Sentinel Species: The Criminalization of Animal Rights Activists as Terrorists, and What It Means for the Civil Liberties in Trump's America

Denver Law Review Denver Law Review

Volume 95

Issue 4

Symposium: Animal Rights

Article 5

January 2018

Sentinel Species: The Criminalization of Animal Rights Activists Sentinel Species: The Criminalization of Animal Rights Activists

as Terrorists, and What It Means for the Civil Liberties in Trump's as Terrorists, and What It Means for the Civil Liberties in Trump's

America America

Will Potter

Follow this and additional works at: https://digitalcommons.du.edu/dlr

Recommended Citation Recommended Citation

Will Potter, Sentinel Species: The Criminalization of Animal Rights Activists as Terrorists, and What It

Means for the Civil Liberties in Trump's America, 95 Denv. L. Rev. 877 (2018).

This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has

been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more

information, please contact jennifer[email protected],[email protected].

Sentinel Species: The Criminalization of Animal Rights Activists as Terrorists, and Sentinel Species: The Criminalization of Animal Rights Activists as Terrorists, and

What It Means for the Civil Liberties in Trump's America What It Means for the Civil Liberties in Trump's America

This article is available in Denver Law Review: https://digitalcommons.du.edu/dlr/vol95/iss4/5

SENTINEL

SPECIES:

THE

CRIMINALIZATION

OF

ANIMAL

RIGHTS

ACTIVISTS

AS

"TERRORISTS,"

AND

WHAT

IT

MEANS

FOR

CIVIL

LIBERTIES

IN

TRUMP'S

AMERICA

WILL

POTTERt

ABSTRACT

The

animal

rights

movement

has

pioneered

new,

diverse

forms

of

so-

cial

activism

that

have

rapidly

redefined

how

we

view

animals.

But those

remarkable

successes

have

been

met with

an

increasingly

aggressive

back-

lash,

including

new

terrorism

laws,

widespread

surveillance,

experimental

prisons,

and

legislation

explicitly

criminalizing

journalists

and

whistle-

blowers.

This

Article

will

explain

how,

if

left

unchecked,

these

attacks

on

animal

advocacy

will

become

a

blueprint

for

the

wider

criminalization

of

dissent.

TABLE

OF

CONTENTS

INTRODUCTION................................................

878

I.

MEET

THE

WORLD'S

NEWEST

TERRORIST

..........

............

879

II.

NUMBER

ONE

DOMESTIC

TERRORISM

THREAT

...

..............

882

III.

MOBILIZING

LAW

ENFORCEMENT

......................

.......

883

IV.

ANIMAL

ENTERPRISE

TERRORISM.............

...............

887

V.

FROM

THE

MARGINS

TO

THE

MAINSTREAM:

"AG-GAG"

LAWS

......

891

VI.

RIGHT-WING

VIOLENCE

IGNORED

................

...........

896

VII.

TRUMP'S

ENVIRONMENT

............................

......

898

VIII.

ALARMING

AND

UNDEMOCRATIC

TREND

....................

901

IX.

SLOW

RECOVERY

...................................

......

904

f

Will

is

an

author

and

lecturer

about

protest,

repression,

and

finding

courage

in

times

of

terror.

He

is

a

leading

international

voice

challenging

how

civil

liberties

are

eroded

in

the

name

of

fighting

"terrorism."

Pulitzer-Prize

winner

Glenn

Greenwald

said

he

is

"the

most

knowledgeable

jour-

nalist

in

the

country

on

these

issues,"

and

National

Book

Award

winner

Andrew

Solomon

describes

his

work

as

"fiercely

courageous."

His

ideas

have

been

featured

by

The

Washington

Post,

VICE,

CNN,

and

many

others,

and

his book,

Green

Is

the

New

Red,

was

awarded

a

Kirkus

Star

for

"remarkable

merit."

Will

was the

first

journalist

to

be

selected

as

a

TED

Senior

Fellow

and

was

invited

to speak

about

his

work

before

Congress,

the

Australian

Parliament,

and

a

meeting

of

the

European

Union.

Will

is

currently

the

Marsh

Professor

of

Journalism

at

the

University

of

Michigan,

teaching

courses

on

investigative

journalism

and

the

ethics

of

whistleblowing.

877

DENVER

LAWREVIEW

INTRODUCTION

Much

of

what

we

now

understand

about

human

survival

in

extreme

conditions

can

be

traced

back

to

John

Scott

Haldane.'

During

the

first

world

war,

the

Scottish

physiologist

traveled

to

the

front

to

study

chlorine

gas

used

by

German

forces

and

then

devised

makeshift

respirators

and

a

prototype

gas

mask.

2

Haldane

also

developed

a

decompression

chamber

for

British

divers

returning

from

deep

explorations

and

a

few

years

later

led

a

scientific

expedition

to

Pike's

Peak

in

Colorado

to

study

how

the

human

body

responds

to

high

altitude.

3

The

motto

of

his

aristocratic

Scot-

tish

family

was,

poignantly,

"suffer,"

and

Haldane

saw

it

as

a

duty

to

do

4

so

himself

because

it

might

protect

others

from

the

same

fate.

For

in-

stance,

he

inhaled toxic

chemicals,

and

instructed

his

teenage daughter,

stationed

outside

the

room,

to

come

to

his

aid

only

if

he

collapsed.'

Biog-

rapher

Martin

Goodman

said

Haldane's

life

was

"[t]he

greatest

sustained

physiological

experiment

in

the

history

of

the

human

lung."

6

Whether

it

was

war,

terrifying

depths,

or

extreme

heights,

Haldane's

life

was

the

ob-

sessive

study

of

how

we

might

survive

dangerous

environments-and

safely

return

home.

His

most

famous

work

came

from

his

studies

of

mine

disasters.'

Hal-

dane

would

rush

to

the

scene,

with

his

children

in

tow,

and

scour

the

site

for

postmortem

clues.

9

He

realized

that

the

greatest

threat

to

the

workers

was

not

a

violent

blast;

it

was

that

we,

as a

species,

are

exceptionally

ill-equipped

to

notice

atmospheric

changes

until

it

is

too

late.'o

In

a

groundbreaking

report

on

his

research,

Haldane

"made

suggestions

as

to

the

means

by

which

the

lives

of

those

who

were

outside

the

immediate

zone

of

an

explosion

might

be

saved,

emphasizing

the

great

value

of

a

mouse

or

other

small

animal

as

an

index

of

the

danger.""

Those

tiny

ani-

1.

See

KC

Sekhar

&

SSC

Chakra

Rao,

John

Scott

Haldane:

The

Father

of

Oxygen

Therapy,

58

INDIAN

J.

ANAESTHESIA

350,

350-52

(2014).

2.

Kat

Eschner, The

Man

Who

Invented

the

First

Gas

Mask,

SMITHSONIAN.COM

(May

3,

2017),

https://www.smithsonianmag.com/smart-news/man-who-invented-first-gas-mask.

3.

C.

Gordon

Douglas

et

al.,

Physiological

Observations

Made

on

Pike's

Peak,

Colorado,

with

Special

Reference

to

Adaptation

to

Low

Barometric

Pressures,

203

PHIL.

TRANSACTIONS

ROYAL

Soc'Y

LONDON

B

185,

185-86

(1913).

4.

MARTIN

GOODMAN,

SUFFER

AND

SURVIVE:

GAS

ATTACKS,

MINERS'

CANARIES,

SPACESUITS

AND

THE

BENDS:

THE

EXTREME

LIFE

OF

DR.

J.S.

HALDANE

53

(Simon

&

Schuster

Ltd.

2007).

5.

Id.

at

164.

6.

Id.

at

44.

7.

See Sekhar

&

Rao,

supra

note

1.

8.

Andy

Meharg,

One-Man

Canary,

449

NATURE

981,

981

(2007)

(book

review).

9.

See

id.

10.

C. G.

Douglas,

John

Scott

Haldane,

in

2

OBITUARY

NOTICES

OF

FELLOWS

OF

THE

ROYAL

SOCIETY

1936-1938,

116,

118

(1945).

11.

Id.

[Vol.

95:4

878

SENTINEL

SPECIES

mals

are

what

environmental

and

medical-health

scientists

describe

as

sen-

tinel

species.12

Haldane

learned

to

monitor

vulnerable

elements

in

any

en-

vironment,

for

the

canaries

becoming

ill

is

an

early

warning

system

of

our

fate.

First

Amendment

law,

and

more

broadly

the

defense

of

civil

liberties,

depends

upon

a

constant

examination

of

such

sentinel

species:

the

protest-

ers,

the

radicals,

and

those

on

society's

fringes.

Through

their

acts

of

dis-

sent,

they

reflect

the

quality

of

the

atmosphere

for

the

rest

of

us.

If

they

lack

the

air

they

need

to

march,

protest,

and

engage

in

nonviolent

civil

disobedience,

it

is

a

warning

that

other

political

advocates

should

heed.

The

freedoms

of

the

marginal

and

vulnerable

are

a

measurement

of

the

health

of

our

democracy.

For

nearly

twenty

years

my

research

has

documented

the

govern-

ment's

domestic

terrorism

operations,

and

I

have

found

that

one

social

movement

has

been

the

target

of

repressive

measures

post-9/11

more

than

any

other.

14

Animal

rights

and

environmental

activists

have

pioneered

new,

diverse

forms

of

social

activism

that

have

exposed

widespread

indus-

try

cruelty

and

environmental

abuses;

ushered

in

new

legal

standards;

de-

railed

multinational

corporations;

and

rapidly

redefined

how

we

view

an-

imals

and

the

natural

world.

These

remarkable

successes

have

been

met

with

increasingly

harsh

repression,

including

new

terrorism

and

censor-

ship

laws,

widespread

surveillance,

ambitious

civil

and

criminal

lawsuits,

disproportionate

prison

sentences,

and

experimental

prison

units."

The

corporate-led

backlash

against

these

social

movements

has

become

a

blue-

print

of

how

to

repress

protest

groups

in

the

modern

era,

and

identical

tac-

tics

have

now

been

used

against

other

contemporary

social

movements,

both

in

the

United

States

and

internationally.1

6

In

short,

these

activists

are

a

sentinel

species

of

protester.

If

we

miss

their

warning

signs,

we

will

be

faced

with

a

much

broader

criminalization

of

dissent.

I.

MEET

THE

WORLD'S

NEWEST

TERRORIST

This

political

climate

did

not

emerge

spontaneously

after

the

terrorist

attacks

of

September

11,

as

one

might

think.1

7

The

campaigns

to

label

pro-

test

as

terrorism

had

been

building

for

decades."

In

the

early

1980s,

the

animal

rights

and

environmental

movements

were

growing

quickly

and

12.

David

L.

Wheeler,

A

Scholar

Uses

Bees

as

a

'Sentinel

Species'to

Track

the

Path

ofPollu-

tants,

CHRON.

HIGHER

EDUC.,

Jan.

16,

1998,

at

A

16.

13.

See

Sekhar

&

Rao,

supra

note

1.

14.

See

WILL

POTTER,

GREEN

IS

THE

NEW

RED:

AN

INSIDER'S

ACCOUNT

OF

A

SOCIAL

MOVEMENT

UNDER

SIEGE

46

(2011).

15.

See

Will

Potter,

The

Secret

US

Prisons

You've

Never

Heard

ofBefore,

TED,

(Aug.

2015),

https://www.ted.com/talks/willpotter

thesecret-usprisons

you

ve

neverheardofbefore.

16.

See,

e.g.,

Will

Potter,

Attack

on

Factory

Farm

Whistleblowers

Goes

Global,

DODO

(Feb.

16,

2014),

https://www.thedodo.com/attack-on-factory-farm-whistle-432282967.html.

17.

See

infra

notes

19-24

and

accompanying

text.

18.

See

infra

notes

19-24

and

accompanying

text.

2018]

879

DENVER

LAWREVIEW

boldly.

1 9

They

had

widespread

popular

support,

even

for

their

more

radical

tactics.

20

Groups

like

the

Animal

Liberation

Front

(ALF)

were

breaking

into

animal

experimentation

laboratories

and

fur

farms,

rescuing

ani-

mals.

21

National

organizations

like

People

for

the

Ethical

Treatment

of

Animals

(PETA)

used

video

footage

obtained

by

these

groups

in

their

law-

ful

campaigns.

22

When

ALF

activists

rescued

a

primate

named

Britches

who

had

his

eyes

sewn

shut

in

sight-deprivation

experiments,

they

turned

over

the

footage

anonymously

to

PETA.

2

3

PETA

used

it

for

advocacy

cam-

paigns,

sent

it

to

media,

and

pressured

politicians.

24

Major

media

outlets

reported

favorably

on

these

protest

tactics,

call-

ing

the

activists

"heroes."

25

One

Los

Angeles

Times

article

in

1986,

for

example,

was

headlined,

Environmental

'Warriors'

Use

Radical

Tactics

to

Make

Point.

2

6

It

praised

environmentalists

locking

their

bodies

to

bull-

dozers,

spiking

trees

to

sabotage

timber

sales,

and

employing

other

Ed-

ward

Abbey-style

monkeywrenching.

2

7

The

press

and

the

public

loved

these

radicals.

28

For

the

corporations

targeted,

though,

the

activists

were

a

serious

problem.

29

These

protest

tactics

were

changing

the

public

discussion.

30

A

unified

social

movement

with

broad

popular

support

and

a

willingness

to

act

represented

an

immediate

threat

to

profits.

To

protect their

business,

corporations

needed

to

displace

these

activists

from

their

moral

high

ground

and

demonize

them

in

the

eyes

of

the

public.

3

1

Their

plan

of

attack

was

quite

brilliant;

it

relied

on

the

power

of

language.

3 2

As

Aldous

Huxley,

the

author

of

Brave

New

World,

wrote

in

one

of

his

essays,

"[t]he

propa-

gandist's

purpose

is

to

make

one

set

of

people

forget

that

certain

other

sets

of

people

are

human."

33

Corporations

needed

to

reframe

how

protesters

19.

William

Robbins,

Animal

Rights:

A

Growing

Movement

in

U.S.,

N.Y.

TIMES,

June

15,1984,

at

Al.

20.

Lisa

Levitt

Ryckman,

Environmental

'Warriors'

Use

Radical

Tactics

to

Make

Point,

L.A.

TIMES,

Jan.

26,

1986,

at

3.

21.

Animal

Liberation

Front,

Introducing

the

Animal

Liberation

Front,

in

TERRORISTS

OR

FREEDOM

FIGHTERS?:

REFLECTIONS

ON

THE

LIBERATION

OF

ANIMALS

7-8

(Steven

Best

&

Anthony

J.

Nocella

11

eds.,

2004).

22.

Ben

A.

Franklin,

Going

to

Extremes

for

'Animal

Rights,'N.Y.

TIMES,

Aug.

30,

1987,

at

E7.

23.

Britches'

Story:

Eyes

Sewn

Shut,

PETA,

https://www.peta.org/videos/britches-story-eyes-

sewn-shut

(last

visited

Apr. 20,

2018).

24.

See

id.

25.

Richard

R.

Knabel,

Opinion,

Bureaucracy

and

the

Environment,

N.Y.

TIMES,

Nov.

2,

1986,

at

WC11.

26.

Ryckman,

supra

note

20.

27.

Id.

28.

See

id

29.

See

Jim

Robbins,

Saboteurs

for

a

Better

Environment,

N.Y.

TIMES,

July

9,

1989,

at

E6.

30.

Id.

31.

See

Ron

Arnold,

Eco-Terrorism,

REASON

(Feb.

1983),

https://reason.com/ar-

chives/I

983/02/01

/eco-terrorism.

32.

See

generally

POTTER,

supra

note

14

(providing

a

detailed

history

on

the

term

eco-terrorist).

33.

ALDOUS

HUXLEY,

THE

OLIVE

TREE

AND

OTHER

ESSAYS

99

(reprt.

1960).

[Vol.

95:4

880

SENTINEL

SPECIES

were

perceived,

so

in

1985,

industry

groups

created

a

new

word:

"eco-ter-

rorist."

3 4

They

just

made

it

up.

35

They

knew

that

if

they

could

control

the

terms

of

the

debate,

then

they

could

shift

public

perception

of

these

activ-

ists

so

that

we

no

longer

saw

them

as

"heroes"

or

"warriors,"

and

not

even

"saboteurs"

or

"monkey-wrenchers."

36

Instead,

the

public

would

call

them

"terrorists."

3

7

Over

the

decades,

corporations

used

this

language

re-

lentlessly

in

media

campaigns.

38

One

ad

from

the

fur

industry

in

the

1980s

proclaimed,

"Meet

the

world's

newest

terrorist."

3

9

It pictured

a

figure

in

a

black

ski

mask

wielding

an

axe.

40

Underneath

the

image

it

said,

"Don't

tolerate

terrorism

in

America.

Fur

is

for

life."41

Thirty

years

later,

the

same

imagery

is

still

being

used.

4

2

Industry

groups

hired

public-relations

firms

to

insert

eco-terrorism

into

the

national

security

dialogue.

43

The

Clorox

Corporation,

for

instance,

hired

Ketchum

Public

Relations

in

1991

to

de-

velop

a

crisis-management

plan;

among

Ketchum's

recommended

tactics

44

was

a

"Stop

Environmental

Terrorism"

media

campaign.

An

essential

component

of

this

media

manipulation

has

been

seizing

every

available

opportunity

to

repeat

the

eco-terrorist

language.

45

For

in-

stance,

when

the

popular

children's

movie

Hoot

was

released

in

theaters

in

2006,

industry

groups

sent

out

press

releases

calling

it

"soft-core

eco-terrorism

for

kids."

46

When

the

iconic

children's

book

Charlotte's

Web

was

adapted

for

film,

the

Center

for

Consumer

Freedom

warned

par-

ents

"images

prodding

your

kids

toward

the

multiplex

might

be

more

about

animal

rights

than

E.B.

White."4

7

James

Cameron's

Avatar,

about

indige-

nous

blue

aliens

who

defended

their

home

from

developers,

was

dubbed

a

"recruiting

film

for

eco-terrorists."48

No

matter

how

absurd

all

of

this

34.

See

generally

POTTER,

supra

note

14.

35.

Lawrence

Buell,

What

Is

Called

Ecoterrorism,

16

GRAMMA:

J.

THEORY

&

CRITICISM

153,

156

(2009).

36.

Id.

at

154-64.

37.

Id.

at

156.

38.

See

infra

notes

39-44

and

accompanying

text.

39.

(on

file

with

author).

40.

Id.

41.

Id.

42.

See

Will

Potter,

Green-Scaremongers

Place

Anonymous

New

York

Times

Ad,

GREEN

IS

THE

NEW

RED

(May

1,

2006),

http://www.greenisthenewred.com/blog/nyt-ad.

43.

See

ANDREW

ROWELL,

GREEN

BACKLASH:

GLOBAL

SUBVERSION

OF

THE

ENVIRONMENTAL

MOVEMENT

81-82,

112,

150-51,

247

(1996).

44.

Circling

the

Wagons:

One

P.R.

Firm's

Offensive

Strategy,

GREENPEACE

MAO.,

July/Aug.

1991,

at

6.

45.

See

infra

notes

46-49

and

accompanying

text.

46.

Marc

Morano,

New

Movie

Called

'Soft

Core

Eco-Terrorism'for

Kids,

CYBERCAST

NEWS

SERV.

(May

1,

2006),

https://web.archive.org/web/20080213141840/http://www.cnsnews.com/View-

Print.asp?Page=/SpecialReports/archive/200605/SPE20060501a.html.

47.

Charlotte's

(Tangled)

Web,

CTR.

FOR

CONSUMER

FREEDOM

(Dec.

7,

2006),

https://www.consumerfreedom.com/2006/12/3194-charlottes-tangled-web.

48.

Waylon

Lewis,

Is

Avatar

a

"Recruiting

Film

for

Eco

Terrorists?,"

HUFFPOST

(Mar.

18,

2010,

5:12

AM),

https://www.huffingtonpost.com/waylon-lewis/is-avatar-is-green-

propag-b_415601.html.

2018]

881

DENVER

LAW

REVIEW

sounds,

claims

such

as

this

were

published

in

national

media

outlets,

and

the

new

rhetoric

of

eco-terrorism

continued

to

spread.

49

As

press

releases

and

public-relations

campaigns

inserted

this

new

language

into

the

public

dialogue,

corporations

such

as

GlaxoSmithKline

50

and

trade

associations

such

as

the

Center

for

Consumer

Freedom

5

were

pressuring

lawmakers

to

hold

congressional

hearings.

Much

like

the

stra-

tegic

creations

of

political

spectacle

by

Senator

Joseph

McCarthy

during

the

anticommunist

hysteria

of

the

Red

Scare,

these

congressional

hearings

were

designed

to

attract

media

attention.

They

were

sensational

and

in-

flammatory

and

made

international

headlines.

52

There

was

a

complete

ab-

sence

of

critical

press

examinations

into

this

new

"terrorism,"

and

who

was

behind

it.

With

each

subsequent

story,

this

made-up

label

was

used

in

headlines

and

articles,

legitimizing

this

repression.

II.

NUMBER

ONE

DOMESTIC

TERRORISM

THREAT

The

unwillingness

of

the

press

to

challenge

this

eco-terrorism

rheto-

ric,

combined

with

the

aggressive

lobbying

efforts

of

special-interest

groups,

set

the

stage

for

a

radical

assault

on

the

civil

liberties

of

these

so-

cial

movements.

On

September

11,

as

emergency

crews

were

still

attempt-

ing

to

rescue

people

from

the

Twin

Towers,

some

politicians

were

already

exploiting

the

tragedy

and

claiming

that

the

terrorist

attack

was

the

work

of

environmentalists.

5

3

On

September

12,

2001,

Representative

Greg

Wal-

den,

a

Republican

from

Oregon,

said

that

"eco-terrorists"

posed

a

threat

"no

less

heinous

than

what

we

saw

occur

yesterday

here

in

Washington

and

in

New

York."

54

The

the

Washington

Times

called

for

war

against

the

"eco-al-Qaeda."

5 5

Kimberley

Strassel

of

the

Wall

Street

Jour-

nal

heralded

a

new

political

climate

for

neutralizing

activists

as

"eco-ter-

rorists."

5 6

"The

indulgent

world

in

which

these

groups

had

operated

col-

lapsed

on

Sept[ember]

11,"

she

wrote.

57

49.

See,

e.g.,

id

50.

See

The

Animal

Enterprise

Terrorism

Act:

Hearing

on

H.R.

4239

Before

the

Subcomm.

on

Crime,

Terrorism,

and

Homeland

Sec.

of

the

H.

Comm.

on the

Judiciary,

109th

Cong.

16-19

(2006)

[hereinafter

House

Hearing]

(statement

of

William

Trundley,

Vice

President,

Global

Corporate

Secu-

rity

and

Investigations,

GlaxoSmithKline).

51.

Full

Committee

Hearing:

Eco-Terrorism:

Hearing

Before

the

S.

Comm.

on

Env't

&

Pub.

Works,

109th

Cong.

(2005)

[hereinafter

Senate

Hearing]

(statement

of

David

Martosko,

Director

of

Research,

Center

for

Consumer

Freedom).

52.

Shaun

Waterman,

Analysis:

New

Animal

Rights

Terror

Law,

UPI

DEF.

NEWS

(Nov.

29,

2006,

10:56

AM),

https://www.upi.com/BusinessNews/Security-Industry/2006/l

1/29/Analysis-

New-animal-rights-terror-law/UPI-34661164815778.

53.

See,

e.g.,

Walden:

Earth

Liberation

Front

a

Threat,

CONGRESSDAILY,

Sept.

12,

2001,

at

12.

54.

Id.

55.

War

Against

Eco-Terrorists,

WASH.

TIMES

(Oct.

7,

2001),

https://www.washington-

times.com/news/2001/oct/7/20011007-025834-9663r.

56.

Kimberley

A.

Strassel,

Opinion,

Left

Behind:

These

Are

Lean

Times

for

Fringe

Activists,

WALL

STREET

J.,

(Oct.

4,

2001),

https://www.wsj.com/articles/SB122393012

4

5

4

5

29 9

0

1

.

57.

Id.

[Vol.

95:4

882

SENTINEL

SPECIES

Post-9/1

1,

warnings

of

eco-terrorism

saturated

mainstream

media.

Travis

Wagner,

a

professor

of

environmental

science

and

policy

at

the

University

of

Southern

Maine,

has

studied

how

national

newspapers

por-

tray

these

activists.

5 9

Examining

top-tier

newspaper

articles

from

1984

through

2006,

he

found

that

terrorism

rhetoric

appeared

throughout

the

timeline,

but

its

frequency

increased

dramatically

after

September

11

and

has

continued

climbing

since

then.

60

Wagner

noted

that

this

increase

in

ecotage-related

stories

accompanied

a

decline

in

actual

crimes.61

Accord-

ing

to

the

North

American

Animal

Liberation

Press

Office-not

one

to

downplay

radical

activism-crimes

decreased

by

forty-seven

percent

after

September

11.62

As

warnings

of

eco-terrorism

made

headlines,

the

threat

itself

waned.

Eventually,

this

language

worked

its

way

into

the

top

levels

of

gov-

ernment.

4

"'The

No.

1

domestic

terrorism

threat

is

the

eco-terrorism,

an-

imal-rights

movement,'

said

John

Lewis,

an

FBI

deputy

assistant

director

and

top

official

in

charge

of

domestic

terrorism

[in

2005].",6'

Even

in

their

most

militant

and

potentially

dangerous

actions,

the

FBI

acknowledges

that

so-called

eco-terrorists

have

never

harmed

a

single

human

being

and

their

codes

of

conduct

include

rohibitions

against

acts

that

harm

"any

an-

imal,

human

and

nonhuman."

6

Yet

the

FBI

listed

an

alleged

animal

rights

fugitive

on

its

"most

wanted

terrorists"

list

alongside

Osama

bin

Laden,

sending

a

very

clear

message

to

the

public

and

the

press

about

law

enforce-

ment's

priorities

and

institutionalizing

this

new

terrorism

framework.

6 7

III.

MOBILIZING

LAW

ENFORCEMENT

Within

the

FBI,

the

characterization

of

animal

rights

and

environ-

mental

activists

as

terrorists,

and

designation

of

their

protest

activity

as

a

58.

Travis

Wagner,

Reframing

Ecotage

as

Ecoterrorism:

News

and

the

Discourse

of

Fear,

2

ENVTL.

COMM.

1,

25,

32-34

(2008).

59.

Id.

at

26-27.

60.

Id.

at

32-34.

61.

Id

at

34.

62.

N.

AM.

ANIMAL

LIBERATION

FRONT

PRESS

OFFICE,

2001

YEAR-END

DIRECT

ACTION

REPORT

9

(2002).

63.

Id.

64.

See

infra

notes

65-67

and

accompanying

text.

65.

Henry

Schuster,

Domestic

Terror:

Who's

Most

Dangerous?,

CNN

(Aug.

24,

2005,

2:14

PM),

http://www.cnn.com/2005/US/08/24/schuster.column;

see

FBI:

Eco-Terrorism

Remains

No.

I

Domestic

Terror

Threat,

FOX

NEWS

(Mar.

31,

2008),

http://www.foxnews.com/story/2008/03/31/fbi-

eco-terrorism-remains-no-I-domestic-terror-threat.

66.

The

Threat

ofEco-Terrorism:

Hearing

Before

the

H.

Res.

Comm.,

Subcomm.

On

Forests

&

Forest

Health,

107f

Cong.

(2002)

(statement

of

James

F.

Jarboe,

Domestic

Terrorism

Section

Chief,

Counterterrorism

Division,

Federal

Bureau

of

Investigation).

67.

See

Vivian

Ho,

Daniel

Andreas

San

Diego

Listed

on

FBIs

Most

Wanted,

SFGATE

(Dec.

13,

2013,

5:05

PM),

http://www.sfgate.com/crime/article/Daniel-Andreas-San-Diego-listed-on-FBI-

s-most-5062632.php;

see

also

Juliet

Eilperin,

As

Eco-Terrorism

Wanes,

Governments

Still

Target

Ac-

tivist

Groups

Seen

as

Threat,

WASH.

POST

(Mar.

10,

2012),

https://www.washingtonpost.com/na-

tionalhealth-scienceas-eco-terrorism-wanes-govements-still-target-activist-groups-seen-as-

threat/2012/02/28/gIQAA4Ay3R

story.

2018]

883

DENVER

LAWREVIEW

counter-terrorism

priority,

has

been

institutionalized.

One

way

that

these

priorities

have

become

entrenched

is

through

FBI

training

materials

for

new

agents.

69

In

documents

obtained

through

the

Freedom

of

Information

Act-the

U.S.

open

records

law-the

FBI's

training

materials

on

"eco-ter-

rorism"

are

not

about

violence.

70

They

are

about

a

"public

relations

war."

7

The

FBI

lists

lawful

First

Amendment

activity

and

low-level

criminal

ac-

tivity

(such

as

nonviolent

civil

disobedience)

as

examples

of

domestic

ter-

rorism

by

animal

advocates,

and

pays

special

attention

to

how

these

groups

use

information

in

their

campaigns.

72

Examples

of

information

gathering

listed

by

the

FBI

include

requests

for

public

documents

under

the

Freedom

of

Information

Act.

Open

records

requests

are

listed

as

examples

of

"[u]niversity

targeting."

74

The

FBI

also

warns

of

activist

attempts

to

use

"false

employment,"

which

is

clearly

in

reference

to

activists

who

seek

employment

at

factory

farms

for

the

purpose

of

undercover

investiga-

tions.

The

training

materials

summarize

the

threat

of

animal

advocates

in

bulleted

points:

o

Media

is

vital

part

of

every

action

[sic]

o

Media

sometimes

slanted

in

favor

of

activists

"

Celebrities

support

&

fund

AR/Eco

movement

o

Activists

spin

the

truth.

7

6

I

discussed

the

FBI's

training

materials

with

former

FBI

agent

Mike

German,

who

has

worked

undercover

infiltrating

right-wing

groups

for

the

bureau.

Law

enforcement

considers

political

activists

to

be

a

terrorism

threat,

he

said,

"[b]ecause

the

FBI

appears

to

be

training

them

to

believe

there

is

one

using

factually

flawed

materials."

78

68.

See

Will

Potter,

Newly

Released

FBI

"Domestic

Terrorism"

Training

on

Anarchists,

Envi-

ronmentalists,

Show

COINTELPRO

Tactics,

GREEN

IS

THE

NEW

RED

(May

29,

2012),

http://www.greenisthenewred.com/blog/fbi-domestic-terrorism-training-anarchists-eco.

69.

See

id.

70.

See

id

71.

Id.

72.

Id.

73.

Id.

74.

Id.

75.

Id.

76.

Id.

77.

Michael

German,

BRENNAN

CTR.

FOR

JUST.,

https://www.brennancenter.org/expert/mike-

german

(last

visited

Apr.

20,

2018).

78.

Potter,

supra

note

68

(quoting

Michael

German,

Manufacturing

a

"Black

Separatist"

Threat

and

Other

Dubious

Claims:

Bias

in

Newly

Released

FBI

Terrorism

Training

Materials,

ACLU

(May

29,

2012,

1:31

PM),

https://www.aclu.orgblog/national-security/manufacturing-black-sepa-

ratist-threat-and-other-dubious-claims-bias-newly).

[Vol.

95:4

884

SENTINEL

SPECIES

These

instructions

for

law

enforcement

are

also

coming

from

for-profit

corporations.

7 9

TransCanada,

the

company

building

the

$5.3

bil-

lion

Keystone

XL

oil

pipeline,

has

been

the

target

of

a

diverse

protest

cam-

paign

against

the

2,000-mile

project,

including

environmental

lawsuits,

tree

sits

and

blockades,

and

civil

disobedience

at

the

White

House.

80

In

response,

TransCanada

has

held

daylong

"strategy

meeting[s]"

and

"train-

ing

session[s]"

with

the

FBI

about

how

to

best

protect

the

corporation

from

environmental

protests.

8

1

Documents

obtained

through

open

records

laws

have

also

revealed

that

TransCanada

has

delivered

PowerPoint

presentations

to

law

enforce-

ment

in

which

corporate

representatives

identified

protesters

by

name

and

photo

and

instructed

police

how

they

should

go

about

prosecuting

them

as

terrorists.

82

The

presentation

includes

publicly

available

photos

from

or-

ganization

websites

and

background

information

on

"Tar

Sands

Blockade

Leadership:

Professionals

[sic]

Organizers."

83

Scott

Parkin,

for

example,

is

described

as

a

"professional

activist."

84

He

is

a

senior

campaigner

for

the

Rainforest

Action

Network,

a

nonprofit

environmental

group

de-

scribed

by

Forbes

magazine

as

experts

in

"how

to

get

under

the

skin

of

big

business."as

TransCanada's

presentation

warns

that

he

"conducts

most

of

the

Non

Violent

Direct

Action

training"

8

6

and

that

his

colleague,

Rae

Breaux,

is

an

"'expert

rock

climber

and

trainer

for

Tree

Sitting

projects'

and

'has

presented

speeches."'

87

TransCanada

does

not

cite

any

protester

violence

in

its

presentation

and

acknowledges

that

none

has

occurred.

8

Instead,

the

company

warns

79.

See

infra

notes

80-92

and

accompanying

text.

80.

Steven

Mufson,

KeystoneXL

Pipeline

Opponents

Turn

to

Civil

Disobedience,

WASH.

POST

(Oct.

15,

2012),

https://www.washingtonpost.com/business/economy/keystone-xl-pipeline-oppo-

nents-tum-to-civil-disobedience/2012/10/15/2d0a8310-16e5-1

1e2-a55c-39408fbe6a4bstory.

81.

Adam

Federman,

FBI

Held

2012

Strategy

Meeting

with

TransCanada,

Industry

Partners,

EARTH

ISLAND

J.

(Mar.

13,

2014),

http://www.earthisland.org/joumal/in-

dex.php/elist/eListRead/fbiheld_2012_strategy

meetingwithtranscanadaindustrypartners.

82.

Isaac

Arnsdorf,

Big

Oil's

Fight

for

Keystone

XL

Includes

Tracking

Critics,

Activists,

SEATTLE

TIMES

(Feb.

24,

2015,

5:28

PM),

https://www.seattletimes.com/news/big-oils-fight-for-key-

stone-xl-includes-tracking-critics-activists.

83.

Will

Potter,

TransCanada

Is

Secretly

Briefing

Police

About

Keystone

XL

Protests

and

Urg-

ing

Terrorism

Prosecutions,

GREEN

IS

THE

NEW

RED

(June

12,

2013),

http://www.greenisthe-

newred.com/blog/transcanada-police-presentation-on-protests

(quoting

TransCanada

Presentation,

DESMOG,

https://www.desmogblog.com/sites/beta.desmogblog.com/files/TransCanada%2OProtest-

ing%20Pipeline%2OCriminal%2OCharges.pdf

(last

visited

Apr.

20,

2018)

[hereinafter

TransCanada

Presentation]).

84.

Id.

(quoting

TransCanada

Presentation,

supra

note

83).

85.

Marc

Gunther,

The

Mosquito

in

the

Tent:

A

Pesky

Environmental

Group

Called

the

Rain-

forest

Action

Network

Is

Getting

Under

the

Skin

of

Corporate

America,

FORTUNE,

May

31,

2004,

at

158.

86.

Potter,

supra

note

83

(quoting

TransCanada

Presentation,

supra

note

83).

87.

Id.

(quoting

TransCanada

Presentation,

supra

note

83).

88.

Joyce

Nelson,

Hardball

Tactics,

Co-operation

from

CSIS

Give

TransCanada

Edge

over

Pipeline

Opponents,

CCPA:

CANADIAN

CTR.

FOR

POL'Y

ALTERNATIVES

(Dec.

1,

2014),

https://www.policyaltematives.ca/publications/monitor/hardball-tactics-co-operation-csis-give-trans-

canada-edge-over-pipeline.

2018]

885

DENVER

LAW

REVIEW

of

nonviolent

civil

disobedience

and

"landowner

court

challenges"

as

ex-

amples

of

"potential

security

concerns."

89

In

Oklahoma,

"a

protester

walked

into

the

lane

of

a

slow

moving

vehicle,"

and

in

Texas

there

have

been

"demonstrations/protest

activity,"

"tree

houses,"

"banners,"

and

"so-

cial

media

organization."

9

0

In

Nebraska,

where

this

briefing

took

place,

there

has

been

"protest/demonstrations"

and

"opposition

attendance"

at

public

meetings.

91

"Another

slide

on

activist

motivation

describes

the

type

of

people

TransCanada

fears.

The

first

quotation

says,

'I

have

been

an

ac-

tivist

for

fifty

years.

I

am

seventy.'

92

What

is

particularly

troubling

about

this

presentation

is

that

a

corpo-

ration

is

briefing

law

enforcement

about

who,

when,

why,

and

how

they

should

prosecute.

"TransCanada

offers

police

a

playbook

on

how

to

go

after

activists.

The[]

company

suggests

prosecuting

using

criminal

tres-

pass,

criminal

conspiracy,

criminal

instrument

or

device

(the

[plastic

pipes

and

barrels]

used

for

nonviolent

civil

disobedience),

grand

juries,

and

'fed-

eral/state

anti-terrorism

statues

[sic]."'

93

One

of

the

final

slides

of

the

presentation

is

particularly

revealing

in

terms

of

what

is

at

stake

here.

The

list

of

"Potential

Security

Concerns"

includes:

o

Gulf

Coast

Project

-

recent

media

attention.

o

Keystone

XL

-

media,

high

profile.

9

4

Much

like

the

FBI

materials,

the

emphasis

is

on

public

exposure

through

the

media.

95

TransCanada

is

not

pleading

with

law

enforcement

to

crack

down

on

property

destruction

or

violence

because

that

is

not

what

this

campaign

is

about.

9 6

The

campaign

against

the

Keystone

XL

pipeline

has

resulted

in

widespread

public

support

and

positive

media

coverage

about

people

willing

to

nonviolently

put

their

bodies

on

the

line.

97

The

89.

Elana

Schor,

TransCanada

Prepped

Local

Police

for

Prosecuting

Pipeline

Foes,

E&E

NEWS

(June

11,

2013,

2:50

PM),

https://www.eenews.net/stories/10599

8

2 6 3

2

.

90.

Potter,

supra

note

83

(quoting

TransCanada

Presentation,

supra

note

83).

91.

Id.

(quoting

TransCanada

Presentation,

supra

note

83).

92.

Id.

(quoting

TransCanada

Presentation,

supra

note

83).

93.

Mat McDermott,

According

to

KeystoneXL

Companies,

Activists

May

Really

Be

Terrorists,

MOTHERBOARD

(June

18,

2013,

2:05

PM)

(quoting

TransCanada

Presentation,

supra

note

83

(altera-

tion

in

original)),

https://motherboard.vice.com/enus/article/vvva8dlaccording-to-keystone-xl-com-

panies-activists-may-really-be-terrorists.

94.

TransCanada

Presentation,

supra

note

83.

95.

See

id.

96.

See

id

97.

See,

e.g.,

Zach

Pluhacek,

Keystone

XL

Opponents

Vow

"Civil

Disobedience"

to

Stop

Pro-

ject,

COLUMBUS

(Aug.

10,

2017),

http://columbustelegram.com/news/state-and-re-

gional/keystone-xl-opponents-vow-civil-disobedience-to-stop-project/article

e4cOb4fl

-3b48-5c3f-

90c5-07a5db8ef691.htm;

see

also,

e.g.,

7

Arrested

in

Polk

Co.

Pipeline

Protest,

KTRE,

http://www.ktre.com/story/19400667/7-arrested-in-polk-co-pipeline-protest

(last

visited

Apr.

20,

2018);

"Just

the

Beginning":

Anti-pipeline

Protestors

Vow

"Rise

ofResistance,"

CBC

(Oct.

30,

2017,

2:29

PM),

http://www.cbc.ca/news/canada/british-columbia/just-the-beginning-anti-pipeline-protest-

ers-vow-rise-of-resistance-

1.4378845.

[Vol.

95:4

886

SENTINEL

SPECIES

campaign

inspired

the

Sierra

Club

to

break

with

tradition

and

engage

in

nonviolent

civil

disobedience

for

the

first

time

in

the

history

of

the

organ-

*

98

ization.

TransCanada

officials

says

this

is

why

they

needed

to

hire

a

new

pub-

lic-relations

fim.

99

"One

of

the

issues

we

have

had

since

the

fall

of

2010

is

trying

to

rebut

what

our

opponents

are

saying

.

. .

This

takes

resources,

and

we

have

been

dwarfed

by

the

content

the

activists

have

and

are

posting

online

with

respect

to

Keystone

XL."

100

IV.

ANIMAL

ENTERPRISE

TERRORISM

With

the

new

rhetoric

of

terrorism

firmly

in

place,

and

"eco-terror-

ism"

regularly

part

of

media

and

political

dialogue,

corporations

began

chipping

away

at

constitutionally

protected

protest

activity

with

a

variety

of

legal

and

legislative

tactics.

10

1

They

have

brought

the

Racketeer

Influ-

enced

and

Corrupt

Organizations

Act

(RICO)-the

law

intended

to

be

used

for

the

mob-actions

against

animal

rights

campaigners.102

They

have

sought

restraining

orders

and

injunctions

to

stop

protests.

103

And

they

have

introduced

a

long

list

of

local,

state,

and

federal

legislation

to

target

their

opposition.

1

0 4

By

far

the

most

significant

development

in

this

effort,

though,

was

the

creation

of

the

crime

of

"animal

enterprise

terrorism."

The

Animal

Enterprise

Protection

Act

0

5

is

federal

law

passed

in

1992,

after

heavy

lobbying

by

animal

industries,

ostensibly

to

crack

down

on

illegal,

underground

actions

by

groups

like

the

Animal

Liberation

Front.

1

06

Years

later,

the

law

was

used

to

prosecute

the

SHAC

7,

who

were

members

of

an

international

campaign

to

stop

the

notorious

animal

testing

lab,

Huntingdon

Life

Sciences.107

Multiple

undercover

investigations

re-

98.

Sierra

Club

to

Engage

in

Civil

Disobedience

for

the

First

Time

in

Organization's

History

to

Stop

Tar

Sands,

SIERRA

CLUB

(Jan.

22,

2013),

https://content.sierraclub.org/press-re-

leases/2013/01/sierra-club-engage-civil-disobedience-first-time-organizations-history.

99.

Shawn

McCarthy,

Greenpeace

Sees

"Dirty

Tricks"

in

PR

Firm's

TransCanada

Plan,

GLOBE

&

MAIL

(Nov.

17,

2014),

https://www.theglobeandmail.com/report-on-business/industry-

news/energy-and-resources/greenpeace-sees-dirty-tricks-in-pr-firms-transcanada-plan/arti-

cle21630761.

100.

Amy

Harder,

TransCanada

Steps

Up

Defense

of

Keystone

XL

Pipeline,

NAT'L

J.

(Jun.

12,

2013),

https://www.nationaljoumal.com/s/77961/transcanada-steps-up-defense-keystone-xl-pipeline.

101.

See

infra

notes

102-04

and

accompanying

text.

102.

See,

e.g.,

Huntingdon

Life

Scis.,

Inc.

v.

Rokke,

986

F.

Supp.

982,

984-85

(E.D.

Va.

1997).

103.

See

Commonwealth

v.

Gazzola,

No.

02-11098,

2004

Mass.

Super.

LEXIS

28,

at

*6

(Mass.

Super.

Ct.

Feb.

6,

2004).

104.

See

Jen

Fifield,

Farmers

Push

BackAgainstAnimal

Welfare

Laws,

PEW

CHARITABLE

TR.

(Nov.

29,

2016),

http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/11/29/farm-

ers-push-back-against-animal-welfare-laws.

105.

18

U.S.C.

§

43

(2012).

106.

See

House

Hearing,

supra

note

50,

at

5

(statement

of

Brent

J.

McIntosh,

Deputy

Assistant

Att'y

Gen.,

Office

of

Legal

Policy,

U.S.

Department

of

Justice);

Senate

Hearing,

supra

note

51

(state-

ment

of

John

Lewis,

Deputy

Assistant

Director,

Counterterrorism

Division,

Federal

Bureau

of

Inves-

tigation).

107.

David

Kocieniewski,

Six

Animal

Rights

Advocates

Are

Convicted

of

Terrorism,

N.Y.

TIMES,

Mar.

3,

2006,

at

B3;

see

Brief

of

Amici

Curiae

for

Center

for

Constitutional

Rights

and

First

2018]

887

DENVER

LAWREVIEW

vealed

lab

workers

punching

beagle

puppies

and

dissecting

living

mon-

keys.'

0

8

The

SHAC

7

were

never

accused

of

participating

in

underground

activity,

though.1

0

9

They

spoke

and

wrote

about

it

and

published

news

of

both

legal

and

illegal

protest

activity

on

their

website."o

According

to

prosecutors,

this

web

publishing

created

a

political

climate

that

encour-

aged

illegal

acts,

so

they

were

indicted

on

conspiracy

to

commit

animal

enterprise

terrorism

and

conspiracy

to

harass

using

a

telecommunications

device

(the

internet)

charges."'

They

were

sentenced

to

between

four

and

six

years

in

prison."

2

As

the

SHAC

7

were

awaiting

sentencing,

their

corporate

opposi-

tion-dozens

of

pharmaceutical

and

biotech

companies

secretly

united

as

the

"Animal

Enterprise

Protection

Coalition"-was

lobbying

for

even

more

sweeping

powers.'

1

3

I

was

invited

to

testify

before

the

U.S.

Congress

in

2006

about

the

proposal,

called

the

Animal

Enterprise

Terrorism

Act,"

4

which

radically

expanded

the

Animal

Enterprise

Protection

Act.'

15

At

the

hearing,

the

Justice

Department

told

lawmakers

that

the

law

did

not

go

far

enough

and

that

it

was

impossible

to

crack

down

on

extremists-despite

the

successful

prosecution

of

activists

for

First

Amendment

activity

under

the

existing,

more

narrowly

constructed

law.1

6

Brent

McIntosh,

Deputy

Assistant

Attorney

General,

testified

that

"animal

rights

extremists

have

tailored

their

campaigns

to

exploit

limits

and

ambiguities

in

the

statute,"

adding

that

"the

bill

under

consideration

today

would

fill

gaps

in

the

cur-

rent

law."'

17

The

Animal

Enterprise

Terrorism

Act

was

passed

in

2006

with

bipar-

tisan

support-and

extensive

lobbying

by

Pfizer;

Wyeth;

Glax-

osmithkline;

the

egg,

meat,

and

dairy

industries;

Ringling

Brothers;

the

Fur

Commission;

and

many

other

"animal

enterprises.""

There

are

three

Amendment

Lawyers

Ass'n

in

Support

of

Petitioners

at

2,

United

States

v.

Fullmer,

584

F.3d

132

(3d

Cir.

2009)

(No.

10-7187).

108.

See

Gina

Kolata,

Tough

Tactics

in

One

Battle

over

Animals

in

the

Lab,

N.Y.

TIMES,

Mar.

24,

1998,

at

E

l.

109.

See

Chris

Maag,

America's

#1

Threat:

The

Latest

Front

in

the

"War

on

Terror":

Ani-

mal-Rights

Activists,

MOTHER

JONES

(Jan./Feb.

2006),

https://www.motherjones.com/poli-

tics/2006/0

1/americas-I-threat.

110.

Senate

Hearing,

supra

note

51.

111.

See

U.S.

ATTORNEY'S

OFFICE

FOR

THE

DIST.

OF

N.J.,

U.S.

DEP'T

OF

JUSTICE,

THREE

MILITANT

ANIMAL

RIGHTS

ACTIVISTS

SENTENCED

TO

BETWEEN

FOUR

AND

SIX

YEARS

IN

PRISON

2-

4

(2006).

112.

Id.

at

2.

113.

Will

Potter,

Internal

Industry

Documents

Show

Plans

for

Labeling

Activists

as

"Eco-Ter-

rorists"

(Part

1),

GREEN

IS

THE

NEW

RED

(Dec.

17,

2008),

http://www.greenisthe-

newred.com/blog/internal-industry-documents-show-plans-for-labeling-activists-as-eco-terrorists.

114.

S.

3880,

109th

Cong.

§

1(2006).

115.

See

House

Hearing,

supra

note

50,

at

20

(testimony

of

William

Potter,

Journalist).

116.

See

id.

at

8-9

(prepared

statement

of

Brent

J.

McIntosh,

Deputy

Assistant

Att'y

Gen.,

Office

of

Legal

Policy,

U.S.

Department

of

Justice);

see

also

Kocieniewski,

supra

note

107

(confirming

that

the

prosecution

of

activists

was

successful).

117.

House

Hearing,

supra

note

50,

at

5-6

(statement

of

Brent

J.

McIntosh,

Deputy

Assistant

Att'y

Gen.,

Office

of

Legal

Policy,

U.S.

Department

of

Justice).

118.

Potter,

supra

note

113.

[Vol.

95:4

888

SENTINEL

SPECIES

ways

to

be

prosecuted

under

the

expanded

law:

damaging

or

causing

the

loss

of

any

property

(which

is

later

defined

as

including

the

loss

of

profits),

instilling

a

reasonable

fear

in

those

being

protested,

and

conspiracy.''

9

This

vague,

overly

broad

language

is

especially

troubling

in

light

of

the

political

climate

corporations

have

created

through

public-relations

cam-

paigns

and

advertising,

and

the

lack

of

consistency

within

government

agencies

in

the

classification

of

terrorist

groups.

12 0

How

can

we

possibly

describe

"reasonable

fear"

when

industries

are

campaigning

to make

the

unreasonable

reasonable?

When

I

testified

in

opposition

to

the

Animal

Enterprise

Terrorism

Act,

the

primary

concern

I

raised

was

that

the

law

would

have

a

chilling

effect

on

lawful

protest

activity.121

It

would

contribute

to

a

growing

cli-

mate

of

fear

being

used

to

deter

free

speech

and

advocacy.

1

2 2

The

law

does

not

explicitly

outlaw

protest,

but

it

makes

people

afraid

of

using

their

rights,

lest

they

be

labeled

a

terrorist.'

23

In

addition,

the

vague

language

of

the

law

could

be

used

to

wrap

up

a

wide

range

of

activities

that

threaten

corporate

profits,

such

as

nonviolent

undercover

investigations

and

whis-

tleblowing.124

Members

of

Congress

angrily

dismissed

such

arguments,

saying

the

law

was

tailored

to

illegal,

underground

groups.

125

Whistle-

blowers

and

lawful

protesters

would

never

be

affected,

they

said:

the

law

would

only

be

used

against

people

who

do

things

like

burn

buildings.

126

Unfortunately,

my

concerns

about

the

law

turned

out

to

be

true.

12

7

The

first

use

of

the

new

law,

in

2008,

did

not

involve

arson.128

A

group

of

protesters

in

California

were

prosecuted

as

terrorists

for

protesting

outside

of

animal

experimenters'

homes

with

signs

and

bullhorns,

and

writing

pro-

test

slogans

on

the

street

using

children's

sidewalk

chalk.

1

29

That

prosecu-

tion

was

dismissed

when

the

judge

agreed

that

the

government

had

not

revealed

enough

about

what,

exactly,

the

activists

had

allegedly

done

to

warrant

terrorism

charges.130

It

was

an

important

victory,

but

the

prosecu-

tion

itself

instilled

widespread

fear

in

activist

communities

that

anyone

could

be

prosecuted

as

a

terrorist

for lawful

protest

activity.

119.

18

U.S.C.

§

43(a)(2)

(2012).

120.

See

JEROME

P.

BJELOPERA,

CONG.

RESEARCH

SERV.,

R42536,

THE

DOMESTIC

TERRORIST

THREAT:

BACKGROUND

AND

ISSUES

FOR

CONGRESS

5

(2013).

121.

See

House

Hearing,

supra

note

50,

at

21

(statement

of

William

Potter,

Journalist).

122.

Id.

123.

Id.

124.

Id.

at

22

(prepared

statement

of

William

Potter,

Journalist).

125.

See

id

at

26-27

(statement

of

Rep.

Tom

Feeney).

126.

See

id.

127.

See

Will

Potter,

FBI

Arrests

4

Activists

as

"Terrorists

"for

Chalking

Slogans,

Leafleting,

and

Protesting,

GREEN

IS

THE

NEW

RED

(Feb.

22,

2009),

http://www.greenisthe-

newred.com/blog/aeta-arrests.

128.

See

id.

129.

United

States

v.

Buddenberg,

CTR.

FOR

CONST.

RTS.,

https://ccrjustice.org/home/what-we-

do/our-cases/united-states-v-buddenberg

(last

visited

June

9,

2018).

130.

Will

Potter,

Breaking:

AETA

4

Case

Dismissed,

but

Re-indictment

Possible,

GREEN

IS

THE

NEW

RED

(July

12,

2010),

http://www.greenisthenewred.com/blog/aeta-4-case-thrown-out-dismissed.

2018]

889

DENVER

LAWREVIEW

Similarly,

statements

that

the

Animal

Enterprise

Terrorism

Act

would

never

be

used

against

undercover

investigators

were

later

revealed

to

be

dishonest.

1

3 1

The

FBI

Joint

Terrorism

Task

Force

has

kept

files

on

activists

who

expose

animal

welfare

abuses

on

factory

farms

and

recom-

mended

prosecuting

them

as

terrorists,

according

to

a

document

uncovered

through

the

Freedom

of

Information

Act.132

As

I

first

reported

on

Green-

IsTheNewRed.com:

The

2003

FBI

file

details

the

work

of

several

animal

rights

activists

who

used

undercover

investigations

to

document

repeated

animal[-

]welfare

violations.

The

FBI

special

agent

who

authored

the

report

said

they

"illegally

entered

buildings

owned

by

[redacted]

Farm

...

and

videotaped

conditions

of

animals."

The

animal

activists

caused

"eco-

nomic

loss"

to

businesses,

the

FBI

[argued].

And

they

also

openly

res-

cued

several

animals

from

the

abusive

conditions.

This

was

not

done

covertly

in

the

style

of

underground

groups

like

the

Animal

Liberation

Front-it

was

an

act

of

nonviolent

civil

disobedience

and,

as

the

FBI

agent

note[d],

the

activists

distributed

press

releases

and

conducted

media

interviews

taking

responsibility

for

their

actions.

Based

on

these

acts-trespassing

in

order

to

photograph

and

videotape

abuses

on

fac-

tory

farms-the

agent

conclude[d]

there

"is

a

reasonable

indication"

that

the

activists

[committed

"animal

enterprise

terrorism."]

1 33

"It

is

deeply

sobering

to

see

one's

name

in

an

FBI

file

proposing

ter-

rorism

charges,"

said

Ryan

Shapiro,

a

doctoral

candidate

at

the

Massachu-

setts

Institute

of

Technology,

in

an

email

interview.

He

went

on

to

say:

It

is

even

more

sobering

to

realize

the

supposedly

terroristic

activities

in

question

are

merely

exposing

the

horrific

cruelty

of

factory

farms,

educating

the

public

about

what

goes

on

behind

those

closed

doors,

and

openly

rescuing

a

few

animals

from

one

of

those

farms

as

an

act

of

civil

disobedience.1

3

4

Most

people

never

heard

about

the

Animal

Enterprise

Terrorism

Act,

including

members

of

Congress.

It

passed

the

Senate

in

the

middle

of

the

night,

with

no

discussion

or

debate.1

35

In

the

House,

the

bill

was

snuck

through

on

the

very

first

day

back

from

congressional

recess.'

1 6

The

Ani-

131.

See

Will

Potter,

FBI

Says

Activists

Who

Investigate

Factory

Farms

Can

Be

Prosecuted

as

Terrorists,

GREEN

IS

THE

NEW

RED

(Dec.

20,

2011),

http://www.greenisthenewred.com/blog/fbi-un-

dercover-investigators-animal-enterprise-terrorism-act.

132.

Id.

133.

Id.

134.

Id.

135.

See

152

CONG.

REC.

S10793-94

(daily

ed.

Sept.

29,

2006).

136.

See

152

CONG.

REC.

H8594

(daily

ed.

Nov.

13,

2006).

[Vol.

95:4

890

SENTINEL

SPECIES

mal

Enterprise

Terrorism

Act

was

passed

as

part

of

the

suspension

calen-

dar,

137

which

is

a

procedure

used

to

expeditiously

deal

with

noncontrover-

sial

legislation.'

3 8

That

week,

the

procedure

was

also

used

to

honor

the

St.

Louis

Cardinals

for

winning

the

World

Series.'

3

9

Only

one

percent

of

law-

makers

were

in

the

room

for

the

vote.1

40

The

rest

were

outside

at

a

new

memorial.141

They

were

praising

Dr.

Martin

Luther

King

Jr.,

as

his

style

of

nonviolent

civil

disobedience

was

being

labeled

terrorism-if

done

in

the

name

of

protecting

animals.1

42

V.

FROM

THE

MARGINS

TO

THE

MAINSTREAM:

"AG-GAG"

LAWS

Over

time,

the

focus

of

these

anti-activist

campaigns

shifted

from

the

more

militant,

grassroots

animal

rights

groups

to

mainstream,

national

nonprofit

organizations,

including

the

Humane

Society

of

the

United

States,

Mercy

For

Animals,

Compassion

Over

Killing,

and

the

American

Society

for

the

Prevention

of

Cruelty

to

Animals

(ASPCA).

New

laws

are

being

created

that

explicitly

target

undercover

investigations

by

these

or-

ganizations

or

anyone

who

photographs

or

videotapes

animal

cruelty

or

environmental

pollution

on

industrial

farms.

143

In

one

such

investigation

in

California,

the

Humane

Society

of

the

United

States

documented

cows

too

sick

to

even

walk-so

common

that

they

are

called

"downers"

by

the

industry

4

-entering

the

food

supply.1

4

5

Workers

at

the

Hallmark/Westland

Meat

Packing

Company

were

using

heavy

machinery

to

push

cows

into

the

"kill

box"

so

that

they

could

be

slaughtered.1

46

Workers

were

recorded

beating

and

kicking

the

cows,

ap-

plying

electric shocks,

and

stabbing

them

with

the blades

of

a

forklift.

14 7

The

slaughterhouse

was

the

U.S.

Department

of

Agriculture's

(USDA)

se-

cond-largest

supplier

and

was

named

a

"supplier

of

the

year"

for

2004-

137.

Id.

138.

CONG.

RESEARCH

SERV.,

RL32474,

SUSPENSION

OF

THE

RULES

IN

THE

HOUSE

OF

REPRESENTATIVES

(2005).

139.

See

152

CONG.

REC.,

H8651

(daily

ed.

Nov.

15,

2006)

(statement

of

Rep.

Foxx).

140.

Will

Potter,

Lobbying

Documents

Show

How

Corporations

Snuck

"Eco-Terrorism"

Law

Through

Congress

(Part

2),

GREEN

IS

THE

NEW

RED

(Dec.

19,

2008),

http://www.greenisthe-

newred.com/blog/lobbying-documents-show-how-corporations-snuck-eco-terrorism-law-through-

congress.

141.

See

Associated

Press,

Bush,

Others

at

King

Memorial

Groundbreaking,

NBC

NEWS.COM

(Nov.

13,

2006,

1:11

PM),

http://www.nbcnews.com/id/15699682/ns/usnews-life/t/bush-others-

king-memorial-groundbreaking.

142.

See

152

CONG.

REC.

H8590-92

(daily

ed.

Nov.

13,

2006)

(statement

of

Rep.

Scott).

143.

Richard

A.

Oppel,

Jr.,

Taping

of

Farm

Cruelty

Is

Becoming

the

Crime,

N.Y.

TIMES

(Apr.

7,

2013),

http://www.nytimes.com/2013/04/07/us/taping-of-farm-cruelty-is-becoming-the-

crime.html.

144.

JASPER

WOMACH,

CONG.

RESEARCH

SERV.,

97-905,

AGRICULTURE:

A

GLOSSARY

OF

TERMS,

PROGRAMS,

AND

LAWS

80

(2005).

145.

Rampant

Animal

Cruelty

at

California

Slaughter

Plant,

HUMANE

SOC'Y

U.S.

(Jan.

30,

2008),

http://www.humanesociety.org/news/news/2008/01/undercoverinvestigation_013008.html.

146.

Id.

147.

Id.

2018]

891

DENVER

LAW

REVIEW

2005.148

These

sick

animals

would

have

been

fed

to

school

children

in

thirty-six

states

as

part

of

the

USDA's

national

school-lunch

program.149

The

exposure

of

these

practices

prompted

the

recall

of

143

million

pounds

of

meat,

15

o

the

largest

meat

recall

in

U.S.

history.

1

5 1

Rather

than

by

condemning

these

abuses,

changing

their

policies,

and

responding

to

consumer

demand,

the

agriculture

industry

has

responded

by

attempting

to

shoot

the

messenger.

152

The

industry

has

labeled

whistle-

blowers

as

"terrorists"

and

supported

new

laws

to

silence

them.

53

"Ag-gag"

laws-"ag"

is

for

agriculture,

"gag"

is

to

silence-are

an

ex-

plicit

attempt

to

outlaw

undercover

investigations

and

whistleblowing

if

they

negatively

portray

the

industry.

1

54

These

proposals-introduced

in

twenty-eight

states,

passed

into

law

in

eight

1

55

-eliminate

the

only

mean-

ingful

oversight

of

this

massive

industry

and

allow

it

to

continue

operating

without

oversight

or

accountability.

Laws

with

provisions

similar

to

ag-gag

have

existed

since

the

early

1990s.156

In

Montana,

North

Dakota,

and

Kansas,

"agricultural

interfer-

ence"

laws

include

outright

bans

on

photography

and

video

recording.1

57

Each

includes

similar

language,

against

those

who

"[e]nter

an

animal

fa-

cility

and

use

or

attempt

to

use

a

camera,

video

recorder,

or

any

other

video

or

audio

recording

equipment."1

5

8

These

laws

remained

on

the

books

and

set

a

legal

precedent,

but

they

were

not

enforced.

1

59

Undercover

investiga-

tions

were

simply

not

as

common

as

they

are

today.

As

undercover

investigations

became

more

frequent

and

effective,

and

as

the

Animal

Enterprise

Terrorism

Act

became

law,

the

animal-agri-

culture

industry

began

targeting

investigators

as

terrorists.

160

In

California,

148.

Hallmark/Westland

Meat

Recall:

Hearing

Before

the

Subcomm.

of

the

S.

Comm.

on Appro-

priations,

I10th

Cong.

37

(2008)

(statement

of

Wayne

Pacelle,

President

and

CEO,

The

Humane

So-

ciety

of

the

U.S.).

149.

Joe

Roybal,

California

Nightmare,

BEEF

(Mar.

1,

2008),

http://www.beefmaga-

zine.com/beef-quality/cattle-handling/california-nightmare.

150.

Associated

Press,

USDA

Recalls

143

Million

Pounds

of

Beef,

NBC

NEWS.coM

(Mar.

3,

2008,

10:39

AM),

http://www.nbcnews.com/id/23212514.

151.

David

Brown,

USDA

Orders

Largest

Meat

Recall

in

U.S.

History,

WASH.

POST

(Feb.

18,

2008),

http://www.washingtonpost.com/wp-dyn/content/article/

20 0

8/0

2

/17/AR2008021701530.html.

152.

See

Lewis

Bollard,

Ag-Gag:

The

Unconstitutionality

of

Laws

Restricting

Undercover

In-

vestigations

on

Farms,

42

ENVTL.

L.

REP.

NEWS

&

ANALYSIS

10960,

10965

(2012).

153.

Id.

154.

What

Is

Ag-Gag

Legislation?,

ASPCA,

https://www.aspca.org/fight-cruelty/advocacy-cen-

ter/ag-gag-whistleblower-suppression-legislationi/ag-gag-bills-state-level

(last

visited

June

9,

2018).

155.

Id.

156.

See

Alicia

Prygoski,

BriefSummary

ofAg-Gag

Laws,

MICH.

ST.

U.

ANIMAL

LEGAL

&

HIST.

CTR.

(2015),

https://www.animallaw.info/article/brief-summary-ag-gag-aws.

157.

KAN.

STAT.

ANN.

§

47-1827(c)(4)

(2018);

MONT.

CODE

ANN.

§

81-30-103(e)

(2017);

N.D.

CENT.

CODE

§

12.1-21.1-02(6)

(2017).

158.

N.D.

CENT.

CODE

§

12.1-21.1-02(6);

see

KAN.

STAT.

ANN.

§

47-1827(c)(4);

MONT.

CODE

ANN.

§

81-30-103(e).

159.

CTR.

FOR

CONSTITUTIONAL

RIGHTS

&

DEFENDING

RIGHTS

&

DISSENT,

AG-GAG

ACROSS

AMERICA:

CORPORATE-BACKED

ATTACKS

ON

ACTIVISTS

AND

WHISTLEBLOWERS

12

(2017).

160.

Devin

Nunes,

Eco-Extremists

Strike

Again,

DEVINNUENES.BLOGSPOT.COM

(Aug.

23,2012),

http://devinnunes.blogspot.com/2012/08/eco-extremists-strike-again.html.

[Vol.

95:4

892

SENTINEL

SPECIES

for

example,

an

investigation

by

Compassion

Over

Killing

of

Central

Val-

ley

Meat

Company

revealed

such

extreme

cruelty

that

the

government

ac-

tually

shut

down

the

slaughterhouse.

6

'

This

type

of

intervention

by

the

USDA

is

extraordinarily

rare.

1 6 2

The

footage

was

so

shocking

that

McDonald's,

Costco,

and

In-N-Out

Burger

quickly

cut

ties

with

the

sup-

plier.

1

6

3

The

animal-agriculture

industry,

not

surprisingly,

was

outraged.

The

industry

pressured

members

of

Congress

to

take

action,

and

a

few

days

after

the

plant

was

shuttered,

three

U.S.

Representatives

from

California

sent

a

letter

to

the

USDA

calling

for

the

immediate

reopening

of

the

slaughterhouse.'

U.S.

Representatives

Devin

Nunes,

Kevin

McCarthy,

and

Jeff

Denham

said

that

its

closure

was

hurting

the

economy

and

the

government

needed

"to

intervene

against

the

onslaught

of

attacks

that

are

occurring

at the

behest

of

radical

groups."'

65

In

a

blog

post,

Representative

Nunes

compared

the

nonviolent

undercover

filming

to

arson

and

described

it

as

"economic

terrorism."'

66

As

a

result,

the

slaughterhouse

reopened.

6 7

The

first

use

of

an

ag-gag

law,

much

like

the

first

use

of

the

Animal

Enterprise

Terrorism

Act,

was

for

clearly

constitutionally

protected

activ-

ity.168

In

Utah,

a

young

woman

named

Amy

Meyer

saw

a

sick

cow

being

pushed

by

a

bulldozer

outside

of

Dale

Smith

Meatpacking

Company.169

She

did

what

any

of

us

would

do

in

the

age

of

iPhones

and

YouTube:

she

filmed

it.1

7

0

She

was

standing

on

the

public

street.

17

1

I

found

out

about

the

161.

Feds

Close

Central

Valley

Slaughterhouse,

NBCLOSANGELES.COM

(Aug.

21,

2012,

6:40

AM),

https://www.nbclosangeles.com/news/local/Feds-Close-Central-Valley-Slaughterhouse-Cen-

tral-California-Central-Valley-Meat-Company-166880466.html.

162.

See

Peter

Eisler,

Veterinarian

to

Detail

Slaughterhouse

Breaches,

USA

TODAY,

https://usatoday30.usatoday.com/news/health/2010-03-03-food-safety

N.htm

(last

visited

Apr.

21,

2018).

1

63.

Christine

Hauser,

Work

at

Slaughterhouse

Is

Halted

After

Graphic

Undercover

Videos,

N.Y.

TIMES:

THE

LEDE

(Aug.

22,

2012,

4:04

PM),

http://thelede.blogs.nytimes.com/2012/08/22/work-

at-slaughterhouse-is-halted-after-graphic-undercover-videos.

164.

Letter

from

Representative

Devin

Nunes,

Representative

Kevin

McCarthy

&

Representa-

tive

Jeff

Denham

to

the

Honorable

Thomas

Vilsack,

Sec'y

of

the

U.S.

Dep't

of

Agric.

(Aug.

23,

2012)

(on

file

with

Rep.

Devin

Nunes's

office).

165.

Id.

166.

Nunes,

supra

note

160.

167.

Update:

Hanford

Slaughterhouse

Gets

USDA

Approval

to

Reopen

Today,

SENTINEL

(Aug.

27,

2012),

http://hanfordsentinel.com/update-hanford-slaughterhouse-gets-usda-approval-to-reopen-

today/articled80b0d72-f05a-1

1

el

-942c-001

9bb2963f4.html.

168.

See

Natasha

Lennard,

First

"Ag-Gag"

Charges

Brought

...

and

Then

Dropped,

SALON

(Apr.

30,

2013,

1:48

PM),

https://www.sa-

lon.com/2013/04/30/firstag

gagcharges

brought

and-then

dropped.

169.

Emiley

Morgan,

Charges

Dropped

Against

Woman

in

Utah's

First

'Ag-Gag'

Case,

DESERET

NEWS

UTAH

(Apr.

30,

2013,

2:00

PM),

https://www.deseretnews.com/arti-

cle/

8 6 5 5

7 9 2 2

3

/Charges-dropped-against-woman-in-Utahs-first-ag-gag-case.

170.

See

Lennard,

supra

note

168.

171.

See

id.

2018]

893

DENVER

LAWREVIEW

case

and

broke

the

story

on

my

website.17

Within

twenty-four

hours

it

had

created

such

an

uproar

that

prosecutors

dropped

all

charges.

173

The

most

significant

impact

of

ag-gag

laws

is

that

they

have

brought

together

a

wide

range

of

groups

that

typically

do

not

engage

in

dialogue.1

7 4

It

has

helped

build

multi-issue

coalitions

that

never

existed

before,

includ-

ing

Amnesty

International,

PETA,

labor

unions,

the

American

Civil

Lib-

erties

Union,

the

Sierra

Club,

Human

Rights

Watch,

and

many

others.1

7

5

The message

of

these

groups

has

been

that

if

we

allow

this

to

take

place,

if

we

allow

factory

farms

to

silence

their

critics,

other

whistleblowers

will

be

next.'

76

"What

at

first

might

appear

to

be

exclusively

an

animal

abuse

issue

is,

on

closer

inspection,

clearly

also

a

freedom

of

expression

issue,

a

work-

ers'

rights

issue,

an

environmental

issue[,]

and

a

public

health

issue,"

Am-

nesty

International

said

in

a

statement.1

77

"[S]unshine-in

our

case,

the

proverbial

candle-really

is

the

best

disinfectant.

We

have

no

hope

of

stopping

abuses

if

we

can't

even

bring

them

to

light."

78

This

was

the

foundation

of

a

constitutional

challenge

to

Idaho's

ag-gag

law.

179

The

Animal

Legal

Defense

Fund

led

the

legal

effort,

argu-

ing

that

ag-gag

is

an

unconstitutional

attempt

by

the

agriculture

industry

to silence

journalists,

animal

advocates,

and

whistleblowers

who

expose

cruel

farming

practices.'

80

A

wide

range

of

organizations

supported

the

lawsuit

by

filing

amicus

briefs.'

8

'

They

represented

food-safety,

environ-

mental,

labor,

whistleblower,

and

journalism

organizations.182

172.

See

Will

Potter,

First

"Ag-Gag"

Prosecution:

Utah

Woman

Filmed

a

Slaughterhouse

from

the

Public

Street,

GREEN

IS

THE

NEW

RED

(Apr.

29,

2013),

http://www.greenisthe-

newred.com/blog/first-ag-gag-arrest-utah-amy-meyer.

173.

Jim

Dalrymple

II,

Utah

Prosecutor

Dismisses

Suddenly

High-Profile

"Ag-Gag"

Case,

SALT

LAKE

TRIB.

(May

1,

2013,

7:39

AM),

http://archive.sltrib.com/arti-

cle.php?id=56240592&itype=CMSID.

174.

See

Statement

of

Opposition

to

Proposed

"Ag-Gag"

Laws

from

Broad

Spectrum

of

Interest

Groups,

ASPCA,

https://www.aspca.org/animal-cruelty/factory-farms/statement-opposition-pro-

posed-ag-gag-laws-broad-spectrum-interest

(last

visited

June

9,

2018).

175.

See

id.;

What

Are

"Ag-Gag"

Bills?,

PETA,

https://www.peta.org/action/action-alerts/ag-

gag-bills

(last

visited

June

9,

2018).

176.

See

Gabe

Rottman,

"Ag-Gag"

Not

Just

About

Animal

Welfare,

ACLU

(May

3,

2013,

9:54

AM),

https://www.aclu.org/blog/national-security/ag-gag-not-just-about-animal-welfare.

177.

Vienna

Colucci,

Amnesty

Makes

it

60,

AMNESTY

INT'L

USA:

HUM.

RTS.

Now

BLOG

(May

24,

2013,

3:15

PM),

http://blog.amnestyusa.org/us/amnesty-makes-it-60.

178.

Id.

179.

Civil

Rights

Complaint

at

1-2,

Animal

Legal

Def.

Fund

v.

Otter,

118

F.

Supp.

3d

1195

(D.

Idaho

2015),

aff'd

in

part

&

rev'din

part

sub

nom.

Animal

Legal

Def.

Fund

v.

Wasden,

878 F.3d

1184

(9th

Cit.

2018)

(No.

1:14-CV-104).

180.

Id.

181.

ALDF

v.

Otter,

ACLU

IDAHO,

https://www.acluidaho.org/en/cases/aldf-v-otter

(last

visited

June

9,

2018)

(providing

access

to

the

court

documents

filed

in

the

case).

182.

John

Sowell,

Free

Speech

Advocates

Rush

to

Oppose

Idaho's

Ag-Gag

Law

in

9th

Circuit

Appeal,

IDAHO

STATESMAN

(Apr.

21,

2017,

04:30

PM),

http://www.idahostatesman.com/news/busi-

ness/articlel

45847014.html.

[Vol.

95:4

894

SENTINEL

SPECIES

In

a

landmark

decision

against

ag-gag,

a

U.S.

district

court

ruled

that

the

law

infringed

upon

First

Amendment

activity

by

criminalizing

news-

gathering

and

distribution.'

8 3

Video

footage

that

is

favorable

to

the

indus-

try

would

not

be

subject

to

prosecution:

it

is

only

critical

reporting

that

is

at

risk.

1

84

The

ag-gag

law

"gives

agricultural

facility

owners

veto

power,

allowing

owners

to

decide

what

can

and

cannot

be

recorded,

effectively

turning

them

into

state-backed

censors

able

to

silence

unfavorable

speech

about

their facilities,"

Judge Lynn

Winmill

said

in

the

ruling.

18

1

Idaho's

ag-gag

law

also

violated

the

Equal

Protection

Clause

of

the

U.S.

Constitution

"because

it

was

motivated

in

substantial

part

by

animus

towards

animal

welfare

groups,"

Judge

Winmill

said."'

"The

overwhelm-

ing

evidence

gleaned

from

the

legislative

history

indicates

that

§

18-7042

was

intended

to

silence

animal

welfare

activists,

or

other

whistleblowers,

who

seek

to

publish

speech

critical

of

the

agricultural

production

indus-

try,"

Winmill

wrote.187

"Many

legislators

made

their

intent

crystal

clear

by

comparing

animal

rights

activists

to

terrorists

.

. .

."

88

Nevertheless,

ag-gag

proposals

continue

to

be

introduced

at

the

state

level

in

evolved

forms.1

8

9

The

most

recent

ag-gag

law,

which

went

into

effect

in

early

2016

in

North

Carolina,

marked

a

sweeping

expansion

of

the

scope

of

this

legislation.1

90

The

bill

was

introduced

on

the

same

day

that

a

fifth

Butterball

employee

pled

guilty

to

criminal

cruelty

to

animals-

charges

that

would

not

be

possible

without

the

undercover

investigations

that

bills

like

this

aim

to

criminalize.1

91

North

Carolina's

H.B.

405,192

the

Commerce

Protection

Act,

does

not

"include

any

'terrorism'

language,

as

others

have

in

the

past,

and

it

[does

not]

mention

animal

agriculture

at

all."

1 9 3

Instead,

it

says:

"It

is

unlawful

for

any

person

to

willfully

make

false

statements

or

representations

or

to

fail

to

disclose

requested

infor-

mation

as

part

of

an

employment

application"

if

the

purpose

is "to

create

or

produce

a

record

that

reproduces

an

image

or

sound

occurring

within

the

employer's

facility,

including

a

photographic,

video,

or

audio"

or

"to

capture

or

remove

data,

paper,

records,

or

any

other

documents."'94

It

goes

183.

Otter,

118

F.

Supp.

3d

at

1202.

184.

Id.

at

1206.

185.

Id.

at

1207.

186.

Id. at

1202.

187.

Id.

at

1210.

188.

Id.

189.

See,

e.g.,

N.C.

GEN.

STAT.

§

99A-2

(2017).

190.

See

id.

191.

See

Vandhana

Bala,

Breaking

News:

Yet

Another

Butterball

Turkey

Employee

Convicted

of

Cruelty

to

Animals,

MERCY

FOR

ANIMALS

(Apr.

4,

2013),

http://www.mercyforanimals.org/breaking-

news-yet-another-butterball-turkey-employee-convicted-of-cruelty-to-animals.

192.

H.B.

405,

2015

Gen.

Assemb.

(N.C.

2015).

193.

Will

Potter,

Breaking:

New

Ag-Gag

Bill

Introduced

in

North

Carolina

on

Same

Day

But-

terball

Worker

Pleads

Guilty

to

Cruelty,

GREEN

IS

THE

NEW

RED

(Apr.

8,

2013),

http://www.greenis-

thenewred.com/blog/north-carolina-ag-gag-whistleblower-law/685

1.

194.

S.B.

648

at

§

14-105.1(a)(1)-(2).

2018]

895

DENVER

LAWREVIEW

on

to

say

that

"[a]ny

recording

...

shall

be

turned

over

to

local

law

en-

forcement

within

24

hours."'

9

5

As

the

New

York

Times

noted

in

an

editorial

against

the

measure:

"The

law

originally

singled

out

factory-farm

exposes,

but

after

it

twice

failed

to

pass

in

the

face

of

resistance

from

animal-rights

activists,

law-

makers

succeeded

in

pushing

through

a

version

that

covered

everyone

equally."'

9 6

VI.

RIGHT-WING

VIOLENCE

IGNORED

I

have

discussed

at

length

what

is

being

labeled

as

terrorism

and

how

alleged

terrorists

are

being

treated.

But

equally,

if

not

more

important,

is

who

is

not

being

labeled

as

terrorists.

Right-wing

groups

who

have

a

his-

tory

of

bloodshed

are

repeatedly

left

out

of

FBI

and

Homeland

Security

listings.'

97

This

includes

anti-abortion

extremists,'9

neo-Nazis,'

99

and

right-wing

militias

who

have

seized

federal

land

with

assault

rifles.

2

0 0

Right-wing

violence

has

increased

by

more

than

400%

since

the

1990s,

according

to

a

study

by

West

Point's

Combating

Terrorism

Cen-

ter.

20

'

That

is

an

average

of

140

injuries

a

year,

and

30

deaths,

primarily

caused

by

the

targeting

of

people

because

of

their

race

or

sexual

orienta-

tion.

20 2

In

the

three

years

after

September

11,

alone,

there

were

283

injuries

and

71

deaths

caused

by

these

groups.

2

03

When

I

studied

every

data

set

available

from

the

FBI

for

domestic

terrorism

incidents,

though,

I

found

something

even

more

disturbing.

According

to

the

bureau,

every

single

act

of

domestic

terrorism

in

this

period,

except

for

one,

was

the

work

of

animal

rights

advocates

and

environmentalists

with

no

history

of

bloodshed.

2

04

There

are

two

possible

explanations

for

this.

One

is

that

the

FBI-the

lead

agency

responsible

for

investigating

domestic

terrorism-has

abso-

lutely

no

idea

that

this

right-wing

violence

is

taking

place.

The

second

is

that

law

enforcement

is

intentionally

ignoring

or

downplaying

threats

to

human

lives

to

focus

antiterrorism

resources

on

political

activists

who

195.

Id

at§

14-105.1(c).

196.

The

Editorial

Board,

Opinion,

No

More

Exposs

in

North

Carolina,

N.Y.

TIMES,

Feb.

1,

2016,

at

A20.

197.

See,

e.g.,

FED.

BUREAU

OF

INVESTIGATION,

TERRORISM

2002-2005,

at

1,

https://www.fbi.gov/stats-services/publications/terrorism-

2 0 0

2

-

2

0 0

5

(last

visited

June

9,

2018).

198.

See,

e.g.,

NAT'L

ABORTION

FED'N,

2016

VIOLENCE

AND

DISRUPTION

STATISTICS:

AN

ESCALATION

IN

HATE

SPEECH,

INTIMIDATION,

AND

OBSTRUCTION,

AS

WELL

AS

A

DECREASE

IN

EXTREME

VIOLENCE

1

(2016).

199.

See,

e.g.,

Documenting

Hate,

PROPUBLICA,

https://projects.propublica.org/graphics/hate-

crimes

(last

visited

June

9,

2018).

200.

See

Les

Zaitz,

Militia

Takes

over

Malheur

National

Wildlife

Refuge

Headquarters,

OREGONIAN:

OREGONLIVE

(Jan.

2,

2016,

6:15

PM),

http://www.oregonlive.com/pacific-northwest-

news/index.ssf/2016/01/dramainbums_endswithquiet.html.

201.

ARIE

PERLIGER,

COMBATING

TERRORISM

CTR.

AT

W.

POINT,

CHALLENGERS

FROM

THE

SIDELINES:

UNDERSTANDING

AMERICA'S

VIOLENT

FAR-RIGHT

87

(2012).

202.

See

id.

at

100

fig.4,

106

fig.9.

203.

Id.

at

100

fig.4.

204.

FED.

BUREAU

OF

INVESTIGATION,

supra

note

197.

[Vol.

95:4

896

SENTINEL

SPECIES

threaten

corporate

profits.

2

05

In

either

case,

this

puts

public

safety

in

dan-

ger.

When

FBI

agents

are

attempting

to

infiltrate

vegan

potlucks,

20 6

they

are

not

investigating

legitimate

terrorism

threats.

Time

and

again,

this

warning

has

come

from

top

levels

of

govern-

ment.

In

2003,

the

Justice

Department

warned

the

FBI

that

its

obsessive

focus

on

animal

rights

and

environmental

activists-what

the

bureau

deems

its

"number

one

domestic

terrorism

threat"-was

leaving

danger-

ous

threats

unchecked.

20 7

The

FBI

was

urged

to

no

longer

"spend

time

and

resources

on

lower-threat

activities

by

social

protesters."

20

8

In

2005,

ten

years

after

the

bombing

of

the

Oklahoma

City

Federal

Building,

the

House

Committee

on

Homeland

Security

released

a

report

urging

the

Department

of

Homeland

Security

to

work

more

closely

with

the

FBI

and

address

the

growth

of

"right-wing

domestic

terrorist

,,209

groups.

In 2012,

another congressional

report

on

domestic

terrorism

echoed

these

concerns,

saying:

"[T]he

crimes

committed

by

animal

rights

extremists

and

eco-terrorists

cannot

be

compared

to

clearly

violent

at-

tacks."

21

0

The

FBI

has

ignored

all

of

these

warnings

and

maintained

its

focus.

211

For

example,

the

very

same

week

that

a

terrorist

attack

killed

forty-nine

people

at

a

gay

nightclub

in

Florida

in

2016,

the

FBI

distributed

a

press

release

about

animal

rights

activists

who

freed

animals

from

a

fur

farm.

21

2

The

activists

had

released

mink

into

the

wild

and

vandalized

property

by

painting

"[1]iberation

is

[1]ove."

213

FBI

training

documents

warn

of

a

"[p]ublic

[r]elations

[w]ar"

by

an-

imal

activists,

yet

say

"[m]ilitia

[e]xtremists"-who

are

now

openly

car-

rying

assault

rifles

as

security

forces

at

neo-Nazi

rallies-are

less

of

a

threat

because

"[m]ovement

burn[ed]

out

by

late

1990s.",214

In

2010,

the

205.

See

generally

POTTER,

supra

note

14

(discussing

in

detail

how

these

priorities

were

influ-

enced

by

corporate

lobbying

efforts).

206.

Mark

Frauenfelder,

FBILookingfor

Vegan

Potluck

Terrorists,

BOINGBOING

(May

21,2008,

10:08

AM),

https://boingboing.net/2008/05/21/fbi-looking-for-vega.

207.

See

U.S.

DEP'T

OF

JUSTICE

OFFICE

OF

THE

INSPECTOR

GEN.,

AUDIT

REPORT

04-10,

THE

FEDERAL

BUREAU

OF

INVESTIGATION'S

EFFORTS

TO

IMPROVE

THE

SHARING

OF

INTELLIGENCE

AND

OTHER

INFORMATION

93-94

(2003).

208.

Id.

at

94.

209.

BENNIE

G.

THOMPSON,

HOUSE

COMM.

ON

HOMELAND

SEC.,

10

YEARS

AFTER

THE

OKLAHOMA

CITY

BOMBING,

THE

DEPARTMENT

OF

HOMELAND

SECURITY

MUST

Do

MORE

TO

FIGHT

RIGHT-WING

DOMESTIC

TERRORISTS

2

(2005).

210.

CONG.

RESEARCH

SERV.,

R42536,

THE

DOMESTIC

TERRORIST

THREAT:

BACKGROUND

AND

ISSUES

FOR

CONGRESS

37

(2014).

211.

See

Animal

Rights

Extremists:

Pair

Took

Law

into

Their

Own

Hands,

FBI

(June

10,

2016),

https://www.fbi.gov/news/stories/animal-rights-extremists.

212.

Id.

213.

California

Men

Accused

of

Releasing

2,000

Minks

from

Illinois

Farm,

CHI.

TRIB.

(July

10,

2014,

7:39

PM),

http://www.chicagotribune.com/news/localbreaking/chi-minks-released-morris-

2014071

0-story.htmi.

214.

See

FED.

BUREAU

OF

INVESTIGATION,

ANIMAL

RIGHTS/Eco

EXTREMISM

STRATEGY

FB1026250,

FB1026276,

FBI026277

(2011).

2018]

897

DENVER

LAWREVIEW

FBI

shockingly

sent

out

an

intelligence

bulletin

titled

"White

Supremacist

Extremist

Violence

Possibly

Decreases."

2

15

That

has

not

happened.

2

16

In-

217

stead,

right-wing

violence

has

continued

to

climb.

As

the

authors

of

the

West

Point

study

ominously

warned

in 2012:

"[E]lection

years,

as

well

as

an

increase

in

the

power

of

conservative

political

forces,

are

normally

ac-

companied

by

increased

levels

of

far

right

violence."

21

8

VII.

TRUMP'S

ENVIRONMENT

With

the

rise

of

Donald

Trump,

right-wing

violence

has

spiked

dra-

matically.219

Neo-Nazis,

armed

militias,

and

avowedly

fascist

groups

have

been

inspired

and

emboldened.

22 0

Trump

has

built

a

political

platform

on

anti-immigrant

and

antirefugee

rhetoric.22

His

former

chief

strategist,

Steve

Bannon,

is

a

white

supremacist.

222

His

former

deputy

assistant,

Se-

bastian

Gorka,

proudly

wears

a

medal

associated

with

Hungary's

Nazi

col-

laborators.

2 23

Trump

has

called

for

border

walls

and

crackdowns

on

sanc-

224

tuary

cities.

Immediately

after

the

recent

terrorist

attack

on

a

pop

concert

in

London,

he

said

it

was

more

evidence

of

why

the

United

States

needed

a

Muslim

ban.

22

5

215.

See

FED.

BUREAU

OF

INVESTIGATIONS,

WHITE

SUPREMACIST

EXTREMIST

VIOLENCE

POSSIBLY

DECREASES

BUT

RACIST

SKINHEADS

REMAIN

THE

MOST

VIOLENT

1

(2010).

216.

See

Arie

Perliger,

Homegrown

Terrorism

and

Why

the

Threat

of

Right-Wing

Extremism

Is

Rising

in

America,

NEWSWEEK

(June

4,

2017,

4:00

AM),

http://www.newsweek.com/homegrown-

terrorism-rising-threat-right-wing-extremism-619724.

217.

Id.

218.

PERLIGER,

supra

note

201,

at

114.

219.

ANTI-DEFAMATION

LEAGUE,

MURDER

AND

EXTREMISM

IN

THE

UNITED

STATES

IN

2017,

at

7(2017).

220.

Id.

at

7-8.

221.

Philip

Klinkner,

Commentary,

Anti-immigrant

Views

Helped

Trump

Win.

Will

They

Also

Cause

His

Undoing?,

CHI.

TRIB.

(April

18,

2017,

1:15

PM),

http://www.chicagotrib-

une.com/news/opinion/commentary/ct-trump-supporters-anti-immigrant-

2

0170418-story.html.

222.

See

Eric

Levitz,

Steve

Bannon

's

Nationalism

Isn't

About

the

Economy,

Stupid,

N.Y.

MAG.:

DAILY

INTELLIGENCER

(Sept.

11,

2017,

4:53

PM),

http://nymag.com/daily/intelli-

gencer/2017/09/steve-bannons-nationalism-isnt-about-the-economy-stupid.html;

Sarah

Posner,

How

Donald

Trump's

New

Campaign

Chief

Created

an

Online

Haven

for

White

Nationalists,

MOTHER

JONES

(Aug.

22,

2016,

10:00

AM),

https://www.motherjones.com/politics/2016/08/stephen-bannon-

donald-trump-alt-right-breitbart-news.

223.

Alexander

Smith

&

Vladimir

Banic,

Sebastian

Gorka

Made

Nazi-Linked

Vitezi

Rend

'Proud'

by

Wearing

Its

Medal,

NBC

NEWS.COM

(Apr.

8,

2017,

9:40

AM),

https://www.nbcnews.com/news/world/sebastian-gorka-made-nazi-linked-vitezi-rend-proud-wear-

ing-its-n74285

1.

224.

See

Ashley

Parker

et

al.,

Trump's

Wall:

The

Inside

Story

of

How

the

President

Crafts

Im-

migration

Policy,

WASH.

POST

(July

19,

2017),

https://www.washingtonpost.com/politics/trumps-

wall-the-inside-story-of-how-the-president-crafts-immigration-policy/2017/07/19/bI

lb8b94-68da-

1

e7-8eb5-cbccc2e7bfbf

story.html;

Eli

Rosenberg,

Federal

Judge

Blocks

Trump's

Executive

Order

on

Denying

Funding

to

Sanctuary

Cities,

WASH.

POST

(Nov.

21,

2017),

https://www.washing-

tonpost.com/news/politics/wp/2017/11/2

/federal-judge-blocks-trumps-executive-order-on-denying-

funding-to-sanctuary-cities.

225.

Mark

Landler

&

Maggie

Haberman,

Trump's

Tweets

About

London

Bombing

Anger

British

Leaders,

N.Y.

TIMES

(Sept.

15,

2017),

https://www.nytimes.com/2017/09/15/us/politics/trump-

seizes-on-london-attack-to-push-for-expanding-a-travel-ban.html.

898

[Vol.

95:4

SENTINEL

SPECIES

Fascist

groups

like

Identity

Evropa,

the

Proud

Boys,

Lion

Guard,

and

others

have

mobilized

to

take

advantage

of

this

political

environment.

2

2 6

They have

published

lists

of

businesses

"openly

hostile

to

.

. .

Trump."

2 2 7

They

have

held

rallies

with

torches.

22

8

In

May

2017,

a

white

supremacist

and

alt-right

supporter

named

Jeremy

Christian

yelled

racist

comments

at

229

Muslim

women

on

a

train

in

Portland,

Oregon.

When

three

men

inter-

vened

to

stop

him,

he

killed

two

of

them

and

slit

the

other's

throat.

2 30

In

the

courtroom

on

May

30,

Christian

yelled,

"Free

speech

or

die,

Port-

land,"

23

1

and

"You

call

it

terrorism,

I

call

it

patriotism."

2

3 2

In

August

2017,

so-called

alt-right

groups

marched

in

Charlottesville,

Virginia,

alongside

233

neo-Nazis

and

armed

militias2.

On

that

day

a

black

protester,

Deandre

Harris,

was

beaten

by

white

supremacists

with

metal

poles.

2

34

In

a

separate

incident

that

day,

a

twenty-year-old

white

nationalist

drove

his

car

into

the

crowd

of

counter-protesters,

murdering

thirty-two

year

old

Heather

Heyer

and

injuring

nineteen

others.

235

There

have

been

at

least

two

other

inci-

dents

of

right-wing

extremists

driving

cars

into

crowds

of

protesters,

in

226.

See

infra

notes

227-39

and

accompanying

text.

227.

See

Trevor

Baratko,

More:

Leesburg

Woman,

Business

Owner

Receives

Startling

'Anti-election'

Email,

LONDON

TIMES-MIRROR

(Jan.

26,

2017),

https://www.loudoun-

times.com/news/article/leesburgwoman

andbusiness-owner-receives

startlinganti_elec-

tion

email432.

228.

See

Madison

Park,

Charlottesville

Mayor

Slams

'Despicable

Visit'

as

Another

Torch

Rally

Held,

CNN

(Oct.

8,

2017,

1:21

PM),

https://www.cnn.com/2017/10/08/us/charlottesville-torch-

rally/index.html.

229.

Doug

Brown,

Suspect

in

Portland

Hate

Crime

Murders

Is

a

Known

White

Supremacist,

PORTLAND

MERCURY

(May

27,

2017,

5:33

AM),

https://www.portlandmercury.com/blog-

town/2017/05/27/19041

5 9 4

/suspect-in-portland-hate-crime-murders-is-a-known-white-supremacist.

230.

Portland

Train

Stabbing

Suspect

Said

"That's

What

Liberalism

Gets

You,"

Docs

Say,

CBS

NEWS

(May

31,

2017,

1:28

PM),

https://www.cbsnews.com/news/portland-train-stabbing-suspect-

thats-what-liberalism-gets-you-docs.

231.

Phil

Helsel

&

Miguel

Almaguer,

Portland

Stabbing

Suspect

Yells

"Free

Speech

or

Die"

in

Court

Appearance,

NBC

News

(May

30,

2017

(8:11

PM),

https://www.nbcnews.com/news/us-

news/portland-stabbing-suspect-yells-free-speech-or-die-first-court-n766416.

232.

Associated

Press,

Portland

Stabbing

Suspect:

"You

Call

It

Terrorism,

I

Call

It

Patriotism!,"

POLITICO

(May

30,

2017,

7:34

PM),

https://www.politico.com/story/2017/05/30/portland-attacks-

muslims-bias-238955.

233.

See

Joe

Heim,

Recounting

a

Day

of

Rage,

Hate,

Violence

and

Death,

WASH.

POST

(Aug.

14,

2017),

https://www.washingtonpost.com/graphics/2017/local/charlottesville-timeline.

234.

Loulla-Mae

Eleftheriou-Smith,

Charlottesville:

Black

Protester

Deandre

Harris

'Beaten

with

Metal

Poles'by

White

Supremacists,

INDEPENDENT

(Aug.

15,

2017,

3:48

PM),

http://www.inde-

pendent.co.uk/news/world/americas/charlottesville-deandre-harris-black-protester-white-suprema-

cists-beat-metal-poles-neo-nazis-a7894916.html.

235.

Justin

Carissimo,

I

Dead,

19

Injured

After

Car

Plows

into

Protesters

in

Charlottesville,

CBS

NEWS

(Aug.

12,

2017,

2:02

PM),

https://www.cbsnews.com/news/1-dead-19-injured-after-car-

plows-into-protesters-in-charlottesville;

Christina

Caron,

Heather

Heyer,

Charlottesville

Victim,

Is

Recalled

as

"a

Strong

Woman,"

N.Y.

TIMES

(Aug.

13,

2017),

https://www.ny-

times.com/2017/08/13/us/heather-heyer-charlottesville-victim.html.

2018]

899

DENVER

LAW

REVIEW

California

23

6

and

Missouri.

2

37

In

Nebraska,

a

heavily

armed

white

suprem-

acist-carrying

his

National

Socialist

Movement

membership

card-man-

aged

to

stop

an

Amtrak

train.

2

38

He

said

he

was

interested

in

"killing

black

people."

2

39

Rather

than

direct

law

enforcement

to

address

this

crisis,

or

even

is-

sue

a

strong

public

condemnation

from

the

White

House,

President

Trump

has

rolled

back

some

of

the

few,

modest

initiatives

targeting

right-wing

violence.

He

has

overhauled

the

Countering

Violent

Extremism

program

to

focus

solely

on

Islam

and

exclude

right-wing

terrorism.

2

40

Funding

through

the

Department

of

Homeland

Security

for

a

program

to fight

white

supremacists

was

revoked.

2

41

Neo-Nazis

like

Andrew

Anglin

of

the

Daily

Stormer

have

celebrated

and

proclaimed

"Trump

is

setting

us

free."

2

42

Trump

has

clearly

inspired

the

far

right,

but

the

FBI

has

known

for

decades

that

these

groups

pose

a

growing

threat.243

Neo-Nazis

marching

through

the

streets

of

America,

advocating

violence

while

carrying

fire-

arms,

and

driving

into

crowds

of

peaceful

protesters-nightmarish

scenes

like

this

did

not

emerge

overnight.244

Now,

as

these

extremist

groups

in-

creasingly

deliver

on

their

promises

for

bloodshed,

the

FBI

is

dodging

re-

24

sponsibility.

An

FBI

official

told

Politico

that

the

bureau

is

constrained

246

by

legal

protections

that

make

it

difficult

to

target

white

nationalists.

236.

Jeremy

B.

White,

Man

Drives

Car

into

Crowd

Protesting

Trump

Immigration

Policy,

INDEPENDENT

(Oct.

27,

2017,

7:21

PM),

http://www.independent.co.uk/news/world/americas/us-pol-

itics/trump-protest-man-drives-car-protesters-califomia-brea-a80

23 7

16.html.

237.

Daniel

Victor,

Man

Drives

Car

Through

Activists

Protesting

Transgender

Woman's

Death,

N.Y.

TIMES

(Aug.

24,

2017),

https://www.nytimes.com/2017/08/24/us/stlouis-protest-transgender-

death.html.

238.

Andrew

J.

Nelson,

FBI:

Man

with

White

Supremacist

Ties

Stopped

Train

in

Rural

Nebraska

with

Intent

to

Harm

Passengers,

OMAHA

WORLD-HERALD

(Jan.

5,

2018),

http://www.omaha.com/news/crime/fbi-man-with-white-supremacist-ties-stopped-train-in-rural/arti-

cle_76a73b7d-d667-55ae-98cd-5a4af26fde6b.html.

239.

Lori

Pilger,

FBI

Accuses

White

Supremacist

of

Terror

Attack

on

Amtrak

Train

in

Rural

Nebraska,

LINCOLN

J.

STAR

(Jan.

4,

2018),

http://journalstar.com/news/state-and-regional/ne-

braska/fbi-accuses-white-supremacist-of-terror-attack-on-amtrak-train/article_82f0860e-3c75-5a66-

ab0c-a2e3a3cI

6aab.html.

240.

Julia

Edwards

Ainsley

et al.,

Exclusive:

Trump

to

Focus

Counter-Extremism

Program

Solely

on

Islam

-

Sources,

REUTERS,

Feb.

1,

2017,

https://www.reuters.com/article/us-usa-trump-ex-

tremists-program-exclusiv-idUSKBN15G5VO.

241.

Ron

Nixon

&

Eileen

Sullivan,

Revocation

of

Grants

to

Help

Fight

Hate

Under

New

Scru-

tiny

After

Charlottesville,

N.Y.

TIMES

(Aug.

15,

2017),

https://www.nytimes.com/2017/08/15/us/pol-

itics/right-wing-extremism-charlottesville.html.

242.

Heidi

Beirich,

Domestic

Terror

Threat

Remains

Serious

Five

Years

After

Sikh

Massacre,

S.

POVERTY

L.

CTR.

(Aug.

4,

2017),

https://www.splcenter.org/news/2017/08/04/domestic-terror-

threat-remains-serious-five-years-after-sikh-massacre.

243.

See

supra

Part

VI.

244.

See

supra

notes

226-37

and

accompanying

text.

245.

See,

e.g.,

Ali

Watkins

&

Josh

Meyer,

Domestic

Hate

Groups

Elude

Feds,

POLITICO

(Aug.

15,

2017,

1:04

PM),

http://www.politico.com/story/2017/08/15/us-hate-groups-legal-protections-

241653.

246.

Id.

900

[Vol.

95:4

SENTINEL

SPECIES

Foreign

Policy

reported

receiving

a

recent

FBI

intelligence

bulletin

that

warned

of

right-wing

violence

and

said

FBI

warnings

went

unheeded.

2

47

This

could

not

be

further

from

the

truth.

The

FBI

has

not

been

sound-

ing

the

alarm

about

white-supremacist

violence;

it

has

been silencing

it.

24 8

The

problem

has

never

been

a

lack

of

resources

or

investigatory

power;

the

problem

is

a

lack

of

political

will.

The

top

domestic

terrorism

agency

in

the

United

States

has

repeatedly

minimized

the

threat

of

right-wing

vi-

olence

while

defending

its

focus

on

nonviolent

protesters

and,

among

them,

animal

rights

and

environmental

activists.

2

49

However,

the

trends

I

have

documented

are

not

just

a

danger

to

public

safety.

If

left

unchecked,

they

are

a

threat

to

democracy

itself.

VIII.

ALARMING

AND

UNDEMOCRATIC

TREND

For

the

first

time

in

twenty-seven

years,

Human

Rights

Watch

has

listed

the

United

States

as

a

global

threat

to

human

rights,

citing

the

rise

of

Donald

Trump

and

warning

that

his

presidency

could

"cause

tremen-

dous

harm

to

vulnerable

communities,

contravene

the

United

States'

core

human

rights

obligations,

or

both."

2 50

For

the

first

time

in

its

history,

the

Economist

Intelligence

Unit,

which

is

the

sister

company

of

the

Economist

newspaper,

has

listed

the

United

States

as

a

"flawed

democracy"

(rather

than

a

"full

democracy")

in

its

annual

Democracy

Index.

25

1

Through

it

all,

252

Trump

has

been

the

master

of

obfuscation.

Anything

critical

is

"fake

news."

253

His

supporters

are

not

white

supremacists,

they

are

the

,,254

"alt-right.

Journalists

who

challenge

him

are

"the

enemy

of

the

Amer-

ican

people."

25

5

He

officially

declared

his

inauguration

day

the

"National

Day

of

Patriotic

Devotion."

247.

Jana

Winter,

FBI

and

DHS

Warned

of

Growing

Threat

from

White

Supremacists

Months

Ago,

FP

(Aug.

14,

2017,

11:26

AM),

http://foreignpolicy.com/2017/08/14/fbi-and-dhs-warned-of-

growing-threat-from-white-supremacists-months-ago.

248.

See

Watkins

&

Meyer,

supra

note

245.

249.

See

supra

notes

210-17

and

accompanying

text.

250.

Mark

Landler,

Human

Rights

Group

Portrays

U.S.

as

Major

Threat,

Citing

Trump,

N.Y.

TIMES

(Jan.

12,

2017),

https://www.nytimes.com/2017/01/12/us/politics/human-rights-watch-

trump.html.

251.

The

Data

Team,

Declining

Trust

in

Government

Is

Denting

Democracy,

ECONOMIST

(Jan.

25,

2017),

https://www.economist.com/blogs/graphicdetail/2017/01/daily-chart-20.

252.

See

infra

notes

253-56

and

accompanying

text.

253.

See

Meg

Kelly,

President

Trump

Cries

"Fake

News"

and

the

World

Follows,

WASH.

POST

(Feb.

6,

2018),

https://www.washingtonpost.com/news/fact-checker/wp/2018/02/06/president-trump-

cries-fake-news-and-the-world-follows.

254.

Anti-Defamation

League,

Alt

Right:

A

Primer

About

the

New

White

Supremacy,

ADL.ORG,

https://www.adl.org/education/resources/backgrounders/alt-right-a-primer-about-the-new-white-su-

premacy

(last

visited

June

9,

2018).

255.

See

Michael

M.

Grynbaum,

Trump

Calls

the

News

Media

the

"Enemy

of

the

American

People,"

N.Y.

TIMES,

Feb.

17,

2017,

at

Al5.

256.

Abby

Phillip,

Trump

Names

His

Inauguration

Day

a

"National

Day

ofPatriotic

Devotion,"

WASH.

POST

(Jan.

23,

2017),

https://www.washingtonpost.com/news/post-poli-

tics/wp/201

7

/01/

2 3

/trump-names-his-inauguration-day-a-national-day-of-patriotic-devotion.

2018]

901

DENVER

LAWREVIEW

In

the

first

year

of

the

Trump

Administration,

there

has

already

been

a

resurgence,

and

expansion,

of

many

tactics

used

to

criminalize

animal

rights

and

environmental

activists.

257

The

Trump-affiliated

Breitbart

News

labeled

Earth

First!

a

"terror-affiliated

group"

and

warns,

"[T]he

Earth

First!

Journal

is

very

media-savvy.'258

A

top

executive

of

Energy

Transfer

Partners,

the

company

building

the

Dakota

Access

Pipeline,

said

pipeline

opponents

are

terrorists.

2

59

Greenpeace

is

being

sued

by

Resolute

Forest

Products,

one

of

the

largest

logging

and

paper

companies;

the

company

argues

that

Greenpeace

and

the

environmental

movement

were

part

of

a

mob-like

conspiracy

under

RICO.

26

0

In

at

least

eighteen

states,

Republican

lawmakers

have

introduced

bills

to

restrict

the

right

to

protest,

2

61

prompting

the

United

Nations

to

warn

that

the

United

States

is

witnessing

an

"alarming

and

undemocratic

trend"

262

that

chills

dissent2.

In

Minnesota,

a

proposal

was

introduced

to

allow

cit-

ies

to

sue

protesters

for

the

cost

of

policing

their

protests.

26

3

In

Iowa,

a

bill

was

introduced

to

make

blocking

the

road

with

a

march

or

protest

a

fel-

ony.

264

In

at

least

six

states,

Republican

lawmakers

have

introduced

pro-

265

posals

to

protect

drivers

who

run

over

protesters

with

their

car.

Jennifer

Cook,

policy

director

of

the

American

Civil

Liberties

Union

of

North

Dakota,

said

there

was

a

"concentrated

effort

to

criminalize

pro-

257.

See

infra

notes

258-60

and

accompanying

text.

258.

Lee

Stranahan,

Terror-Affiliated

Group

Is

Part

of

Coalition

to

Stop

Trump

Inauguration,

BREITBART.COM

(Jan.

19,

2017),

http://www.breitbart.com/big-government/2017/01/19/terror-affili-

ated-group-is-part-of-coalition-to-stop-trump-inauguration.

259.

Matthew

Daly,

Dallas

Pipeline

Exec

Compares

Dakota

Protesters

to

Terrorists,

STAR-TELEGRAM

(Feb.

15,

2017,

1:53

PM),

http://www.star-telegram.com/news/business/arti-

clel32908744.html.

260.

Nicholas

Kusnetz,

Industry

Lawsuits

Try

to

Paint

Environmental

Activism

as

IllegalRacket,

INSIDE

CLIMATE

NEWS

(Oct.

5,

2017),

https://insideclimatenews.org/news/

0 4

102017/greenpeace-rico-

racketeering-lawsuit-environmental-activism-resolute-dakota-access-.

261.

See

Christopher

Ingraham,

Republican

Lawmakers

Introduce

Bills

to

Curb

Protesting

in

at

Least

18

States,

WASH.

POST

(Feb.

24,

2017),

https://www.washing-

tonpost.com/news/wonk/wp/2017/02/24/republican-lawmakers-introduce-bills-to-curb-protesting-in-

at-least-

17-states.

262.

Amanda

Erickson,

Americans'Right

to

Protest

Is

in

Grave

Danger

Under

Trump,

United

Nations

Warns,

WASH.

POST

(Apr.

2,

2017),

https://www.washing-

tonpost.com/news/worldviews/wp/2017/04/02/americans-right-to-protest-is-in-grave-danger-under-

trump-united-nations-wams;

see

also

United

Nations

Human

Rights

Office

of

the

High

Comm'r,

UN

Rights

Experts

Urge

Lawmakers

to

Stop

"Alarming"

Trend

to

Curb

Freedom

ofAssembly

in

the

US

(Mar.

30,

2017),

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewslD-21464&LanglD=E.

263.

Jared

Goyette,

Minnesota

Bill

Would

Make

Convicted

Protesters

Liable

for

Policing

Costs,

GUARDIAN

(Jan.

25,

2017,

8:54

AM),

https://www.theguardian.com/us-news/2017/jan/25/minnesota-

protesters-bill-liable-policing-costs.

264.

William

Petroski

&

Brianne

Pfannenstiel,

Iowa

Bill:

5

Years

in

Prison

for

Highway

Pro-

testers,

DES

MOINES

REG.

(Jan.

23,

2017,

4:06

PM),

https://www.desmoinesregis-

ter.com/story/news/politics/2017/01/23/iowa-bill-5-years-prison-highway-protesters/9

6

9

5

6 9

4

0.

265.

Dakin

Andone,

These

States

Have

Introduced

Bills

to

Protect

Drivers

Who

Run

over

Pro-

testers,

CNN

(Aug.

19,2017,

3:36

AM),

http://www.cnn.com/2017/08/18/us/legislation-protects-driv-

ers-injure-protesters/index.html.

[Vol.

95:4

902

SENTINEL

SPECIES

tests"

in

her

state

after

the

protest

led

by

Native

American

tribes

at

Stand-

ing

Rock.

26

6

In

Colorado,

a

bill

targeted

environmentalists

who

tamper

with

oil

and

gas

equipment

in

acts

of

civil

disobedience;

under

the

pro-

posal,

antipipeline

protesters

would

face

felony

charges

and

up

to

eighteen

months

in

prison.

26 7

At

the

federal

level,

more

than

eighty

members

of

Congress

signed

a

letter

to

Attorney

General

Jeff

Sessions

urging

the

Jus-

tice

Department

to

investigate

environmentalists

as

domestic

terrorists.

268

Perhaps

the

best

illustration

of

how

these

repressive

measures

have

expanded

comes

from

Washington

state.269

The

deputy

director

of

the

Trump

campaign

there

has

promised

to

introduce

new

legislation

that

would

punish

protest

as

a

felony

if

it

causes

"economic

disruption"

and

hurts

corporate

profits.

27

0

State

Senator

Doug

Ericksen,

the

author

of

the

bill,

says

"protests

that

block

highways

or

roads-such

as

recent

Black

Lives

Matter

protests,

or

the

indigenous

movement

at

Standing

Rock

against

the

Dakota

Access

Pipeline-are

'economic

terrorism."'

27

1

But

272

protesters

are

not

the

only

targets.

In

a

statement

on

his

website,

Erick-

sen

says

that

the

bill

will

also

criminalize

those

who

"fund,

organize,

spon-

sor

or otherwise

encourage

others

to

commit

acts

of

economic

terror-

*,,273

ism.

This

is

the exact

language

and

legislation

that

has

been

used

for

dec-

ades

to

target

animal

rights

and

environmental

activists.

Similar

proposals

in

the

same

state,

such

as S.B.

6566,

targeted

"terrorist

acts

against

animal

and

natural

resource

facilities."

274

Ericksen

acknowledges

that

the

"Pre-

266.

Mitch

Smith

&

Michael

Wines,

Across

the

Country,

a

Republican

Push

to

Rein

in

Protest-

ers,

N.Y.

TIMES,

Mar.

2,

2017,

at

Al

l.

267.

S.B.

17-035,

71st

Gen.

Assemb.,

Ist

Reg.

Sess.

(Colo.

2017);

see

also

COLO.

REV.

STAT.

§

18-1.3-401(1)(a)(V)(A)

(2017)

(stating

that

the

minimum

sentence

for

a

class-six

felony

in

Colorado

is

eighteen

months).

268.

See

Press

Release,

Kristi Noem,

Representative

from

S.D.,

Noem

Urges

Justice

Department

to

Evaluate

Pipeline

Security

in

Lieu

of

Recent

Threats

(Oct.

23,

2017)

(on

file

with

Rep.

Kristi

Noem's

office).

269.

See

infra

notes

270-72

and

accompanying

text.

270.

See

Ericksen

Introduces

Preventing

Economic

Disruption

Act,

SRC

(Dec.

16,

2016),

http://dougericksen.src.wastateleg.org/ericksen-introduces-preventing-economic-disruption-act;

see

also

S.B.

5009,

65th

Leg.,

Reg.

Sess.

(Wash.

2017).

271.

Will

Potter,

Trump

Supporter

Promises

Legislation

to

Label

Protest

as "Economic

Terror-

ism,"

GREEN

IS

THE

NEW

RED

(Nov.

22,

2016),

http://www.greenisthenewred.com/blog/preventing-

economic-terrorism-act/8706;

see

Jim

Brunner,

Trump

Supporter

in

State

Senate

Says

Some

Protests

Are

"Economic

Terrorism,"

Should

Be

Felonies,

SEATTLE

TIMES

(Nov.

16,

2016,

8:33

PM),

https://www.seattletimes.com/seattle-news/politics/state-senator-some-protests-should-be-treated-as-

felonies.

272.

Potter,

supra

note

271.

273.

Id.

274.

Will

Potter,

Washington

"Eco-Terrorist"

Bill

Includes

Civil

Disobedience

and

First

Amendment

Activity,

GREEN

IS

THE

NEW

RED

(Feb.

17,

2010),

http://www.greenisthe-

newred.com/blog/washington-eco-terrorism-law-free-speech/2514;

see

S.B.

6566,

61st

Leg.,

Reg.

Sess.

(Wash.

2010).

2018]

903

DENVER

LAW

RE

VIEW

venting

Economic

Terrorism

Act"

is

not

limited

to

animal

rights

and

en-

vironmental

activists,

as

originally

intended.

275

After

the

presidential

elec-

tion

and

in

the

wake

of

mass

national

protests

against

President

Trump,

he

276

decided

to

drop

those

limitations

entirely.

IX.

SLOW

RECOVERY

John

Scott

Haldane,

the

nineteenth-century

physiologist,

radically

re-

shaped

our

understanding

of

how

to

survive

dangerous

environments.

2

7 7

His

groundbreaking

work

continues

to

shape

environmental

and

medi-

cal-health

sciences

today.278

It

was

not

until

1986-ninety

years

after

he

recommended

monitoring

canaries

in

coal

mines-that

an

alternative

method

was

developed.

2 79

In

all

of

Haldane's

many

investigations

and

recommendations,

though,

there

was

rarely,

if

ever,

a

fast

or

easy

solution.

28

0

Many

of

his

answers

were

counterintuitive.

28

1

In

his

studies

of

deep

sea

divers

and

de-

compression

sickness,

for

example,

Haldane

learned

that

divers

cannot

quickly

ascend.

2

82

They

must

move

slowly

and

stop

at

incremental

depths

along

the

way.

28

3

In

one

of

his

mining

studies,

Haldane

brought

his

son,

Jack,

into

a

deep

underground

mine

filled

with

gas.

2

84

He

told

him

to

recite

Mark

Antony's

speech

from

Shakespeare's

Julius

Caesar,

to

gauge

how

long

he

could

speak

before

passing

out.

2 8 5

Soon

after

"friends,

Romans,

countrymen,"

his

son

began

to

pant,

his

legs

buckled,

and

he

collapsed.

2

86

Methane

gas

is

lighter

than

air,

Haldane

learned.

287

If

workers

attempt

to

escape

a

mine

by

running,

they

will

be

breathing

in

methane

and

poison

themselves.

2

88

Instead,

he

warned,

they

must

crawl

slowly

on

the

ground

289

to

safety.

275.

Potter,

supra

note

271;

see

also

Essex

Porter,

Protest

Bill

Creates

Crime

of

"Economic

Terrorism,"

KIRO

7

(Nov.

18,

2016,

9:41

AM),

http://www.kiro7.com/news/local/washington-state-

senator-seeks-to-criminalize-illegal-protests/

4

6 7 9 6

2

158

("Senator

Ericksen

has

oil

refineries

in

his

district

and

says

he's

really

trying

to

go

after

people

who

try

to

block

oil

trains.").

276.

Potter,

supra

note

271;

see

Brooke

Seipel,

Washington

Republican

Proposes

Charging

Pro-

testers

with

"Economic

Terrorism,"

HILL

(Nov.

17,

2016,

12:46

PM),

http://thehill.com/blogs/blog-

briefing-room/306580-washington-republican-floats-charging-protesters-with-economic-terrorism.

277.

See

Sekhar

&

Rao,

supra

note

1.

278.

See

id.

279.

Kat

Eschner,

The

Story

ofthe

Real

Canary

in

the

Coal

Mine,

SMITHSONIAN.COM

(Dec.

30,

2016),

https://www.smithsonianmag.com/smart-news/story-real-canary-coal-mine.

280.

See,

e.g.,

A.E.

Boycott

et

al.,

The

Prevention

of

Compressed-Air

Illness,

8

J.

HYGIENE

342,

358-61

(1908).

281.

See,

e.g.,

id

282.

See

id.

283.

See

id.

284.

JAY

KATZ,

EXPERIMENTATION

WITH

HUMAN

BEINGS:

THE

AUTHORITY

OF

THE

INVESTIGATOR,

SUBJECT,

PROFESSIONS

AND

STATE

IN

THE

HUMAN

EXPERIMENTATION

PROCESS

141

(1972).

285.

Id.

286.

Id.

287.

Id.

288.

See

id.

289.

See

id.

[Vol.

95:4

904

SENTINEL

SPECIES

This

is

becoming

a

toxic

political

environment

for

dissent

in

the

United

States,290

and

it

is

just

the

beginning

of

the

Trump

Administration.

But

we

have

to

remember

that

this

political

climate-the

composition

of

the

air

in

our

mine-can

only

partially

be

attributed

to

President

Trump.

The

rhetoric

of

terrorism

has

been

institutionalized,

2 9 1

dangerous

legal

precedents

have

been

established,

292

and

legislative

proposals

to

criminal-

ize

protest

have

been

codified.

2

9 3

These

dangerous

conditions

have

been

growing

over

decades,

across

both

Democratic

and

Republican

Admin-

istrations,

including

President

Barack

Obama's.

Now,

this

political

climate

has

been

inherited

by

an

authoritarian,

and

new

enemies

are

being

identified.

29

4

The

FBI

and

Homeland

Security

have

issued

confidential

intelligence

briefings

about

anarchists

and

antifascists,

or

"antifa,"

that

mirror

similar

warnings

about

"eco-terrorism."

2

95

More

than

200

people,

including

journalists,

were

arrested

at

protests

of

Trump's

inauguration.

2 9

6

They

faced

felony

riot

charges,

decades

in

prison,

and

a

media

smear

campaign

describing

them

as

"anarchists"

and

domestic

ter-

297

rorists.

Mark

Goldstone,

who

represented

six

of

the

"J20"

defendants,

said

the

charges

were

"unprecedented

territory."

2

98

"In

my

over

thirty

years

of

practicing

law,"

he

said,

"I've

never

seen

anything

like

this."

2 9

9

Hundreds

of

thousands

of

people

have

signed

a

White

House

petition

that

urged

Trump

to

label

antifa

as

terrorists.

300

"[J]ust

as

[the

United

States]

rightfully

declared

ISIS

a

terror

group,"

the

petition

says,

"they

must

de-

clare

AntiFa

a

terror

group."3or

When

a

train

crashed

in

Washington,

290.

See

supra

Part

VII.

291.

See

supra

Part

1.

292.

See

supra

Part

IV.

293.

See

supra

Parts

IV,

V.

294.

See,

e.g.,

Josh

Meyer,

FBI,

Homeland

Security

Warn

of

More

"Antifa"

Attacks,

POLITICO

(Sept.

1,

2017,

4:55

AM),

https://www.politico.com/story/2017/09/01/antifa-charlottesville-violence-

fbi-242235.

295.

Id.

296.

Adam

K.

Raymond,

J20

Defendants

Cleared

of

Charges

in

Trump

Inauguration

Arrests,

N.Y.

MAG.:

DAILY

INTELLIGENCER

(Dec.

21,

2017,

3:41

PM),

http://nymag.com/daily/intelli-

gencer/2017/1

2

/defendants-cleared-of-charges-in-inauguration-day-arrests.html;

Sean

Rossman,

Free

Speech

or

Destruction:

First

Trump

Inauguration

Protesters

Go

on

Trial,

USA

TODAY

(Nov.

20,

2017,

5:24

PM),

https://www.usatoday.com/story/news/nation-now/2017/11/20/free-speech-destruc-

tion-first-trump-inauguration-protesters-go-trial/882512001.

297.

Elizabeth

King,

Inside

the

J20

Prosecution:

How

the

Feds

Are

Criminalizing

Dissent,

PAC.

STANDARD

(Dec.

12,

2017),

https://psmag.com/social-justice/j20-defendants-and-the-crackdown-on-

protest.

298.

Natasha

Lennard,

How

the

Government

Is

Turning

Protesters

into

Felons,

ESQUIRE

(Apr.

12,

2017),

https://www.esquire.com/news-politics/a54391/how-the-govemment-is-tuming-protest-

ers-into-felons.

299.

Id.

300.

Lucy

Pasha-Robinson,

Hundreds

of

Thousands

Urge

Donald

Trump

to

Label

Anti-Fascists

"Terrorists"

in

White

House

Petition,

INDEPENDENT

(Aug.

21,

2017,

12:32

PM),

http://www.inde-

pendent.co.uk/news/world/americas/donald-trump-anti-fascists-terrorists-white-house-petition-char-

lottesville-president-a790463

1.html.

301.

Id.

2018]

905

DENVER

LAW

REVIEW

Trump's

political

strategist

Roger

Stone

falsely

302

told

journalists

that

an-

tifascists

and

anarchists

were

the

"prime

suspect"

and

"have

blood

on

their

hands

now,

very

clearly."

30

3

The

tactics

that

have

been

pioneered

against

animal

rights

and

envi-

ronmental

activists

are

not

just

expanding

domestically,

they

are

being

ex-

ported

internationally.

3 0

4

In

2011,

for

example,

at

about

the

same

time

modem

ag-gag

laws

emerged

in

the

United

States,

undercover

investiga-

tions

of

animal

abuse

started

being

classified

as

"terrorism"

throughout

Europe.

30 5

Europol,

the

European

police

agency,

published

a

report

on

ter-

rorism

threats

meant

as

a

warning

for

law

enforcement

agencies.306

The

report

included

the

2005

bombing

of

the

London

subway,

for

example,

and

the

2004

bombing

of

the

Madrid

train

system.

3

07

The

report

also

in-

cluded

a

section

on

animal

rights

activists

and

a

warning

about

activists

with

cameras.

308

"ARE

[animal

rights

extremists]

activists

also

use

disin-

formation

methods

in

order

to

discredit

their

targets

and

weaken

their

pub-

lic

acceptance,"

the

report

says.309

"Images

of

sick

and

abused

animals

are

embedded

in

video

footage

and

made

public."

31 0

In

Austria,

Spain,

Nor-

way,

and

many

other

countries,

ambitious

prosecutions

of

animal

rights

and

environmental

activists

as

"terrorists"

have

been

directly

modeled

on

U.S.

case

law.

In

Australia,

corporations

have

copied

this

playbook

verba-

tim.

Katrina

Hodgkinson,

the

former

New

South

Wales

Primary

Industries

Minister,

said

animal

advocates

who

film

farms

without

permission

are

"akin

to

terrorists."

3 1 1

"Farmers

[even

offered

a]

$10,000

(AUS)

reward

to

anyone

who

can

help

convict

an

animal

activist."

3 1

2

The

pig

industry

has

paid

for

television

ads

that

say

animal

activists

with

cameras

"terrorist

pigs

302.

See

Michael

Edison

Hayden,

"Antifa"

Falsely

Linked

to

Amtrak

Train

Derailment

by

Right-Wing

Conspiracy

Peddlers,

NEWSWEEK

(Dec.

18,

2017,

6:14

PM),

http://www.newsweek.com/antifa-falsely-linked-amtrak-train-derailment-right-wing-conspiracy-

peddlers-751893

(stating

that

the

link

between

"Antifa"

and

the

Amtrack

train

derailment

is

false).

303.

Andrew

Blake,

Washington

Train

Crash

Linked

to

Antifa

by

Conspiracy

Theorists,

Trump

Allies,

WASH.

TIMES

(Dec.

19,2017),

https://www.washingtontimes.com/news/

2

017/dec/I

9/washing-

ton-train-crash-linked-antifa-conspiracy-th.

304.

See,

e.g.,

EUROPOL,

TE-SAT

2011:

EU

TERRORISM

SITUATION

AND

TREND

REPORT

31-32

(2011).

305.

See

id.

306.

See

id.

at

4.

307.

Id.

at

13.

308.

Id.

at

32.

309.

Id.

310.

Id.

311.

Animal

Rights

Activists

"Akin

to

Terrorists,"

Says

NSW

Minister

Katrina

Hodgkinson,

ABC

NEWS

(July

17,

2013,

9:54

PM),

http://www.abc.net.au/news/2013-07-18/animal-rights-activ-

ists-27terrorists272c-says-nsw-minister/48

2

85

56

.

312.

Will

Potter,

Attack

on

Factory

Farm

Whistleblowers

Goes

Global

(Feb.

16,

2014),

https://www.thedodo.com/attack-on-factory-fann-whistle-432282967.html;

Simon

Thomsen,

Aus-

tralian

Farmers

Have

a

$10,000

Bounty

out

on

Animal

Rights

Activists

over

Farm

Raids,

BUS.

INSIDER

AUSTL.

(Dec.

11,

2013,

2:05

PM),

http://www.businessinsider.com.au/australian-farmers-have-a-

I

0000-bounty-out-on-animal-rights-activists-over-farm-raids-2013-12.

[Vol.

95:4

906

SENTINEL

SPECIES

at

night."

3

13

The

agriculture

industry

in

Australia

is

openly,

explicitly

mod-

eling

Australian

proposals

after

U.S.

legislation.

3 14

In

my

research,

I

found

that

portions

of

it

were

directly

copied

and

pasted

verbatim

from

U.S.

leg-

islation.

Unlike

John

Scott

Haldane,

I

can

make

no

assertions

about

the

point

at

which

the

air

in

our

political

environment

is

no

longer

breathable.

First

Amendment

law,

civil

liberties,

and

social

movements

are

all

decidedly

unscientific

areas

of

study.

But

I

do

know

that

people

around

the

world

are

watching

the

U.S.

democracy

as

a

sentinel

species.

In

my

research,

I

have

repeatedly

been

told

by

lawyers,

protesters,

civil

liberties

groups,

and

law-

makers

around

the

world

that

they

are

studying

us-not

just

animal

rights

and

environmental

activists

but

the

broader

political

environment

in

the

United

States-as

a

warning

of

what

is

to come.

313.

John

Stewart,

Animal

Rights

Battle,

ABC

NEWS

(Nov.

5,

2013,

4:56

AM),

http://www.abc.net.au/news/2013-11-05/animal-rights-battle/5072026.

314.

See

VOICELESS

LTD.

&

BARRISTERS

ANIMAL

WELFARE

PANEL

LTD.,

JOINT

SUBMISSION

ON

THE

ALRC's

REVIEW

ON

"SERIOUS

INVASIONS

OF

PRIVACY

IN

THE

DIGITAL

ERA,"

15-16

(2013).

2018]

907