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

06 July 2001 Published in Litigation Materials

 Utah Animal Rights Coalition v. State of Utah

355 North 300 West St. 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 Plaintiff


Civil No. 2:01-CV-0221 J


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.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and DUCivR 56-1, plaintiffs Utah Animal Rights Coalition (“UARC”), Summer Adams, and Bill French respectfully submit this Memorandum in support of their Motion for Summary Judgment.


The 2001 Utah Legislature created a new criminal offense, “Commercial Terrorism.” Defendants argue the statute is aimed at “eco terrorists” and others who engage in unlawful and destructive acts of civil disobedience, and cannot reasonably be read to apply to expressive activities protected by the First Amendment. However, “terrorism” under the law includes not only causing damage to or destroying life or property, but also generating “sound waves,” “light rays” or “electronic signals” with the intent to interfere with a business.

The plaintiffs in this case are not terrorists, “eco” or otherwise; 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 use or sale of animals or 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, and they stand and hold signs and banners, 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, 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. As defendants admit, audible speech necessarily generates “sound waves,” visible speech necessarily generates “light rays,” and some forms of speech employing modern technology necessarily generate “electronic signals.” The plain language of the statute thus extends to plaintiffs’ protected First Amendment expressive activities, even in a traditional public forum. See pp. 9-11 infra.

The Commercial Terrorism statute is unconstitutionally overbroad. Whatever else it does, it criminalizes a substantial amount of constitutionally protected speech. It is also unconstitutionally vague. Unless the statute is declared unconstitutional and permanently enjoined, plaintiffs will face the Hobson’s choice of either silencing their speech or facing a very real threat of incurring severe criminal sanctions. That is a choice the First Amendment does not permit the government to impose on its citizens. Although defendants might offer a limited and limiting construction of the statute, it is not the job of this Court to rewrite the statute in a way that is inconsistent with its plain meaning in order to remedy the statute’s constitutional flaws. See pp. 11 -18, infra.

Therefore, plaintiffs ask this Court to grant summary judgment for the plaintiffs, to declare the statute unconstitutional as a matter of law and to permanently enjoin defendants from applying or enforcing the statute.


In accordance with DUCivR 56-1(b), plaintiffs submit the following concise statement of material facts as to which plaintiffs contend no genuine issue exists.

1. Plaintiff UARC is a Utah non-profit organization. As explained and illustrated on its official website (www.uarc.com), UARC “adhere[s] to a non-violent philosophy. Our intent is never to force our opinions on others, but instead to present a case for those who can”t speak for themselves, and facilitate the change to a cruelty free lifestyle. We feel that the use of animals by people is unnecessary. The abuse of animals is barbaric and must stop as soon as possible.” Consistent with its mission and philosophy, UARC seeks to educate the public on animal welfare issues. Exhibit A, attached; Cmplt. ¶ 11; Adams Aff. ¶¶ 5-6, 8; French Aff. ¶ ¶ 5-6, 8; UARC/ Diener Aff. ¶¶ 11.

2. UARC and its members, including Adams and French, regularly engage in public demonstrations and protests in Salt Lake County. These demonstrations and protests regularly include leafleting and picketing 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.

3. UARC and its members, including Adams and French protest, engage in the above activities in an effort 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); and

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).

4. During the protests and demonstrations described above, members of UARC, including plaintiffs Adams and French, sometimes:

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

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

5. During the protests and demonstrations described above, UARC and its members intend and believe that their singing, chanting and yelling can be heard by people inside the objectionable business or enterprise. Cmplt. ¶ 19; Adams Aff. ¶ 12; French Aff. ¶ 12; UARC/ Diener Aff. ¶ 18.

6. During the protests and demonstrations described above, UARC and its members intend and believe that the candles, signs and banners they hold and carry can be seen by people inside the objectionable business or enterprise. Cmplt. ¶ 20; Adams Aff. ¶ 13; French Aff. ¶13; UARC/ Diener Aff. ¶ 19.

7. UARC and its members, including Adams and French, desire to continue to engage in conduct similar to that described above by way of protesting, demonstrating, picketing and leafleting on public sidewalks in front of and adjacent to businesses and enterprises that touch upon animal welfare issues. Cmplt. ¶ 21; Adams Aff. ¶ 14; French Aff. ¶ 14; UARC/ Diener Aff. ¶ 20.

8. In its 2001 regular session, the Utah Legislature 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). Governor Leavitt signed the bill on March 16, 2001. Cmplt. ¶ 22; Exhibit "C" attached; UARC/ Diener Aff. ¶ 21.

9. H.B. 322 created a new class A misdemeanor offense entitled “Commercial Terrorism.” This offense prohibits, inter alia, engaging in conduct that results in “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 “with the intent to interfere with the employees, customers, personnel or operations of a business.” Utah Code Ann. §§ §76-10-2401(3)(b), 76-10-2402(1) (1953 as amended). Cmplt. ¶ 23; Exhibit "C" attached.

10. Having read the above terms of the statute, plaintiffs fear that they and/or other members of UARC will be arrested and prosecuted for Commercial Terrorism simply for engaging in peaceful, otherwise lawful demonstrations on the public sidewalks in Salt Lake City. Not wanting to be arrested, plaintiffs would likely remain silent rather than risk arrest and/or criminal charges under the statute. Cmplt. ¶¶ 26, 33; Adams Aff. ¶ 21; French Aff. ¶ 21; UARC/ Diener Aff. ¶ ¶ 23, 27.

11. UARC and its members, including Adams and French, are fearful that if the statute is not permanently enjoined and 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 statute. Cmplt. ¶ 24; Adams Aff. ¶¶ 20, 24; French Aff. ¶¶ 20-24; UARC/Diener Aff. ¶ 26.

12. From reading the statute, plaintiffs cannot be certain what is prohibited when the statute provides that "light rays, " "sound waves," "electronic signals" or "anything under the control of the actor" may not intrude into the building of a business with the intent to interfere. Adams Aff. ¶ 17; French Aff. ¶ 17; UARC/ Diener Aff. ¶ 23. However, because plaintiffs’ chanting, singing or yelling generates sound waves; because plaintiffs’ chanting, signing and yelling is intended to, among other things, dissuade customers from frequenting the businesses to which plaintiffs object; and because the statute prohibits the intrusion of sound waves into a business with the intent of interfering with the business, plaintiffs reasonably fear prosecution under the statute. Adams Aff. ¶ 18; French Aff. ¶ 18; UARC/ Diener Aff. ¶ 24.

13. Similarly, because light rays bounce off people and things, which allow people, and things to be seen by other people; because plaintiffs desire and intend to be seen by the proprietors and the customers of the businesses to which plaintiffs object; and because the statute prohibits the intrusion of light rays into a business with the intent of interfering with the business, plaintiffs reasonably fear prosecution under the statute. Adams Aff. ¶ 19; French Aff. ¶ 19; UARC/ Diener Aff. ¶ 25.

14. Defendants have admitted that one cannot speak without generating sound waves. Defendants Reply Memorandum Opposing Plaintiffs’ Motion for Preliminary Injunction (“Opp. Mem.”) at 5.

15. UARC and its officers are fearful that if the statute is not permanently enjoined, the statute will lend itself to use by law enforcement officers to target UARC members, its demonstrations and activities based on the content of their speech. This fear is based in part on the following two incidents:

a) 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.

b) On April 18, 2001 a law enforcement officer approached a member of UARC who was preparing for a peaceful protest in front of the Delta Center. The officer carried a copy of H.B. 322 with him, showed it to the UARC member and advised the UARC member to be aware of the statute and its provisions. The UARC member perceived this as a direct threat to enforce the statute, even though the statute had not yet taken effect. Berg Aff. ¶¶ 6-8.

16. UARC is fearful that the vague provisions of the statute 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.

17. Plaintiffs seek summary judgment because the challenged statute is 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.


A. Summary Judgment Standards

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The factual record should be examined in the light most favorable to the nonmoving party. Bullington v. United Air Lines, Inc, 186 F.3d 1301 (D.Colo. 1999).

As the moving parties, plaintiffs shoulder the initial burden to show that they are entitled to judgment as a matter of law. Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995). If plaintiffs meet this burden, it falls to defendants to “identify specific facts that show the existence of a genuine issue of material fact.” Id. An issue is “genuine” if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). An issue of fact is “material” if under the substantive law it is essential to the proper disposition of the claim. See id.

As set forth below, the material facts plainly establish that plaintiffs are entitled to judgment as a matter of law on their claim that the Commercial Terrorism statute is unconstitutional under the First Amendment.

B. Proper Construction of the Statute

As a threshold matter, this Court must construe the Commercial Terrorism statute. In construing this state statute, this Court is required to apply state-law rules of statutory construction. See Phelps v. Hamilton. 59 F.3d 1058, 1071 (10th Cir. 1995). The threshold question is whether, based on those rules, the statute plainly touches upon protected speech.

1. The Commercial Terrorism statute must be construed according to its plain language.

Statutory construction begins and, if possible, ends with the statute’s plain language. State v. Redd, 992 P.2d 986, 990 (Utah 1999); see also Zoll & Branch P.C. v. Asay, 932 P.2d 592, 594 (Utah 1997) ("The fundamental rule of statutory construction is that statutes are generally to be construed according to their plain language. Unambiguous language in the statute may not be interpreted to contradict its plain meaning.”). A corollary of this rule is that "a statutory term should be interpreted and applied according to its usually accepted meaning, where the ordinary meaning of the term results in an application that is neither unreasonably confused, inoperable, nor in blatant contradiction of the express purpose of the statute." State v. Bohne, 18 P.3d 514, 516 (Utah 2001). In the absence of statutory definitions, Utah courts rely on common dictionary definitions to determine plain meaning. See State v. Redd, 992 P.2d at 990; Zoll & Branch, 932 P.2d at 594.

2. The plain language of the Commercial Terrorism statute covers speech.

Defendants “admit that speech does involve sound waves.” Opp. Mem. at 5. Indeed, defendants admitted at the preliminary injunction hearing in this matter that one cannot audibly speak without generating sound waves. Notwithstanding these admissions, defendants insist that the use of the term “sound waves” in the statute can only be understood to cover inaudible “ultrasonic sound waves” and excessively audible or “blaring” sound waves. Opp. Mem. at 2, 4. Defendants cite no definitions or other evidence to support that position. The dictionary definition suggests the opposite, common-sense conclusion: the term “sound wave” is understood to refer especially to sounds “within the range of those audible to the human ear.” Webster’s New World Dictionary 1282 (3d Coll. ed. 1991). Thus the plain meaning of “sound waves” includes sound waves generated by demonstrators such as plaintiffs who speak, chant, sing and yell.

Defendants similarly admit that the term “light rays” “could apply equally to . . . any number of objects that emit light rays,” but insist that the use of the term in the statute can only be understood to refer to a very specific kind of light rays (those emitted “from a laser pen”) and excessively bright light rays (those emitted from “spot lights, flood lights, search lights”) shined “from a public street or sidewalk onto someone inside a building.” See Opp. Mem. at 3-4. Although the dictionary does not define “light ray,” it does defines “ray”: “any of the thin lines, or beams, of light that appear to come from a bright source.” Webster’s New World Dictionary 1116 (3d coll. ed. 1991). Nowhere do defendants explain why that definition necessarily excludes expressive use of light, such as plaintiffs’ use of candles, nor do they offer any evidence to support their assertion that the statute only targets such potentially harmful uses as shining a bright light into the eye of a person or animal.

In short, defendants do not and cannot dispute that the plain meaning of the terms “sound waves” and “light rays” includes speech and expressive conduct. (1) They also do not and cannot dispute that, on its face, the Commercial Terrorism statute extends to speech originating in a “traditional public forum” such as a public street or sidewalk adjacent to a business. Therefore, the conclusion is inescapable that, if plaintiffs engage in their usual expressive activities on the public streets or sidewalks outside a business, their activities fall within the plain language of the statute the moment they are heard or seen inside the business.

C. Facial Unconstitutionality of the Statute.

1. The Commercial Terrorism statute is unconstitutionally overbroad.

A statute is unconstitutionally overbroad if it prohibits a substantial amount of constitutionally protected speech. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982). Under the First Amendment, all persons have a fundamental right to peacefully assemble, hold signs, chant, and pass out literature on the public sidewalks surrounding business establishments. See 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).

The Commercial Terrorism plainly runs afoul of these important constitutional standards. As defendants have admitted, speech is not possible without “sound waves” and in some instances “electronic signals” are the means by which speech is carried through modern technology. Similarly, viewing a sign or light from a candle is not possible without “light rays.” The statute criminalizes entering a building with a “sound wave,” “light ray,” or “electronic signal” if the actor intends to interfere with the business. Therefore, if plaintiffs protest on the sidewalk in front of a business and if they are in close enough proximity that they can be seen or heard inside the business, a crime has been committed.

The defendants appear to agree that if the Commercial Terrorism statute is construed in accordance with its plain meaning, it is facially unconstitutional. They would like the Court to narrow the statute. Courts are neither required nor permitted, however, to rewrite a statute to reflect a more limited effect than the plain language of the statute dictates; that is a task for the legislature. See State v. Rudolph, 970 P.2d 1221, 1229 (Utah 1998) (“’the court has no power to rewrite the statute to conform to an intention not expressed’”) (quoting Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994)); State v. Winkle, 528 P.2d 467, 468 (Utah 1974) (“this court cannot rewrite [a statute to make it constitutional] without invading the province of the legislature”).

Defendants argue that the “intent” language of the statute provides the basis for the Court to write into the statute any necessary limitations and clarifications. See Opp. Mem. at 9-10. Defendants rightly concede that the Legislature’s stated intent not to interfere with constitutional rights “does not make it so.” Opp. Mem. at 9. As the Fifth Circuit has stated:

“Of course, such a provision cannot substantively operate to save an otherwise invalid statute, since it is a mere restatement of well-settled constitutional restrictions on the construction of statutory enactments.”

CISPES v. Federal Bureau of Investigation, 770 F.2d 468, 474 (5th Cir. 1985). The question, then, is whether the intent language requires this Court to impose a limiting, saving construction not otherwise evident on the face of the statute. Plaintiffs respectfully submit that, far from requiring this Court to save an otherwise facially overbroad statute by imposing a limiting construction, the intent language requires this Court to strike the statute as unconstitutionally vague.

2. The Commercial Terrorism statute is unconstitutionally vague.

The law requires that criminal statutes be drafted with “sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). “Where a statute’s literal scope . . . is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974). That is because “where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were closely marked.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (citations and internal quotation marks omitted).

Viewed in light of the above principles, the intent language in subsection (5) of the Commercial Terrorism statute only adds to the confusion regarding what activities this law covers. A consistent reading of the statute as a whole suggests that the Legislature intended to restrict speech in the form of “sound waves” and “light rays” to the fullest extent permitted by the federal and state constitutions (as well as federal labor laws), but decided to leave it up to individual speakers, law enforcement officers, or if necessary the courts to define the boundary between protected and prohibited speech. In the context of a criminal statute, however, the law does not permit the Legislature to shift the burden to individuals to determine what conduct is proscribed.

Moreover, plaintiffs have alleged and testified to their understanding that the statute broadly addresses the kinds of free speech activities in which they regularly engage, and their reasonable concern that even with the statute’s vague intent language their future similar activities will land them in jail. Plaintiffs’ concerns are not hypothetical. Other statutes whose application to plaintiffs one would reasonably have questioned have in fact been used to chill and suppress plaintiffs’ speech. See Statement of Facts ¶ 15, supra. Indeed, this specific statute has been wielded in what plaintiffs believed to be an effort to chill and suppress their expressive activities. See Statement of Facts ¶ 15, supra. While plaintiffs do not seek “mathematical certainty” or “perfect clarity and precise guidance,” they do seek that degree of specificity the law requires of government when it adopts a criminal statute that, on its face, extends to speech and expressive conduct.

3. The Commercial Terrorism Statute is not a content-neutral time, place and manner regulation.

The government can of course regulate expressive activities, even in a traditional public forum, based on certain principles identified by the courts. 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 drawn to achieve that end.’” Hawkins v. City and County of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999), quoting Perry Educ. Ass’n. v. Perry Local Educators Ass’n., 460 U.S. 37, 45 (1983). If the regulation is content-neutral, “intermediate” scrutiny applies in place of that “strict scrutiny” standard: “[W]e will uphold content-neutral time, place and manner restrictions on speech provided the are ‘narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’” Id. Contrary to defendants’ arguments, the Commercial Terrorism statute is neither content-neutral nor a reasonable time, place and manner regulation.

“The principal inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Ironically, it is defendants who suggest in this case that is precisely what the Legislature has done. Defendants have argued that the statute is targeted at activities “against fur farmers, trappers, retailers, designers; along with the beef, poultry, dairy, timber, mining and recreation industries; wildlife managers, research scientists, zoos, circuses, rodeos, aquariums, butcher shops and restaurants.” Opp. Mem. at 2 (emphasis added). If that is true, then the statute is an impermissible content- and viewpoint-based restriction, because it does not prohibit any kind of speech in favor of farmers, trappers et al. Thus, while furriers are free to ply the public sidewalks, hawk their wares and even shine a bright light on their products, plaintiffs face the threat of arrest for engaging in the same conduct. Defendants’ argument thus makes clear that, unlike regulations that have been upheld as content-neutral, the statute here does not apply equally to “used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries.” Cf. Hill. v. Colorado, 530 U.S. 703, 723 (2000).

Moreover, unlike the noise regulation cases on which defendants previously have relied, the statute does not prohibit all “loud and raucous noises” (cf. Kovacs v. Cooper, 336 U.S. 77 (1949)), or limit the volume of amplified music (cf. Ward, supra). Indeed, according to defendants, the statute allows even loud noises directed at an unwilling listener so long as they do not originate from a “mechanical device,” are not “malicious” and do not disrupt or cause damage to a business. Thus, for example, while a cry of “Meat is murder!” would be a crime if it exceeds some vague and unspecified noise limit imposed by the statute and causes a potential customer to opt for a salad, even an earsplitting exhortation to “Have it your way!” would escape the statute’s coverage if it facilitated the sale of burgers. Therefore, even if, as defendants contend, the government has a “substantial interest in protecting its citizens from unwelcome noise” (see Opp. Mem. at 8) – a highly dubious proposition when the “unwanted noise” includes efforts to share a message and change a mind or a heart – the statute has nothing to do with that interest, but serves only to chill and suppress speech expressing a certain disfavored viewpoint. (2) As the Supreme Court recently observed, this is the “vice of content-based legislation”: “‘it lends itself’ to being ‘used for invidious thought control purposes.’” Hill, 530 U.S. at 723 (quoting Scalia, J., dissenting).

Finally, 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). (3) The Supreme Court has made clear that this type of restriction on speech is content-based and must be subjected to strict scrutiny. See Carey v. Brown, 447 U.S. 455, 460 (1980), citing Police Department of Chicago v. Mosley, 408 U.S. 92, 98-99, 101 (1972). (4) Plaintiffs, no less than union workers, have the right to protest certain objectionable businesses to dissuade customers from entering or to send a message to the proprietors. The Commercial Terrorism statute protects the former and threatens the latter with arrest even where 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. (5)

Even if it were content-neutral, the Commercial Terrorism statute could not pass intermediate scrutiny as a reasonable time, place and manner regulation. The State may argue that it has a significant interest in attempting to protect the safety and welfare of business patrons and proprietors. (6) 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”; instead, the regulation must be narrowly tailored. Frisby v. Schultz, 487 U.S. 474, 485 (1988). The Commercial Terrorism statute criminalizes all of the plaintiffs’ activities if they are in close enough range so that a sound wave, light ray, electronic signal, or anything else under the control of the actor enters the business, and if plaintiffs intend thereby to “interfere” with the business. To the extent defendants are concerned about physical harm or property damage, as plaintiffs have demonstrated above defendants know how to target such conduct. To the extent defendants are concerned about ensuring public access to lawful places of business, several states have shown that there are less intrusive means for achieving this goal. Cf. Hill v. Colorado, supra; 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). By regulating speech to the point that demonstrators will have to move to an unknown location where they cannot be seen or heard, the statute effectively forecloses speech without providing any alternative channel of communication where the plaintiffs can reach their intended audience.


The Commercial Terrorism statute’s breadth is extensive. It is not possible to limit the statute to acts of “eco-terrorism” alone, as the defendants would have the Court believe. The facts in this case indicate that not only the plaintiffs are confused about the impact of the law. Law enforcement officers have already demonstrated they will try to enforce the statute even at lawful demonstrations. The State of Utah does not have this kind of power when regulating First Amendment activities in a public forum. The defendants have failed to raise any compelling government interest that would save this statute. The defendants’ proposed narrowing of the statute would require this Court to rewrite it, and even then it does not solve the statute’s overbreadth or vagueness. Further, the defendants have not shown that the statute is a valid time, place, and manner restriction. Therefore, the plaintiffs respectfully ask this court to permanently enjoin the Commercial Terrorism statute.

Dated this 27 day of July 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. Defendants have argued that regulating “sound waves” and “light rays” seems an odd way to regulate speech, and that the Legislature surely could have chosen “more precise terminology” to do so. Opp. Mem. at 4-6. It is equally true that, had the Legislature intended merely to define additional circumstances in which non-expressive conduct (using ultrasonic sound waves to cause damage to an animal enterprise, or using a laser pointer to create fear or apprehension) constitutes a crime, it could have chosen “more precise terminology” to do so. Indeed, existing Utah statutes cover conduct of the type defendants claim this statute targets. See, e.g., Utah Code Ann. § 76-10-2501 (dealing with “unlawful use of a laser pointer”).

2. If the message is unwelcome, as it often will be outside the businesses plaintiffs protest, the constitutionally appropriate response in a public forum is for the listener to walk away – with adequate protection against being obstructed or hindered – not to enlist the power of the state to silence the speaker. See Frisby v. Schultz, 487 U.S. 474, 484 (1988).

3. If the Commercial Terrorism statute does not regulate expressive activities, why did the legislature exempt expressive activities related to labor? 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. The Federal Railway Labor Act similarly protects workers’ associational and expressive rights. 45 U.S.C. § 151a.

4. Citing New York Times v. Sullivan, 376 U.S. 254, 270 (1964), 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.

5. 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.

6. Defendants’ Rule 26(a) disclosures indicate that their witnesses may include “victims of abuse by animal-rights activists (to be identified later).”

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