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Utah Animal Rights Coalition v. State of Utah | Memorandum in Support of Plaintiffs' Motion for Preliminary Injunction

17 April 2001 Published in Litigation Materials

Utah Animal Rights Coalition v. State of Utah

355 North 300 West, Suite # 1
Salt Lake City, UT 84103
Telephone: (801) 521-9862

214 East Fifth South Street
Salt Lake City, UT 84111-3204
Telephone: (801) 328-9531

Attorneys for Plaintiffs



Civil No. 2:01-CV-0221J

Hon. Bruce Jenkins

UTAH ANIMAL RIGHTS COALITION, a Utah non-profit corporation; SUMMER ADAMS; and BILL FRENCH, Plaintiffs,


THE STATE OF UTAH, a governmental entity; MICHAEL LEAVITT, Governor of the State of Utah; and MARK SHURTLEFF, Attorney General of the State of Utah, Defendants.

Plaintiffs Utah Animal Rights Coalition (“UARC”), Summer Adams, and Bill French respectfully submit this Memorandum in Support of their Motion for Preliminary Injunction.

I. Introduction

The 2001 Utah Legislature created a new criminal offense, “Commercial Terrorism.” “Terrorism” under this law includes not only causing damage to or destroying life or property, but also generating “sound waves” or “light rays” with the intent to interfere with a business.

The plaintiffs in this case are not terrorists; they are ordinary citizens who, because of their values about the welfare of animals, engage in peaceful protests and demonstrations against businesses that profit from the sale of animal products. They do so on public sidewalks adjacent to the objectionable businesses. Their intent is to educate the community and the potential patrons of the businesses about animal welfare issues. During their protests and demonstrations, they speak, chant and sing – generating “sound waves” – and they stand and hold signs and banners – generating “light rays” – in proximity to the objectionable businesses. Because their views on animal welfare issues differ from those of the customers and owners of the businesses, they also intend to “interfere” with the businesses, in the sense that they seek to dissuade the customers from buying, and the owners from selling, animal products.

However, disagreeable plaintiffs’ views might be to those who have different views about the value of animal life, the plaintiffs have a fundamental constitutional right to peacefully assemble on public sidewalks and to share their views with members of the public. Based on the plain language of the commercial terrorism statute, however, the plaintiffs reasonably fear that if the statute goes into effect, their constitutionally protected free speech activities and those of countless others will be criminalized. They face the choice of either silencing their speech or facing criminal sanctions. Therefore, they ask that this Court enjoin enforcement of the statute pending a final resolution of this matter.

II. Statement of Facts

1. This civil action seeks declaratory and injunctive relief to prevent violation of civil rights protected by the constitutions of the United States and the State of Utah. Cmplt. ¶ 1; Adams Aff. ¶ 3; French Aff. ¶ 3; UARC/ Diener Aff. ¶ 3.

2. UARC and its members regularly engage in public demonstrations and protests in Salt Lake County including picketing and leafleting. UARC seeks to educate the public with regard to issues regarding the treatment of animals. Cmplt. ¶ 11; Adams Aff. ¶ 5; ¶ 6; French Aff. ¶ 5; ¶ 6; UARC/ Diener Aff. ¶ 11.

3. As members of UARC, Summer Adams and Bill French regularly engage in public demonstrations and protests in Salt Lake County including picketing and leafleting. Cmplt. ¶ 12; Adams Aff. ¶ 7; French Aff. ¶ 7; UARC/ Diener Aff. ¶12.

4. UARC and its members, including Summer Adams and Bill French have, at various locations in Salt Lake County, Utah protested, demonstrated, leafleted and picketed on the public sidewalks in front of and adjacent to businesses and enterprises that use animals for food or fiber production, produce and/or traffic in livestock, sell apparel made from skins and fur of animals, and/or operate zoos, circuses, rodeos and other competitive animal events. Cmplt. ¶ 13; Adams Aff. ¶ 8; French Aff. ¶ 8; UARC/ Diener Aff. ¶ 13.

5. UARC and its members, and Summer Adams and Bill French protest, demonstrate, leaflet and picket as set forth herein to:

(A) educate the public and the operators of businesses and enterprises. Cmplt. ¶ 14; Adams Aff. ¶ 9; French Aff. ¶ 9; UARC/ Diener Aff. ¶ 14.

(B) dissuade patrons and customers from patronizing such enterprises. Cmplt. ¶ 15; Adams Aff. ¶ 10; French Aff. ¶10; UARC/ Diener Aff. ¶ 16.

(C) dissuade the owners and operators of such enterprises from continuing in those enterprises and in activities which are harmful to animals. Cmplt. ¶ 16; Adams Aff. ¶ 10; French Aff. ¶ 10; UARC/ Diener Aff. ¶ 16.

6. During protests and demonstrations as set forth above, members of UARC, and Summer Adams and Bill French some times:

(A) sing, chant and/or yell. Cmplt. ¶ 17; Adams Aff. ¶11; French Aff. ¶ 11; UARC/ Diener Aff. ¶ 17.

(B) carry candles, signs and banners. Cmplt. ¶ 18; Adams Aff. ¶ 11; French Aff. ¶ 11; UARC/ Diener Aff. ¶ 17.

7. During protests and demonstrations as set forth above, the singing, chanting and yelling by members of UARC may be heard by people inside the objectionable business or enterprise. Cmplt. ¶ 19; Adams Aff. ¶ 12; French Aff. ¶ 12; UARC/ Diener Aff. ¶ 18.

8. During protests and demonstrations as set forth above, the candles, signs and banners held and carried by members of UARC may be seen by people inside the objectionable business or enterprise. Cmplt. ¶ 20; Adams Aff. ¶ 13; French Aff. ¶13; UARC/ Diener Aff. ¶ 19.

9. UARC and its members, including Summer Adams and Bill French desire to continue to engage in similar conduct as described above by way of protesting, demonstrating, picketing and leafleting. Cmplt. ¶ 21; Adams Aff. ¶ 14; French Aff. ¶ 14; UARC/ Diener Aff. ¶ 20.

10. The Utah Legislature recently passed H.B. 322 entitled "Domestic Terrorism of Commercial Enterprises." That bill enacts Utah Code Ann. §76-6-110 and §76-10-2401 (1953 as amended). That enactment was signed by Governor Leavitt on March 16, 2001. The statutes become effective on or about April 29, 2001. The statutes are referred to hereinafter as "the challenged statutes." Cmplt. ¶ 22; Exhibit "C" attached; UARC/ Diener Aff. ¶ 21.

11. The challenged statutes create a new class A misdemeanor offense entitled “Commercial Terrorism.” This offense prohibits, inter alia, a person from engaging in conduct which causes "the intrusion of any. . . sound wave, light ray, electronic signal, or other means of intrusion under the control of the actor" into a retail business dealing in tangible personal property (Utah Code Ann. §76-10-2401(3)(b) (1953 as amended)) "with the intent to interfere with the employees, customers, personnel or operations of a business. Utah Code Ann. §76-10-2402(1)(1953 as amended). Cmplt. ¶ 23; Exhibit "C" attached.

12. The vagueness of the challenged statutes chill plaintiffs’ exercise of free expression protected by the First Amendment to the United States Constitution and the Utah Constitution. Art. I, § 15. Having read the statutes and not knowing what is prohibited, and not wanting to be arrested, plaintiffs fear that they and/or members of UARC will be silenced rather than risk arrest and/or criminal charges. Cmplt. ¶ 26; ¶ 33; Adams Aff. ¶ 21; French Aff. ¶ 21; UARC/ Diener Aff. ¶ 23; ¶ 27.

13. UARC and its members, and Summer Adams and Bill French are fearful that if they continue to engage in similar conduct as described above by way of protesting, demonstrating, picketing and leafleting, that they will be arrested and/or charged with criminal conduct for violation of the challenged statutes. Cmplt. ¶ 24; Adams Aff. ¶ 20; ¶ 24; French Aff. ¶ 20; ¶ 24; UARC/Diener Aff. ¶ 26.

14. From reading the statutes, plaintiffs cannot be sure what is prohibited when the statutes provide that "light rays" and "sound waves" may not intrude into the building of a business with the intent to interfere. Adams Aff. ¶ 17; French Aff. ¶ 17; UARC/ Diener Aff. ¶ 23.

15. The challenged statutes prohibit legal peaceful conduct such as picketing, protesting, demonstrating and leafleting on a public street. Cmplt. ¶ 28; Adams Aff. ¶ 22; French Aff. ¶ 22; UARC/ Diener Aff. ¶ 28.

16. The challenged statutes prohibit all non-union picketing, protesting, demonstrating and leafleting on a public street in front of businesses. Exhibit "C" attached. Those are activities in which UARC and its members regularly engage. UARC/ Diener Aff. ¶ 28.

17. The challenged statutes prohibit legal expressive conduct based upon the content of the expression. Cmplt. ¶ 27; Exhibit "C" attached.

18. The challenged statutes prohibit plaintiffs and members of UARC from singing or yelling while picketing in front of a business because singing or yelling generates sound waves. Adams Aff. ¶ 18; French Aff. ¶ 18; UARC/ Diener Aff. ¶ 24.

19. The challenged statutes may make it a crime for plaintiffs and members of UARC, or a sign that they or a UARC member might carry, to be seen while picketing in front of a business. Light rays bounce off people and things, which allow people, and things to be seen by other people. Adams Aff. ¶ 19; French Aff. ¶ 19; UARC/ Diener Aff. ¶ 25.

20. UARC and its officers are fearful that because of their vagueness, the challenged statutes will lend themselves to use by law enforcement officers to unjustly and unequally target UARC members, its demonstrations and activities. In 2000, a member of UARC was criminally charged in Third District Court with a misdemeanor as a result of his participation in a protest and demonstration in Salt Lake County. That charge was elevated into a more serious crime under the Utah gang enhancement statute (Ut. Code Ann. §76-3-203.1 (1953 as amended)) and the Utah hate crimes statute (Ut. Code Ann.§ 76-3-203.3 (1953 as amended)). Eventually, those enhancements were dismissed. Diener Aff. ¶38.

21. UARC is fearful that the vague provisions of the challenged statutes will allow or lead to similar selective, arbitrary and discriminatory and more severe or overzealous enforcement as against UARC, its members and its activities. Diener Aff. ¶38; ¶39.

22. Plaintiffs seek declaratory relief that the challenged statutes are in violation of the prohibition against government interference with free expression as protected by the United States and Utah Constitutions. Cmplt. ¶ 30; ¶ 37; Adams Aff. ¶ 27; French Aff. ¶ 27; UARC/ Diener Aff. ¶ 35.

23. Plaintiffs seek injunctive relief that defendants not enforce said statutes because they are in violation of the free expression clause of the United States Constitution and the Utah Constitution. Cmplt. ¶ 31; ¶ 38; Adams Aff. ¶ 28; French Aff. ¶ 28; UARC/ Diener Aff. ¶ 36.

24. The challenged statutes violate equal protection of the law guaranteed by the United States Constitution and the Utah Constitution, Art. I, § 24. Cmplt. ¶ 40; ¶ 42.

25. The challenged statutes allow citizens acting in accordance with the National Labor Relations Act and the Federal Railway Labor Act to engage in legal peaceful conduct such as picketing, protesting, demonstrating and leafleting on a public street while prohibiting all other citizens from engaging in similar conduct. Cmplt. ¶ 41;Exhibit "C" attached.

26. Plaintiffs seek declaratory relief that the challenged statutes violate the equal protection of the law guaranteed by the Fourteenth Amendment of the United States Constitution and the Utah Constitution. Art. I, § 24. Cmplt. ¶ 42; ¶ 47; Adams Aff. ¶ 27; French Aff. ¶ 27;UARC/Diener Aff. ¶ 35.

27. The plaintiffs seek injunctive relief that the defendants not enforce the statutes because they are in violation of the United States Constitution’s guarantee of equal protection of the law and the Utah Constitution. Art. I, § 24. Cmplt. ¶ 43; Adams Aff. ¶ 28; French Aff. ¶ 28; UARC/ Diener Aff. ¶ 36.

III. Provisions of the Commercial Terrorism Statute

The Commercial Terrorism statute is part of H.B. 322, passed during the 2001 legislative session. The bill is entitled “Domestic Terrorism of Commercial Enterprises.” The first part of H.B. 322, codified at Utah Code Ann. §§ 76-6-110 and 76-6-206, provides enhanced penalties for existing offenses if they are committed against animal enterprises. The second part of the statute, codified at Utah Code Ann. §§ 76-10-2401to –2402, creates a new offense called “Commercial Terrorism.” The plaintiffs here challenge the constitutionality of the new offense. Governor Leavitt signed H.B. 322 on March 16, 2001, and according to Utah law it will become effective on or about April 30, 2001. Utah Const. Art. VI Sec. 25.

The Commercial Terrorism Statute makes it a class A misdemeanor to “enter[ ] or remain[ ] unlawfully on the premises or in a building of any business with the intent to interfere with the employees, customers, personnel, or operations” of the business. Utah Code Ann. § 76-10-2402(1). The offense is a second degree felony if the person “enters” the business with the intent to interfere “and also with the intent to obtain unauthorized control over any merchandise, property, records, data or proprietary information of the business; alter, eradicate, or remove any merchandise, records, data or proprietary information of the business; damage, deface, or destroy any property on the premises of the business; commit an assault on any person; or commit any other felony.” Id. § 76-10-2402(2), (3). The definition of “enter” includes not only the “intrusion of any part of the body” or of “any physical object,” but also of any “sound wave, light ray, electronic signal, or other means of intrusion under the control of the actor.” Id. § 76-10-2401(3). The statute “does not apply to action protected by the National Labor Relations Act, 29 U.S.C. Section 151 et seq., or the Federal Railway Labor Act, 45 U.S.C. Section 151 et seq.” Utah Code Ann. § 76-10-2402(4).

IV. Argument

A. Standards for Obtaining a Preliminary Injunction

To obtain a preliminary injunction, the movant must establish a substantial likelihood that the movant will eventually succeed on the merits; that the movant will suffer irreparable injury unless the injunction issues; that the threatened injury to the movant outweighs the potential damage to the opposing party; and that the injunction will not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1291 (D. Utah 1999).

When the law controlling the case’s outcome favors the movant, courts deem the first factor the one that “requires the most detailed analysis,” and, especially in the free expression context, typically find the other factors easily met. See Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997), cert. denied, 118 S. Ct. 1363 (1998) (holding that Supreme Court First Amendment law on campaign contributions favored movant and summarily concluding that the remaining factors constituting the balance of hardships tipped in its favor). Moreover, if the movant presents convincing evidence on factors two, three and four, the first factor is redefined so that the movant only has to “[raise] questions going to the merits so serious, substantial, difficult and doubtful as to make them fair ground for litigation and thus for more deliberate investigation.” See Longsgreth v. Maynard, 961 F.2d 895, 903 (10th Cir. 1992), cert. denied sub nom. Mosier v. Reynolds, 510 U.S. 895 (1993) (reversing prior denial of preliminary relief because the balance of hardships tipped in the movants’ favor).

B. Analysis of Standards As Applied to the Commercial Terrorism Statute

1. Plaintiffs Have a High Likelihood of Success on the Merits.

a. The Commercial Terrorism Statute is unconstitutionally overbroad.

A statute is unconstitutionally overbroad if it criminalizes a substantial amount of constitutionally protected speech. See Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982). Such overbreadth exposes the statute to a facial challenge. Perry v. Los Angeles Police Dep’t, 121 F.3d 1365 (9th Cir. 1997).

The commercial terrorism statute, on its face, targets speech. Generating “sound waves” and “light rays” is speech, or conduct commonly associated with expression; indeed, it is difficult to understand what those terms might cover besides expression or expressive conduct. Other provisions of the statute prohibit “entering” by means of “an intrusion of any part of the body” or of “any physical object.” Plaintiffs do not here take issue with a law providing enhanced punishment for criminal trespass or vandalism against a retail establishment. But to criminalize “entering” such an establishment by means of “sound waves” and “light rays” clearly prohibits interference with a business by otherwise lawful means of expression or expressive conduct – pure speech. Were it not so, there would be no need to exempt certain kinds of expressive activities (those protected by the National Labor Relations Act and the Federal Railway Labor Act). (1) The exception proves the breadth of the rule.

Moreover, the Commercial Terrorism statute criminalizes speech regardless of where it occurs. There can be no question that plaintiffs have a fundamental right to peacefully assemble, hold signs, chant, and pass out literature on the public sidewalks surrounding business establishments. As the Supreme Court has so eloquently stated and so often reiterated, “wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). Public streets and sidewalks, including those adjoining businesses, “are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Hudgens v. NLRB, 424 U.S. 507, 515 (1976), quoting Food Employees v. Logan Valley Plaza, 391 U.S. 308, 315 (1968). Under this statute, however, if plaintiffs engage in their usual expressive activities on the public streets or sidewalks outside a business, their conduct becomes criminal the moment the speech is heard or seen inside the business. Indeed, once again that seems to be the main purpose of including “sound waves” and “light rays” in the statute’s definition of “enter.” This exposure to criminal charges will cause plaintiffs to the self-censor their activities – a result that is anathema to the most basic free speech principles. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, ___ (1988).

b. The commercial terrorism statute criminalizes speech based on its content without a compelling government interest, in violation of both the First Amendment and the Fourteenth Amendment.

The government’s ability to regulate speech in a traditional public forum is “quite limited.” Hawkins v. City and County of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999). If the regulation is content-based, the government must show that it is necessary to serve a compelling state interest and that it is narrowly tailored to achieve that end. Perry Educ. Ass’n. v. Perry Local Educator’s Ass’n., 460 U.S. 37 (1983); Hawkins, 170 F.3d at 1286. The Commercial Terrorism statute is a content-based restriction that fails to meet this standard for regulating speech in a traditional public forum.

As noted above, the statute specifically exempts “action protected by the National Labor Relations Act, 29 U.S.C. § 151 et seq., or the Federal Railway Labor Act, 45 U.S.C. Section 151 et seq.” Utah Code Ann. § 76-10-2402 (4). The Supreme Court has addressed this type of exception, holding that “when government regulation discriminates among speech related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the justifications offered for any distinctions it draws must be carefully scrutinized.” Carey v. Brown, 447 U.S. 455, 460 (1980), citing Police Department of Chicago v. Mosley, 408 U.S. 92, 98-99, 101 (1972). In Mosley, the Court found that a Chicago ordinance prohibiting picketing on the public sidewalks in front of any school other than one involved in a labor dispute impermissibly distinguished between labor picketing and all other peaceful picketing without any showing that the latter was “clearly more disruptive” than the former. Mosley, 408 U.S. at 100. In Carey, the Court reviewed a similar statutory classification prohibiting all picketing of residences or dwellings, while exempting picketing of a place of employment involved in a labor dispute. Carey, 447 U.S. at 460. The Court, following Mosley, found the classification violated Equal Protection because, even under minimal scrutiny, there was no evidence to suggest that labor picketing was any less disruptive than other kinds of picketing.

Mosley and Carey are indistinguishable from this case. In all three instances a government regulation makes an exception for certain expressive activities while prohibiting all other such activities. Both labor unions and the plaintiffs specifically choose certain objectionable businesses to persuade customers from entering the establishment or to teach customers about a certain issue at that particular establishment. The Commercial Terrorism statute protects the former and threatens the latter with arrest. But there is no evidence to suggest that the actions of non-labor protesters are any more likely to disturb the operations of the business than labor demonstrations.

Indeed, such invidious classifications among speech-related activities cannot survive even minimal judicial scrutiny. In ACLU v. Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998), the court found that a ban on all leafleting other than labor leafleting along a public mall, a limited public forum, violated Equal Protection because, even applying the rational basis test, the exception did not rationally advance the city’s interests with respect to preventing litter, preventing traffic congestion, or protecting pedestrians from harassment. ACLU, 13 F. Supp. 2d at 1079. Therefore, whatever interest the government might advance here in prohibiting speech other than labor-related speech is insufficient to satisfy even minimal scrutiny, let alone the strict scrutiny established First Amendment and Equal Protection law requires. (2)

c. Even if the commercial terrorism were content-neutral, it is not a constitutionally permissible restriction.

Even if the Commercial Terrorism statute were not content-based but content-neutral, it would have to be a narrowly tailored time, place and manner restriction that serves a significant government interest and leaves open ample alternative channels of communication. Perry, 460 U.S. at 45; Hawkins, 170 F.3d at 1286. Unlike a constitutional time, place and manner regulation, the Commercial Terrorism statute does not on its face attempt to regulate the volume of speech or the manner of speech; it criminalizes any volume of speech in any manner, so long as it “intrudes” into the business and is made with the intent to “interfere” with the business. Cf. Ward v. Rock Against Racism, 491 U.S. 781 (1989). The statute does not attempt to regulate the safe passage of customers to and from a retail establishment or protect the rights of unwilling recipients by establishing a “buffer zone” around the business or the customer; instead, it criminalizes speech made with the intent to interfere with customers who are already on the premises or inside the business. Cf. Hill v. Colorado, 530 U.S. 703 (2000); Schenk v. Pro Choice Network of Western New York, 519 U.S. 357 (1997); Madsen v. Women’s Health Center, Inc., Et Al., 512 U.S. 753 (1994). The statute does not regulate the “place” demonstrators may use to carry out their activities; it simply criminalizes all activities if they are in a close enough proximity to the business so that a sound wave or light ray can enter the business. Cf. Schenk.

Nor is the Commercial Terrorism statute narrowly tailored to serve a significant government interest. Utah has a legitimate interest in protecting the operations of business establishments. However, “government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Frisby v. Schultz, 487 U.S. 474, 485 (1988). In this case, the regulation will not protect businesses from all interference because sound waves that interfere with a business where the speakers lack the requisite “intent” to interfere are not regulated. Thus, under the guise of protecting business establishments from harassment, the statute broadly sweeps a substantial amount of constitutionally protected speech emanating from a public forum into its prohibitions based on the intent of the speaker alone.

The State of Utah also has a duty to protect the safety and welfare of its citizens, and the Commercial Terrorism statute may be an attempt to protect proprietors and patrons of businesses. In other states, where frequent demonstrations take place in front of abortion clinics, state governments sought to protect customers from harassment by enacting buffer zones around those customers preventing protesters from approaching the customer. See Hill v. Colorado, supra; Schenk v. Pro Choice Network of Western New York, supra; Madsen v. Women’s Health Center, Inc., et al., supra. The Commercial Terrorism statute goes well beyond any such regulation. It effectively bans any communication at a normal conversational distance from the public sidewalks with any customer on the business premises. To the extent the statute attempts to protect unwilling customers from seeing or hearing the protest occurring in front of a business, as in Schenck it regulates more speech than necessary to achieve that end. It broadly sweeps any speech occurring from in front of a business to an unknown location where it cannot be seen or heard. By doing so, the statute is not narrowly tailored to further any government interest and leaves no other alternative channels of communication where the plaintiffs can reach their intended audience.

d. The commercial terrorism statute is unconstitutionally vague.

As demonstrated above, plaintiffs believe the statute subjects them to criminal prosecution for their expressive activities in front of business establishments. In almost all of their demonstrations, the plaintiffs create sound waves and light rays that penetrate the business’s premises and intend to “interfere” with business operations in the sense that they seek to dissuade the purchase and sale of animal products. That makes the statute unconstitutionally overbroad and invalid on its face. Defendants may point to subsection (5) of the statute as foreclosing plaintiffs’ facial overbreadth challenge. Defendants’ reliance on this clause to save the statute from facial overbreadth would be unavailing, for four principal reasons.

First, while one would hope that the intent of the Legislature is never to violate the Constitution when undertaking to regulate expression, (3) a statement of that intent is irrelevant. The plain language of the statute is what controls; the intent of the legislature is relevant only when a statute is unclear on its face. This Court’s primary goal in interpreting statutes is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve. See State v. Burns, 4 P.3d 795, 799 (Utah 2000); Evans v. State, 963 P.2d 177 (Utah 1988). “’In analyzing a statute’s plain language, we must attempt to give each part of the provision a relevant and independent meaning so as to give effect to all of its terms.’” State v. Burns, supra (quoting V-1 Oil Co. v. State Tax Comm’n, 942 P.2d 906, 917 (Utah 1997)). A statute’s unambiguous language “’may not be interpreted to contradict its plain meaning.’” Id. (quoting Zoll & Branch, P.C. v. Asay, 932 P.2d 592, 594 (Utah 1997)). If the Court finds a provision that causes doubt or uncertainty in its application, then it can "analyze the act in its entirety and ”harmonize its provisions in accordance with the legislative intent and purpose.”" Id. (quoting Beynon v. St. George-Dixie Lodge # 1743, 854 P.2d 513, 518 (Utah 1993)). As demonstrated above, the plain language of the statute necessarily regulates speech by including sound waves and light rays.

Second, far from curing any First Amendment defects, the “savings clause” only exacerbates them, creating what Professor Tribe calls a classic example of a vague statute: “It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments.” See L. Tribe, American Constitutional Law §§ 12-29, at 1031 (2d ed. 1988) (concluding that such a statute is “patently vague”). Such a statute impermissibly shifts a burden to speakers that properly belongs to the government: the burden of establishing clear standards.

In Rubin v. Santa Monica, 823 F.Supp. 709, 712-13 (C.D. Cal. 1993), the court held that a city ordinance requiring permits for groups of 35 or more to assemble or gather in city parks was unconstitutionally vague. The ordinance provided, under what was called the First Amendment exception that a permit would be issued to any group “organized for the purpose of conveying a political, religious or other similar type of message protected by the California constitution or the First Amendment of the United States Constitution.” Id. at 711. After describing three grounds on which a statute may be found to violate the First Amendment on vagueness grounds, the court held that “the ordinance’s First Amendment exception fails to provide notice to either individuals or administrators of what conduct is permissible and what conduct is prohibited.” Id. at 713. The court held, moreover, that the vague aspects of the ordinance might impermissibly chill expression. Id.

Third, the commercial terrorism statute does not even provide an exception to the statute. It simply states that the “intent” of the legislature is not to interfere with First Amendment freedoms. This does not provide guidelines to demonstrators like the plaintiffs who wish to protest in front of business establishments, nor does it effectively resolve the problem of demonstrators who will silence their speech in order to escape the threat of criminal charges. In fact, it makes the problem worse, creating an impossible dilemma for protestors and law enforcement officials alike: while the plain meaning of the statute specifically criminalizes First Amendment activity where demonstrators have the intent to interfere with a business; subsection (5) says the legislature doesn’t intend to violate the First Amendment. It is doubtful that ordinary citizens or law enforcement officers, even those with experience in peaceful protests, will be able ahead of time to determine what the statute prohibitions means because it does not establish any guidelines for the plaintiffs or law enforcement officers to use in determining when a crime has been committed. (4) As Judge Campbell recently stated:

“In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758 (1988), for example, the Supreme Court held that an absence of express standards makes it far too easy for officials to use ‘post hoc rationalizations’ and ‘shifting or illegitimate criteria’ to justify their behavior, and thus make it difficult for courts to determine whether an official has engaged in viewpoint discrimination. Id.; Summum v. Callaghan 130 F.3d 906, 920 (10th Cir. 1997). For the same reason, a coherent standard is required so that potential speakers (and courts, if necessary) can predict with some certainty what speech the standards allow and what speech the standards forbid. See, e.g., AIDS Action Committee of Massachusetts, Inc. v. Massachusetts Bay Transportation Authority, et al., 42 F.3d 1, 12 (1st Cir. 1994) (upholding a district court’s injunction on the basis that the ‘[p]olicy in its present form is scarcely coherent [and] invites the very discrimination that occurred in this case....’).”

East High School PRISM Club v. Seidel, [cite].

Finally, as in Morales, an officer conscious of the reasons for enacting this statute might ignore the text of the statute and target animal rights activists alone. 527 U.S. at 62. The plaintiffs fear the statute will be applied in a discriminatory manner to their activities while other demonstrators involved in the same types of protests will not be charged. Under the statute, law enforcement officers have to determine the intent of the speaker. This will lead to criminalizing activities based on viewpoint alone. Peaceful demonstrators that support the animal industry do not have the intent to interfere with a business and will not be charged. However, if the plaintiffs are in the same location involved in the same activities they will face criminal charges. In the recent past, members of UARC have been charged with hate crimes and gang enhancement in conjunction with their free expression activities. Although these charges were dismissed, the plaintiffs fear that the Commercial Terrorism statute will give law enforcement officers a new tool to discourage and prevent the plaintiffs from demonstrating based on their viewpoint. The possibility of discriminatory enforcement of the statute is great enough to invalidate it on vagueness grounds.

2. Without Injunctive Relief Plaintiffs Will Suffer Irreparable Harm.

As a result of the passage of the commercial terrorism statute, the plaintiffs will suffer irreparable harm. The statute effectively silences the First Amendment rights of the plaintiffs when they choose to demonstrate on the public sidewalks in front of a business establishment. An infringement of free speech rights, standing alone, constitutes irreparable harm as a matter of law. As Justice Brennan stated in Elrod v. Burns, 427 U.S. 347, 373 (1976): "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See also Elam Const., Inc. v. Regional Transp. Dist., supra, 129 F.3d at 1347. Plaintiffs have suffered and will suffer irreparable harm, as a matter of law, if they are denied their right to chant, hold signs, and otherwise demonstrate on the public sidewalks in front of business establishments, free from the threat of criminal charges.

3. The Harm to Plaintiffs Outweighs Any Harm to the Defendants.

The Commercial Terrorism statute does not apply to labor or railway union activities. These demonstrations may take place in front of business establishments regardless of the intent of the demonstrators to interfere with the operations of the business. Therefore, any government interest in restricting all other demonstrations by the plaintiffs or others in front of businesses is trivial. Without compelling evidence that all other demonstrations in front of businesses deserve less First Amendment protection than labor activities, the government may not prohibit their activities based upon the content of the message. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). The government’s apparent interest in suppressing non-labor speech is to prevent harassment of the businesses the plaintiffs or others choose to protest. The interest in preventing harassment, however, cannot outweigh plaintiffs’ right to free speech, because suppressing even “disagreeable” speech is not a legitimate interest under the law.

4. The Public Interest Favors Plaintiffs Exercise of Free Speech.

Finally, allowing plaintiffs to exercise their free speech rights is not adverse to the public interest, but in fact advances the public interest. There is a broad interest that the public has in honoring one of the most important rights in our society: free speech. See ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999) (preliminary injunction against enforcement of state law criminalizing dissemination by computer of material that is harmful to a minor, due in part to public interest in protecting free expression); Shrink Missouri Government PAC v. Adams, 151 F.3d 763, 765 (8th Cir. 1998) (injunction against state campaign contribution limits, based on public interest in free speech); J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032, 1047 (N.D. Ohio 1999) (“The public interest in protecting the freedom of expression in the face of a prior restraint is especially strong considering that such prior restraints ‘are the most serious and least tolerable infringements of First Amendment rights.’”) (citation omitted). (5)

V. Conclusion

The speech of animal rights activists is controversial in a state with a deeply rooted history and a continuing tradition of ranching and farming. However, controversial speech alone does not constitute terrorism. It is a fundamental right of all demonstrators to freely communicate their ideas and messages concerning the practices of retail establishments from the public sidewalks in front of those businesses. This freedom is the essence of the right to free expression: the ability to assemble, communicate thoughts and discuss important public questions in those areas traditionally held for such activities.

The Utah State Legislature has attempted to silence the plaintiffs’ speech. The Commercial Terrorism statute broadly regulates speech emanating from traditional public forums, the public sidewalks and streets surrounding business establishments. The statute regulates speech based upon the content of the speech without advancing a compelling government interest. The statute is not a narrowly tailored time, place and manner restriction and under the pretense of preventing harassment of businesses it forecloses all other alternative channels of communication where demonstrators may have meaningful access to their intended audience. Finally, the statute’s “savings clause” and potential for arbitrary and discriminatory enforcement leave it susceptible to a vagueness challenge. With all of these facts present, the plaintiffs have a high likelihood of success on the merits of the case and stand to suffer irreparable harm if this statute is not enjoined. The plaintiffs respectfully ask this court to prevent such large-scale divestment of their First Amendment rights by the Utah State Legislature. Speaking on matters of public concern is an essential part of the public interest and should not be considered terrorism in a democratic society.

Dated this 18 day of April, 2001.

Stephen C. Clark
Janelle P. Eurick
ACLU of Utah Foundation, Inc.

Brian M. Barnard
James L. Harris
Utah Legal Clinic

Attorneys for Plaintiffs

By: Janelle P. Eurick


1. The National Labor Relations Act is designed to protect “the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” 29 U.S.C. § 151. It does not impede workers’ right to strike. Id., § 160. The Federal Railway Labor Act similarly protects workers’ associational and expressive rights. 45 U.S.C. § 151a.

2. Citing New York Times v. Sullivan, 376 U.S. 254, 270, the Carey Court stated:

“Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” (citations and footnote omitted).

447 U.S. at 462. The government argued that the ordinance at issue in that case was necessary to further the compelling government interest in residential privacy and that federal and state law make a point to protect labor activities. The Court rejected this argument. First, the Court stated that allowing labor activities without any showing that they are less disruptive of residential privacy does not advance the state’s interest in residential privacy. Id. at 465. Second, the Court stated that even though labor activities may be protected under federal law, those activities are not more deserving of First Amendment protection than are public protests over other issues. Id at 466. Just like the Illinois measure, the Commercial Terrorism statute relies on the content of the speech to determine what is unlawful activity. The government has not made any showing that expressive activities on labor issues are worthy of more protection than expressive activities on other issues.

3. Subsection (5) only expresses intent not to interfere with the First Amendment of the United States Constitution and Art. 1, Sec. 15 of the Utah Constitution. It does not address the intent of the legislature towards the Equal Protection Clause of the Fourteenth Amendment, as addressed in Section IV(B)(1)(b) of this memorandum.

4. The legislature did not even establish minimal guidelines to govern law enforcement officers in applying this statute, as required by law. See Kolender v. Lawson, 461 U.S. 352, 358 (1983). Law enforcement officers must decide first, if demonstrators have the intent to interfere with the business by analyzing the content of the message conveyed and second, they must decide if a sound wave or light ray entered the business.

5. Federal Rule of Civil Procedure 65(c) provides that a bond must be posted by the applicant for a preliminary injunction as a prerequisite to the issuance of the preliminary injunction. Nevertheless, the court may, within its discretion, waive the bond requirement. See Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987). In this case, any damages the State of Utah will suffer in delaying the enactment of the commercial terrorism statute are minimal. Plaintiffs wish to continue demonstrating in front of retail establishments without fear of criminal charges once this law is in place. If it is the “intent” of the legislature not to violate the plaintiffs’ First Amendment rights, the government should not suffer any harm in delaying the implementation of this statute until the court can determine if the statute is constitutional. Therefore, plaintiffs respectfully request that this court waive the bond requirement because of the minimal amount of damage to the government if a preliminary injunction is issued.

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