Ethan Carson Eddy [FN1]

Copyright (c) 2005 Pace University School of Law; Ethan Carson Eddy (reprinted with permission).

Since President Bush signed the USA Patriot Act [FN2] into law on November 26, 2001, more than 357 legislative bodies, including four states, have passed resolutions condemning the law's encroachment upon civil liberties. [FN3] The Maine legislature, for example, found the USA Patriot Act so fearsome that it resolved, in the Act's wake, to “reaffirm [its] sworn oaths to defend” its citizens' “freedom of expression [and] . . . freedom of association, including the ability to attend meetings without being monitored or belong to an organization without fear of reprisal.” [FN4] The State of Hawai'i urged its Congressional delegation to work to repeal the USA Patriot Act, recalling that many of its residents, during World War II and the Japanese internment, had “experienced first hand the dangers of unbalanced pursuit of security without appropriate checks and balances for the protection of basic liberties.” [FN5]

Despite the outpouring of condemnation from anxious state and local governments, at least thirteen state legislatures, including that of Hawaii, have either passed or are currently considering *262 versions or parts of a model bill [FN6] that borrows the legal framework of the USA Patriot Act and manipulates its anti-terror rhetoric to wage an even broader offensive against civil liberties. These so-called Animal and Ecological Terrorism bills would make it a felony to, among other things, “deter” the business activities of industries engaged in the exploitation of animals and natural resources by “protest[ing] the actions of a . . . corporation” or “influenc[ing] a unit of government to take a specific action.” [FN7] Although the bills also address a range of destructive activities, these other provisions are merely a reiteration of existing state criminal codes. [FN8] Accordingly, these bills' only real contribution to the black-letter law is to confer bald economic protectionism upon their drafters and chief proponents - a limited set of favored business enterprises - by criminalizing speech acts that are critical of their practices.

Part I of this Article describes the model Animal and Ecological Terrorism Act (hereinafter the Model Act), its permutations currently pending in state legislatures, its proponents, and their motivations. Part I also explains the legal and rhetorical parallels between the Model Act and the USA Patriot Act. Part II of this Article predicts that courts will find the bills' constraints on speech to be undeniably content-based and without a sufficiently compelling state interest. Part II also predicts that should any of the bills become law, they will not withstand First Amendment scrutiny in actions brought in federal courts, as they are both vague and overbroad.

Part III situates these bills within the long and familiar history of restraints on speech in the name of both public and private interests. Although federal and state governments have historically placed civilly and criminally enforceable restraints on speech in the name of private economic interests and national security, respectively, this Article argues that the bills represent a significant departure from their historical antecedents, in that they *263 mark the first time that speech activity has been criminalized in the name of private economic interests. [FN9] Moreover, to the extent that the bills draw upon or incorporate the specific legal standards expressed in each of the historical constraints, this Article argues that every time, the particular doctrine has been manipulated or misapplied.

Part IV explains how the bills exploit the USA Patriot Act's anti-terrorism rhetoric, while in fact detracting and distracting from efforts to deter the actions of other domestic groups that have already killed and injured hundreds of Americans. Part IV also demonstrates that the bills reveal a concerted corporate strategy to manipulate the term “terrorist” and capitalize on its potency, in an anticompetitive effort to secure protectionism from the adverse economic effects of criticism, protests, and boycotts.

I. THE MODEL ANIMAL AND ECOLOGICAL TERRORIST ACT AND ITS PROGENY IN THE STATE LEGISLATURES

A. Construction of the Model Act's Primary Provision: What Does it Mean to “Deter” Business or “Coerce” Consumers?

The Model Act, broadly stated, is designed to prohibit environmental and animal rights activists from interfering with the companies whose corporate practices they would seek to change. [FN10] The crux of the constitutional issues presented by the Model Act is what one means by interference. Unlawful, destructive activity such as sabotaging logging equipment interferes with business, but so does the presence of two handbillers outside a store. In its present state, the law distinguishes between the two, punishing one while protecting the other as free speech. [FN11] The Model Act and its permutations in the states, however, would blur this carefully wrought distinction and criminalize both, by using vague, undefined terms such as “deter,” “obstruct,” “coerce,” “influence,” *264 and “impede” to describe the prohibited interference. [FN12] In section 3(A)(1) of the Model Act, for example, this prohibition - the Model Act's primary provision - reads:

Depriving the owner of an animal or natural resource by . . . obstructing the lawful use of an animal, natural resource or other property from the owner permanently or for such a period of time that a significant portion of the value or enjoyment of the animal, natural resource or property is lost to the owner by way of coercion, fear, intimidation, or property damage. [FN13]

The New York bill is nearly identical, but it substitutes the even more vague “deter” for the word “obstruct” in the Model Act. [FN14] In the Oklahoma version of the Model Act, which has already been signed into law, the operative term is “disrupt.” [FN15]

Regardless of the synonym used to describe the prohibited interference with favored business interests, the Model Act and its bills leave these key operative terms undefined. The only other section of the Model Act that provides any context for how terms like “coerce” and “deter” should be interpreted confirms that its drafters intended the Model Act to reach to the very core of protected speech activities. Section (N) of the definitions section, which designates certain activity as “politically motivated,” indicates that the proscribed “depriv[ation]” of a business interest can also occur vis ŕ vis:

*265 any activity where the principal purpose is to influence a unit of government to take a specific action or to persuade the public to take specific action, or to protest the actions of a unit of government, corporation, organization or the public at large. [FN16]

Accordingly, the Model Act prohibits these politically motivated speech acts where the actor's intent is to deter or obstruct the protected business activity, or when the actor's “intent to commit the deterring activity was politically motivated.” [FN17] It should be immediately apparent that each of these prohibited “politically motivated” activities is a constitutionally protected speech action. Indeed, the opportunity for citizens to influence their government is a core function of all working democracies, if not in fact a civic duty.

Whether politically motivated or not, as history demonstrates, “coercion” can be accomplished by many modalities, including brute force, threats of brute force, the mere presence of picketers or protesters, or even the verbal transmission of a speaker's opinion. [FN18] As explained further in Part II, “coercion” *266 that results from violence and extortion is rightfully prohibited by legislative bodies, while “coercion” that results from non-threatening speech and picketing activities has been expressly afforded First Amendment protection by the Supreme Court. [FN19] Courts observe this distinction because they recognize that some of this “coercion” might better be understood as mere “persuasion,” [FN20] which is a lawful byproduct of protected speech activity. [FN21] Indeed, as the Supreme Court admonished in NAACP v. Claiborne Hardware, “[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” [FN22]

The Model Act, however, does not adhere to this distinction. Had its drafters intended its scope to reach only violent or extortionate conduct, they could have explicitly stated so, rather than using vague and open-ended terms like “deter” without aids of construction. Of equal importance, the Model Act also fails to specify whose coercion or deterrence is prohibited - that of the protected business entity or a third party such as a consumer. Accordingly, this Article understands the term “coercion,” as used in the Model Act, to embody a range of speech acts, including, most importantly, the attempt and completion of the following three-step process: (1) the speaker transmits her opinion to the listener; (2) the listener receives the message, and consciously or subconsciously, the message evokes an attitude change in the listener toward the subject matter; and (3) the listener alters his behavior based on this attitude change. In the context of protest and boycott activity, the behavior change at issue is the severance or disruption of the consumer relationship with the protected business interest. The consumer who decides of her own free will not to consume certain products has thus been “coerced” as the term is configured in the Model Act.

The Model Act's definitions of “animal facility” and “animal activities” also make it clear that the drafters intend to target ordinary consumer protests. [FN23] For example, “animal facility” is defined broadly to include not just facilities where animals are kept, but any environment “involving the use of animals or animal *267 parts,” [FN24] such as a restaurant or retail store. Moreover, the key provisions of the Model Act are not limited to deterrent activity that occurs on private property, or anywhere near the actual business premises. [FN25] To be sure, the Model Act also prohibits theft, [FN26] property damage, [FN27] and trespass, [FN28] but these acts are already criminalized under state and federal criminal codes.

In the context of the consumer protests clearly contemplated by the Model Act, “coercion” derives solely from the content of the speech, or the expressive effect of a physical gathering of people in a public forum; its measure is the effect on the listener's decision-making as reflected by the protected business interests' concomitant profit losses. The proscribed attitude and behavior changes come about from an exchange of information, and not spoken (or unspoken) threats, as in several of the early labor protest cases discussed in Part III below. As explained further in Part II, all protest activity, by its very nature, is “coercive” in that it attempts to “deter” the controversial action.

Accordingly, one need not engage in semantic acrobatics to read the Model Act as attempting to criminalize, on its face, lawful protest or boycott activity which has the effect of “deter[ring]” the activities of the protected business interest. Passing out handbills regarding the suffering of intensively confined farm animals, for instance, may deter business by influencing would-be consumers *268 to choose a different product. The Model Act would make this action a felony if the protected enterprise lost more than $500 in revenue. [FN29] In sum, without explicit statutory definitions to aid courts in their interpretation and circumscription of these terms, the Model Act and its bills criminalize a seemingly limitless range of conduct, including protected speech activity. [FN30]

B. Other Controversial Provisions: The Felony Photography Prohibition and the Institutional Liability or Membership Provision

Another controversial provision of the Model Act is section 3(A)(2)(e), a felony prohibition against “entering an animal or research facility to take pictures by photography, video camera, or other means with the intent to . . . defame the facility or its owner,” even when such entry is lawful. [FN31] It follows that a paying circus-goer, for example, who happens to witness acts of animal abuse during a performance and documents those events with a camera, may be subject to felony prosecution depending on how those images are ultimately used. [FN32] By criminalizing the intent to *269 defame, the Model Act turns the concept of defamation, which has its own demanding intent requirement, on its head. [FN33] Most importantly, defamation has always been a civil action that sounds in tort, not criminal law, “in light of the fundamental First Amendment interests involved.” [FN34]

The felony photography provision is no doubt designed to insulate the protected business interests from the damaging effects of undercover reporting. Such documentary efforts often capture unlawful activity, triggering long overdue enforcement actions. [FN35] Neither the Model Act nor its progeny in the state legislatures has a journalist exception to the felony photography provision, despite the fact that it proscribes conduct following lawful entry. In fact, Arizona Senate Bill 1081, which was passed by the legislature but ultimately vetoed by Governor Napolitano, did not contain an exception for law enforcement authorities either. [FN36]

*270 Another controversial element of the bill is section 3(A)(3), the membership clause or institutional liability provision. [FN37] This provision would make it a felony to donate money to or in any way assist an organization that sponsors or conducts the prohibited deterring activity, regardless of whether the donor had any specific knowledge or intent. Perhaps most troubling, donors or members found guilty under the institutional liability provision would also be added to a “Terrorist Registry” along with those who actually participate in the deterring activity, and their names and photographs posted by the Attorney General on a state website for three years or more. [FN38]

Indeed, the reach of this provision is so broad that a committee of the Association of the Bar of the City of New York warned that the definition of a terrorist organization could include the American Society for the Prevention of Cruelty to Animals, the Sierra Club, and even the committee itself. [FN39] In sum, without straining the literal language of the Model Act, anyone who gives money to a mainstream environmental or animal protection organization that in any way “deter[s]” a protected business activity could be incarcerated and deemed a terrorist. This is cause for great concern, as it brings within its reach a notable percentage of the American public. [FN40]

C. The State Bills

As of the 2003-2004 session in state legislatures, versions or pieces of the Model Act have been introduced in at least thirteen states, and several are still being actively considered. [FN41] In New *271 York, for example, Senate Bill 2996 mirrors the language of the Model Act almost verbatim, but with a subtle linguistic twist that confirms its drafters' intent to reach all types of conduct. It prohibits the obstruction, impeding, or deterrence of the protected business activity by criminalizing not only acts of “coercion,” but also acts that deter the protected activity via any “other means.” [FN42] Accordingly, this bill proscribes an even broader range of speech activity than protests that, while non-violent, could nonetheless be described as deterring or coercive. Indeed, the term “other means,” by its very nature, is limitless.

Although the Model Act has yet to be passed in its full form, several states have already passed parts of it into law. Oklahoma, for example, now forbids certain undefined activities that “disrupt” animal enterprises as a felony, punishable by a three year imprisonment and $10,000 fine. [FN43] Indiana's “Agricultural terrorism” statute, in contrast, penalizes conduct that is traditionally, and more rationally, recognized as terrorism. It states simply:

A person who knowingly or intentionally: (1) possesses; (2) manufactures; (3) places; (4) disseminates; or (5) detonates; a weapon of mass destruction with the intent to damage, destroy, sicken or kill crops or livestock of another person without the consent of the other person commits agricultural terrorism, a Class C felony. [FN44]

Unlike the Model Act, its aim is not to confer economic protection upon agribusiness per se. Rather, the Indiana statute protects public health and safety from true terrorists who use the agricultural infrastructure as a delivery mechanism for infectious pathogens and other harmful modalities. The Indiana statute more closely parallels the federal definition of terrorism [FN45] in that it addresses destructive acts of a large scale, which, unlike isolated *272 protest activities, could have the effect of intimidating the government or the civilian populace as a whole.

D. Using the USA Patriot Act as a Platform

In several ways, the Model Act functions as an industry-specific USA Patriot Act, by penalizing activity along all points of what its drafters consider a “terrorist” infrastructure. In deciding who is or is not a terrorist, for example, the Model Act employs mechanisms familiar from the USA Patriot Act. Its organizational liability provision parallels the USA Patriot Act's prohibitions on providing “material support” to alleged terrorists in various ways. The Model Act prohibits:

raising, soliciting, collecting or providing any person with material, financial support or other resources such as lodging, training, safe houses, false documentation or identification, communications, equipment or transportation that will be used in whole or in part, to encourage, plan, prepare, carry out, publicize, promote or aid an act of animal or ecological terrorism. [FN46]

Likewise, section 805 of the USA Patriot Act prohibits individuals from giving “material support for terrorism,” [FN47] and section 806 authorizes the seizure of all assets held by terrorist organizations or alleged to be used for terrorist purposes. [FN48]

As in the institutional liability provision of the USA Patriot Act, the Model Act also lacks a specific intent requirement that donors or members have specific knowledge that their actions contribute directly to “terrorism.” Commentators also warn that the institutional liability provisions of the USA Patriot Act, like those of the Model Act, “could classify as domestic terrorism any activity [the government] found unpopular, including such legitimate activist actions as labor union strikes and protests concerning abortion rights, animal rights, civil rights, the environment, or the G-4.” [FN49] The Model Act, however, goes one step further than the USA Patriot Act, by affirmatively making that classification.

Although the Model Act does not specifically call for the surrender of organizations' membership lists, one can safely assume that this would occur any time law enforcement authorities invoked*273 the organizational liability provision, in order to verify the alleged membership connection. The USA Patriot Act similarly invades citizens' personal and associational privacy, by authorizing wide ranging and deeply penetrating surveillance activities in order to ascertain an individual's association with certain organizations. [FN50]

The impact of both laws upon freedoms of association is clear. As a matter of common sense, if citizens are aware that membership in or donating money to a cause puts them at risk for felony anti-terror prosecution, they are far less likely to form those associations. These concerns are far from speculative. As we have seen with the USA Patriot Act, law enforcement authorities have actively used their enhanced surveillance authority to cast a wide dragnet across the citizenry, snaring people with the most attenuated connections to groups alleged to have financially supported terrorist activity, regardless of their knowledge or intent. [FN51] Those who support humane organizations therefore have every right to fear prosecution under the Model Act's institutional liability provision.

However, unlike the Model Act, not even the USA Patriot Act goes so far as to create a registry of those convicted as terrorists. It is also curious that the Model Act parades under the banner of anti-terrorism, while prohibiting only activities that are non-violent in nature, such as property damage, trespass, and theft. [FN52] This departs from the long-standing federal definition of terrorism,*274 as used in the USA Patriot Act, which is limited to activities that:

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended--(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States. [FN53]

As demonstrated in Parts I.A and B, the Model Act prohibits a wide range of conduct, none of which can be remotely described as either dangerous to human life or designed to intimidate the government or the civilian populace as a whole. [FN54] Nor must the prohibited conduct involve violent activities such as mass destruction, assassination, or kidnapping. [FN55] Rather, many of the activists targeted by the Model Act only seek an audience with consumers and policymakers, as with any other special interest group. [FN56]

Despite the overt similarities between the Model Act and the USA Patriot Act, communities in all but two of the thirteen states in which versions of the Model Act are pending have condemned the USA Patriot Act as a threat to civil liberties. [FN57] That a state legislature like Hawai'i's, which so passionately rebuked the USA Patriot Act, would then entertain these bills demonstrates that either the bills' supporters are misrepresenting their scope, or that the legislatures' renewed commitment to civil liberties is not as robust as it appears, but rather varies inversely with the strength of the favored industries' lobby.

Finally, the very use of the word “terrorism” in the Model Act to describe the prohibited activities owes much to the USA Patriot Act and other recent federal anti-terror laws, [FN58] which have infused*275 the term with a rhetorical potency unknown merely four years ago. The Model Act's drafters used the USA Patriot Act as a platform, by borrowing its legal framework and specific enforcement devices, but they also expanded its scope and severity to reach non-violent activities that are not in any way related to terrorism. In sum, while the USA Patriot Act clearly inspires and informs the Model Act, the proponent industries' custom-crafted versions of it are even more of a threat to civil liberties.

E. The Bill's Proponents

The Model Act was drafted by the American Legislative Exchange Council (ALEC), and was subsequently adopted and pushed by the U.S. Sportsmen's Alliance, a “front group” for firearms and ammunition manufacturers. [FN59] ALEC is a tax-exempt, Washington, D.C. based organization that brings together its 2,400 member state lawmakers in “task forces” to draft model legislation from a right-wing perspective on a host of issues. [FN60] It receives over $5 million annually from its corporate members, including tobacco companies, agribusiness trade associations, private corrections facilities, pharmaceutical manufacturers, and even the National Rifle Association. [FN61] Once ALEC's task forces complete a model law, its members introduce identical or similar bills directly into their state legislatures. [FN62] ALEC retains its tax-exempt status by reporting lobbying expenditures of zero, since its “member” legislators introduce the bills themselves. [FN63] In essence, ALEC is little more than a matchmaker between corporate interests who “pay to play,” and right-wing legislators eager to do their bidding, all cloaked under a “tax exempt facade.” [FN64] Although ALEC's legislators are “members” in that they pay negligible dues *276 each year, they can expect handsome returns in the form of paid trips to task force meetings in desirable destinations, among other things, all financed by corporate contributions to ALEC. [FN65] This matchmaking structure, unmediated by third-party lobbyists, allows corporate members to get around conflict of interest and lobbying disclosure laws, which are weak in many states. [FN66]

With corporate members like the National Pork Producers Association and ExxonMobil, [FN67] it is no surprise that ALEC would be the font for model legislation criminalizing animal and environmental protection activists. Despite this conspicuous connection to industries that derive naked economic protectionism from the bill, its proponents nonetheless offer the feeble pretext that the bills are necessary to protect Americans from “eco-terrorism.” [FN68] Puzzlingly, they argue that the USA Patriot Act, with its broad expansion of law enforcement authority to combat and prevent violence, is inadequate “because the federal definition of terrorism requires the death of or harm to people, an element not characteristic of eco-terrorists.” [FN69] Given that the non-violent crimes to which the proponents point are already criminalized, as noted above, it seems unlikely that the bills' proponents genuinely seek to further the protection of public safety. Rather, the sponsor industries clearly recognize and seek to take advantage of the political expediency of the current anti-terror fervor, in order to secure lasting economic protectionism for themselves.

*277 II. THE MODEL ACT'S CONSTITUTIONAL INFIRMITIES

Regardless of which term is used to describe the prohibited interference - whether “obstruct” in the Model Act, “deter” in the New York bill, or “disrupt” in the Oklahoma law - the indefinite nature of the term gives the Model Act a broad sweep across conduct and speech acts of almost any character. The imprecision with which these operative terms are employed, perhaps deliberately, proves to be the Model Act's primary constitutional flaw. By restricting both protected and unprotected speech acts in the same sweep, the Model Act is vulnerable to invalidation on First Amendment grounds. Not only is the Model Act impermissibly content-based, as explained in this Part, it is also vague and overbroad, and is not amenable to a curative construction. This Part also argues that the recent invalidation of a similar state law in Utah, [FN70] which was much less vague and overbroad, is predictive of the fate of the Model Act.

A. The Model Act is a Content-Based Speech Regulation, Without a Sufficiently Compelling State Interest

The legal standard by which a restraint on speech is analyzed for its lawfulness depends on whether the restraint abridges speech based on its content. A content-based restraint is presumptively invalid unless the regulated speech is “unprotected,” such as libel, obscenity or incitement to violence, or unless the government justifies it by advancing a “compelling” state interest that is “narrowly drawn.” [FN71] If, on the other hand, the regulation is content-neutral, and regulates speech activities instead by their manner, timing, or location, courts adopt a more deferential “intermediate scrutiny” standard. [FN72] While legislatures retain the right to regulate genuine breaches of the peace, such as the obstruction*278 of a public sidewalk or street, [FN73] the Model Act is not such a “time, place, and manner” regulation. [FN74] It does not differentiate between protest acts that physically and fully obstruct ingress to businesses, and those that “obstruct” businesses by persuading consumers not to enter based on the content of their message. [FN75] Indeed, the Model Act reaches activity that “deters” business even if the action does not take place anywhere near the business premises. [FN76]

Rather, the Model Act is unmistakably content-based. It does not restrict speech that is favorable to the protected business enterprises, nor does it bar all speech on the subject. Only speech that has a detrimental economic effect is punished. It goes without saying that speech favorable to or made by the favored business interests would not cause them economic harm. Generally, the Court treats this type of “restriction of the expression of a particular point of view as the paradigm violation of the First Amendment.” [FN77] In R.A.V. v. City of St. Paul, for example, the Supreme Court invalidated a local ordinance on the grounds of viewpoint discrimination, finding that it forbade the hate speech of one group but would not have addressed similar speech acts of competing groups. [FN78] A similar dynamic is at work in the Model Act. As in the St. Paul ordinance, the two sides of the debate must play by different rules. Nothing in the Model Act limits speech activities that similarly “deter” or “obstruct” the efforts of the protected businesses' critics. This type of asymmetrical viewpoint-based restriction has not been tolerated by the Court.

Even if the Model Act could somehow be portrayed as content-neutral, despite its overt favoritism toward certain viewpoints, its use of the listener's subjective “fear” as a basis for regulation would in and of itself render the Model Act content-based. As noted above, the Model Act prohibits “[d]epriving the owner of an *279 animal or natural resource . . . by way of . . . fear . . . .” [FN79] As commentators have noted, constraints on speech “that is deemed likely to cause a certain response in the audience based on its content are typically viewed skeptically as direct content restrictions.” [FN80] A similar response-driven standard was invalidated in Forsyth County v. Nationalist Movement as a content-based restriction insufficiently justified by the city. [FN81] There, the Supreme Court struck down an ordinance that allowed officials to exact variable parade permit fees based on the audience's response to the speech. [FN82] The county enacted the ordinance after a peaceful civil rights march drew thousands of violent Ku Klux Klan counter-demonstrators, which in turn required the city to expend additional resources on police. [FN83] The ordinance would have required subsequent parade organizers to pay additional fees if the parade was pre-determined to arouse certain reactions in listeners - such as fear - and hence require additional police presence. [FN84] In striking down the ordinance, the court held that “[l]isteners' reaction to speech is not a content-neutral basis for regulation.” [FN85] Like the ordinance in Forsyth County, enforcement of the Model Act depends on the listener's response or subjective state of mind, because the prohibition includes loss of business by way of “fear,” among other things. [FN86]

Having established that the Model Act is content-based, the inquiry now turns to the whether the interests advanced by the government in support of the regulation are sufficiently compelling. As a preliminary matter, we must ascertain what the government interest truly is. The Model Act's proponents assert that *280 it is needed to protect Americans from “eco-terrorism.” [FN87] However, the following four reasons, some of which are explored in further detail elsewhere in this Article, reveal the public safety rationale to be a mere pretext.

First, the truly destructive and extortionate activity that is prohibited by the Model Act is already criminalized. [FN88] Second, the proponents themselves, along with other anti-terrorism advocates and even the government, admit that the targeted activists are non-violent by definition. [FN89] Third, if the Model Act were truly premised on public safety or threats to the populace as a whole, it would read more like Indiana's agricultural terrorism statute, discussed supra in Part I, which addresses physical attacks on the food supply with “weapons of mass destruction.” [FN90] Finally, the Model Act's industry-specific character, which is even narrower than the agricultural disparagement statutes discussed below, does not benefit the entire agriculture sector, but only a small group of certain types of businesses.

The public safety pretext having been stripped away, the state's true interest is revealed to be naked economic protectionism for a limited class of beneficiaries. Strict scrutiny is “almost always fatal,” [FN91] but state interests premised solely on economic motives are especially vulnerable. In NAACP v. Claiborne Hardware, discussed further in Part III, the Court held that even broad-based economic fluctuations with the potential to wipe out entire markets were not a sufficiently compelling state interest. [FN92] In the drafters' report accompanying the Model Act, not even this level of economic perturbation is alleged, as it was during passage of the agricultural disparagement statutes. [FN93] Of the few content-based speech restraints to survive the Court's strict scrutiny analysis, the interests advanced by the respective states were discrete *281 in nature and truly compelling, such as the right to vote. [FN94] Compared to the right to vote, economic favoritism hardly appears compelling.

Nor can the restraint be justified on the unverified assumption, inherent in the Model Act's focus on one particular type of activism, as opposed to any anti-business activity, that debate as to a particular subject matter is inherently “more prone to produce violence.” [FN95] Rather, “[p]redictions about imminent disruption from picketing involve judgments appropriately made on an individualized basis, not by means of broad classifications.” [FN96] Here, an individualized judgment would reveal exactly the opposite: that the targeted movements are inherently and by definition non-violent, and have in fact endured more violent attacks than they have propagated. [FN97] All in all, the state interest behind the Model Act is no more than a pretext, and is thus insufficiently compelling to justify its content-based restriction on speech, rendering its constitutionality suspect.

B. The Model Act is Unconstitutionally Overbroad

A restraint on speech is overbroad, and hence unconstitutional, if, as here, it reaches conduct or non-protected speech such as fighting words, along with protected speech. In Gooding v. Wilson, for example, the Supreme Court reversed the conviction of an anti-war protester under a state breach-of-peace law that forbade the utterance of “opprobrious words or abusive language, tending to cause a breach of the peace.” [FN98] The Court struck the statute down on its face, because it swept within its breadth both fighting *282 words and otherwise lawful speech. “The separation of legitimate from illegitimate speech,” Justice Brennan admonished, “calls for more sensitive tools than Georgia has supplied.” [FN99]

Likewise, in Machesky v. Bizzell, the Fifth Circuit Court of Appeals found a Mississippi state court's protest injunction unconstitutionally overbroad because it “lumps the protected with the unprotected in such a way as to abridge important public interests in the full dissemination of public expression on public issues.” [FN100] The injunction invalidated in Machesky bears a remarkable resemblance to parts of the Model Act. It prohibited:

1. Picketing or marching, or persuading or inducing any other person or persons to picket or march, in any organized form whatsoever [in the vicinity of plaintiff business owners];

2. Loitering or congregating . . . for the purpose of doing anything whatsoever, directly or indirectly, to induce, persuade, or coerce any person or persons not to trade or do other business with the [complainants]; . . .

6. Threatening, intimidating, coercing, or using force or violence upon any person or persons so as to dissuade such person or persons from entering or trading [with complainants]. [FN101]

Note the use of similar operative terms such as “coerce,” which is paired here with “induce” and “persuade.” Both the injunction and the Model Act expressly forbid speech that is designed to dissuade patrons from transacting with certain business interests, without differentiating between protected and non-protected speech acts. Moreover, the injunction in Machesky was invalidated despite the fact that the targeted boycott and protest activities were intermingled with acts of violence, as in Claiborne Hardware. [FN102]

The Model Act, like the Georgia statute in Gooding and the injunction in Machesky, is not a sensitive instrument, but one of unfathomable breadth and bluntness. For instance, the New York bill prohibits the “supporting [of] any politically motivated activity through intimidation, coercion, fear, or other means that is intended to obstruct, impede or deter [the favored business activity].” [FN103] In this provision, the term “other means” functions as the *283 phrase “anything whatsoever” did in the Machesky ordinance. Its very indefiniteness signals that speech acts will not be differentiated based on their protected status. [FN104] Forbidden acts could include anything from firebombing to a bake sale to raise funds for the industries' political opponents. Even without the term “other means,” the Model Act is still stunningly overbroad, as the undefined prohibitions on “deterring,” “impeding,” or “disrupting” business could be construed to include both lawful protest activity and unlawful extortion. [FN105]

Broadening its scope further still, the Model Act also criminalizes actors who donate money to or in any way assist the targeted organizations, regardless of the donors' knowledge or intent, so long as the organization “deter[s]” the protected business activity. [FN106] In Aptheker v. Secretary of State, the Supreme Court struck down a similar membership clause in the Subversive Activities Control Act (SACA) as unconstitutionally overbroad. [FN107] There, as here, “the [regulation] is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe,” [FN108] which is in turn irreconcilably vague.

In striking down the membership clause of SACA, the Aptheker Court held that without a specific intent requirement, the Act “sweeps within its prohibition both knowing and unknowing members,” [FN109] thereby impermissibly “invad [ing] the area of protected freedoms.” [FN110] The Model Act similarly fails to distinguish between active members and passive donors. In sum, the Model Act is overbroad not only in its ill-defined operative terms, but also in its indifferent treatment of an organization's constituency.*284 Either flaw, on its own, renders the Model Act unconstitutional.

C. The Model Act is Also Unconstitutionally Vague

A criminal statute such as the Model Act must provide citizens with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” [FN111] This requirement is premised on the procedural due process right to notice. [FN112] Simply put, adequate notice of what activity is criminalized allows the governed to know that enforcement derives from a legitimate source of legislative authority, and is not in fact pure fiat. In this sense, vagueness also implicates the non-delegation doctrine: “[t]he failure to provide adequate standards . . . reflects Congress' failure to have made a ‘legislative judgment.”’ [FN113] The need for such a legislative judgment is “especially acute” when fundamental freedoms such as free speech are involved. [FN114] Without meaningful standards as to what conduct is criminalized, the executive or enforcement authority thus becomes legislative in character, substituting its own standards as it goes.

The Model Act and its state bills make just such an impermissible delegation of discretion to law enforcement authorities, by flatly prohibiting all conduct that has the effect of “deterring” the commercial activity of the protected businesses. As this Article has demonstrated, the acts leave operative terms like “deter” undefined. Any successful attempt to influence consumers not to support controversial business practices has the effect of deterring commerce, or at least re-routing it to other businesses. Conceivably, one law enforcement agent might view anything short of, or perhaps even including, civil disobedience as not having a deterrent effect, while another would view wearing a certain button or a t-shirt as a deterrent modality.

This uncertainty is compounded by the fact that the Model Act's prohibitions depend on the outcome or effect of the regulated speech activity. For instance, the Model Act's criminal sanctions *285 vary based on the dollar amount by which the protected business was affected, as measured after the fact. [FN115] The speaker cannot know in advance whether her efforts to persuade consumers and hence deter business will be successful, although she hopes they will, and has a constitutionally protected right to try. [FN116] Nor can she guess whether she will ultimately persuade consumers to withhold $500 as opposed to $501 worth of business on any given occasion, thus triggering the felony provision. Accordingly, because persons “of common intelligence must necessarily guess at its meaning and differ as to its application,” [FN117] the Model Act is unconstitutionally vague. Moreover, when the regulation “invokes criminal sanctions and potentially affects fundamental rights . . . the area of permissible indefiniteness narrows.” [FN118]

Perhaps more troubling, the Model Act may even have the effect of delegating enforcement to the protected entities themselves, by regulating speech activities based on the listener's subjective state of mind. As discussed earlier in this Part, liability attaches under the Model Act if the protected business interest is deterred by way of “fear.” [FN119] Fear is a necessarily subjective human response that varies greatly among people even when subjected to the same stimulus. Since the complainant's fear becomes an element of the offense, speakers potentially affected by the Model Act have no way to determine how to conduct themselves, or how they should alter the content of their speech so that sensitive listeners will not find it fearful. Also unanswered is what the listener must “fear” - since the Model Act prohibits speech that negatively impacts the protected businesses' revenue, as explained above, it follows that speech is outlawed under the Model Act when it causes the listener to “fear,” among other things, even a drop in sales.

In Coates v. City of Cincinnati, the Supreme Court struck down as unconstitutionally vague and overbroad a city ordinance, *286 that, like the Model Act, was predicated on the listener's subjective response to the message. [FN120] The Court reasoned:

[c]onduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. [FN121]

Similarly, there is no real standard of conduct within the Model Act. In sum, the Model Act is not only overbroad, but also impermissibly vague. It offers courts and law enforcement agents few clues as to the outer boundaries of its scope, and affords potentially affected speakers no notice as to whether the content of their speech will subject them to incarceration.

D. A Preview: Utah's Short-Lived Commercial Terrorism Statute

In Utah, the same alignment of business interests behind the Model Act attempted to silence the speech of their political opponents using a slightly different technique, which was struck down as unconstitutional before it even went into effect. In 2001, the Utah legislature passed a “Domestic Terrorism of Commercial Enterprises” bill by which an individual would be guilty of terrorism if “he enters . . . a building of any business with the intent to interfere with the employees, customers, personnel, or operation of a business.” [FN122] Notably, the definition of “enter” included “the intrusion of any physical object, sound wave, light ray, electronic signal or other means.” [FN123] Like the Model Act, the bill singled out activity that intended to “interfere” with an “animal enterprise.” [FN124]

Before the law went into effect, the American Civil Liberties Union (ACLU) of Utah filed an action for declaratory judgment and a preliminary injunction on behalf of the Utah Animal Rights Coalition, whose members feared they would be criminally prosecuted*287 for engaging in peaceful picketing activities. [FN125] The law would have treated protesters as though they maintained a physical presence inside the business premises, and hence guilty of criminal trespass and commercial terrorism, if their chants could be heard inside the building, or if their signs could be seen from inside the building. [FN126] This metaphysical feat was accomplished by treating a “light ray” or “sound wave” as the physical embodiment of a person. Not even the strictest of abortion access laws and injunctions upheld by the courts went so far. [FN127]

The plaintiffs argued that the commercial terrorism statute was unconstitutionally overbroad because it failed to distinguish between harmful conduct and protected, expressive speech acts. For example, as the plaintiffs noted:

[n]owhere do defendants explain why the definition [of light ray] necessarily excludes expressive use of light, such as plaintiffs' use of candles, nor do they offer any evidence to support their assertion that the statute only targets potentially harmful uses such as shining a bright light into the eye of a person or animal. [FN128]

The plaintiffs also argued that the law was vague in that a reasonable person could not be certain what was meant by its prohibitions on “light rays” and “sound waves.” [FN129]

Moreover, based on their personal experiences with Utah law enforcement officers, the plaintiffs feared that the law would yield arbitrary or “more severe and overzealous” enforcement against them as individuals. [FN130] The plaintiffs also argued that the regulation*288 was not content-neutral, based on the defendants' admission that the statute was targeted at speech “against fur farmers, trappers . . . zoos, circuses, rodeos [and other animal enterprises],” but would not prohibit speech in favor of these interests. [FN131] Finally, the plaintiffs asserted that if they were forced to relocate out of the sight and hearing of potential consumers, their otherwise lawful protest activity would lose all meaning.

The court sided unequivocally with the plaintiffs. U.S. District Judge Bruce Jenkins temporarily enjoined enforcement of the law and later struck it down on its face as overbroad. [FN132] In its preliminary injunction opposition brief, and at oral argument, the State attempted unpersuasively to argue that the terms “light ray” and “sound wave” were intended to prohibit only the offensive use of light and sound, such as “ultra sonic sound waves, blaring noises, and intrusive light rays,” including the use of a laser pointer. [FN133] Judge Jenkins, noting that the statute did not so delimit the terms, then asked the state: “Can you speak without using a sound wave? Can you see without the use of a light ray?” [FN134]

Judge Jenkins rejected the argument that the Kovacs v. Cooper line of noise regulation cases controlled. [FN135] Rather, he found instead that the statute was content-based, and that the “sound waves” and “light rays” prohibitions were void of any meaningful standard. [FN136] Nor would Judge Jenkins bestow a curative construction upon the otherwise facially overbroad statute, [FN137] because, as the plaintiffs argued, the resulting statute would be little more than a repetition of existing criminal trespass laws, and “it is not clear the Legislature would have passed [such a] *289 statute if its intent was . . . to create an additional tool to combat ‘eco-terrorism.”’ [FN138]

A similar fate awaits the Model Act. At least the commercial terrorism statute attempted to specify what is meant by “interference” with a business interest, although terms like “sound wave” ultimately generated more confusion than clarity. The Model Act is vaguer still, leaving operative terms such as “deter” to the wide-ranging interpretation of law enforcement officers, or worse yet, to the complainants themselves. [FN139] It is also fatally overbroad, because, like the Utah statute, it criminalizes speech along with other conduct that is already proscribed by the state's criminal code. Accordingly, as with the Utah statute, “[i]t is not possible to limit the [Model Act] to acts of ‘eco-terrorism’ alone, as the [state] would have the Court believe.” [FN140] “Annoyance at ideas,” the Supreme Court warned almost sixty years ago, “can be cloaked in annoyance at sound.” [FN141] A similar pretext is at work in the Utah commercial terrorism statute and the Model Act - two attempts by the same lobby, using a slightly different technique, to keep consumers from hearing the message of their political opponents.

Perhaps most importantly, throughout the proceedings, the plaintiffs stressed, and the court accepted, that the affected parties' concerns are not hypothetical - “[n]ot wanting to be arrested, plaintiffs would likely remain silent rather than risk arrest and/or criminal charges.” [FN142] Certainly, criminalization is the most chilling state action of all, short of brute force. Indeed, myriad evidence of chilling mounted after passage of the agricultural disparagement laws, even though the disparagement laws were all civil constraints save one. [FN143] The chilling argument is equally hard to overstate with respect to the Model Act.

*290 E. The Model Act Cannot be Saved by a Curative Construction

If the Utah statute was not amenable to a curative construction, the Model Act certainly will not be, as its flaws are greater in both severity and number. Although a court “will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it.” [FN144] To rescue the Model Act from constitutional invalidation would require nothing less than a judicial re-write of nearly every provision, which the court is neither expected nor allowed to do.

For instance, the Model Act's operative terms “coerce” and “deter,” as we have seen, proscribe both criminal activities and protected speech acts. In the First Amendment context, the term “coerce” cannot be given a limiting construction without replacing it entirely, since, as a matter of law, coercion is a permissible byproduct of protected speech acts. [FN145] Moreover, if the court circumscribes the term “deter” to include only violent or destructive actions, little will remain of the Model Act that cannot be found elsewhere in the criminal code.

A similar flaw plagued Utah's “commercial terrorism” law, which the court declined to cure. [FN146] The Utah plaintiffs argued, and the court accepted, that a limiting construction would distill the law down to existing criminal provisions. [FN147] There, as here, such a limitation would, in turn, contravene the plain meaning of the statute, since merely restating the law does nothing to confer additional protection, which is the stated aim of the Model Act. If the Model Act's drafters truly intended to reach only violent or extortionate conduct, they could have used more precise terminology. Indeed, they needed to look only to existing criminal laws to find such text. In these circumstances, it is not the job of the court to redraft a statute's operative terms in a manner that will limit its effect-- that task must be left to the legislature.

*291 Another infirmity requiring judicial redrafting is the membership or organizational liability clause, by which the donors or members of any organization deemed to be a “terrorist” group, regardless of their knowledge or specific intent, are penalized in the same manner as those actually carrying out the prohibited activity. [FN148] As explained more fully in Part III.A.3, during the Red Scare, the Supreme Court obliged Congress and gave a curative construction to a similar membership clause, by reading a specific intent requirement into an anti-Communist law. [FN149] Such an effort would do little to rescue the Model Act, however, because the predicate activity aided by the would-be donor - namely, the “deter[ring]” of commerce--could be achieved by perfectly lawful means. [FN150] The government cannot forbid donors and members from aiding lawful protest activity, whether they specifically intend to help “deter” business or not.

All told, the First Amendment obstacles that lie in the path of the Model Act are many, and they are massive. If the Model Act somehow withstands First Amendment scrutiny, it will have the effect of “elevat[ing] private economic interests to the status of constitutional rights.” [FN151] Not only are its content-based restrictions insufficiently justified by a compelling state interest, it is also impermissibly overbroad and vague. Most offensive, however, is the Model Act's complete inversion of the elevated status afforded political speech and civic participation. The Model Act removes political speech from the core of First Amendment protections and instead makes it nothing less than an element of the offense, [FN152] as though political motivation somehow renders the activity more odious or criminal in nature. Indeed, to characterize participation in the legislative process as terrorism is an act of extremism unto itself.

*292 III. A DEPARTURE FROM HISTORICAL AND DOCTRINAL PATTERNS: IGNORING THE LESSONS OF TORTIOUS INTERFERENCE, SCHENCK, AND OPRAH WINFREY'S MAD COWS

The Model Act and its progeny are the latest refrain in a lengthy melodrama of historical constraints on lawful protest activity, many of which suffered from similar constitutional defects and were ultimately invalidated. Although certain speech acts, as explained below, have been criminalized in the name of national security, the Model Act represents the first attempt to criminalize pure speech in support of private economic interests. This is a profound and troubling departure from well-settled doctrine. Traditionally, criminal sanctions are reserved for speech activity only when the very existence of the State is somehow threatened. Conduct adverse to private business interests has only been criminalized when the conduct is violent, destructive, or extortionist in nature. [FN153] The Model Act blurs these two doctrines by affording protection to private business entities that was previously justified only by the gravest of national emergencies. Additionally, each time the Model Act borrows a legal standard from an individual historical constraint, it misappropriates it.

In arguing that the Model Act represents a true departure from precedent, this Part establishes a three-part categorization of historical speech restraints, based on: (1) the object of protection (either the State or private interests); (2) the nature of the constrained activity (either speech or violence/extortion); and (3) the type of sanction (either civil or criminal). Figure 1 displays each constraint as categorized according to these variables. Historical speech restraints to be compared include: federal laws against “subversive” wartime activity; the “tortious interference” doctrine; pre-First Amendment jurisprudence injunctions against *293 labor picketing; Civil Rights-era restraints on political boycotts; and state agricultural disparagement laws.

Category	Method of Abridgement	Object of Protection	Constrained Behavior	Type of Sanction
1	Federal and state laws against “subversive” activity	The State	Speech / association	Criminal
2	Tortious interference doctrine; injunctions against labor picketing	Private economic interests	Speech / association	Civil
	Injunctions against civil-rights era political boycotts	Private economic interests	Speech / association	Civil
	State agricultural disparagement statutes	Private economic interests	Speech / association	Civil (except Colorado, which has never been invoked)
3	Model Act and state bills	Private economic interests	Speech / association	Criminal

A. Criminal Prosecution of Speech in the Name of National Security

1. Subversive Advocacy Laws, 1798-1950

Efforts to insulate the American government from the effects of subversive speech date to the nation's formative years. The Sedition Act of 1798 authorized the incarceration of anyone who conspired to publish any “scandalous and malicious writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or bring them . . . into contempt or disrepute.”*294 [FN154] Given the fragility of the fledgling State, such extreme measures, in retrospect, appear more forgivable than they would after the nation had better established itself. Yet even then, the Sedition Act had its detractors. The Jeffersonian Republicans decried the Act as a malleable and vague instrument used for partisan purposes. [FN155]

The Act expired in 1801 with little fanfare. After its passing, the concept of using federal law to protect the state from the adverse effects of speech lay predominantly idle for 116 years, despite the intervention of both international and civil wars. [FN156] The Espionage Acts of 1917 and 1918 were similar in character to the Sedition Act of 1798, but focused on the nation's vulnerability during*295 times of war. The first of the Acts was made law on June 15, 1917, just two months after the United States declared war on Germany. It addressed activities traditionally recognized as espionage, such as stealing or copying defense blueprints, and making false reports designed to interfere with military operations. [FN157]

The reach of the first Espionage Act was broadened substantially by the second Espionage Act, which amended Section 3 of the first Act. Whereas the first Espionage Act prohibited attempts to cause insubordination in the military by conveying false reports or false statements, the second expanded these prohibitions to include the utterance, printing, or publishing of “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution . . . or the military . . . or the flag . . . or the uniform of the Army or Navy.” [FN158] The second Espionage Act also protected certain commerce activities from “curtailment,” but the protections were limited to the production of “things . . . . necessary or essential to the prosecution of the war,” [FN159] such as munitions.

Prosecutors tried hundreds of people under the Espionage Act, mostly Socialists or Communists who protested, in various ways, America's entry into World War I. The well-known trilogy of Supreme Court cases [FN160] that first interpreted the Espionage Act began to fashion a central First Amendment principle: in order to justify criminal restraints on pure speech, the speech must directly incite violence or pose a threat to the very existence of the State.

In Schenck v. United States, for instance, the Court held that regulation of speech activity is appropriate where the speech “create[s] a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent.” [FN161] In the context of war, the “substantive evils” referred to by Justice Holmes, although not specified in the opinion, undoubtedly refer to what we would now call threats to national security. Similarly, the Court in Abrams v. United States viewed the defendant's pamphleteering as a threat to national security because the pamphlets attempted to, in the eyes of the Court, “brin[g] upon the country *296 the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.” [FN162] Dissenting in Abrams, Justice Holmes clarified what he had meant by the “clear and present danger” standard and said that the majority had misapplied it in affirming the defendant's conviction. Rather, he suggested, speech must be tolerated unless it “so imminently threaten[s] immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” [FN163] Each of these pronouncements clearly ratifies the central principle by denoting the State, and its very existence, as the object of protection.

Nonetheless, the Court went on to affirm the conviction of each of the trilogy defendants anyway, even where his threat to the nation-state could be described as attenuated at best. [FN164] The Court accomplished this not by compromising on the principle, but by overstating the potency of the speech, and even at times distorting the speech itself. In Abrams, for instance, the defendant's pamphlet described the capitalist American government as the “enemy” of workers - a phrase which the Court interpreted as, or transubstantiated into, an unmediated exhortation to “put down by force the government of the United States.” [FN165] By interpreting the Espionage Acts broadly, the Court appears not to have been insulated from the nation's paranoia of Socialist upheaval. As Justice Holmes described the contagion of Socialism, even “a little breath would be enough to kindle a flame.” [FN166]

This anti-radicalism fervor also penetrated state governments, many of which passed similar “criminal anarchy” or “criminal syndicalism” laws that penalized the advocacy of overthrowing organized government by force or violence. These laws withstood First Amendment challenges on the theory that freedom of speech “does not deprive a State of the primary and essential right of self preservation.” [FN167] As with the Espionage Acts, the purported object of protection was the State itself. The criminal anarchy laws, however, encompassed a narrower range of speech activities, at least in theory. Critiques of a mere “scurrilous” nature, prohibited by the Espionage Act, would not fall within the criminal anarchy *297 laws, which penalized only language advocating the use of force or violence.

Nonetheless, Justices Holmes and Brandeis observed that the state laws were being applied in a fashion that confused advocacy with incitement. [FN168] The two Justices gradually distanced themselves from the majority in the criminal syndicalism cases, urging that the clear and present danger standard authored by Justice Holmes in Schenck had been dangerously weakened. [FN169] They would have reinvigorated the standard to be more speech-protective: “[i]n order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated.” [FN170] The two Justices appeared willing to replace the “clear and present danger” standard entirely with a new trio of terms: “immediate serious violence.” The dissenting Justices reiterated the principle that “the fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State.” [FN171]

Gradually, the majority began to accept the Holmes/Brandeis view. In the late 1920s, the Court retreated from its position in the Schenck line of cases, overturning criminal advocacy convictions on the bases that the predicate speech acts did not in fact comprise incitement or pose a threat to the state. [FN172] Soon thereafter, however, the Red Scare paranoia was revived, and federal criminal anarchy laws resurfaced in the form of the Smith Act of 1940. [FN173] Again, the object of protection was the existence of the State, and the proscribed activity was the advocacy of overthrowing the government by force or violence. Recognizing the similarity of the Smith Act to the state laws that had come before it in the Gitlow line of cases, the Court applied, or purported to apply, the *298 “clear and present danger” test in affirming the petitioners' convictions in Dennis v. United States. [FN174] In Dennis, the Court also upheld the constitutionality of the Smith Act, although later cases limited its reach by reading into it a specific intent requirement. [FN175]

In each of the Smith Act convictions upheld by the Court, the majority found the defendants' efforts to be an attempt to forcibly overthrow the government, regardless of the negligible probability of success in each. [FN176] Other federal subversive advocacy laws of the time, such as the Subversive Activities Control Act of 1950, also focused on the threat of certain speech acts to the integrity of the State. [FN177] However, as the Court later made clear in Brandenburg v. Ohio, legislative presumptions that entire categories of speech acts comprise “an intolerable risk of serious harm” to the state are impermissible. [FN178] In sum, whether or not courts applied it correctly, the yardstick in each of the subversive advocacy laws was national security, if not the very edifice of democracy, and broad-based categorizations based largely on political viewpoint were disfavored.

2. Comparison to the Model Act

Like the subversive advocacy laws, the Model Act creates a legislative presumption that certain speech acts comprise “an intolerable risk of serious harm.” [FN179] However, the “serious harm” sought to be prevented by the Model Act is not harm to the State, *299 nor to any level of organized government, but to the economic interests of one set of favored industries. Nowhere in the Model Act's text or preamble do its drafters explain how the protection of their enterprises from protest or criticism is necessary for the promotion of national security, or that the Model Act is limited to speech acts that incite imminent violence. By contrast, Section 3 of the Espionage Act prohibited disruption of certain manufacturing activities, but only in relation to the production of war materials. [FN180]

Despite the important difference in their respective objects of protection, the Model Act and the subversive speech laws impose similar, severe criminal penalties. New York Senate Bill 2996, for example, provides criminal penalties up to a ten thousand dollar fine and a five year jail term for each violation. [FN181] Similarly, the Espionage Act of 1918 provided for a ten thousand dollar fine and twenty year prison sentence. [FN182] To place economic disadvantage to certain business interests on a par with threats to the very existence of the State in this manner is to grossly distort what Judge Learned Hand termed the “gravity of the evil” [FN183] at issue.

Another key difference is that speech acts prohibited by the Model Act need not advocate the use of force or violence, but merely have the intent to “deter” the business activity in question. Attempting to close an industry or to change its practices by influencing its consumers or the government, without advocacy of violence, is little more than an ideal. Entire industries come and go all the time as a result of socio-political change. [FN184] The marketplace, it has been said, “is a hazardous place for the faint of heart; this is part of the push and sell of a free market economy.” [FN185] Not all injury to economic interests should be punishable or even compensable.*300 Some fluctuation is the result of exposure to the marketplace of competing ideas. Regardless, none of the activity prohibited by the Model Act comes close to posing a threat to national security.

3. The Membership Clause of the Model Act

Some of the subversive advocacy laws and the cases interpreting them also drew a distinction between those who actively delivered the allegedly inciting message, and those who passively maintained membership in affiliated organizations. [FN186] This active/passive membership distinction is not observed by the Model Act, which criminalizes membership activities both active and passive in nature, including the provision of “financial support or other resources.” [FN187] Its drafters make no attempt to delineate between members who engage in already-criminalized activity, members who engage in protected speech, and members who simply give donations, as explained in Part II. Similarly, two sections of the Subversive Activities Control Act, in which Communist Party membership was an element, “swe[pt] indiscriminately across all types of association . . . without regard to the quality and degree of membership.” [FN188] Although knowingly providing financial support to efforts to overthrow the state can be criminalized, the Supreme Court nonetheless invalidated both sections as facially unconstitutional because of their overbreadth. [FN189] The same flaw ails the Model Act's membership clause. [FN190]

More importantly, the membership clause of the Model Act lacks a specific intent requirement such as that read into the Smith Act by the Court in Scales v. United States in order to save it from invalidation on First Amendment grounds. [FN191] The Smith *301 Act made it a felony to knowingly become a member of any organization that advocates the forcible overthrow of the government. [FN192] Although the Smith Act contained no specific intent language, the Court nonetheless upheld the defendant's conviction, finding that he “specifically intend[ed] to accomplish [the organization's goals to overthrow the government] by resort to violence.” [FN193]

Without such a saving construction, [FN194] if a mainstream organization such as the Humane Society of the United States was deemed a terrorist organization by virtue of its attempts to “deter” people from patronizing certain businesses, all eight million of its donors would also be subject to prosecution, regardless of whether they intended to support or even knew about such activity.

Adding insult to injury, the criminal penalties that await the donors of law-abiding organizations that do not advocate illegal actions are identical to those that await the members of other groups that advocate the commission of acts that are already criminalized, such as property damage. Without resorting to hyperbole or acrobatic feats of construction, one can say that the Model Act puts humane society donors on a par with arsonists. [FN195] As with the sections of the Subversive Activities Control Act that were declared unconstitutional, the means chosen by the Model Act to affect its purpose “cut deeply into the right of association.”*302 [FN196] Legal consequences aside, this overinclusive definition also has significant rhetorical import. The mere suggestion that environmental and animal protection is desirable thus becomes an emblem of terrorism, and, by association to the subversive advocacy laws, [FN197] perhaps even sedition. In short, the Model Act embodies the most fearful elements of the subversive advocacy doctrine, but without advancing the imminent national security interests that justified those laws at the time.

B. Civil Constraints on Speech in the Name of Private Business Interests

Unlike the subversive advocacy doctrine, pure speech has almost never been criminalized solely for the protection of private business interests. [FN198] Speech acts have, however, been subject to many civil constraints, ranging from damage awards in tort for inducing a party to break its contract, to federal labor laws prohibiting so-called “secondary” boycotts, to injunctions barring protest activity, to state statutes that lower the burdens of proof and persuasion in certain defamation actions. Like the criminal constraints, the civil constraints also date to the nineteenth century, and their interpretation by the courts was varied and unpredictable.*303 The Model Act leans heavily on these doctrines by implication to show that speech acts can be made subordinate to business interests in certain contexts. However, as this Part argues, the Model Act is little more than an attempt to get around the First Amendment problems that plagued several of these approaches, by using the trope of terrorism to cast a false urgency.

1. The Tortious Interference Doctrine

Prior to the 1850s, if a party to a contract was induced by another to breach the contract, as in an employment dispute, the other party could only obtain redress against the first party in contract. [FN199] Thereafter, when “contract theory developed into an abstract doctrine of property,” contractual obligations came to be treated as vested property rights. [FN200] Thus, courts began to recognize “interference by a third party with the performance of a contract . . . as an interference with property rather than as an attempt to prevent the performance of an obligation.” [FN201] Most scholars recognize Lumley v. Gye [FN202] as the first case to develop the new tort action of contractual interference. [FN203] In Lumley, the plaintiff theater operator sued his rival theater for inducing a well-known opera singer to breach her contract with the plaintiff and perform for him instead. [FN204] In addition to the operator's breach of contract claim against the singer, the Court also entertained and upheld a cause of action against the rival theater operator in tort, as interference with the property rights that vested in the contract. [FN205] As the doctrine evolved, however, its application was limited largely to the employer-employee relationship, rather than the activities of business rivals, which were treated instead as lawful competition. [FN206]

*304 The Model Act borrows from the tortious interference doctrine in that it exposes the third party inducer to liability if the inducer's actions amount to a “deterrence” or “obstruction,” as explained supra in Part I. However, the financial relationship addressed by the Model Act, such as that between the protected business interest and a dissuaded consumer, is not likely to be contractual. The consumer who is persuaded to adopt dogs from a shelter rather than buy dogs raised in inhumane puppy mills, for instance, has not broken a contractual relationship, but merely disappointed the producer's hope for additional profit. Nonetheless, when viewed in the context of the tortious interference doctrine, the Model Act proceeds to hold the third party inducer liable as though the relationship between the consumer and the puppy mill were contractual. Nothing in the Model Act supposes a limit to this inferential chain. Rather, open-ended terms such as “other means” [FN207] suggest more of a dragnet approach to liability.

Perhaps more profoundly, just as the tortious interference doctrine buttressed the then-newly minted theory that contractual promises were property rights, so the Model Act suggests that businesses enjoy a vested property right to be free from any criticism that has a deterrent effect. Conferring such a property interest would not only radically expand the notion of property rights, it may even have anticompetitive effects. [FN208] As one commentator observed of the tortious interference cases,

the means of enticement ... employed - persuasion - was not inherently harmful. Unlike fraud or slander, not all persuasion injures. The theory of contractual property enabled the judges to determine that the persuasion in this instance was wrongful merely because the plaintiff lost his contractual expectations. [FN209]

Here, the Model Act protects not contractual expectations but merely the favored industries' own hopes for success, free from the effects of dissenters' persuasion of potential consumers. This is a gross affront to the marketplace of ideas, not to mention competition in the actual market of goods. [FN210]

*305 In sum, the Model Act harkens to, but perverts, the tortious interference doctrine. By restraining efforts to persuade consumers into changing their purchasing behavior, the Model Act expands the reach of the tortious interference concept to non-contractual relationships. This would do nothing short of vesting the protected business interests with a right to prevent adverse or critical messages from reaching would-be consumers. Such a profound threat to consumer autonomy and the natural flow of information in the marketplace should not be taken lightly.

2. Restraints on Labor Picketing

The tortious interference doctrine was not the only approach used by business interests in the late nineteenth and early twentieth centuries to obtain relief from competitors or organized labor who tried to induce third parties not to transact with those businesses. By the 1890's, businesses sought not contractual, but injunctive relief from such inducement activities. This was especially the case where the third party was induced to break a contract or withhold business by large groups of organized labor picketers, rather than simply individual actors, as was the case in most of the tortious interference cases. Accordingly, courts began to analyze these cases not under the tortious interference doctrine, but under the common law as acts of coercion and intimidation, [FN211] at least until Congress drafted federal laws to uniformly address labor relations. [FN212] Despite Congressional intervention, *306 states and municipalities continued to regulate labor protest and picketing activity using their police powers.

In the post-Schenck era, such regulations were assessed for their congruence with picketers' First Amendment rights. By 1937, the Court had confirmed that businesses no longer enjoyed an unfettered right of “free enterprise” against interference, as they had during the tortious interference era. [FN213] Against this backdrop, the Court held in Thornhill v. Alabama that peaceful picketing was entitled to First Amendment protection even where the presence of protesters harmed the economic interests of the picketed business. [FN214]

However, the Supreme Court soon excluded from the reach of Thornhill any picketing having an “illegal objective.” [FN215] For example, the Court found picketing to have an “illegal objective,” and hence not fall within the protections of the First Amendment, where the targeted entity was induced by picketers to break a state law, such as an antitrust law. [FN216] Over time, however, “illegal objectives” also came to include actions that were merely considered bad “policy,” such as inducing a business to adopt non-discrimination hiring policies. [FN217] The uneven application of the “illegal objective” standard recalls a similar phenomenon in the subversive advocacy cases, where courts often construed as a “clear and present danger” speech activity that most observers would now recognize as harmless.

As it did with the subversive advocacy cases, the Model Act misapplies the legal standard at issue in the “illegal objective” picketing cases. The Model Act's prohibition on activity that “deter[s]” a protected business activity recalls the picketing cases because picketing is one method by which activists could attempt to deter business. However, unlike the labor picketing cases, the *307 Model Act makes no attempt to distinguish between protest activity that is motivated by an “illegal objective,” whereby the targeted business would be induced to break the law, [FN218] and that which involves no law-breaking on the part of either the picketer, the business, or the would-be consumer. Rather, the only motive the Model Act concerns itself with is whether the action is “politically motivated,” [FN219] which is included as an element of the crime, as though a certain ideology or belief system somehow makes the action more criminal. Ironically, the activists at whom the Model Act is targeted often attempt to persuade business interests to comply with the law, not break it. [FN220]

3. Civil Rights Era Boycott Injunctions

Some scholars draw a line between labor activity and so-called “political” boycotts, whose purpose is not to leverage economic power with regard to an employment arrangement, but for the benefit of some other political cause not directly related to the parties' relationship. [FN221] As with the tortious interference doctrine and the “illegal objective” standard from the labor picketing cases, the Model Act also misappropriates or violates the legal standard set forth in the political boycott cases, by criminalizing peaceful speech acts alongside violent or destructive actions.

As a preliminary matter, it can be shown that the Model Act functions as an anti-boycott law as well as an anti-picketing law. The civil damages provision of the Model Act provides that:

[a] person who has been damaged by a violation of the ... Act may bring against the person who caused the damage an action ... to recover (1) an amount equal to three times all economic *308 damages to include the cost of lost or damaged property [and] . . . loss of profits or other consequential damages. [FN222]

Since the Model Act can be violated simply by convincing others not to support the protected business entity, as shown in Part I supra, it appears that an affected business can recover treble damages for “loss of profits” due to interference with business caused by a boycott, protest, or picket. Nor can the affected industries credibly dispute such a construction, as they have already used the term “economic eco-terrorism” to describe boycott activity, such as the Earth Island Institute's call for consumers to boycott tuna in order to protect dolphins. [FN223]

The Model Act's civil damages provision calls to mind the damage award sought unsuccessfully by the plaintiffs in NAACP v. Claiborne Hardware. [FN224] There, the local branch of the National Association for the Advancement of Colored People (NAACP) organized a long-term boycott of white merchants who engaged in segregationist practices. Affected business owners sued the NAACP and over one hundred individual defendants for profits lost during the boycott and also sought injunctive relief. [FN225] The state chancery court awarded over $1.25 million to the business owners and permanently enjoined the boycott. [FN226] The Mississippi Supreme Court reversed the chancellor on several issues, including the applicability of secondary boycott laws, but upheld the finding of liability. [FN227]

The U.S. Supreme Court reversed, holding that the business owners could not make out a claim for damages unless they could show that their financial losses were proximately caused by one of the isolated incidents of violence that accompanied the otherwise peaceable boycott. [FN228] To allow the business owners to recover for the economic losses caused solely by the boycott itself, the Court reasoned, would displace the boycotters' First Amendment rights, since the boycott was staged by speeches and nonviolent picketing. [FN229] In other words, “speech does not lose its protected character”*309 simply because a business profits suffer as a result. [FN230] Even where the boycott activity disrupts the market as a whole, the Court held, a state's police power to regulate economic activity must still defer to expression on public issues, which occupies the “highest rung of the hierarchy of First Amendment values.” [FN231]

The Model Act transgresses this important principle by imposing civil and criminal liability upon those who “obstruct” business activity as a result of boycotts, nonviolent picketing, and other protected speech acts. Moreover, the Model Act also violates one of the key teachings of Claiborne Hardware: speech acts do not lose their protection simply because they are accompanied by episodes of violence. [FN232] The Model Act conflates speech with violent or destructive activity in two ways, regardless of whether they are actually intertwined in the same event.

First, the Model Act's criminal penalties distinguish not by the nature of the predicate activity, but only by the dollar amount of adverse economic effects. [FN233] Accordingly, a handbilling or boycott event that results in $501 of lost business is punishable by the same felony sentence as an act of property damage that costs several million dollars. By contrast, a 1963 civil rights boycott in Birmingham, Alabama was estimated to have cost the targeted businesses more than $750,000 a week. [FN234]

Second, the operative terms of the Model Act, as discussed in Part II supra, are so vague and overbroad as to encompass both destructive and peaceable activities. [FN235] Specifically, the Model Act and its progeny forbid “obstructing” the favored business interest by way of “coercion,” “disruption,” or “impeding.” [FN236] This interference, if “politically motivated,” occurs anytime the actor “influence[s] a unit of government to take a specific action or ... persuades the public to take specific action, or ... protest[s] the actions of a unit of government, corporation, organization or the *310 public at large.” [FN237] Obstruction as used in the Model Act can also be accomplished via theft, property damage, and extortion. [FN238]

In sum, the Model Act's failure to differentiate between destructive and peaceable activities, while punishing both with a heavy hand, violates the rule of law established in Claiborne Hardware. [FN239] It seeks to get around this limitation by classifying speech activity itself as terrorism. Moreover, the Model Act's imposition of civil liability for the economic effects of boycott activity flatly contradicts the holding of Claiborne Hardware and the political boycott cases. Since the civil rights era, boycotts have become “an increasingly important and powerful tool for advocates of social change.” [FN240] It becomes especially crucial, in an era of corporate deregulation and underenforcement, [FN241] for legislatures and courts to protect that avenue of influence.

4. Agricultural Disparagement Laws: Another Bite at the Apple

In 1989, the Natural Resources Defense Council (NRDC) published a report about the environmental and public health risks of pesticides and other agricultural chemicals called Intolerable Risk: Pesticides In Our Children's Food. [FN242] The popular media, including the news program 60 Minutes, hastily picked up on the report, largely because of the report's conclusion that a chemical commonly used on apples was unsafe. [FN243] Thereafter, sales of all apples noticeably declined, whether or not the apples had been *311 treated with Alar, the chemical in question. [FN244] At the same time, the Environmental Protection Agency (EPA) began proceedings to revoke Alar's pesticide registration, [FN245] ultimately concluding that Alar is a “probable human carcinogen.” [FN246]

Although the eventual de-certification of Alar was no doubt a boon to public health, the event was a sobering one for the food processing, chemical, and agriculture industries, which lost millions of dollars in revenue as a result of consumers' reaction to the report. Rather than amend their practices to be more protective of public health, however, the affected industries instead attempted to silence food safety advocates in the courts. Using the common law tort of trade disparagement, the apple growers who lost revenue after the Alar report sued CBS, three local CBS affiliates, NRDC, and NRDC's media relations company in federal court for lost profits. [FN247]

As the district judge pointed out, “[a]pples had not received such bad press since Genesis.” [FN248] Nonetheless, to make out a prima facie case for trade disparagement, the plaintiffs had to demonstrate, among other things, that the statements about the adverse effects of Alar were false. [FN249] This element proved fatal to the plaintiffs' claims, as they could not prove that the report was *312 untrue, especially in light of the EPA's concurrent de-listing proceedings. [FN250] The trial court in Auvil, drawing upon a well-settled body of First Amendment jurisprudence, held that the free speech interests involved mandated a high burden of proof to demonstrate falsity:

[a] news reporting service is not a scientific testing lab and these services should be able to rely on a scientific government report when they are relaying the report's results. The duty plaintiffs propose would so chill debate that the freedom of speech would be at risk. [FN251]

Accordingly, the trial court granted defendants' motions to dismiss and for summary judgment, all of which were affirmed on appeal. [FN252]

i. Rewriting Disparagement Law by Statute

Finding the common law burden of proof to be inhospitable, agribusiness concerns, led by the American Feed Industry Association, [FN253] then set out to lower their burden by statute. The result was a model law that creates custom legal standards for disparagement actions with respect to the agribusiness industry only. [FN254] To date, a majority of state legislatures have considered agricultural*313 disparagement bills, [FN255] and thirteen states have passed them. [FN256] As scholars have pointed out, these laws modify the constitutional and common law elements of disparagement [FN257] in *314 three ways: (1) by lowering or removing the defendant's requisite intent; (2) by doing away with the “of and concerning” requirement; and (3) by lowering the plaintiff's burden of proof. [FN258]

First, several of the agricultural disparagement laws contravene the rule of New York Times v. Sullivan that a defamation plaintiff must show that the defendant made the statement with actual malicious intent. [FN259] Without such a showing, the Supreme Court held, the defendant's “constitutional guarantees” of free speech are placed in harm's way. [FN260] In other words, the defendant's statement must be made “with knowledge that it was false or with reckless disregard of whether it was false or not.” [FN261] To the contrary, several of the disparagement laws require only that the defendant have acted negligently, [FN262] or they omit an intent *315 requirement altogether. [FN263] This relaxes the intent standard far below what is constitutionally required.

Second, the disparagement laws flout constitutional requirements that the statement at issue is about or somehow refers to the plaintiff. In New York Times, for instance, an Alabama police commissioner brought a defamation action regarding a political advertisement that did not mention him by name, but that, he asserted, implicated him nonetheless because of its references to police conduct. [FN264] The Supreme Court held that the commissioner's claim was “constitutionally deficient” because the evidence failed to support the jury's finding that the advertisement was “of and concerning” the commissioner. [FN265]

The disparagement statutes manipulate the “of and concerning” requirement by explicitly conferring standing upon entities about whom the statement may not be “of and concerning.” For instance, some state statutes include not only producers, but also marketers, sellers, shippers, and even trade associations. [FN266] By contrast, in Auvil, the court found that even among a group of producers, many lacked standing because the statements about Alar were not “of and concerning” those growers who did not use Alar, but rather, were “wide-ranging” statements about the chemical generally. [FN267] The disparage