Setting aside claims of vagueness, a divided federal appeals court is upholding the constitutionality of the Animal Enterprise Protection Act, a statute that makes it a crime to encourage "physical disruption" or "economic damage" against animal-research centers.

Thursday's decision by the 3rd U.S. Circuit Court of Appeals (.pdf) was the first time an appellate court has grappled with the free speech issues raised by the law, reviewing the case of radical animal-rights activists who were convicted in 2006 of using e-mail and websites to encourage violence – including bombings – against a New Jersey animal-research center, its shareholders, office holders, bankers and others affiliated with it.

The six ranking members of the Stop Huntingdon Animal Cruelty group, some of whom were sentenced to up to six years in prison, argued that the 2002 statute, amended in 2006, has a chilling effect on speech because of its ambiguity.

The defendants maintained that, among other things, they simply espoused protests and released names and addresses of people who should be subject to protests, in a bid to pressure change at New Jersey's Huntingdon Life Sciences. The company tests mice, rats, dogs, monkeys and guinea pigs for big pharma, agribusiness, veterinarians and medical-implant companies.

What ensued were bombings, the release of animals from the research facility, the destruction of ATMs, the sinking of boats, and even "virtual sit-ins" – distributed denial of service attacks done the old-fashioned way, with thousands of protesters repeatedly clicking targeted websites to slow or shutter them.

While the bulk of the defendants' online postings and e-mails were protected speech, the court said it was troubled with the dissemination of personal information of individuals employed by Huntingdon and affiliated companies — including some communications accompanied with threats to burn down their houses. What's more, the appellate panel said the defendants' e-mails and online postings that coordinated the denial of service attacks were clearly illegal.

The court pointed out that the defendants noted online in real time that their efforts were having the desired effect of crippling Huntingdons' servers.

"This message encouraged and compelled an imminent, unlawful act that was not only likely to occur, but provided the schedule by which the unlawful act was to occur," the court noted. "This type of communication is not protected speech."

The six defendants, however, argued that they did not publicly advocate illegal activity in their electronic rants, and that the government has transformed their protected speech into unlawful speech because of the independent action of others.

The court noted that "political hyperbole" or advocating violence that is not imminent and unlikely to occur is protected. But speech that constitutes a "true threat" is not.

"Because defendant's conduct was clearly within the heartland of the statute, speculation as to the hypothetical ways that the AEPA could be unconstitutionally vague would require us to formulate a rule of constitutional law broader than is required by the precise facts," Judge Julio M. Fuentes wrote for the 2-1 majority.

In dissent, Judge D. Michael Fisher, while upholding the AEPA's constitutionality, wrote that it should not have applied in this case and that the defendants did not have the "intent" to violate the statute.

"While the government's evidence tended to prove that the defendants conspired together to put economic pressure on Huntingdon to close its facilities by targeting companies that did business with Huntingdon, as well as their employees, and furthered this goal through a campaign of intimidation and harassment, the government's evidence did not prove an agreement to cause physical disruption to Huntingdon and damage to property it used," Fisher wrote.

The majority added that the government did its job and presented the jury with enough evidence "that established that, beyond a reasonable doubt, the accused had the requisite intent to disrupt the functioning of an animal enterprise."

Finally, the court said that the "record also supports a jury inference that these individual defendants personally participated in illegal protests, in addition to orchestrating the illegal acts of others. They personally took credit for the success of the direct action campaigns as companies discontinued their business dealings with Huntingdon, one by one."

The defendants include Darius Fullmer, a group campaign organizer; Andrew Stepanian, a group activist; Kevin Kjonaas, the group's president; Joshua Harper, a group organizer; Lauren Gazzola, the group's campaign coordinator; and Jacob Conroy, the group's website admin.