United States v. Johnson

• Decision Date: 08 November 2017
• Docket Number: 16-1694,Nos. 16-1459,s. 16-1459
• Citation: 875 F.3d 360
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin JOHNSON and Tyler Lang, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

875 F.3d 360

UNITED STATES of America, Plaintiff-Appellee,

v.Kevin JOHNSON and Tyler Lang, Defendants-Appellants.

Nos. 16-1459

16-1694

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2016

Decided November 8, 2017

Bethany K. Biesenthal, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Michael E. Deutsch, Attorney, People's Law Office, Chicago, IL, Rachel Meeropol, Attorney, Center for Constitutional Rights, New York, NY, for Defendant–Appellant Kevin Johnson.

Carol A. Brook, Geoffrey M. Meyer, Attorneys, Office of the Federal Defender Program, Chicago, IL, for Defendant–Appellant Tyler Lang.

Before Flaum, Kanne, and Williams, Circuit Judges.

Williams, Circuit Judge.

Defendants Kevin Johnson and Tyler Lang traveled from California to a mink farm in Illinois where they released approximately 2000 minks from their cages and destroyed or damaged other property on the farm. While on their way to damage a fox farm, Johnson and Lang were arrested on state charges of possession of burglary tools. Johnson and Lang were ultimately charged in federal court with violating the Animal Enterprise Terrorism Act (AETA), 18 U.S.C. § 43(a)(2)(A) and (a)(2)(C). They moved to dismiss the indictment, arguing that: (1) AETA is unconstitutionally overbroad because, by prohibiting damaging "real or personal property" of an animal enterprise, AETA criminalizes speech or expressive conduct that causes an animal enterprise to lose profits or goodwill; (2) AETA is void for vagueness because it is so broad that it invites discriminatory prosecutions; and (3) by labeling them "terrorists," AETA violated their right to substantive due process. The district court denied the motion to dismiss the indictment.

Defendants entered conditional guilty pleas, reserving the right to appeal the district court's denial of their motion to dismiss the indictment. We agree with the district court that AETA is not overbroad and does not violate the First Amendment because it does not prohibit lawful advocacy that causes only loss of profits or goodwill. Also, we conclude that AETA is not void for vagueness as its definite terms do not invite discriminatory prosecutions. Finally, we find that having the word "terrorism" in the title of the statute does not violate Defendants' substantive due process rights because Congress had a rational basis for using the word. For these reasons, we affirm the district court's denial of Defendants' motion to dismiss the indictment.

I. BACKGROUND

In August 2013, Johnson and Lang traveled from Los Angeles, California to a mink farm in Morris, Illinois. The mink farm was in the business of breeding, raising, and selling minks to fur manufacturers. At the mink farm, Defendants released approximately 2000 minks from their cages. They also removed portions of the fence surrounding the mink farm to help the minks escape and they destroyed the minks' breeding cards, which were needed to sell the minks to a furrier. In addition, they poured caustic substances on two farm vehicles and spray-painted the words "Liberation is Love" on a barn. Their vandalism caused between $120,000 and $200,000 worth of damage.

Next, Johnson and Lang began traveling to a fox farm in Roanoke, Illinois, which bred foxes to sell to fur manufacturers. They planned to damage the fox farm as well, but they were arrested by local law enforcement before they arrived at the fox farm. Johnson and Lang were charged in state court with possession of burglary tools and were convicted. Johnson was sentenced to 30 months' imprisonment and Lang was sentenced to 30 months' conditional discharge.

A. District Court Proceedings

In July 2014, Johnson and Lang were charged with violating the Animal Enterprise Terrorism Act (AETA). Count I of the indictment alleged that they conspired to travel in interstate commerce for the purpose of damaging and interfering with the operations of an animal enterprise (the mink farm and fox farm), and in connection with that purpose, damaged the property of an animal enterprise (the mink farm), in violation of 18 U.S.C. § 43 (a)(2)(C). Count II of the indictment alleged that Defendants damaged real and personal property used by an animal enterprise (the mink farm) in violation of 18 U.S.C. § 43 (a)(2)(A).

Johnson and Lang moved to dismiss the indictment against them, asserting that AETA is facially overbroad because it criminalizes protected speech that causes only economic damage in violation of the First Amendment and that it is unconstitutionally vague because it is so broad that it invites arbitrary and discriminatory enforcement. They further asserted that AETA violates substantive due process on its face and as applied to them because it labels persons who commit non-violent property damage as "terrorists."

The district court denied the motion to dismiss, finding that the statute was not overbroad because it did not criminalize speech that caused only economic damage such as lost profits. Instead, the court concluded that to violate the statute, a defendant has to first cause damage to tangible property used by the animal enterprise, and economic damages, such as lost profits, become relevant only when calculating the penalty to be imposed on a defendant. The district court also found the statute is not unconstitutionally vague because it clearly defines the conduct it criminalizes. Finally, the district court concluded that AETA does not infringe on Defendants' substantive due process rights because there was a rational basis for including the word "terrorism" in the title of AETA, given that the legislation is meant to criminalize violence and intimidation used against animal enterprises.

After the district court denied their motion to dismiss the indictment, Defendants entered conditional pleas of guilty to one count of conspiring to travel in interstate commerce for the purpose of damaging an animal enterprise, and in connection with that purpose, damaging the real and personal property of an animal enterprise, in violation of 18 U.S.C. § 43(a)(2)(C). Defendants reserved the right to challenge the district court's denial of their motion to dismiss the indictment. Defendants now appeal the district court's denial of their motion to dismiss, raising the same three arguments they raised before the district court.

II. ANALYSIS

We review the district court's legal conclusions regarding the constitutionality of AETA de novo . United States v. Edwards , 869 F.3d 490, 501 (7th Cir. 2017).

A. AETA Is Not Substantially Overbroad

Johnson and Lang assert that AETA must be declared facially overbroad because it criminalizes advocacy that causes an animal enterprise to spend money or lose profits and therefore chills speech and expressive conduct protected by the First Amendment. In support of this argument, Defendants point to subsection (a)(2)(A) which prohibits intentionally damaging "any real or personal property (including animals and records) used by an animal enterprise...." Defendants contend that "any real or personal property" includes intangible property, and so any animal activist who travels in interstate commerce or uses a facility of interstate commerce for the purpose of adversely impacting the profits or goodwill of an animal enterprise will be violating AETA.

A defendant who challenges a statute as facially overbroad "assumes a heavy burden ... for it is now well-established that such a challenge can succeed only when the statute is substantially overbroad, i.e., when the statute is unconstitutional in a substantial portion of the cases to which it applies." United States v. Rodgers, 755 F.2d 533, 542 (7th Cir. 1985) (internal quotation marks and citation omitted). The Supreme Court, in United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), explained why only those statutes that prohibit a "substantial amount" of protected expression will be declared facially invalid pursuant to the overbreadth doctrine:

The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial , not only in an absolute sense, but also relative to the statute's plainly legitimate sweep.

(emphasis in original) (citation omitted).

Because of the need to maintain the balance between these competing interests, courts have described the overbreadth doctrine as "strong medicine ... [to be] employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute." Broadrick v. Oklahoma , 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

1. Dictionary Definition Not Dispositive

"The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers." Williams , 553 U.S. at 293, 128 S.Ct. 1830. As noted above, Defendants maintain that in prohibiting damaging "any real or personal property (including animals or records) used by an animal enterprise," AETA prohibits advocacy that causes damage to only intangible property such as profits or goodwill. In support of this argument, Defendants cite one of Black's Law Dictionary's definitions of "personal property" which is "[a]ny moveable or intangible thing that is subject to ownership and not classified as real property." BLACK'S LAW DICTIONARY 1412 (10th ed. 2014). According to Defendants, this makes it clear...