"On The Case Against The SHAC 7"

04/19/07

"There is a strong temptation that my writing from prison should invariably rally free activists to "keep fighting," "don't back down," and "be fearless." At the same time however, while I certainly feel all of those things, I am also keenly aware that this movement needs more than cheerleaders. It is not enough to fight -- we must fight strategically. And our strategy must account for the efforts of our opposition.

I have heard a lot of misinformation about the SHAC7 case recently: that the interstate stalking charges stemmed from crossing state lines to attend protests; that our conviction has created case law (legal precedent); etc. I wish to present as accurate a description of the allegations against the SHAC7 as I can, as I think it imperative that we all correctly understand the government's most time- and resource-intensive effort against HLS activists yet. I apologize in advance for any boredom this account might induce.

NOTE: The discussion below pertains entirely to the allegations against the SHAC7, as asserted by the government. Nothing contained herein should be construed as an admission of said allegations or related facts.

First, it is important to note that the SHAC7 case has not created legal precedent, or "case law," upon which subsequent prosecutions may be based. Only appellate decisions create case law. For this reason, there is even more riding on the SHAC7 appeal, as far as the movement is concerned, than there was on the trial itself.

Why Was the Case Federal?
There seems to be a sense that being charged with a federal crime is somehow "worse" than being charged with as state crime in the same way that a felony is worse than a misdemeanor. In a technical sense, this is not correct. "Federal" law refers to a jurisdiction, specifically that jurisdiction which the federal government may regulate, versus that which is reserved for the states. "Federal" does not refer to the magnitude of the crime.

Among the activities that the federal government may regulate is interstate commerce (and that activity which affects interstate commerce.) That is why drug possession is generally treated as a state offense while drug transactions may be treated as federal offenses. Federal law also covers those crimes committed on federal property.

In a practical (as opposed to technical) sense, however, finding yourself the subject of a federal investigation and/or indictment can be worse than the same at a state level. The investigative and prosecutorial resources of the federal government are generally superior to that of the states. This includes higher paid and better trained law enforcement (FBI) and prosecutors, as well as more financial and material resources. (Here, I speak generally; this is not at all an indication of my opinion of the government's investigation and prosecution of the SHAC7. Very briefly I will say that the government won its case against the SHAC7 due to the jury's inability to grasp an accurate understanding of First Amendment protections, not through stellar investigative or prosecutorial work.)

On the other hand, there are upsides to being in federal court. For one, judges tend to be both more conscientious and more knowledgeable of constitutional law. This is especially true at the appellate level, where the consideration of substantive legal (including constitutional) questions and the drafting of reasoned opinions are commonplace.

Unfortunately, juries in both state and federal court are often dumb as shit.

The federal element in the SHAC7 case -- the element of the alleged crimes which rendered them federal -- was use of the internet. The internet, phones, and mail are all "facilities in interstate commerce," meaning that they affect commerce between the states. Each count of the SHAC7 indictment alleged that the defendants named therein had either used, conspired to use, or aided and abetted the use of a facility in interstate commerce -- namely, the internet -- to commit the alleged crimes.

The Allegations
In addition to the internet, the other major aspect underpinning the government's allegations against the SHAC7 was conspiracy. Under the law, an illegal conspiracy is an agreement among two or more individuals to commit an illegal act. The crux of the crime of conspiracy is the agreement; the agreed-upon act need not be carried out in order for the independent crime of conspiracy to have been committed. In addition to the agreement to commit and illegal act, the only other element required of an illegal conspiracy is the commission by at least one party to the agreement of an "overt act" in furtherance of the conspiracy; the overt act need not be illegal in and of itself.

The classic demonstrative example of an illegal conspiracy is a bank robbery. If five people agree to rob a bank and one of those individuals purchases ski masks to be used during the robbery, all five people are guilty of an illegal conspiracy, even though no independently illegal act has been committed and even though four of the parties to the agreement have not taken any action in furtherance of the robbery.

Three of the counts in the SHAC7 indictment were conspiracy counts: Count 1 (Violation of the Animal Enterprise Protection Act, or "animal enterprise terrorism"); Count 2 (Conspiracy to commit Interstate Stalking); and Count 6 (Violation of the Communications Act of 1934). In short, the government's theory on those counts was that the defendants agreed with one another and/or other "unindicted coconspirators" (read: other activists) to use the internet to engage in activity which satisfied the elements of each offense charged, and that at least one of the individuals (either one of the defendants or one of the "unindicted [and generally unidentified] coconspirators") took some action to further that agreement.

The three remaining counts of the indictment were substantive (not conspiracy) stalking counts. These required that the defendants either themselves engaged in activity that constituted interstate stalking, or committed acts which provided assistance to someone else, allowing the latter to successfully commit acts which constituted interstate stalking (aiding and abetting).

The Elements
The elements of each count of the SHAC7 indictment, each of which the government was required to prove beyond a reasonable doubt, are as follows:

• Count 1: Animal Enterprise Terrorism
(1) that the defendants used or caused to be used a facility in interstate commerce for the purpose of causing physical disruption to the functioning of an animal enterprise;
-AND-
(2) that the defendants damaged or caused the loss of property used by the animal enterprise, or conspired to do so.

• Counts 2-5: Stalking

(1) that the defendants used a facility in interstate commerce;

(2) that they did so with the intent of placing a person in another state in reasonable fear of the death or serious bodily injury to that person, a member of the immediate family of that person, or a spouse or intimate partner of that person;

(3) that they used the facility in interstate commerce to engage in a course of activity that did in fact place said person in such fear;

(4) or that they aided and abetted others to do so.

NOTE: Count 2 required that the defendants conspired to commit acts which satisfied each of these elements, while counts 3-5 required that the defendants either themselves engaged in activity which satisfied each of these elements, or that the defendants aided and abetted others to do so, against a specific victim for each count.

• Count 6: Violation of the Communications Act of 1934

That the defendants made a telephone call or utilized a telecommunications device, whether or not conversation or communication ensued, without disclosing their identities and with intent to annoy, abuse, threaten, or harass any person at the called number who received the communications, or that they conspired to do so.

It was not specifically alleged (nor did any evidence come into the case to suggest) that any of the SHAC7 defendants had him/herself engaged in any independent illegal act, but merely that each had "agreed" (conspired) that such acts would be committed, or "helped" (aided and abetted) others to commit them.

For example, the gist of the government's argument on Count 6 was that the defendants had encouraged (on the website) people to send blank faxes and that others (not the defendants) then sent them. As explained briefly below, this theory of liability is a big fat failure in light of First Amendment protections. (For those looking for a further articulation of this protection than the summary I have provided below, read the U.S. Supreme Court case Brandenburg v. Ohio.) Nonetheless, this was the government's theory throughout the case: that the defendants had agreed to close HLS, and that we could be held liable for the illegal acts of others due to either this agreement (conspiracy) or because we provided political assistance (aided and abetted) those who committed illegal acts.

The First Amendment
The big problem with the government's theory is that the alleged assistance constituting the defendants' "aiding and abetting," as well as every piece of evidence constituting our "conspiracy," consisted of public, expressive speech and/or association.

Let me say first, that -- First Amendment or no First Amendment -- the government did not prove each element of any of the six counts in the SHAC7 indictment beyond a reasonable doubt. This is not merely a hopeful opinion, nor is it an entirely novice opinion. Rather, it is the result of pouring over the testimony and exhibits in our case day after day for months. (Thank you, house arrest!) There certainly are significant First Amendment hurdles that the government will have to overcome in order to prevail on appeal. However, we needn't rely on the appellate court to fall on the correct side of each of these Constitutional tests in order to reverse our conviction. There are holes in the government's case which exist entirely independent of First Amendment concerns.

Nonetheless, I wish to touch briefly upon the First Amendment issues here, as they are the issues most broadly relevant to the various legal battles activists face (civil suits, injunctions, arrests at protests, etc.) The First Amendment protections relevant to the SHAC7 case will be applicable to other cases, even when the facts differ.

Expressive speech and conduct, as well as political association, are presumptively protected by the First Amendment. This means that they are assumed to be to be protected from civil litigation and criminal prosecution, unless the party wishing to limit or punish the expression can establish that it falls into one of the few, narrowly-defined categories of unprotected speech. There are only about a half-dozen such categories, two of which are relevant to the SHAC7 case. It was the government's contention that the content published on the SHAC USA website (which the SHAC7 defendants allegedly conspired to operate) transcended the boundaries of First Amendment protection and fell into the unprotected categories of incitement and/or true threats.

Specifically, the government argued that the publication of reports of past protest activity, coupled with listings of proposed future protest targets, both incited future illegal acts and threatened those listed as future targets of protest. This theory implicates several aspects of First Amendment law.

Incitement
The seminal case defining limits of First Amendment protection for advocacy of of illegal action is Brandenburg v. Ohio. In Brandenburg, the Supreme Court held that the First Amendment protects advocacy of illegal action up until the point at which the advocacy is intended to produce imminent lawless action and does in fact produce imminent lawless action, or is highly likely to do so.

Imminence here is key. The First Amendment protects the right to argue, advocate, and justify the commission of illegal acts, as long as those hearing the advocacy are permitted the opportunity to hear and consider the advocacy and to decide for themselves whether or not to act upon it. Then, if the listeners choose to do so, they may be punished for actually committing illegal acts; the speaker, however, may not be punished for having argued that those acts should be committed.

The difference between abstract advocacy and unprotected incitement may be illustrated by comparing a speech, pamphlet, book, or -- you guessed it -- internet posting arguing that tactics such as those used by the Underground Railroad or during the Boston Tea Party were justified and should be repeated during present-day struggles, versus a rally in which the crowd begins to riot, vandalizing property on the spot in tandem with a speaker's ongoing encouragement that they continue to do so. In the first example, the time for the listener or reader to reflect upon the advocacy allows the speaker or writer to argue for her position without fear of reprisal based upon the actions of others. In the second example, the speaker's intent to further the criminal acts being committed, and her success in doing so, removes her words from First Amendment protection.

Thus, even if the SHAC USA had advocated illegal activity, and even if the SHAC7 defendants had agreed (conspired) to operate the website, the defendants cannot be liable for for the illegal acts of others, even if the latter occurred because those others were convinced by the advocacy on the SHAC USA website, because the advocacy did not imminently incite the action.

True Threats
The second category of unprotected speech into which the government alleges the publications on the SHAC USA website fell is that of "true threats." The concept of a "true threat" distinguishes speech which may appear to be threatening on its face, but at root is merely political hyperbole, from speech that is truly intended to, and does, threaten those at whom it is directed.

Unfortunately, I'm going to just barely touch upon the issue of true threats. The case law surrounding true threats is less well-settled than that on incitement and remains a matter of some debate. As such, I am reluctant to suggest a position here.

I will say that the government has argued to the Court in the SHAC7 case that a true threat should be defined as a statement wherein the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Notice how this language closely follows the language of the stalking statute under which the SHAC7 were charged.

My apologies for the short shrift given to true threats here. Perhaps post-appeal I will be able to elaborate.

Political Association
Lastly here, relevant to the government's theory in the SHAC7 case is First Amendment protection for political association. In part, the government argued that the campaign against HLS was an illegal conspiracy. Again, a person need not commit an illegal act him/herself in order to be part of an illegal conspiracy. Conveniently, none of the SHAC7 defendants were alleged to have committed an illegal act. But, the government argued, it was enough that they had agreed ("conspired"), with one another and with other activists, to close HLS (legal) by using illegal means (not legal).

Enter the First Amendment yet again. Squaring allegations of an illegal conspiracy with the First Amendment is a difficult task. Reason being, expressive speech, demonstrations, and associating with others for these purposes are not only legal but also protected. When such activity comprises the legal activity alleged to have been taken in furtherance of an illegal conspiracy, the First Amendment cloaks that activity in protection from criminal prosecution and civil penalties. Remember the bank robbery example? There, the act of purchasing ski masks was a legal act satisfying the requirement of an overt act in furtherance of an illegal conspiracy; a speech, legal demonstration, or pamphlet cannot play the same role -- not only are such things legal, they are also protected.

This is especially relevant in the SHAC7 case because there is no dispute that some non-defendant individuals engaged in illegal acts in the course of the global efforts against HLS. However, the collective effort against HLS is not rendered an illegal conspiracy, nor the SHAC7's participation in it illegal, because First Amendment protection for political association drives a wedge between those who engage in protected expression/activity (demonstrations, letter writing, public speaking, etc.) and those who commit illegal acts (vandalism, liberating animals, etc.) in the course of the same effort, prohibiting guilt by association.

When involved in a collective political effort in which some individuals have committed illegal acts, those who have engaged solely in protected expression/activity in the course of the same effort may not be punished because they were part of an effort in which others broke the law. Nor are those engaging in protected expression/association required to stop their efforts and fall silent because others have chosen to work toward the same goal by using illegal means. The First Amendment requires that each individual be judged independently under the law and that their actions not be colored by the actions of others.

In Closing...
Well, I hope most of you stuck with me and that all have found this informative and useful. Of course, "Rah, Rah, Stop HLS" and all that good stuff. But truly, that much should be obvious at this point. Inspiring words are great to hear and fun to say, but to win we will need much more than inspiration -- we need knowledge. What I've written here is only the most basic and elementary overview of relevant First Amendment protections; I encourage everyone to familiarize themselves with the First Amendment more fully and broadly, as it is our greatest tool against bogus charges and frivolous lawsuits. We need to be as informed and familiar with our opposition's strategy as they are, and we need to be able to fight fire with fire. Most often, the fire of animal abusers and their hired government guns is the law. Luckily, armed with (an understanding of) the First Amendment, the law can be our fire too."