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General News    H2'ed 1/6/10

Appellate Court: Encouraging Civil Disobedience is Not Protected Speech

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originally published Oct 14th, 2009 on

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The conviction of the SHAC 7animal rights activists hit with "terrorism" charges for publishing a website and vocally, unapologetically supporting direct actionhas been upheld by a U.S. appellate court. It is a landmark free speech ruling that lowers the threshold of what types of conduct are protected by the First Amendment, and upholds a law that is so broad that it targets civil disobedience as "terrorism."

As a brief introduction: The "SHAC 7" of Stop Huntingdon Animal Cruelty ran an effective campaign that had the sole purpose of putting Huntingdon Life Sciences, a notorious animal testing company, out of business. The campaign pressured corporations to sever ties with the lab. The SHAC 7 were never accused of breaking windows or releasing animals from labs, but they supported those who did. They published a website which posted news of both legal and illegal tactics, and supported all of it. The website had also posted names and addresses of individuals connected to the corporations targeted.

The ruling was issued today and, although there are many aspects that deserve attention, I want to walk through what I think are by far the most dangerous and troubling implications of this rulingthose related to the First Amendment:

[PDF of the SHAC appeal ruling]

Supporting and facilitating non-violent civil disobedience is not protected speech.

As part of their campaign, SHAC supporters were emailed about "electronic civil disobedience." The email and message board posts included instructions on how electronically "sit in" on corporate web sites through emails, faxes and phone calls.

Now, one of the benchmarks in First Amendment law is what is called the Brandenburg standard. It holds that even the most controversial and inflammatory speech is protected as long as it not likely to incite "imminent and lawless action." That is a very high threshold. In this court ruling--which, to the best of my knowledge and the attorneys I have spoken with is the first of its kind--the written word can be construed as promoting, or resulting in, imminent and lawless action.

To put it more plainly: Vocally supporting civil disobedience, explaining what it involves, and encouraging/facilitating people to take part is not protected speech.

This is so important let me say it again, another way: People who write about civil disobedience and encourage people to take part can be found convicted of a crime even if they do not take part in the civil disobedience.

This has dangerous implications far beyond this case. For instance, I wrote about the recent call by mainstream environmental groups for massive non-violent civil disobedience in defense of the environment. Under this reasoning, organizers of that event who published a website aren't protected by the First Amendment.

[UPDATE: One person had this question, so others might as well: I am not at all saying that simply endorsing civil disobedience is now not protected speech. However, doing so and also facilitating civil disobedience is what the court ruled is not protected. So in the example above, the organizers promoted civil disobedience, encouraged it, set up a website telling people where to go and when, and there were people involved to specifically support those arrested. I think there is a very real danger of that type of conduct being affected by the reasoning presented in this ruling. That is what I had meant by the headline and preceding points.]

Fiery rhetoric is a "true threat" when illegal conduct has taken place in the same campaign.

Another measurement of whether speech is protected by the First Amendment is whether it is a true threat. Throughout the appellate court ruling, the court argued that SHAC's speech did, in fact, constitute a true threat.

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Will Potter is an award-winning reporter who focuses on how lawmakers and corporations have labeled animal rights and environmental activists as "eco-terrorists." Will has written for publications including The Chicago Tribune, The Dallas Morning News and Legal Affairs, and has testified (more...)
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