Blum v. Holder , 744 F.3d 790 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1490
SARAHJANE BLUM; RYAN SHAPIRO; LANA LEHR; LAUREN GAZZOLA;
IVER ROBERT JOHNSON, III,
Plaintiffs, Appellants,
v.
ERIC H. HOLDER, JR., Attorney General,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
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
Lawyers Guild, amici curiae in support of appellants.
March 7, 2014
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
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(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,"2 18 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.
1
In their complaint, plaintiffs allege also that AETA
subsection (a)(2)(C) is overbroad. On appeal, plaintiffs claim
only that subsection (a)(2)(C) is void for vagueness.
2
AETA defines "animal enterprise" as follows:
(1) the term “animal enterprise” means--
(A) a commercial or academic enterprise that uses
or sells animals or animal products for profit,
food or fiber production, agriculture, education,
research, or testing;
(B) a zoo, aquarium, animal shelter, pet store,
breeder, furrier, circus, or rodeo, or other lawful
competitive animal event; or
(C) any fair or similar event intended to advance
agricultural arts and sciences[.]
18 U.S.C. § 43(d)(1).
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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
3
In the memorandum in support of its motion to dismiss
before the district court, the Government stated flatly,
"Plaintiffs have no concrete, actual intent to engage in specific
activity at a specific time in the near future that will possibly
subject them to the AETA." At oral argument before this court, the
Government insisted "there is no intent to prosecute" plaintiffs
for their stated intended conduct, which the Government
characterized as "essentially peaceful protest."
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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.
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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)
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(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.4
18 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
4
Before enactment of AETA, federal officials utilized, inter
alia, the interstate stalking statute, 18 U.S.C. § 2261A, to police
such conduct. See Fullmer, 584 F.3d at 138.
-8-
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" --
5
Subsection (c) of the Act establishes a scheme for
restitution. 18 U.S.C. § 43(c).
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(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 from lawful
public, governmental, or business
reaction to the disclosure of
information about an animal
enterprise[.]
Id. § 43(d)(3).
Last, subsection (e) of the Act articulates two relevant
rules of construction:
(e) Rules of construction. -- Nothing in this
section shall be construed –-
(1) to prohibit any expressive conduct
(including peaceful picketing or other
peaceful demonstration) protected from
legal prohibition by the First
Amendment to the Constitution; [or]
(2) to create new remedies for
interference with activities protected
by the free speech or free exercise
clauses of the First Amendment to the
Constitution, regardless of the point
of view expressed, or to limit any
existing legal remedies for such
interference[.]
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Id. § 43(e).6
B. Procedural History
Plaintiffs filed this action in the Massachusetts
District Court on December 15, 2011. On March 9, 2012, the
Government filed a motion to dismiss under Rule 12(b)(1) for lack
of subject matter jurisdiction, arguing lack of standing, and under
Rule 12(b)(6) for failure to state a claim. The district court on
March 18, 2013 granted the Government's motion under Rule 12(b)(1).
Blum, 930 F. Supp. 2d at 335. 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" as required by Article III. Id.
III.
This court reviews de novo a district court's grant of a
motion to dismiss for lack of standing. McInnis-Misenor v. Me.
Med. Ctr., 319 F.3d 63, 67 (1st Cir. 2003). For purposes of
review, we accept as true all material allegations in the complaint
and construe them in plaintiffs' favor. Mangual v. Rotger-Sabat,
317 F.3d 45, 56 (1st Cir. 2003). However, "this tenet does not
apply to 'statements in the complaint that merely offer legal
6
Subsection (3) also articulates a third rule of
construction according to which AETA shall not be construed "to
provide exclusive criminal penalties or civil remedies with respect
to the conduct prohibited by this action, or to preempt State or
local laws that may provide such penalties or remedies." 18 U.S.C.
§ 43(e)(3).
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conclusions couched as facts or are threadbare or conclusory,'" Air
Sunshine, Inc. v. Carl, 663 F.3d 27, 33 (1st Cir. 2011) (quoting
Soto–Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)), or
to allegations so "speculative that they fail to cross 'the line
between the conclusory and the factual,'" id. (quoting
Peñalbert–Rosa v. Fortuño–Burset, 631 F.3d 592, 595 (1st Cir.
2011)).
A. The Law of Standing for First Amendment Pre-Enforcement
Suits
"'The party invoking federal jurisdiction bears the
burden of establishing' standing." Clapper v. Amnesty Int'l USA,
133 S. Ct. 1138, 1148 (2013) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)).
Article III restricts a federal court's jurisdiction to
certain "Cases" and "Controversies." U.S. Const. art. III. "'One
element of the case-or-controversy requirement' is that plaintiffs
'must establish that they have standing to sue.'" Clapper, 133 S.
Ct. at 1146 (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)).
This requirement "is founded in concern about the proper -- and
properly limited -- role of the courts in a democratic society."
Summers v. Earth Island Inst., 555 U.S. 488, 492-93 (2009) (quoting
Warth v. Seldin, 422 U.S. 490, 498 (1975)).
To show standing, plaintiffs must "'allege[] such a
personal stake in the outcome of the controversy' as to warrant
[their] invocation of federal-court jurisdiction and to justify
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exercise of the court's remedial powers on [their] behalf." Warth,
422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204
(1962)). As Clapper v. Amnesty Int'l USA, 133 S. Ct. at 1147,
notes, in all cases, to establish Article III standing:
[Plaintiffs must show] an injury [that is]
"concrete, particularized, and actual or
imminent; fairly traceable to the challenged
action; and redressable by a favorable
ruling." Monsanto Co. v. Geertson Seed Farms,
[]130 S. Ct. 2743, 2752[] (2010). "Although
imminence is concededly a somewhat elastic
concept, it cannot be stretched beyond its
purpose, which is to ensure that the alleged
injury is not too speculative for Article III
purposes -- that the injury is certainly
impending." [Lujan, 504 U.S. at] 565 n.2
(internal quotation marks omitted). Thus, we
have repeatedly reiterated that "threatened
injury must be certainly impending to
constitute injury in fact," and that
"[a]llegations of possible future injury" are
not sufficient. Whitmore [v. Arkansas], 595
U.S. [149,] 158 [(1990)] (emphasis added;
internal quotation marks omitted)[.]
Id. (sixth alteration in original) (citation omitted).7
This court has said that, in challenges to a state
statute under the First Amendment:
[T]wo types of injuries may confer Article III
standing without necessitating that the
challenger actually undergo a criminal
prosecution. The first is when "the plaintiff
has alleged an intention to engage in a course
of conduct arguably affected with a
7
To be clear, before Clapper, the Supreme Court had imposed
a "certainly impending" standard in the context of a First
Amendment pre-enforcement challenge to a criminal statute. See
Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298
(1979).
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constitutional interest, but proscribed by
[the] statute, and there exists a credible
threat of prosecution." [Babbitt v. United
Farm Workers Nat'l Union, 442 U.S. 289, 298
(1979)]. . . . The second type of injury is
when a plaintiff "is chilled from exercising
her right to free expression or forgoes
expression in order to avoid enforcement
consequences." N.H. Right to Life [Political
Action Comm. v. Gardner], 99 F.3d [8,] 13
[(1st Cir. 1996)][.]
Mangual, 317 F.3d at 56-57 (second alteration in original).
The Supreme Court has long held that as to both sorts of
claims of harm, "[a] plaintiff who challenges a statute must
demonstrate a realistic danger of sustaining a direct injury as a
result of the statute's operation or enforcement." Babbitt, 442
U.S. at 298. "Allegations of a subjective 'chill' are not an
adequate substitute for a claim of specific present objective harm
or a threat of specific future harm." Laird v. Tatum, 408 U.S. 1,
13-14 (1972).
Most recently, Clapper emphasized that "[o]ur standing
inquiry has been especially rigorous when reaching the merits of
the dispute would force us to decide whether an action taken by one
of the other two branches of the Federal Government was
unconstitutional." 133 S. Ct. at 1147 (alteration in original)
(quoting Raines, 521 U.S. at 819-20). We apply that standard here.
In Clapper, the Supreme Court addressed the Article III
standing requirement for First Amendment and Fourth Amendment
challenges to a federal statute. There, the Court addressed a pre-
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enforcement challenge under the First Amendment by journalists,
attorneys, and others to the new Foreign Intelligence Surveillance
Act.8 Id. at 1146. That Act authorized the Government to seek
permission from the Foreign Intelligence Surveillance Court to
electronically survey the communications of non-U.S. persons
located abroad, without demonstrating probable cause that the
target of the surveillance is a foreign power or agent thereof and
without specifying the nature and location of each of the
facilities or places at which the surveillance will take place.
See id. at 1156. The plaintiffs' complaint was not of a threat of
enforcement of a criminal statute against them which would lead to
a chilling of First Amendment activity, but rather of a more direct
chilling of speech and invasion of their First Amendment rights
when the Government exercised this new authority. Unlike this
case, Clapper also raised threats to the plaintiffs' personal
privacy interests.
The Clapper trial court had held the plaintiffs lacked
standing; the Second Circuit disagreed; and the Supreme Court
reversed. Id. at 1146. The Supreme Court first held that the
Second Circuit had erred as a matter of law in holding that the
8
"Pre-enforcement" is a term used in at least two contexts.
In one, as in Clapper, the suit is brought immediately upon
enactment of the statute, before there has been an opportunity to
enforce. In the other, as here, the law has been on the books for
some years, and there have been charges brought under it in other
cases, but the plaintiffs have not been prosecuted under it and say
they fear prosecution.
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plaintiffs could establish the needed injury for standing merely by
showing an "objectively reasonable likelihood that the plaintiffs'
communications are being or will be monitored under the [Act]."
Amnesty Int'l USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011).
The Court held that the Second Circuit's "objectively reasonable
likelihood" standard was inconsistent with "the well-established
requirement that threatened injury must be 'certainly impending.'"
Clapper, 133 S. Ct. at 1147 (quoting Whitmore, 495 U.S. at 158).
It is not enough, the Court held, to allege a subjective fear of
injurious government action, even if that subjective fear is "not
fanciful, irrational, or clearly unreasonable."9 Id. at 1151
(quoting Amnesty Int'l USA v. Clapper, 667 F.3d 163, 180 (2d Cir.
2011) (Raggi, J., dissenting from denial of rehearing en banc)).
Clapper also rejected plaintiffs' contention that
"present costs and burdens that are based on a fear of
surveillance" amounted to a cognizable injury. Id. It reasoned
that plaintiffs "cannot manufacture standing merely by inflicting
harm on themselves based on their fears of hypothetical future harm
that is not certainly impending." Id.9
As one treatise has noted, Clapper "signaled a renewed
caution about finding injury in fact based on probabilistic injury
and the reasonable concerns that flow from it." Richard H. Fallon,
Jr., John F. Manning, Daniel J. Meltzer, & David L. Shapiro, Hart
and Wechsler's The Federal Courts and the Federal System 9 (6th ed.
Supp. 2013). The treatise did not suggest the Clapper injury
standard was inapplicable to challenges to criminal statutes.
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In rejecting the Second Circuit's "objectively reasonable
likelihood" standard, the Supreme Court may have adopted a more
stringent injury standard for standing than this court has
previously employed in pre-enforcement challenges on First
Amendment grounds to state statutes.
Before the decision in Clapper, this circuit applied an
"objectively reasonable" fear of prosecution injury standard in
First Amendment pre-enforcement actions, at least as to state
statutes.10 See Nat'l Org. for Marriage v. McKee, 649 F.3d 34, 48
(1st Cir. 2011); Ramírez v. Sánchez Ramos, 438 F.3d 92, 99 (1st
Cir. 2006); Mangual, 317 F.3d at 57; R.I. Ass'n of Realtors, Inc.
v. Whitehouse, 199 F.3d 26, 31 (1st Cir. 1999); N.H. Right to Life,
99 F.3d at 14.
In assessing the risk of prosecution as to particular
facts, weight must be given to the lack of a history of enforcement
of the challenged statute to like facts, that no enforcement has
been threatened as to plaintiffs' proposed activities. Particular
weight must be given to the Government disavowal of any intention
to prosecute on the basis of the Government's own interpretation of
the statute and its rejection of plaintiffs' interpretation as
10
In Ramírez v. Sánchez Ramos, 438 F.3d 92, 98 (1st Cir.
2006), we said that to constitute a cognizable injury, both fear of
prosecution and chilling "require[] a credible threat -- as opposed
to a hypothetical possibility -- that the challenged statute will
be enforced to the plaintiff's detriment if she exercises her First
Amendment rights."
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unreasonable. The Government has affirmatively represented that it
does not intend to prosecute such conduct because it does not think
it is prohibited by the statute.11 See Holder v. Humanitarian Law
Project ("HLP"), 130 S. Ct. 2705, 2717 (2010) (holding that
plaintiffs face a credible threat of prosecution where there is a
history of prosecution under the challenged law and "[t]he
Government has not argued . . . that plaintiffs will not be
prosecuted if they do what they say they wish to do" (emphasis
added)); Babbitt, 442 U.S. at 302 ("Moreover, the State has not
disavowed any intention of invoking the criminal penalty provision
against [entities] that [violate the statute]." (emphasis added));
N.H. Right to Life, 99 F.3d at 17 ("Indeed, the defendants have not
only refused to disavow [the statute] but their defense of it
indicates that they will some day enforce it."); see also Mangual,
317 F.3d at 58 (actual threat of prosecution).
This Government disavowal is even more potent when the
challenged statute contains, as here, explicit rules of
construction protecting First Amendment rights, which in themselves
would inhibit prosecution of First Amendment activities. In
Clapper, the Court credited the specific rules of construction
contained in the statute meant to protect Fourth Amendment rights
11
We think that Clapper does not call into question the
assumption that the state will enforce its own non-moribund
criminal laws, absent evidence to the contrary. See N.H. Right to
Life, 99 F.3d at 15. That is not the issue here, where the
Government itself says the statute does not apply.
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in assessing the lack of an impending injury. 133 S. Ct. at1145 n.3.
In Clapper's analysis of injury, it considered that the
fear of monitoring of communication rested on what the Court called
a highly speculative set of assumptions. This included an
assumption that the Government would use the new surveillance
statute rather than other available means to achieve the same
ends.12 Id. Here, as well, plaintiffs' fear of prosecution and
purported corresponding reluctance to engage in expressive activity
rest on speculation. In fact, prosecution under AETA has been rare
and has addressed actions taken that are different from those
plaintiffs propose to undertake.13 For its part, the Government has
disavowed any intention to prosecute plaintiffs for their stated
intended conduct because, in its view, that conduct is not covered
by AETA.
Plaintiffs argue that Clapper has no bearing on injury
and standing with respect to this First Amendment pre-enforcement
challenge because this challenge is to a criminal statute, and
12
For this reason, the Supreme Court held that, in addition
to being "too speculative," Clapper, 133 S. Ct. at 1143,
plaintiffs' alleged injury was not "fairly traceable" to the
challenged law, id. at 1149. We do not reach the fairly traceable
ground.
13
In addition to United States v. Buddenberg ("Buddenberg
II"), No. CR-09-00263 RMW, 2010 WL 2735547 (N.D. Cal. July 12,
2010), discussed later, plaintiffs cite in their complaint two AETA
prosecutions, both for the unlawful release of farm animals and
related vandalism.
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Clapper did not involve a criminal statute. Clapper, however,
draws no such distinction and is expressly concerned with Article
III injury requirements. Plaintiffs' position is inconsistent with
footnote 5 of Clapper, in which the Supreme Court held that
plaintiffs' claimed injury was too speculative even under the
potentially more lenient "substantial risk" of harm standard the
Court has applied in some cases. Id. at 1150 n.5 (quoting Monsanto
Co., 130 S. Ct. at 2754–55).
Clapper acknowledged that the Court's "cases do not
uniformly require plaintiffs to demonstrate that it is literally
certain that the harms they identify will come about." 133 S. Ct.
at 1150 n.5. Involving a challenge to a decision of "the political
branches in the fields of intelligence gathering and foreign
affairs," id. at 1147, Clapper left open the question whether the
previously-applied "substantial risk" standard is materially
different from the "clearing impending" requirement. Id. As one
example, the Court cited Babbitt, which involved a First Amendment,
pre-enforcement challenge to a criminal statute. Id. Babbitt,
unlike this case, involved a realistic threat of enforcement where
the state had not disavowed any intention to prosecute. 442 U.S.
at 302; see also HLP, 130 S. Ct. at 2717; Virginia v. Am. Book
Sellers Ass'n, Inc., 484 U.S. 383, 393 (1988).
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We reject plaintiffs' arguments that Clapper has no
application here.14 As Clapper helps make clear, plaintiffs'
alleged injuries are "too speculative for Article III purposes" and
no prosecution is even close to impending. 133 S. Ct. at 1147(quoting Lujan, 504 U.S. at 565 n.2).
B. Plaintiffs' Proffered Statutory Interpretation Does Not
Make Out the Needed Injury
In addition, we find that plaintiffs have not established
the needed degree of injury to establish standing based on their
proffered interpretations of the provisions of the statute. This
is so even under the potentially more lenient "substantial risk"
standard or even the "objectively reasonable" standard. See
Ramírez, 438 F.3d at 98-99 (holding that plaintiff's fear was not
"objectively reasonable" when she "never stated an intention to
engage in any activity that could reasonably be construed to fall
within the confines of the [challenged law]"). The United States
argues that "the statue simply does not prohibit the actions
14
To the extent plaintiffs may intend to engage in clearly
proscribed conduct, they lack standing to assert a vagueness claim.
See HLP, 130 S. Ct. at 2718-19 ("We consider whether a statute is
vague as applied to the particular facts at issue, for '[a]
plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the
conduct of others.'" (alteration in original) (quoting Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982))); Whiting v. Town of Westerly, 942 F.2d 18, 22 (1st Cir.
1991) (no standing where plaintiff's proposed conduct is clearly
proscribed); Eicher v. United States, 774 F.2d 27, 29 (1st Cir.
1985) (same).
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plaintiffs intend to take," so they can have no legitimate fear of
prosecution.
Plaintiffs argue the district court erred 1) in holding
that their expansive interpretation of subsection (a)(2)(A), the
destruction of property subsection, was unreasonable and, hence,
that their fear of prosecution under that subsection was
unreasonable as well; 2) in failing to recognize plaintiff Lauren
Gazzola's standing to challenge subsection (a)(2)(B) on the basis
of her would-be intention to advocate but not incite illegal
conduct; and 3) in failing to credit their claim that subsection
(a)(2)(C), the conspiracy subsection, could reasonably be
interpreted as criminalizing any attempt to interfere with the
operations of an animal enterprise. We address each argument in
turn.
1. Subsection (a)(2)(A)
Plaintiffs argue that subsection (a)(2)(A) of the Act is
substantially overbroad because it must be interpreted as
criminalizing any expressive activity that intentionally results in
the loss of profits to an animal enterprise, even in the absence of
damage to or loss of property used, and will be so prosecuted. The
United States disavows that reading.
Subsection (a)(2)(A) prohibits the use of interstate or
foreign commerce for the purpose of damaging or interfering with
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the operations of an animal enterprise where, in connection with
that purpose, one:
[I]ntentionally 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.
18 U.S.C. § 43(a)(2)(A). Plaintiffs argue that a) "personal
property" includes lost profits, and therefore b) the Act makes
unlawful all speech, including peaceful demonstrations, with the
purpose and effect of causing an animal enterprise to lose
profits.15
The United States replies, relying on the plain text,
rules of construction, and legislative intent shown in legislative
history, that because subsection (a)(2)(A) prohibits only
intentional destruction of personal property "used by an animal
enterprise," id. § 43(a)(2)(A) (emphasis added), the use of
"personal property" cannot reasonably lead to prosecutions based
merely on expressive activity causing lost profits.
The Government says Congress intended expressive conduct
to be protected against prosecution by AETA's rules of
construction. Further, if more is needed as to congressional
15
The district court held that "personal property" as used
in subsection (a)(2)(A) must be read to encompass only "[]tangible"
things, reasoning that subsection (a)(2)(A) provides as
illustrations of "personal property" two "[]tangible[s]," namely
"animals" and "records." Blum, 930 F. Supp. 2d at 336-37.
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intent, AETA's legislative history shows the Act was passed to
combat "violent acts" such as "arson, pouring acid on cars, mailing
razor blades, and defacing victims' homes." 152 Cong. Rec. H8590-
01 (daily ed. Nov. 12, 2006) (statement of Rep. Sensenbrenner); see
also id. (statement of Rep. Scott) ("While we must protect those
engaged in animal enterprises, we must also protect the right of
those engaged in [F]irst [A]mendment freedoms of expression
regarding such enterprises. It goes without saying that first
amendment freedoms of expression cannot be defeated by statute.
However, to reassure anyone concerned with the intent of this
legislation, we have added in the bill assurances that it is not
intended as a restraint on freedoms of expression such as lawful
boycotting, picketing or otherwise engaging in lawful advocacy for
animals."); 152 Cong. Rec. S9254-01 (daily ed. Sept. 8, 2006)
(statement of Sen. Feinstein) ("[T]his legislation confronts these
terrorist threats in [a] manner that gives due protections under
the First Amendment. I fully recognize that peaceful picketing and
public demonstrations against animal testing should be recognized
as part of our valuable and sacred right to free expression.").
This court need not decide in the abstract whether
"personal property . . . used by an animal enterprise" could ever
be reasonably interpreted to include intangibles such as profits.16
16
We note that under Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), any fact that increases a maximum available criminal
sentence must be found by a jury beyond a reasonable doubt.
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We are satisfied that AETA includes safeguards in the form of its
expression-protecting rules of construction, which preclude an
interpretation according to which protected speech activity
resulting in lost profits gives rise to liability under subsection
(a)(2)(A).
Plaintiffs insist that AETA's rules of construction
cannot save an otherwise unlawful statute and so are irrelevant.
Our focus is on the congressional intent stated in the statute as
to what conduct is covered. Congress has made it clear that
prosecutions under the statute should not be brought against "any
expressive conduct (including peaceful picketing or other peaceful
demonstration) protected from legal prohibition by the First
Amendment to the Constitution." 18 U.S.C. § 43(e)(1). We have no
reason to think prosecutors will ignore these plain expressions of
limiting intent.
2. Subsection (a)(2)(B)
Plaintiffs argue next that plaintiff Lauren Gazzola has
a reasonable fear of prosecution under AETA subsection (a)(2)(B),
which prohibits "intentionally plac[ing] a person in reasonable
fear of . . . death . . . or serious bodily injury . . . by a
course of conduct involving threats, acts of vandalism, property
damage, criminal trespass, harassment, or intimidation." Id.§ 43(a)(2)(B). Gazzola alleges a desire to voice general support
for illegal action by others and to participate in lawful protests.
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Gazzola alleges further that she is chilled from engaging in such
general advocacy for fear that it might fall under subsection
(a)(2)(B).
Gazzola alleges no intention to engage in "vandalism,
property damage, criminal trespass, harassment, or intimidation."
Nor does she allege an intention to act in a way that would give
rise to a "reasonable fear of . . . death . . . or serious bodily
injury." Indeed, Gazzola specifically disavows any intention to
engage in advocacy that rises to the level of incitement. See
Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002) ("The
government may suppress speech for advocating the use of force or
a violation of law only if 'such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or
produce such action.'" (quoting Brandenburg v. Ohio, 395 U.S. 444,
447 (1969) (per curiam))).17
Taking her disavowal in combination with AETA's specific
exemption from liability of "any expressive conduct (including
peaceful picketing or other peaceful demonstration) protected from
legal prohibition by the First Amendment," 18 U.S.C. § 43(e)(1),
17
Plaintiffs complain that, in the wake of Virginia v. Black,
538 U.S. 343 (2003), it is unclear whether "true threats" require
subjective intent. See United States v. Clemens, 738 F.3d 1, 2-3
(1st Cir. 2013) (noting circuit split on issue, finding no reason
to depart from this circuit's objective test). However, as this
court has explained, "[i]t is rare that a jury would find that a
reasonable speaker would have intended a threat under the
particular facts of a case but that a competent defendant did not."
Id. at 12. The argument does not advance Gazzola's cause.
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Gazzola's fear of prosecution for the lawful activities she
describes under subsection (a)(2)(B) is unreasonable.
That Gazzola previously engaged in and was convicted
under AEPA for plainly illegal conduct does not help her claim that
she would be prosecuted for legal expressive activities. Gazzola's
previous actions went well beyond expressing general support for
illegal action by others. The Third Circuit found that Gazzola and
her co-defendants "coordinated and controlled SHAC's [illegal]
activities," engaged in "[d]irect action" and "intimidation and
harassment," and "participated in illegal protests, in addition to
orchestrating the illegal acts of others." Fullmer, 584 F.3d at
155-56.
3. Facial Attack on Subsection (a)(2)(C)
Last, plaintiffs argue that the structure of the
conspiracy subsection of the Act could reasonably be interpreted to
criminalize any conspiracy (or attempt) to damage or interfere with
the operations of an animal enterprise, even when there is no
intent to or accomplishing of any damage or destruction of property
or causing fear of serious bodily injury or death. Under AETA,
liability exists where an individual uses interstate or foreign
commerce "for the purpose of damaging or interfering with the
operations of an animal enterprise," 18 U.S.C. § 43(a)(1), and, in
connection with such purpose, intentionally damages or destroys
property, id. § 43(a)(2)(A), intentionally places a person in fear
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of serious bodily injury or death, id. § 43(a)(2)(B), or "conspires
or attempts to do so," id. § 43(a)(2)(C).
The dispute here is to what "so" in subsection (a)(2)(C)
refers. The Government maintains that the "so" can only be read to
refer to the activities described in subsections (a)(2)(A)-(B),
that is, intentionally harming property or placing a person in
reasonable fear of serious bodily injury or death. See id.
§ 43(a)(2)(A) (conditioning liability on "intentionally damag[ing]
or caus[ing] the loss of any real or personal property," etc.); id.
§ 43(a)(2)(B) (conditioning liability on "intentionally plac[ing]
a person in reasonable fear of . . . death . . . or serious bodily
injury," etc.).
Plaintiffs, by contrast, argue that "so" might refer to
the activity described in subsection (a)(1), that is, using
interstate or foreign commerce "for the purpose of damaging or
interfering with the operations of an animal enterprise." Id.
§ 43(a)(1). Plaintiffs' interpretation depends on the somewhat
awkward syntax of the provision. While Congress might have written
more clearly, plaintiffs' reading is not what Congress intended.
That interpretation cannot be squared with the clear expressions of
legislative intent in both the plain text of the Act and the
legislative history. Plaintiffs' interpretation is inconsistent
with AETA's title as codified, "Force, violence, and threats
involving animal enterprises." 18 U.S.C. § 43 (emphasis added);
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see also Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 554
U.S. 33, 47 (2008) (relying in part on subchapter's title to reject
respondent's interpretation of that subchapter). Plaintiffs'
interpretation would also render subsection (a)(2)(C) redundant
since every time subsection (a)(1) is satisfied so too would be the
"attempt" branch of subsection (a)(2)(C). Avoidance of redundancy
is a basic principle of statutory interpretation. O'Connell v.
Shalala, 79 F.3d 170, 179 (1st Cir. 1996).
Further, the rules of construction protecting expressive
activity would preclude plaintiffs' broad interpretation. In
addition, plaintiffs' interpretation contradicts the legislative
history, already recited, and which also shows that AETA targets
"heinous acts" such as "firebomb[ing]." 152 Cong. Rec. S9254-01
(daily ed. Sept. 8, 2006) (statement of Sen. Feinstein). One other
court as well has rejected this interpretation. See United States
v. Buddenberg ("Buddenberg I"), No. CR-09-00263 RMW, 2009 WL
3485937, at *12 (N.D. Cal. Oct. 28, 2009).18
IV.
In sum, "[plaintiffs] in the present case present no
concrete evidence to substantiate their fears, but instead rest on
mere conjecture about possible governmental actions." Clapper, 133
S. Ct. at 1154. In particular, plaintiffs' fear of prosecution
18
Further, at oral argument, the Government insisted that "no
prosecutor is going to bring a case saying you've conspired to have
a purpose."
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under AETA is based on speculation that the Government will enforce
the Act pursuant to interpretations it has never adopted and now
explicitly rejects.19 Such unsubstantiated and speculative fear is
not a basis for standing under Article III.20
If plaintiffs do choose to engage in conduct which causes
them to be prosecuted under AETA, they are free to raise whatever
defenses they have in that context.
We affirm the dismissal of this action for lack of
standing. So ordered.
19
The Association of the Bar of the City of New York, acting
as amicus in support of plaintiffs, cites Buddenberg II as an
example of unreasonable prosecution under AETA. In that case, the
United States filed a criminal complaint under AETA and under 18
U.S.C. § 371 for conspiracy to violate AETA, alleging that
defendants participated in a series of threatening demonstrations
at the homes of a number of UC Berkeley and UC Santa Cruz
biomedical researchers whose work involved the use of animals.
Buddenberg II, 2010 WL 2735547, at *1. The district court
dismissed the indictment without prejudice on the ground that the
indictment failed to allege the facts of the crimes charged with
sufficient specificity. Id. at *10. From the fact that an
indictment lacked specificity, it does not follow that the
interpretation of AETA underlying the indictment was as plaintiffs
argue or that it was unreasonably expansive. The availability and
use of a bill of particulars by defendants and the dismissal of the
case further undercut any need to give pre-enforcement standing.
20
Individual plaintiff Iver Robert Johnson, III, did not
allege that he has even a "subjective 'chill,'" Laird, 408 U.S. at
13, and so he has failed to establish a cognizable injury. In
addition, his claims fail to meet causation and redressability
requirements. See Blum, 930 F. Supp. 2d at 337 n.91.
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