if you couldn't tell). In addition to the 2 million dollar penthouse apartment he owns on NYC's upper Westside ( [address redacted by the court] ), Baker also has a sunny California home in Los Angeles. This choice location on Sunset Plaza Drive should be the number one attraction on any animal rights activist's Hollywood star-map.”
Baker went on to testify that the house in Los Angeles had been attacked three times. He stated that during the first attack, the protestors kicked in the gate at the street entrance, broke the front door, and broke two windows. During the second attack, the protestors broke a window in the garage and threw a smoke bomb inside. During the third attack, the protestors threw rocks and tile over the wall, hitting the top and sides of the house, including windows and doors.
Sally Dillenback
Dillenback was a senior executive in the Dallas offices of Marsh, Inc., the huge, international insurance broker. She testified that in early 2002, she learned that SHAC had targeted Marsh. In March 2002, Dillenback checked the SHAC website after learning that personal information about employees had been posted there. When she viewed the website, she saw that her personal information had been posted, including the names of her husband and her children, as well as their home address, the name of her children's school, the make, model and license plate of their personal vehicle, the name of their church, and the name of the country club where they were members.
Shortly after the information appeared on the SHAC website, Dillenback testified that her family began receiving phone calls, often “angry and belligerent,” day and night, as well as a “tremendous” volume of mail. Dillenback testified that one morning, her family awoke to find that pictures of mutilated animals had been glued to the sidewalk in front of her home, as well as the exterior side wall of her home. At the same time, the following was posted on the SHAC website:

received anonymously on March 10:

Last night the homes of Dallas Marsh employees Michael Rogan and Sally Dillenback were visited by activists. Mr. Rogan's garage was plastered with stickers of mutilated puppies such as those his company insures. Mrs. Dillenback's side wall was covered in stickers, as was her mailbox.

Let the stickers serve to remind Marsh employees and their neighbors that their homes are paid for in blood, the blood of innocent animals that are killed in labs like Huntingdon. Every day that Marsh insures Huntingdon, they insure death.

Dillenback testified that after this incident, she was “sickened and terrified,” and that her children were scared, especially the youngest child who was seven years old at the time. Marsh provided 24-hour security at her home following this incident.
Dillenback also received an e-mail that she perceived as a direct threat to her youngest son. She testified that the e-mail asked how she would feel “if they cut open my son ... and filled him with poison the way that [Huntingdon] was doing to animals....” (J.A. at 3004.) She testified that this e-mail “devastated” her. She further testified that during this period of time, her husband purchased a semi-automatic weapon and that her seven-year-old son twice brandished a kitchen knife while inside the house in an effort to protect himself and the family.
After Dillenback initially testified regarding her son's use of the knife at her deposition, the following posting, attributed to “TX activists,” appeared on the SHAC website:

On Saturday, December 14, activists paid a holiday visit to Sally Dillenback, head of Dallas Marsh office. She was surprised, finding her working on her Christmas tree with her family.... Contrary to Sally's sworn testimony at her deposition, her son did not run for a kitchen knife and to hide when he saw the activists. Instead, he and his sister seemed quite interested in the signs and appeared to be trying to read them from across the street.

Merry Christmas, Sally. Take a moment to think of all the dogs, like the one who shares your home, who will be spending Christmas in their own congealed blood and feces at Huntingdon, thanks in part [to] your company's insurance.

Dillenback testified that the protests stopped in early 2003, when Marsh stopped providing insurance brokerage services to Huntingdon. Notably, the SHAC website quoted a Financial Times article explaining that Marsh had dropped Huntingdon as a client on December 18, 2002.
Marion Harlos
Harlos Headed up the San Antonio offices of Seabury and Smith, a Marsh subsidiary. Like Dillenback, she learned from corporate headquarters that she had been targeted for protests on the SHAC website, which listed her home address and phone number. Within a week, there was a protest at Harlos's office. Protestors “bashed” in the door and threw pamphlets across the office while screaming, “You have the blood of death on your fingers,” “We know where you live,” “You cannot sleep at night,” and “We will find you.” Seabury and Smith subsequently hired security guards for the San Antonio office.
Harlos testified that the protestors returned to the office a few weeks later. Although the security guard stopped most of the protestors, one made it inside, throwing pamphlets and screaming, “Puppy killer,” and “We know where you live.” This protest was memorialized on the SHAC website as follows:
Today around 11:30 am, 5 activists visited the San Antonio Marsh office ... and gained access to the lobby. They rang the bell and a security guard answered, one activist made an attempt to get in past the guard and got half way in. It was enough to throw two or three dozen anti Huntingdon flyers into the air scattering and landing into the cubicles. All of the activist[s] screamed “puppy killer” and “we won't stop [until] you drop Huntingdon”. As they left they banged on the windows and promised “next time we will be at your HOME”.

Harlos testified that after this protest, she began receiving phone calls at her home late at night. She stated that sometimes the caller asked, “Are you scared? Do you think the puppies should be scared?” Protestors, wearing bandanas and masks to conceal their faces, often sat in a car outside her residence between 4:00 A.M. and 6:00 A.M., watching her house. Then, protests began. One morning, nine activists were arrested outside Harlos's home and were charged with third degree stalking. The SHAC website announced the arrests and urged its protestors to call the local police department in Texas to demand the protestors' release.
Harlos also testified that she was “petrified” and frightened for her children, who were no longer permitted to play outside. She also testified that her fear stemmed, in part, from her knowledge of what had happened to others who had been targeted by SHAC, including physical attacks. The activists continued to trespass on her property, despite an injunction that was intended to limit the permissible bounds of the protests. Harlos testified that the protests had a profound effect on her life, and the life of her family, ultimately forcing her to move to a new home. As with Dillenback, Harlos testified that the protests ceased when Marsh ended its business relationship with Huntingdon.
Robert Harper
Harper was a property broker in Marsh’s Boston Office. SHAC’s website posted the following missive to Mr. Harper:
Received anonymously:
Happy Father[']s [D]ay Rob Harper. I hope you liked our gift[.]
In the wee hours of the mourning (sic) on June 15, Marsh Boston Employee, Rob Harper [home address redacted] received an early Father[']s Day gift that he will never forget. A few gallons of red paint were thrown all over Harper's front steps and door. This left the front of his house caked in a huge pool of red paint.
Rob Harper is responsible for 500 animals dying within [Huntingdon] today and as long as Marsh has ties with [Huntingdon], Marsh will be a target. This also goes for any other company or business that has times [sic] with Huntingdon-
they will pay for it. (sic)
There will be no rest for these murders. [Huntingdon] will be closed.
This action is dedicated to the 500 animals that were murdered inside of [Huntingdon] today.
Love,
The Animal Liberation Front
Harper testified that after these protests began, his workday was “consumed” with checking the SHAC website. He testified that he became aware of other protests and other targets, including the physical assault of Brian Cass in the United Kingdom, as well as protestors destroying vehicles. He stated that this made him feel “vulnerable” and “concerned for his family,” as well as angry and helpless because his life was so profoundly disrupted.
On August 9, 2002, Harper added, he was at work when a protest occurred at his home. His wife called him, crying and frantic. He arrived home to find his wife and two-year-old son upset. The protestors outside were screaming “puppy killer” and threatening to burn the house down. A video played at trial showed that Lauren Gazzola, a Defendant in this case, was present at this demonstration, shouting into a bullhorn,
Where were the police when a [Huntingdon] worker's car got flipped over in his driveway? Where were the police when a Marsh executive had all his windows smashed in and his house covered in red paint in Chicago? And where were the police when your house was covered in red paint a few weeks ago? They can't protect you. Your injunctions can't stop us. We'll always find a way around whatever they throw at us.

Harper testified that this was “one of the worst days of [his] life.” He feared that someone would “throw a Molotov cocktail” into the house, or that someone would physically assault him or his family. He contemplated moving and quitting his job, but yet again the protests stopped when Marsh ended its business relationship with Huntingdon.
Conviction and Appeal
The jury convicted all the defendants on all counts. On September 12, 2006, the District Judge sentenced SHAC to five years' probation; Kjonaas to 72 months' imprisonment; Gazzola to 52 months' imprisonment; Conroy to 48 months' imprisonment; Harper to 36 months' imprisonment; Stepanian to 36 months' imprisonment; and Fullmer to 12 months' imprisonment. Defendants filed a timely notice of appeal in the U.S. Court of Appeals for the Third Circuit, which calls Philadelphia home, challenging both their underlying convictions and sentences.
In 2009, the Third Circuit affirmed the convictions and the sentences, holding, (1) the AEPA was not unconstitutionally vague; (2) conduct defendants were convicted of was not protected by the First Amendment; (3) government provided sufficient evidence to prove defendants conspired to violate the AEPA; and (4) government produced sufficient evidence to convict defendants of interstate stalking offenses.
Aftermath
Since the successful prosecution of the SHAC 7, radical animal activists have not eased their activities. Even a cursory survey of stories published in The Chronicle of Higher Education over the past few years drives home the severity of the threat posed to higher education by animal rights activists, who may be the most serious domestic-terrorism threat posed to campuses in the United States.