The First Circuit decided a case last week that may result in a certiorari petition to the Supreme Court. The case deals with the intersection of the First Amendment and the Animal Enterprise Terrorism Act ("AETA"), and whether the plaintiffs actually have standing to challenge the Act.
AETA and the First Amendment
A group of individual animal rights activists are challenging the AETA arguing the Act violates the First Amendment on three grounds: (1) the Act is overbroad on its face and as applied; (2) the Act discriminates based on viewpoint and content; and (3) the Act is void for vagueness on its face and as applied. The plaintiffs want to protest certain animal enterprises, but argue that they have suffered in an injury-in-fact because they are restraining their speech in fear of future harm.
On the other side of the challenge, the Government argues that the plaintiffs lack standing because the plaintiffs don't actually plan to engage in any conduct prohibited by the AETA. Furthermore, in oral arguments the Government actually came out and said that "there is no intent to prosecute" for the "essentially peaceful protest" the plaintiffs want to engage in.
The district court agreed with the Government and stated that the animal rights activists "failed to allege an objectively reasonable chill and, therefore, failed to establish an injury-in-fact." On appeal, the First Circuit affirmed the district court, stating that "plaintiffs' fear of prosecution under AETA is based on speculation that the Government will enforce the Act pursuant to interpretations it has never adopted and now explicitly rejects."
The Center for Constitutional Rights, which is handling the plaintiffs' case, issued a statement saying that it "is very disappointed with the opinion and is discussing next steps with the Blum plaintiffs." Depending on the outcome of discussions, we may see a cert petition some time soon.