Rendell: Peaceful Protesters are now Terrorists

Governor Signs House Bill 213: the “Eco-Terrorism” bill

Despite many people writing and calling Rendell asking for a veto, Rendell listened to the biotech industry, the logging industry, the PA Farm Bureau, Penn State University, University of Pennsylvania and the University of Pittsburgh — who were all lobbying for the bill.

Governor Signs Ecoterrorism Bill Into Law (April 14, 2006 Press Release)

The Legislation

The Proponents

Unusual coalition backs ecoterrorism legislation (Pocono Record, 4/12/2006)

Background

“…we do not call peaceful protestors terrorists… I think we are insulting people who have been victims of terrorism by calling this terrorism. This is not terrorism. Peaceful protest is not terrorism, and for God’s sake let us respect what terrorism is.”
-State Representative Daylin Leach during March 16th hearing on the House floor

House Bill 213, the so-called “eco-terrorism” bill, labels anyone an “ecoterrorist” if they perform non-violent civil disobedience against people or firms engaged in resource extraction, agricultural research, or animal experimentation — increasing penalties for established crimes, such a criminal trespass and vandalism.

In real terms this translates into an attack on specific political viewpoints. For instance, protesters obstructing an abortion clinic to voice their opposition to the practice would not suffer increased criminal penalties under this bill, while activists blocking the office of a logging or mining company would be classified as terrorists. The ACLU opposes the bill mostly for its potential to allow infringements of first amendment rights. The Sierra Club of Pennsylvania has also spoken out against the bill, out of concern for impacts on other environmental groups who engage in peaceful protest.

Terrorism is not sit-ins, protests, or vandalism. An act of spray painting a wall is not what we as a society deem a terrorist act.

Imagine an 18 years old college student who recently joined an environmental group on campus. They decide to hold a peaceful sit-in, but one of the protesters bore a sign which vaguely threatens the owner. The student is arrested and convicted under the law. She applies for an apartment eight years later. The landlord runs her criminal history and discovers that she has a conviction for “ecoterrorism.” It is doubtful she will ever find housing because who wants a convicted terrorist living in your building. This unfortunate hypothetical is an all too real repercussion of HB213. Even an abortion protester who yells or threatens the doctors while on clinic property is not treated as severely.

Each of the crimes punishable by the proposed legislation already impose appropriately severe penalties on violators. We do not believe, nor has the legislature provided any amount of evidence to suggest, that the current severely authorized punishments are not sufficient to deal with the majority of environmentally-related offenses. Further, there is no evidence to suggest that a harsher penalty will act as a greater deterrent to those actually intending to carry out the more severe crimes specified in the legislation. Rather, the enhanced penalties will largely affect those committing low level, largely peaceful offenses.

Property damage isn’t terrorism. Terrorism is harm to living beings, not property. The Boston Tea Party was an act of property damage against the world’s largest corporation at the time. In our history books, we glorify the revolutionaries who took part in the Boston Tea Party. We don’t call them terrorists.

Regardless of whether you would personally ever engage in civil disobedience, please protect the rights of those who would.

Out of respect to the victims of actual acts of terrorism, please help us stop this “green scare” legislation.

The real “eco-terrorists” are the corporate polluters who poison our environment for profit, harming our health — not those who are brave enough to break the law in efforts to stop them.

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.
-Pastor Martin Niemöller

April 8, 2006

Eian Weissman
17 South Yewdall St.
Philadelphia, PA. 19139
215-472-1853

Governor Ed Rendell
Southeast Office
200 South Broad Street
11th Floor
Philadelphia, PA 19102

RE: HB213, An Act adding an offense and a civil action relating to ecoterrorism

Dear Governor Rendell:

Yesterday, you took the time to meet with us regarding HB213, a bill presented to you for your signature on April 5, 2006. We are not an officially organized group or committee. Rather, we are merely a group of concerned citizens who believe that the proposed legislation is damaging to First Amendment freedoms, patently unnecessary, overbroad, and treads on a thin ethical position of conflating the publics uniform understanding of terrorism with otherwise normal acts of civil disobedience, which are already punishable under Pennsylvania law. For these reasons, which are more fully outlined below, we strongly urge you to veto the legislation. The final bill language is attached for your convenience.

I. Section 1

This section does not significantly alter current law. A crime of Agricultural Crop Destruction was enacted in 2001. See 2001, June 22, Pa. Pub. L. No. 27 § 2. The Amendment is not worthy of mention and we do not find it objectionable.

II. Section 2

A. Summary

This section is entirely new and relates to the crime of ecoterrorism. The bill acts as a sentencing enhancement statute. Essentially it provides that the grading of a specified offense shall be increased one degree if the actor intends to intimidate, coerce, prevent, or obstruct an individual lawfully engaging in activities involving or using animals, plants, or natural resources.

B. First Amendment Concerns

The ACLU has taken an unequivocal position against this legislation as potentially infringing First Amendment rights. We agree with the ACLUs position.

The law is designed to discriminate against a particular viewpoint. In R.A.V. v. St. Paul, 112 S. Ct. 2538 (1992), the Supreme Court found unconstitutional a St. Paul, Minnesota law that punished acts placing a racially or religiously abhorred symbols which the person knows or reasonably knows will arouse anger or resentment more severely than the predicate offense. The Court declared that despite the abhorred nature of symbols, such as a burning cross or Nazi swastika, the government may not proscribe or more severely punish particular speech purely on the views expressed therein. Id. at 2547-48. Here, the viewpoint at issue is environmental positions that are generally viewed as radical, but nonetheless protected. The law attempts to curtail a particular avenue of speech that the government finds objectionable.
This law is seriously overbroad and will curb a particular viewpoint. For instance, the law encompasses graffiti, sit-ins, or merely protesting on private property which may be, and in many cases is, peaceful. For instance, citizens concerned over the treatment of animals at an area pharmaceutical company who have requested multiple meetings with the management, but are constantly refused, decide to hold a peaceful sit-in. This trespass, which is intended to coerce the management, would now be considered a terrorist act. An analogous situation involving schools, law firms, or even abortion clinics would not be punished as severely. The targeting of all environmental concerns reaches well beyond the compelling governmental interest in curbing arsons and physical violence.
The law also potentially chills lawful First Amendment expression, which is a serious concern under First Amendment law. Proposed § 3311(d) provides for enhancing the punishment associated with criminal trespass, a law that penalizes sit-ins or breaching private property where a no-trespassing sign is posted. The section expressly provides that the ecoterrorism law is only applicable if the actor commits the crime for the purpose of threatening or terrorizing the owner or occupant . . . . However, the line between speech unconditionally guaranteed and speech which may be legitimately regulated . . . is finely drawn. United States v. Playboy Enter. Group, 529 U.S. 803, 817 (2000). Many people could be seriously concerned that words of hostility on a t-shirt or poster could be taken as a threat. Thus, they may self-censor and refrain from speaking at all, an undesirable consequence.

C. Label of Terrorism Concern

State Representative Daylin Leach summed up this concern nicely. [W]e do not call peaceful protesters terrorists. . . . I think we are insulting the people who have been victims of terrorism by calling this terrorism. This is not terrorism. Peaceful protest is not terrorism, and for Gods sake, let us respect what terrorism is. Pa. H.R. Journal, 2006 Reg. Sess. No. 18, at 382 (March 16, 2005). Terrorism is not sit-ins, protests, or vandalism. An act of spray painting a wall is not what we as a society deem a terrorist act. Murder, arson, and firebombing buildings are. While these acts are punished more severely under this bill, the broad reach of the legislation also serves to sweep a large number of relatively minor crimes under the broader terrorism rubric. The publics legitimate fear of terrorism should not be used as a lever to pass legislation that in fact, has nothing to do with terrorism as we understand it. Even under the broad federal definition of terrorism, the conduct at issue is considerably more severe, such as conduct relating to murder, arson, destruction or transportation of nuclear material, kidnapping, treason, assassinations, and other similar offenses. See 18 U.S.C. § 2332b(g). The proposed Pennsylvania law obviously extends well beyond these boundaries.

This overbreadth bears further discussion. An individual convicted of ecoterrorism is thereafter, properly labeled a terrorist. Imagine an 18 years old college student who recently joined an animal rights group on campus. They decide to hold a peaceful sit-in, but one of the protesters bore a sign which vaguely threatens the owner. The student is arrested and convicted under the law. She applies for an apartment eight years later. The landlord runs her criminal history and discovers that she has a conviction for ecoterrorism. It is doubtful she will ever find housing because who wants a convicted terrorist living in your building. This unfortunate hypothetical is an all too real repercussion of HB213. Even an abortion protester who yells or threatens the doctors while on clinic property is not treated as severely.

Finally, the law sets frightening precedent for labeling actions by dissenting groups terroristic acts. Abortion protesters could be punished more harshly under a fetal rights terrorism act. Anti-war protestors could be labeled terrorists for protesting at Lockheed-Martin or Halliburton. The list could go on indefinitely. The term terrorism is old, but only recently surfaced a word used daily in the American lexicon. Representative Leach is correct that to obscure the definition of the term does a disservice to the victims of terrorism and obstructs intelligently discussing solutions to real terrorist threats. It is important that in times or war and high emotion we not fall victim to our fears and allow otherwise protected freedoms to be obscured, or even worse destroyed, in an overzealous effort to create the appearance of calm.

D. Bill as Unnecessary

Each of the predicate crimes punishable by the proposed legislation already impose appropriately severe penalties on violators. We do not believe, nor has the legislature provided any amount of evidence to suggest, that the current severely authorized punishments are not sufficient to deal with the majority of environmentally related offenses. Further, there is no evidence to suggest that a harsher penalty will act as a greater deterrent to those actually intending to carry out the more severe crimes specified in the legislation. Rather, the enhanced penalties will largely affect those committing low level, largely peaceful offenses. This will put a strain on our courts and prison resources, which are already in dire need of additional funding.

Below is a schedule of the current grading of the specified crimes in HB213. We also include the sanctions permissible for each offense level. These penalties are more than adequate to deal with the threat targeted by HB213.

Felony of the First Degree: Not more than 20 years. 18 Pa. C.S.A. § 1103(1);
Felony of the Second Degree: Not more than 10 years. 18 Pa. C.S.A. § 1103(2);
Felony of the Third Degree: Not more than 7 years. 18 Pa. C.S.A. § 1103(3);
Misdemeanor of the First Degree: Not more than 5 years. 18 Pa. C.S.A. § 1104(1).
Misdemeanor of the Second Degree: Not more than 2 years. 18 Pa. C.S.A. § 1104(2).
Misdemeanor of the Third Degree: Not more than 1 year. 18 Pa. C.S.A. § 1104(3).
Summary Offense: Not more than 90 days. 18 Pa. C.S.A. § 1105.

18 Pa. C.S.A. § 3301: Arson and Related Offenses:

18 Pa. C.S.A. § 3302: Relating or Causing or Risking Catastrophe

18 Pa. C.S.A. § 3304: Criminal Mischief

(b) Criminal mischief is a felony of the third degree if the action intentionally causes pecuniary loss in excess of $5,000, or a substantial interruption or impairment in public communication, transportation, supply of water, gas, or power, or other public service. It is a misdemeanor of the second degree if the actor causes pecuniary loss in excess in excess of $1,000, or a misdemeanor of the third degree if he intentionally or recklessly causes pecuniary loss in excess of $500, or causes a loss in excess of $150 for a violation of subsection (a)(4) [relating to graffiti]. Otherwise, criminal mischief is a summary offense.

18 Pa. C.S.A. § 3307: Institutional Vandalism

(b) Institutional vandalism is a felony of the third degree if the vandalism causes a pecuniary loss in excess of $5,000 or desecrates a venerated object. Otherwise, it is misdemeanor of the second degree.

18 Pa. C.S.A. § 3309: Relating to Agricultural Vandalism

(b) Agricultural vandalism is a felony of the third degree if the actor intentionally causes pecuniary loss in excess of $5,000, a misdemeanor of the first degree if the actor intentionally causes pecuniary loss in excess of $1,000 or a misdemeanor of the second degree if the actor intentionally or recklessly causes pecuniary loss in excess of $500. Pecuniary loss includes the cost of repair or replacement of the property affected. Otherwise, agricultural vandalism is a misdemeanor of the third degree.

18 Pa. C.S.A. § 3310: Relating to Agricultural Crop Destruction

(a) Agricultural crop destruction is a felony of the second degree and restitution is required under subsection (b).

18 Pa. C.S.A. § 3502: Burglary

(c) Burglary is a felony of the first degree, unless the structure is not adapted for overnight accommodation and no person is present. Then it is a felony of the second degree.

18 Pa. C.S.A. § 3503: Relating to Criminal Trespass (quoted in full)

(2) Except as provided in paragraph (1)(v), an offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. An offense under paragraph (1)(v) constitutes a misdemeanor of the first degree. Otherwise it is a summary offense.

(b.1) Simple trespasser.–

(2) An offense under this subsection constitutes a summary offense.

(b.2) Agricultural trespasser.–

(2) An offense under this subsection shall be graded as follows:

(3) For the purposes of this subsection, the phrase “agricultural or other open lands” shall mean any land on which agricultural activity or farming as defined in Section 3309 (relating to agricultural vandalism) is conducted or any land populated by forest trees of any size and capable of producing timber or other wood products or any other land in an agricultural security area as defined in the act of June 30, 1981 (P.L. 128, No. 43), known as the Agricultural Area Security Law, or any area zoned for agricultural use.

The remaining four specified crimes involve theft offenses. Because these offenses are not the key problem we forego the detailed description.

III. Conclusion

For all of the reasons outlined above, we urge you to veto this legislation. This proposed law will have disastrous consequences on civil liberties and free speech. We sincerely appreciate your willingness to discuss this issue with us in an open and honest manner. Hopefully, through our discussion yesterday and this brief summary, we have convinced you to veto this legislation.

Respectfully,

_________________
Eian Weissman

Last modified: 16 April 2006

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