In 2002, Kevin Jonas, president of the extremist animal rights group Stop Huntingdon Animal Cruelty USA (SHAC USA), told the Intelligence Report, "[W]hen push comes to shove, we're ready to push, kick, shove, bite, do whatever to win" (see From Push to Shove, Intelligence Report, Fall 2002).

But after a series of SHAC USA-sponsored harassment campaigns resulted in substantial property destruction and threats of personal injury, the federal government is now doing the shoving.

On May 27, 2004, SHAC USA, Jonas and six other members of the radical group were indicted for engaging in a conspiracy to violate the Animal Enterprise Protection Act [18 U.S.C. § 43] and other federal laws. The "SHAC Seven" are accused of using the Internet to terrorize the employees and business associates of Huntingdon Life Sciences (HLS), a pharmaceutical research company that uses animals to test drugs and chemicals.

As the SHAC Seven head to court, so too does the First Amendment. The ultimate question: Does the First Amendment shield individuals from criminal liability for Web site postings that encourage third parties to engage in campaigns of harassment?

SHAC Attack
Over the past four years, SHAC USA activists have harnessed the power of the Internet to harass Huntingdon's employees and its business associates across the country. But the online campaigns have made life difficult for SHAC USA as well. The group faces civil actions in at least two states and the federal criminal indictment naming the SHAC Seven.

A New Jersey state court has enjoined SHAC USA, its officers and "all persons acting in concert with it" from engaging in harassing tactics against HLS business associate TEVA Pharmaceuticals and one of its employees. Meanwhile, thousands of miles away, the California Court of Appeals has permitted a suit against SHAC USA for trespass and harassment to proceed to trial. [See Huntingdon Life Sciences, Inc, v. Stop Huntingdon Animal Cruelty USA (Cal. Ct. App. June 1, 2006).] SHAC USA's criminal prosecution in federal court only adds to the radical group's mounting legal woes.

According to the federal government's lengthy criminal indictment, the SHAC USA Web site encouraged members and sympathizers to engage in "direct action" — activities that "operate outside the confines of the legal system." SHAC USA suggested "top 20 terror tactics," including threatening to injure or kill a person's family members, assaulting a person by spraying cleaning fluid in their eyes, vandalizing or flooding a person's home, firebombing a person's car, breaking the windows of a person's home while family members are inside, and sending E-mail "bombs" to crash computers.

And for SHAC USA activists' convenience, the Web site provided nifty features called "Target of the Week" and "Ongoing Targets." With a click of a mouse, Web site visitors could find addresses for HLS employees and executives, telephone and fax numbers and, in some instances, the names and ages of the targets' children and where they attended school.

True Threats and the Internet
The SHAC Seven certainly have a First Amendment right to be free from government censorship of their political viewpoints. But this right is not absolute. [See Virginia v. Black, 538 u.s. 343, 358 (2003); R.A.V. v. City of St. Paul, 505 u.s. 377, 382 (1992).] If the words on the SHAC USA Web site constitute "true threats," as the government argues, the SHAC Seven will find no First Amendment refuge from criminal prosecution. [See Watts v. United States, 394 u.s. 705, 705 (1964).]

The best-known case to address threats over the Internet is Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 f.3d 1058 (9th Cir. 2002) (en banc). In 1994, the American Coalition of Life Activists (ACLA), an anti-abortion extremist group, released a "Deadly Dozen" poster, designed in a wanted-style format with "guilty" captioned at the top and a list of names and addresses of 13 abortion providers.

In 1997, a pro-life activist affiliated with ACLA gave a much longer list of more than 200 "abortionists" to anti-abortion hardliner Neal Horsley, who then posted them on a section of his Christian Gallery Web site labeled "Nuremberg Files." Horsley highlighted the names of those doctors and others murdered by anti-abortion terrorists by striking through their names on the list; those who were merely wounded had their names grayed out [Planned Parenthood, 290 f.3d at 1065.]

Several abortion providers listed on the posters and the Nuremburg Files site sued ACLA and twelve anti-abortion activists. A jury later found that the defendants violated the Freedom of Access to Clinic Entrances Act, awarding the plaintiffs $107 million in actual and punitive damages. The judge enjoined the posters and restricted the content on the Web site. [See Planned Parenthood, 290 f.3d at 1058.]

On appeal, the defendants argued that the content of the posters and Web site were protected speech under the First Amendment. But the full Ninth Circuit Court of Appeals upheld ACLA's liability, finding that the content on the posters and Web site constituted an unprotected true threat.

The court defined a true threat as a statement made when a "reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm." [See Planned Parenthood, 290 f.3d at 1074, 1088.] The test is an objective one; the defendant does not have to actually intend to, or be able to, carry out the threat. [Id. at 1076.] In the Planned Parenthood case, the Ninth Circuit found that it was reasonable for ACLA members to foresee that the named abortion providers would interpret the posters and Web site postings as a serious expression of ACLA members' intent to harm them.

In a more recent case, a panel of the Ninth Circuit took a more restrictive view of the true threats doctrine when dealing with criminal prosecutions. [See United States v. Cassel, 2005 Wl 1217387 (9th Cir. May 24, 2005).] In Cassel, the defendant was convicted of interfering with a federal land sale after he threatened to burn down any home built on federal property adjacent to his home. The court held that in order to prove that a true threat is unprotected by the First Amendment, the prosecution must show that the defendant subjectively intended the speech as a threat, something not required by the Planned Parenthood case.

Whether the SHAC Seven face the objective true threats test from Planned Parenthood or the more restrictive subjective test from Cassel, it is likely that the Web postings will be deemed true threats. In the California civil case against the SHAC Seven for harassment of an HLS employee, the state Court of Appeals found that the Web postings, as described in the complaint, "would [likely] intimidate [the plaintiff] and cause her to fear [Jonas, the SHAC USA president] and other persons affiliated with SHAC USA ... and indeed [Jonas] knew as much and that was the desired result." [See Huntingdon Life Sciences, Inc, v. Stop Huntingdon Animal Cruelty USA, at 27-28.]

In the federal criminal case, SHAC USA's "targets" suffered real-life, off-line consequences as a result of the online threats. Shortly after the Web site postings, the identified targets' homes, cars and personal property were vandalized — rocks thrown through windows, the exterior of homes spray-painted with slogans, cars and boats vandalized, and, in one instance, a target's car overturned in his driveway. HLS and its business associates' facilities also experienced vandalism and smoke bombs, while online attacks shut down computer systems. To make matters worse, the SHAC USA Web site reported many of these harassing acts after they occurred, fueling the fire.

By the time the criminal trial begins, the jury is likely to find it hard to believe that the SHAC Seven didn't intend to intimidate their targets.

Catherine E. Smith is an assistant professor at the University of Denver’s Sturm College of Law and teaches a course on extremism and the law.