TESTIMONY IN OPPOSITION TO HB 213
PRESENTED BY THE
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
TO THE SENATE JUDICIARY COMMITTEE
JUNE 6, 2005
HARRISBURG, PENNSYLVANIA
Good morning Chairman Greenleaf and other members of the Senate Judiciary Committee. My name is Larry Frankel and I am the Legislative Director of the American Civil Liberties Union of Pennsylvania. Thank you for inviting us to testify at today's public hearing on House Bill 213.
House Bill 213 - known as the eco-terrorism bill - amends Titles 18 and 42. The amendment to Title 18 is essentially a sentencing enhancing statute. It increases the criminal penalty for certain conduct based on the motivation of the actor and the fact that the conduct is in some way related to an activity involving animals or natural resources. It does not actually criminalize any conduct that is not already criminal, although it goes so far as to permit enhanced sentences even for those merely convicted of summary offenses. The amendment to Title 42 establishes a specific civil cause of action based on eco-terrorism and sets forth the kind of relief that may be provided in the civil action.
The ACLU thinks that this bill violates the First Amendment because it authorizes greater penalties for defendants with certain disfavored political views. Let me illustrate this point with some examples. Consider a group of concerned citizens who stage a sit-in at the headquarters of a company that is in the business of extracting natural resources. The group has gathered at the headquarters of the company as a means of protesting the environmental harm caused by the company's operations. The group has decided to stage a sit-in only after numerous requests to meet with company officials have been completely ignored. This protest obstructs employees from participating in their regular work. Under House Bill 213, the members of this group of protestors would be considered eco-terrorists.
However, if an individual goes to the office of a public interest law firm that is working on an environmental case with the specific intent of disrupting that workplace, that protestor can only be guilty of trespass. He will not be deemed to be an eco-terrorist and will not be subject to enhanced penalties.
Let me provide you with another example of how this bill operates as viewpoint discrimination. People who protest outside of an animal research facility and block the entrance to that facility may be considered eco-terrorists. On the other hand, people who protest outside of a weapons-manufacturing plant and block the entrance to that facility will not be subject to enhanced penalties even though they are engaged in essentially similar activities.
The United States Supreme Court has not looked favorably on this kind of viewpoint discrimination in criminal statutes. In R.A.V. v. City of St. Paul, Minnesota, 112 S.Ct. 2538 (1992), the Court struck down St. Paul's Bias-Motivated Crime Ordinance. Justice Scalia, writing for the majority, held that the right to prohibit "fighting words" did not permit a state to regulate the use of those words based on hostility or favoritism towards the message expressed. According to Justice Scalia, the ordinance in question banned expressive conduct regarding specific disfavored topics. That amounted to unconstitutional viewpoint discrimination.
To provide you with a better understanding of Justice Scalia's argument, I would like to read three short quotes from his opinion:
The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. (112 S.Ct. at 2547)
St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules. (112 S.Ct. at 2548)
Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. (112 S.Ct. at 2549)
House Bill 213, like the voided St. Paul ordinance, would effectively permit one side of the debate over environmental issues or animal rights issues to fight freely, while limiting those on the other side of this debate. It uses a sentencing enhancement scheme to stifle conversation about important public issues. For that reason, the ACLU thinks this legislation runs afoul of the First Amendment.
Even if this bill were deemed to be consistent with the First Amendment, we cannot understand why Pennsylvania would want to characterize as terrorists individuals who engage in conduct that only amounts to summary offenses or misdemeanors. Classifying people who trespass or engage in disorderly conduct as terrorists is unwarranted. Imposing harsh sanctions on people who commit civil disobedience is a ploy that was used against civil rights protestors. It is a coercive tactic that one would not expect in a society that not only considers itself free but also holds itself out as a model for other societies.
We know that there are a few groups such as the Earth Liberation Front and the Animal Liberation Front that have engaged in violent activities causing significant damage. And such groups could be classified as eco-terrorists under this bill. However, we believe that there are already plenty of criminal and civil laws on our books that provide more than enough tools for dealing with this problem. The FBI has stated that the government has successfully prosecuted individuals who, according to the FBI, have engaged in eco-terrorism. Pennsylvania does not need to enact this legislation to protect its businesses and institutions. It can enforce the laws on arson, burglary, vandalism, trespassing, and terroristic threats that are already on the books.
The Pennsylvania House of Representatives amended House Bill 213 when it was on the floor to include some protection for individuals engaged in First Amendment activity. That amendment passed by a vote of 98 to 87, certainly not the most resounding display of support for the First Amendment.
Nevertheless, Section 3311(C.1), which was added by the amendment, states:
Immunity.-A person who exercises the right of petition or free speech under the United States Constitution or the Constitution of Pennsylvania on public property or with the permission of the landowner where the person is peaceably demonstrating or peaceably pursuing his constitutional rights shall be immune from protection for these actions under this section or from civil liability under 42 PA.C.S. Section 8317 (relating to eco-terrorism).
Unfortunately, that section will not provide necessary and reasonable protection from overzealous law enforcement officials. Many of you have probably heard about the case involving the "Philadelphia 4." That case arose out of a demonstration at a gay neighborhood festival last fall. Several individuals who were protesting at that event and expressing their deeply-held views on homosexuality were charged with a variety of offenses including violating Pennsylvania's ethnic intimidation law. That law, like the one proposed here, is a sentencing enhancement statute. The case became a national story and was considered by many people, including some supporters of gay rights, to be a clear misuse of the hate crimes law. Eventually a Court of Common Pleas dismissed the charges. However, many people, including those of us at the ACLU, still wonder why the hate crime charges were ever lodged against defendants who were engaged in a political demonstration.
But, this legislation should also be rejected because it represents yet another front in the government's attempt to stifle dissent. There is growing evidence that political activists are being targeted by law enforcement officials. Last month, the ACLU of Pennsylvania joined the national ACLU and other ACLU affiliates in seeking more information about what appears to be efforts by the FBI and local police to investigate law-abiding human rights and political advocacy groups. In December of last year, the ACLU filed Freedom of Information Act requests on behalf of more than 100 groups and individuals. Last month, a second round of Freedom of Information Act requests was filed seeking information on investigations involving many other organizations, including some groups right here in Pennsylvania.
While relatively few documents have been produced to date, we already know from those documents that the FBI is using (some would say misusing) Joint Terrorism Task Forces (JTTFs) to engage in political surveillance. According to the FBI's own website: "JTTFs are teams of state and local law enforcement officers FBI agents, and other federal agents and personnel who work shoulder-to-shoulder to investigate and prevent acts of terrorism" Were the JTTFS merely focusing on real terrorists.
One memorandum that has been disclosed by the FBI shows that there is an ongoing federal interest in a group called Food Not Bombs. That group provides free vegetarian food to hungry people and protests war and poverty. That same memorandum indicated that an FBI interview of two students prior to last year's political conventions was specifically intended to intimidate the interviewees. The FBI noted in its memorandum that even though they did not obtain any information about any criminal activity from either of the students, the FBI concluded that they did not need to contact others in the area because the "purpose of the interviews was served."
Another classified FBI intelligence memorandum that was disclosed publicly in November 2003 revealed that the FBI has directed local police to target and monitor lawful political demonstrations. This kind of activity by the FBI has led to the city of Portland, Oregon, to withdraw local law enforcement participation in the Joint Terrorism Task Force.
In closing, let me reiterate our belief that this bill is unnecessary, is overkill and is probably unconstitutional. Our law enforcement officials have more than enough tools to effectively deal with people who commit acts of violence. They do not need this kind of legislation that could subject Pennsylvanians to a chilling of their First Amendment rights
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