The Animal Enterprise Terrorism Act: the need for a whistleblower exception.

AuthorHill, Michael

INTRODUCTION

Congress enacted the Animal Enterprise Terrorism Act (AETA or the Act) with the belief that certain commercial and institutional enterprises were in need of increased protection from violent attacks. The purpose of the Act was a limited one: to increase protections against perceived threats of terrorism. The statute's language, however, is broad, and the bill was passed against a backdrop of concerns that its language would be used to curb traditionally protected activities, including whistleblowing. Because no court has extensively analyzed the Act, these concerns persist.

The scope of this Comment is limited. (1) It argues that, as AETA's opponents have pointed out, a literal reading of AETA's terms may force the conclusion that AETA prohibits certain acts of whistleblowing. A more scrutinizing analysis, however, reveals that the Act was never intended to halt acts of whistleblowing. AETA's drafters, rather, were concerned solely with prohibiting domestic-terrorism threats. Courts interpreting AETA must effectuate its full legislative intent by narrowing its application and resisting the temptation to apply the Act to whistleblowing, even if those actions fall within the technical language of the statute.

In addition to effectuating the legislative intent of the statute, other factors also compel an interpretation of the Act that goes beyond its plain terms. First, United States Department of Agriculture (USDA) inspectors, animal enterprise employees, and the American public rely on whistleblowers to aid the enforcement of state and federal anti-cruelty laws. Second, there is an extensive and growing record of animal-cruelty and food-safety-law violations by factory farms, slaughterhouses, and processing plants. Because of the USDA's poor record of enforcement, (2) a history of retaliation against insiders who speak out, and an industry-wide refusal to self-regulate, (3) the American public is dependant on whistleblowers to protect the integrity of America's food supply. (4)

  1. THE ANIMAL ENTERPRISE TERRORISM ACT

    1. Brief History of the Animal Enterprise Terrorism Act

      Critics have questioned the Act's scope and breadth since its inception. (5) In 1992, after approximately two decades of antagonistic relations between animal-protection advocates and medical researchers, Congress enacted the Animal Enterprise Protection Act (AEPA). (6) AEPA made it a federal crime to use interstate commerce to cause a physical disruption to the functioning of an animal enterprise. (7) The legislative intent was clear: to protect certain commercial and institutional enterprises from threats of domestic terrorism. (8) The language used to carry out this aim was less clear, however. AEPA defined an "animal enterprise" as any organization classifiable as either:

      (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 or sciences. (9)

      This expansive definition did not include any additional qualifications, like a requirement that the enterprise employ a threshold number of employees or devote a certain percentage of their efforts to the use of animals. (10) Because of the lack of clarifying language, AEPA was potentially applicable to individuals or companies who use animals or animal products in only a limited capacity. (11)

      In addition to broadly defining an animal enterprise, Congress further complicated the statute's interpretation by relying on the ambiguous term "physical disruption" as the triggering conduct. (12) Despite the fact that AEPA's legislative history had previously established that whistleblowers were not the bill's target, the term "physical disruption" left room for interpretation. (13) Specifically, the House Judiciary Committee recognized that the term was susceptible to multiple, conflicting interpretations. (14) The Committee expressed concerns that, without greater clarification, AEPA could be used to prosecute whistleblowers.

      Regulators, humane societies, and labor unions rely on whistleblowers and legitimate undercover investigations to police conditions at food and fiber processing facilities and determine compliance with animal welfare and labor laws.... The ambiguous term "physical disruption" is not defined, and could be construed to make criminal whistleblowing activity that results in a facility being shut down by regulators or protests. At best, this would have chilled whistleblowing; at worst, it could have resulted in actual prosecutions of whistleblowers. The bill reported by the Judiciary Committee is intended to avoid criminalizing whistleblowing activity and legitimate undercover investigations. (15) As a result, Congress followed the Committee's recommendation and defined "physical disruption." (16) But the definition failed to fully remedy the statute's ambiguity. (17) The definition provided only that "the term 'physical disruption' does not include any lawful disruption that results from lawful public, governmental, or animal enterprise employee reaction to the disclosure of information about an animal enterprise." (18) Congress, however, did not include any illustration of what constituted a "lawful disruption." (19) Thus, the definition failed to provide the necessary clarity, and concerns about the statute's scope remained. (20)

      On November 27, 2006, President George W. Bush signed AETA (21) into law. AETA is a controversial amendment that expands AEPA in three fundamental ways. First, it replaces the term "physical disruption" with the broader term "interfering." (22) Second, it increases the number of entities covered by AETA to include not only the animal enterprise itself but also "any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise." (23) Third, it creates an independent source of liability for any individual who, by interfering with an animal enterprise, places a person in reasonable fear of death or bodily injury. (24) AETA also retains the broad definition of "animal enterprise." (25)

    2. The Potential Effect on Whistleblowers

      Prior to AETA's enactment, critics feared that a plain, technical reading of AETA would convert traditional acts of whistleblowing into a federal offense. (26) Like the term "physical disruption," the term "interfering" is capable of multiple, conflicting interpretations. Courts have concluded that "[t]o 'interfere' is to 'oppose, intervene, hinder, or prevent.'" (27) The legal-dictionary definition of "interfere" is equally broad. To interfere is "[t]o check; hamper; hinder; infringe; encroach; trespass; disturb; intervene; intermeddle; interpose. To enter into, or take part in, the concerns of others." (28) Moreover, courts have interpreted "interfere" as pertaining to both conduct and speech. (29) Under any of the above interpretations, it is plausible that an individual who exposes the wrongdoings of an animal enterprise for the purpose of imposing sanctions has intentionally "interfered" with the enterprise.

      AETA provides that whoever interferes with an animal enterprise and causes damage in excess of ten-thousand dollars to property, which includes the removal of animals or records, has satisfied the elements of the Act. (30) In many instances, the only evidence of criminal or regulatory violations exists in these records, which a whistleblower must then remove to prove that a violation has occurred. (31) In other cases, the best evidence of wrongdoing lies in the physical condition of the animal itself. (32) If an individual removes property in the form of records or animals from an animal enterprise for the purpose of exposing wrongdoing, it is conceivable that the elements of the Act have been met. (33)

      Concerns that AETA would be used by law enforcement to prohibit well-intentioned acts dominated congressional hearings. Members of the press argued, "[t]his legislation ... will force Americans to decide if speaking up for animals is worth the risk of being labeled a 'terrorist,' either in the media or in the courtroom." (34) Dennis Kucinich (D-OH) argued that AETA

      paint[s] everyone with the broad brush of terrorism who might have a legitimate objection to a type of research or treatment of animals that is not humane.... This bill is written in such a way as to have a chilling effect on the exercise of peoples' first amendment rights. (35) Long after the debates and the congressional hearings have ended, concerns regarding the potential enforcement of AETA against whistleblowers remain. After an undercover investigator associated with the Humane Society of the United States videotaped nonambulatory cows so diseased that they could not stand being forced to slaughter in violation of USDA regulations, the USDA recalled 143 million pounds of ground beef, the largest recall in American history. (36) The author of a New York Times article expressed concern that because of the size of the recall and the economic harm it caused, AETA would be used to prosecute the investigator. (37)

    3. Effectuating the Legislative Intent of AETA

      A literal reading of AETA's terms alone may proscribe the removal of records or animals for the purpose of whistleblowing. (38) To date, no court has had the opportunity to interpret the Act as it pertains to whistleblowing, but when the opportunity arises, courts should read beyond AETA's terms in order to effectuate the statute's purpose. (39) It is a maxim of statutory interpretation that where Congress has used language that is susceptible to multiple, conflicting meanings, courts must effectuate the intent of the legislature by reading beyond the statute's plain language. (40) From its inception, AETA was...

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