‘Eco-Terrorist’ Appeal Flounders in 7th Circuit

CHICAGO (CN) — Taking on criminalization of animal-rights activists as terrorists, an attorney told the Seventh Circuit on Wednesday that even minor damage to a Whole Foods could trigger the law.

The Center for Constitutional Rights attorney who made the comparison this morning is not representing a Whole Foods opponent, however, but someone who freed 2,000 minks and foxes from a fur factory roughly 60 miles from Chicago in 2013.

On their way out, Kevin Johnson and fellow activist Tyler Lang spray-painted the words "Liberation in Love" on a barn.

Johnson received a three-year prison sentence under the Animal Enterprise Terrorism Act, but Rachel Meeropol with the Center for Constitutional Rights has argued on appeal that such prosecution was unlawful.

U.S. Circuit Judge Ann Williams noted that she has "a big problem" with the argument.

"The definition of animal enterprise is very clear under the statute, and traveling interstate to free 2,000 minks is the kind of crime this statute envisions," Williams added.

Meeropol had said "the question is whether there are standards to guide law enforcement."

"Looking at the history of the statute," she said, "we see arbitrary and discriminatory enforcement in that it has only ever been used against animal-rights activists."

Noting that the law counts simply the loss of money as property damage, Meeropol urged the three-judge panel to find the act "overbroad and void for vagueness."

"Even throwing a rock through the window of a Whole Foods would count," Meeropol added.

Meeropol noted that "the overbreadth doctrine isn't just about how a statute has been used, but what it covers."

U.S. Circuit Judge Michael Kanne interrupted when she tried to bring up the Whole Foods window a second time.

"If nobody is confused about it," Kanne began.

Meeropol then shifted her concern to the First Amendment. "The District Court reads the statute to cover only tangible property, but that's not what it says," she argued. "Activists are wondering what of their conduct violates the act."

This contention echoes the point from Meeropol's brief that even a film like "Blackfish" — which caused SeaWorld significant negative publicity, upgrade expenses and market-capitalization losses — could violate the act.

Williams was not convinced. "The statute specifically says that it doesn't cover expressive activity protected by the First Amendment or lawful economic disruption," the judge said.

Meeropol, however, would not give in, saying "that's not easy for a layperson to understand."

"A savings clause cannot save an otherwise invalid statute," Meeropol argued.

U.S. Judge Joel Flaum asked if she has evidence "other than a suggestion of a chill based on this confusion."

"Certainly we don't have evidence of many protests that were chilled," Meeropol replied, "but, as someone in touch with many activists in that world, I can say there has been a chill."

Government attorney Bethany Biesenthal faced a much less critical panel. She attacked what she called Meeropol's piecemeal approach to the statute. "When you read the statute as a whole, it clearly criminalizes physical damage to property and excepts peaceful protest," Biesenthal said.

Biesenthal also noted that the term "terrorism" appeared only in a short title of the statute, and that Williams and Lang were not labeled terrorists or required to register as such.

In rebuttal, Meeropol noted: "The word 'terrorism' makes them eligible for confinement one of the most restrictive areas in federal prison."

She then attempted to reiterate her Whole Foods and First Amendment arguments to a panel that seemed too disinterested to question her further and certainly disinclined to invalidate the statute.

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