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December 2006/January 2007
Guest Editorial: The Chilling Effect

By Will Potter


Update: Senate and House Pass Animal Enterprise Terrorism Act
and Bush Signs it into Law

On September 30, 2006, the Animal Enterprise Terrorism Act, introduced by Senators Feinstein (D-CA) and Inhofe (R-OK), passed unanimously on the Senate floor the last day before congressional recess. On Friday November 10, the Animal Enterprise Terrorism Act was put on the fast-track Suspension Calendar for the House vote Monday, November 13—as the lame duck Congress resumed after elections. Despite dozens of activists from Equal Justice Alliance, FARM, League of Humane Voters, and Compassion Over Killing visiting Congressional offices that day, urging them to vote against the AETA, the bill was introduced and passed during an afternoon session before its scheduled vote. Only six representatives were present.

Dennis Kucinich voiced concerns that the bill infringed on civil liberties of people conducting civil disobedience and undercover investigations. The chair called for a voice vote. Kucinich cast the only “no” vote. It was passed in about 15 minutes.

On Monday November 27, President Bush signed the act into law.

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Chances are your home won’t be raided by federal agents. You probably won’t get hauled before a grand jury for a political witch-hunt, or rounded up and accused of “eco-terrorism.” While these things are taking place, most activists will only read about them.

These heavy-handed tactics are a small part of the current crackdown on animal rights and environmental activists in the name of “eco-terrorism.” In this “Green Scare,” the real danger is not Senator Joseph McCarthy naming names, or cops breaking down doors: it’s the subsequent fear seeping into every crevice of the movement.

Even at the height of the Red Scare, amid the blacklists and the Congressional hearings, amid the red-baiting and the rhetoric of treason, the McCarthyists rarely, if ever, preached prohibition: they didn’t use their pulpit to ban subversive speech outright because they simply had no need.

The climate of fear they created, through scare-mongering and legislation more palatable for the public, had the same effect. Self-censorship, they learned, could prove even more effective than a new set of Alien and Sedition Acts.

Take the case of Lamont v. Postmaster General. There was a federal law that said anyone receiving “communist political propaganda” through the post office had to specifically authorize the delivery of each piece of mail.

The law didn’t say it was illegal to send or receive communist propaganda. It just said you had to authorize it. But that has the same effect, doesn’t it? You’d have to be a real nut job to voluntarily put your name on a list of folks receiving commie propaganda during the Red Scare: clueless, fearless, or a little of both. So people didn’t do it.

Justice Douglas, delivering the opinion of the Supreme Court that struck down the law, wrote: “…any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as ‘communist political propaganda.’ The regime of this Act is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment.”

That’s what lawyers call a chilling effect. The law didn’t take away people’s rights, but it chilled them. It made reasonable, everyday people fearful of speaking up.

Now history repeats itself. The new enemies of the hour, the FBI’s “number one domestic terrorist threat,” are the animal rights and environmental movements. The new McCarthyists have taken a few pages from the Red Scare playbook, and a few from the “with us or against us” playbook of the war on terror. The architects of this Green Scare are building on a foundation of fear.

The government hasn’t outlawed animal rights and environmental activism, but the green-baiting campaigns of lawmakers and corporations are starting to have the same effect.

When environmentalists are rounded up as part of “Operation Backfire,” you start to wonder if you’ll get hit with outlandish charges for being seen as a “leader.”

When a nonviolent activist like Adam Durand gets 180 days in jail, $1,500 in fines, probation, plus 100 hours of community service, all for producing an undercover documentary about a factory farm, you start to wonder if it could happen to you.

And when the SHAC7 are convicted on “animal enterprise terrorism” charges for running a website, you start to wonder if you’ll be next.

Yet, the new McCarthyists haven’t confined their scare-mongering to the courtroom. Industry groups are getting more and more gutsy. They’re taking out full-page anonymous ads in both The New York Times and The Washington Post, labeling animal rights activists as “terrorists.”

They’re going so far as to label the recent children’s movie, Hoot, “soft-core eco-terrorism” because it shows kids saving an endangered owl from developers.

Meanwhile, the Department of Homeland Security does not list right-wing terrorists on a list of national security threats, even though those groups have been responsible for the Oklahoma City bombing, the Olympic Park bombing in Atlanta, violence against doctors, and admittedly creating weapons of mass destruction. The animal rights and environmental movements have done nothing like that.

The Animal Enterprise Terrorism Act, passed in Congress, creates stiffer penalties than the original Animal Enterprise Protection Act, and expands its scope to include “any property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise.”

The vague and overly broad language of the bill includes undercover investigators and activists using civil disobedience. Supporters say it won’t be used to target aboveground activists, but the penalty section spells out sentences for “non-violent physical obstruction,” and for crimes that “do not instill in another the reasonable fear of serious bodily injury or death” and “result in no economic damage or bodily injury.” All in a terrorism bill. The real danger of this legislation is not the stiff penalties it spells out, but the chilling effect it will have on the animal rights movement.

The repression we’re seeing now may mimic many of the tactics of the Red Scare, but our response cannot. Witch-hunts will test the backbone of today’s social movements, just as they did 60 years ago. But it’s not enough to cowardly distance ourselves from the “eco-terrorists,” as many did during the Red Scare. Condemning underground activists, or anyone charged with illegal actions, won’t get you off the hook. Naming names and making loyalty oaths didn’t protect activists then, and it won’t protect activists now.

Activists can’t just focus on their work, and wait for this to pass. It won’t. At the same time, they shouldn’t act like home raids and FBI harassment are badges of honor for scene points. Too many activists act as if it’s selfish to worry about our civil liberties, because it takes time and effort away from the animals and the environment.

The only way we’re going to get through this is by coming out and confronting it head-on. That means working with anti-abortion activists, anti-war activists and others fearing they may also be targets of this scare-mongering. That means reaching out to everyone and telling them that labeling activists as terrorists wastes valuable anti-terrorism resources. That means building strong activist communities who know their rights, know how they’re threatened, and know what’s at stake if we acquiesce.

There’s a long fight ahead. There will be more “eco-terror” legislation. There will be more arrests. And there will be more activists in need of prisoner support. Letter writing, commissary money, media outreach: work to make sure these people survive and are not written off as a casualty of a greater cause.

Supporting those that do not go to prison, though, may prove even more critical. We have to remind each other that it’s okay to be afraid. We have to ensure in these supportive communities that we can speak openly and honestly about what’s going on, and how to overcome it. If this fear, this hopelessness, is not confronted, it will incarcerate and incapacitate many more activists than any “eco-terrorism” legislation.

Will Potter is a freelance reporter based in Washington, D.C. He has written for publications including The Chicago Tribune and Legal Affairs, and has testified before the U.S. Congress on the Animal Enterprise Terrorism Act. He is the creator of, where he blogs about history repeating itself.



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