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No.

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IN THE SUPREME COURT OF THE UNITED STATES


_______________

KEVIN KJONAAS, LAUREN GAZZOLA, JACOB CONROY,


JOSHUA HARPER, ANDREW STEPANIAN and DARIUS FULLMER,
Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

===============================================================
Petition for Writ of Certiorari
To the United States Court of Appeals for the Third Circuit

===============================================================

JOINT PETITION FOR WRIT OF CERTIORARI

PETER GOLDBERGER
Counsel of Record
PAMELA A. WILK
50 Rittenhouse Place
Ardmore, PA 19003-2276
(610) 649-8200
(Additional counsel listed
on reverse side) Attorneys for Petitioner Harper
October 2010
Additional Counsel for Petitioners:
Hal K. Haveson, Esq.
Haveson & Otis
194 Nassau St.
Princeton, NJ 08542
Attorney for Jacob Conroy

Paul J. Hetznecker, Esq.


1420 Walnut St., Suite 911
Philadelphia, PA 19102
Attorney for Andrew Stepanian

Robert A. Obler, Esq.


Bldg. 3D, suite 200
3131 Princeton Pike
Lawrenceville, NJ 08684
Attorney for Darius Fullmer

H. Louis Sirkin, Esq.


Scott Nazzarine, Esq.
Sirkin, Kinsley, & Nazzarine
810 Sycamore St., Second Fl.
Cincinnati, OH 45202
Attorneys for Lauren Gazzola

Robert G. Stahl, Esq.


Laura K. Gasiorowski, Esq.
Law Offices of Robert G. Stahl, LLC
220 St. Paul Street
Westfield, NJ 07090
Attorneys for Kevin Kjonaas

Of Counsel:
Andrew F. Erba, Esq.
Williams, Cuker & Berezofsky
Woodland Falls Corporate Center
210 Lake Drive East, Suite 101
Cherry Hill, NJ 08002-1163
QUESTIONS PRESENTED

1. (a) Does the First Amendment, as applied by this Court in Brandenburg, Hess,
Virginia v. Black, Claiborne Hardware and other cases, bar criminal conspiracy and
related substantive convictions for core political speech via the Internet that espouses
and revels in past and future illegal activity?
(b) The First Amendment doctrine of strictissimi juris, as articulated by this
Court, requires the strictest review of evidentiary sufficiency in conspiracy cases, to
prevent convictions for “agreeing” in the intellectual sense to an organization’s goals
and tactics. Without a demonstrated agreement to achieve the specified unlawful
objective, does the “totality of the evidence” test used to judge petitioners’ conspiracy
convictions conflict with the strictissimi juris rule?
(c) Should the Court, if possible, avoid these constitutional questions by
construing the statutes of conviction strictly, according to their plain language?
2. Even if some of petitioners’ conduct that the government labeled criminal was
outside the realm of protected speech and concerted activity, did this Court’s controlling
precedent require reversal of the convictions where the trial court’s instructions
permitted the jury to convict on a legally impermissible basis?
3. Did the imposition of joint and several liability for more than $1 million in
restitution violate governing statutes, as recently construed by this Court in Dolan v.
United States, 560 U.S. --, 130 S.Ct. 2533 (June 14, 2010)?

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LIST OF ALL PARTIES
The caption of the case in this Court contains the names of all parties (petitioners
Kjonaas, Gazzola, Conroy, Harper, Stepanian and Fullmer, and respondent United
States). Stop Huntingdon Animal Cruelty USA, Inc. ("SHAC"), a Delaware corpo-
ration, was a co-defendant at trial and a co-appellant in the Third Circuit. Now defunct
and without assets, governing structure, or leadership, SHAC is not a petitioner in this
Court. Accordingly, Rule 29.6 (corporate disclosure statements) does not apply.

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TABLE OF CONTENTS
QUESTION PRESENTED .............................................................................................. i
LIST OF ALL PARTIES ................................................................................................ ii
INDEX TO APPENDICES ........................................................................................... iv
TABLE OF AUTHORITIES ......................................................................................... iv
PETITION
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION ............................................................................................................. 1
TEXT OF CONSTITUTIONAL and STATUTORY PROVISIONS INVOLVED ....... 2
STATEMENT OF THE CASE
a. Procedural History ............................................................................................... 5
b. Statement of Facts ............................................................................................... 7
c. Statement of Lower Court Jurisdiction ............................................................. 11

REASON FOR GRANTING THE WRIT


1. This case presents critically important issues concerning the
application of this Court’s firmly established First Amendment
doctrine governing "incitement" and "true threats" to political
speech on the Internet .......................................................................................... 12
a. On at least some of the counts, the difficult constitutional
questions presented can be avoided by correcting the erroneous
statutory construction applied at trial and affirmed on appeal, which
fails to give a strict and narrow reading to the plain language of the
Animal Enterprise Protection Act .................................................................. 15
b. As to the three conspiracy counts, the decision of the Court below
conflicts with this Court’s precedent and decisions in other circuits
concerning the "strictissimi juris" doctrine .................................................. 20
2. The decision of the court below conflicts with this Court’s precedent
governing the proper disposition of an appeal where the jury
instructions invite conviction on alternate grounds, some valid and
others legally impermissible ................................................................................ 25
3. The decision below regarding restitution should be vacated and
remanded for further consideration under this Court’s recent decision
in Dolan v. United States, 560 U.S. --, 130 S.Ct. 2533 (2010) ............................. 28

CONCLUSION ............................................................................................................. 32

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INDEX TO APPENDICES
A. Opinion of the United States Court of Appeals for the Third Circuit,
published sub nom. United States v. Fullmer, 584 F.3d 132 (3d Cir. 2009)
B. Order denying rehearing (3d Cir., June 3, 2010)

TABLE OF AUTHORITIES
CASES
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) ............................................. 13
Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) ............................... 17
Black v. United States, 561 U.S. --, 130 S.Ct. 2963 (2010) ......................................... 25
Brandenburg v. Ohio, 395 U.S. 444 (1969) .................................................................... 6
Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) ....................................... 12, 13
Chiarella v. United States, 445 U.S. 222 (1980) .......................................................... 26
Dolan v. United States, 560 U.S. --, 130 S.Ct. 2533 (2010) ................................... 29, 31
Griffin v. United States, 502 U.S. 46 (1991) ................................................................ 26
Hedgpeth v. Pulido, 555 U.S. --, 129 S.Ct. 530 (2008) (per curiam) ........................... 26
Hess v. Indiana, 404 U.S. 105 (1973) (per curiam) ................................................ 12, 13
Hughey v. United States, 495 U.S. 411 (1990) ............................................................ 30
Jones v. United States, 526 U.S. 227 (1999) ................................................................ 17
Jones v. United States, 527 U.S. 373 (1999) ................................................................ 25
Jones v. United States, 529 U.S. 848 (2000) ................................................................ 16
Moskal v. United States, 498 U.S. 103 (1990) ............................................................. 16
NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) .............................. 14, 18, 21, 22
Noto v. United States, 367 U.S. 290 (1961) ................................................................. 22
Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition
of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc) ................................. 14

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Ratzlaf v. United States, 510 U.S. 135 (1994) .............................................................. 16
Salinas v. United States, 522 U.S. 52 (1997) ................................................................ 16
Scheidler v. National Organization for Women, Inc., 537 U.S. 393 (2003) ................ 17
Stewart v. McCoy, 537 U.S. 992 (2002) ..................................................................... 13
Street v. New York, 394 U.S. 576 (1969) .................................................................... 26
Stromberg v. California, 283 U.S. 359 (1931) ............................................................. 26
Thomas v. Collins, 323 U.S. 516 (1945) ...................................................................... 26
United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972) ............................................. 22
United States v. Fallon, 470 F.3d 542 (3d Cir. 2006) ................................................... 29
United States v. Lopez, 514 U.S. 549 (1995) ............................................................... 17
United States v. Pollak, 844 F.2d 145 (3d Cir. 1988) ................................................... 30
United States v. Spock, 416 F.2d 165 (1st Cir. 1969) ............................................ 22, 24
United States v. Stevens, 559 U.S. --, 130 S.Ct. 1577 (2010) ...................................... 13
United States v. Williams, 553 U.S. 285 (2008) .......................................................... 15
Virginia v. Black, 538 U.S. 343 (2003) ........................................................................ 13
Watts v. United States, 394 U.S. 705 (1969) (per curiam) ........................................... 13
Yates v. United States, 354 U.S. 298 (1957) .......................................................... 26, 27

CONSTITUTION, STATUTES AND RULES


U.S. Const., amend. I (freedom of speech) ............................................................ passim
18 U.S.C. § 43 ........................................................................................................ passim
18 U.S.C. § 43(c) .................................................................................................... 28, 29
18 U.S.C. § 43(d) .................................................................................................... 28, 30
18 U.S.C. § 2261A .................................................................................................. 3, 5, 6
18 U.S.C. § 3231 ........................................................................................................... 11
18 U.S.C. § 3613 ........................................................................................................... 31
18 U.S.C. § 3663A .................................................................................................. 28, 30
18 U.S.C. § 3664 ..................................................................................................... 29, 31
18 U.S.C. § 3771(a) ...................................................................................................... 30

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28 U.S.C. § 1254(1) ........................................................................................................ 1
28 U.S.C. § 1291 ........................................................................................................... 11
47 U.S.C. § 223 ...................................................................................................... 4-6, 15
Fed.R.Crim.P. 30 .......................................................................................................... 25
S.Ct. R. 13.1, 13.3, 13.5 .................................................................................................. 1
S.Ct. R. 14.1(g)(ii) ........................................................................................................ 11
S.Ct. R. 29.2 .................................................................................................................... 1
S.Ct. R. 30.1 .................................................................................................................... 1

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PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

KEVIN KJONAAS, LAUREN GAZZOLA, JACOB CONROY, JOSHUA


HARPER, ANDREW STEPANIAN and DARIUS FULLMER respectfully petition this
Court jointly for a writ of certiorari to review the judgment and opinion of the United
States Court of Appeals for the Third Circuit affirming their convictions and sentences.

OPINIONS BELOW
The Third Circuit’s precedential opinion (per Fuentes, J., joined by Senior
District Judge William Ditter (E.D.Pa.); Fisher, J., dissenting) was filed on October 14,
2009. A copy is attached as Appendix A. See United States v. Fullmer, 584 F.3d 132.
The United States District Court for the District of New Jersey (Thompson, J.) wrote no
opinion.

JURISDICTION
The judgment of the United States Court of Appeals for the Third Circuit
affirming the applicants’ convictions and sentences (other than a limited remand to set a
schedule for payment of restitution) was filed and entered on October 14, 2009. Appx.
A. A timely joint petition for rehearing en banc was filed, but the petition was denied
on June 3, 2010. Appx. B. On August 23, 2010, under No. 10A204, Justice Alito
extended until October 1, 2010, the date for filing this petition. The petition is being
filed by postmark on or before that date. Rules 13.1, 13.3, 13.5, 29.2, 30.1. Petitioner
invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1).

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CONSTITUTIONAL and STATUTORY PROVISIONS INVOLVED
The First Amendment to the United States Constitution provides, in pertinent
part:
Congress shall make no law ... abridging the freedom of speech, or of
the press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

The version of the Animal Enterprise Protection Act ("AEPA") in effect at the
time the Count One offense was alleged to have occurred (2001-2004) provided, in
pertinent part:
(a) Offense. -- Whoever --
(1) travels in interstate or foreign commerce, or uses or causes to be
used the mail or any facility in interstate or foreign commerce
for the purpose of causing physical disruption to the functioning
of an animal enterprise; and
(2) intentionally damages or causes the loss of any property
(including animals or records) used by the animal enterprise, or
conspires to do so,
shall be punished as provided for in subsection (b).
(b) Penalties.--
(1) Economic damage.-- Any person who, in the course of a viola-
tion of subsection (a), causes economic damage not exceeding
$10,000 to an animal enterprise shall be fined under this title or
imprisoned not more than 6 months, or both.
(2) Major economic damage.-- Any person who, in the course of a
violation of subsection (a), causes economic damage exceeding
$10,000 to an animal enterprise shall be fined under this title or
imprisoned not more than 3 years, or both.
****

18 U.S.C. § 43.1

_____________________
1 Significant amendments to § 43 were enacted in 2006, which are not directly pertinent
here.
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As of the time in question, the federal anti-stalking law (part of the Violence
Against Women Act) provided, in pertinent part:
Whoever --
(1) travels in interstate or foreign commerce or within the special
maritime and territorial jurisdiction of the United States, or
enters or leaves Indian country, with the intent to kill, injure,
harass, or intimidate another person, and in the course of, or as a
result of, such travel places that person in reasonable fear of the
death of, or serious bodily injury to, that person, a member of
the immediate family (as defined in section 115) of that person,
or the spouse or intimate partner of that person; ...
****
shall be punished as provided in section 2261(b).

18 U.S.C. § 2261A.2
The Federal Communications Act contains a provision which at the times at issue
here, read:
§ 223. Obscene or harassing telephone calls in the District of
Columbia or in interstate or foreign communications
(a) Prohibited acts generally
Whoever --
(1) in interstate or foreign communications --
(A) by means of a telecommunications device knowingly --
(i) makes, creates, or solicits, and
(ii) initiates the transmission of, any comment, request,
suggestion, proposal, image, or other communication
which is obscene or child pornography, with intent to
annoy, abuse, threaten, or harass another person;
(B) by means of a telecommunications device knowingly --
(i) makes, creates, or solicits, and
(ii) initiates the transmission of, any comment, request,
suggestion, proposal, image, or other communication
which is obscene or child pornography, knowing that
the recipient of the communication is under 18 years of
age, regardless of whether the maker of such
communication placed the call or initiated the
communication;
_____________________
2 The purported quotation of § 2261A in the Third Circuit’s decision, see Appx. A, 584
F.3d at 138, contains three phrases that did not appear in the statute at the times at issue
here. It cannot be used as a reference point.
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(C) makes a telephone call or utilizes a telecommunications
device, whether or not conversation or communication
ensues, without disclosing his identity and with intent to
annoy, abuse, threaten, or harass any person at the called
number or who receives the communications;
(D) makes or causes the telephone of another repeatedly or
continuously to ring, with intent to harass any person at the
called number; or
(E) makes repeated telephone calls or repeatedly initiates
communication with a telecommunications device, during
which conversation or communication ensues, solely to
harass any person at the called number or who receives the
communication; or
(2) knowingly permits any telecommunications facility under his
control to be used for any activity prohibited by paragraph (1)
with the intent that it be used for such activity,
shall be fined under title 18 or imprisoned not more than two years,
or both.

47 U.S.C. § 223.3

_____________________
3 This law has undergone amendments since February 2004 which are not directly pertinent
here.
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STATEMENT OF THE CASE
At issue throughout this case has been the tension between the First Amendment
and the application of criminal statutes to the speech, conduct and association of animal
rights activists. Above all, this Court must revisit questions of law familiar to it from
years of addressing cases arising out of political protest and radical organizing over
wars, labor unions, and racial injustice: how to reconcile the principles of conspiracy
law with the stricter requisites of individual intent necessary to protect the constitutional
rights of those who act under a banner -- in short, when and how to draw the line
between criminal behavior and protected First Amendment activity.
This petition arises out of petitioners’ convictions after trial on a six-count indict-
ment which charged, inter alia, conspiracies to violate the Animal Enterprise Protection
Act, 18 U.S.C. § 43 (“AEPA”); the anti-stalking statute, 18 U.S.C. § 2261A; and a
federal statute barring telephonic harassment, 47 U.S.C. § 223(a)(1)(C). Petitioners
were sentenced to terms ranging from probation (SHAC, Inc.) up to six years’ imprison-
ment, as well as joint and several liability for more than $1 million in restitution. The
Third Circuit -- over Judge Fisher’s dissent as to Count One -- affirmed petitioners’
conspiracy convictions, as well as the substantive stalking convictions.
a. Procedural History
Huntingdon Life Sciences, Inc. ("HLS"), is a British-owned product testing
company, with a major facility located near Princeton, New Jersey. Petitioners were
associated in various ways and to varying degrees with Stop Huntingdon Animal
Cruelty USA, Inc. ("SHAC" or "SHAC-USA"), an activist animal rights group which
operated a widely-consulted website. Based in New Jersey, SHAC-USA took an active
part in a multifaceted international campaign to pressure HLS into ceasing its laboratory
use of animals, which petitioners and many others around the world considered
inhumane.

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A six-count superseding indictment charged the six petitioners’, as well as SHAC
itself,4 with participating between October 2001 and February 2004 in conspiracies to
violate the Animal Enterprise Protection Act, 18 U.S.C. § 43 (pre-2006 vers.); the anti-
stalking statute, 18 U.S.C. § 2261A, and a law barring telephonic harassment, 47 U.S.C.
§ 223(a)(1)(C). Some of the petitioners were also charged with substantive violations of
the anti-stalking statute. After a joint, month-long trial, a jury in the District of New
Jersey convicted the petitioners and SHAC itself on all counts. They were sentenced in
September 2006 to terms ranging from probation (SHAC, Inc.) up to six years’ impris-
onment (Kjonaas),5 as well as to pay, jointly and severally, more than $1 million in
restitution.
On appeal, a Third Circuit panel -- over Judge Fisher’s dissent as to the over-
arching Count One conspiracy -- affirmed the petitioners’ various conspiracy convic-
tions, as well as the substantive stalking convictions and (in all but one detail) their
sentences. The court of appeals accepted the government’s challenged construction of
the AEPA, and concluded that certain of the petitioners had also violated the anti-
stalking law and/or violated the telephone harassment statute by conspiring to send
"black faxes." The court recognized that nearly all of the petitioners’ conduct was
constitutionally protected, yet the majority affirmed on a "totality of the circumstances"
test, finding at least one instance of making "true threats." Appx. A, 584 F.3d at 157. It
also found that another isolated incident (a "denial of service" attack on HLS’s
computers) was unprotected by Brandenburg v. Ohio, 395 U.S. 444 (1969). Id. at 155.
On this basis, all the convictions were affirmed. On petition for rehearing en banc, the
petitioners renewed three First Amendment objections to the panel majority’s analysis.

_____________________
4 SHAC, a corporation, is now defunct; it has neither assets nor any governing
structure. Accordingly, although a convicted co-defendant and co-appellant, SHAC is
not a co-petitioner.
5 All but Kjonaas have completed service of their terms of incarceration.
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The petition remained under consideration for over six months, but eventually was
denied. Appx. B. This joint petition follows.
b. Statement of Facts
Petitioners were members and organizers of SHAC USA (referred to in this
petition principally as "SHAC"), part of a larger grassroots movement which sought to
end the use of animals in product testing. The focus of SHAC’s activism was a
formerly British company, now operating in the United States as Huntington Life
Sciences ("HLS"), whose laboratories had come under scrutiny for substantiated allega-
tions of animal cruelty. SHAC’s campaign was not limited to staging protests and
demonstrations, and distributing posters, stickers and brochures to educate the public
about HLS and the evils of animal testing. Instead, the organization aimed to make the
business of animal testing less profitable by encouraging individuals and businesses to
sever their ties with HLS, and subjecting those who refused to protests, demonstrations,
and an uncomfortable public spotlight.
SHAC encouraged what it termed “direct action” in its campaign against HLS.
Direct action included protests aimed not only at HLS the corporate entity, but also at
the company’s individual officers, shareholders and employees, including actions
targeting their homes and offices. Direct action was also aimed at the officers and
employees of any company contracting with HLS to provide key services, from the jani-
torial company that serviced the HLS facility, to the company’s insurance broker and its
"market maker."
The reasoning behind this secondary campaign was simple. HLS might have to
deal with protesters as a cost of doing the nasty but profitable business of animal testing,
but service providers, who stood to gain nothing but the headache of dealing with
constant pressure from protesters as a price of any contracts with HLS, would quickly
sever their ties with the public relations battered company. This would happen even
more quickly if the individuals running and staffing the company found the protesters

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outside their homes and offices, rather than only corporate headquarters. With the loss
of clients and services providers, HLS would find it harder to run its business, animal
testing would become less profitable, and the economic wound would eventually end
what years of moral outcry had failed to accomplish. HLS would end animal testing if
it were to become unprofitable, SHAC believed. If it did not, then the company risked
economic failure.
To assist in delivering the content of its platform, and to publicize protest activity
both before and after the fact, SHAC USA developed a website. In addition to
providing abundant general information on animal testing, on HLS, about animal
activism, and concerning SHAC’s own beliefs and agenda, the website provided
specific information on protest activities in order to generate a grassroots movement
across its Internet community. The website would identify employees or customers of
HLS, or those of businesses providing services to HLS (CA3 App., vol. 3, at 798),
providing their names and addresses and other personal information, so that animal
rights activists across the United States could pinpoint protest activity against those
individuals and entities in their communities. Id. 801-04, 943-44, 952-56.
This “name and shame” operation was an integral part of the direct action
campaign because it made the prospect of working for or with HLS unappealing. No
one wants to wake up to animal rights activists with bullhorns in front of their home, or
to confront angry neighbors over “puppy killer” posters plastered around the neighbor-
hood.6 Understandably, many individuals would be dismayed, if not disconcerted, to
find personal information about themselves displayed on a website that any number of
strangers could access, despite the fact that this information was culled from public
sources and exists already in the public domain.

_____________________
6 HLS brought civil lawsuits around the country seeking injunctions and damages as a
result of the secondary campaign by anonymous vigilantes. Most of the demonstrations
complied with those injunctions.
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An example of the “targeting” of individuals and companies on the SHAC USA
website was the “target of the week” posting. Such postings would identify a client,
such as the chemical company CBC, and list “actions” to take: “call, fax”; “visit,
demonstrate, and infiltrate.” id. at 804. The website provided the phone and fax
numbers of the weekly target’s CEO and other executives so that web readers could
direct their messages about animal testing and HLS in a concerted and more effective
manner. Id. 801-13.
In other “target of the week” postings, the website was even more specific,
identifying particular employees of HLS or a company with whom they did business,
and listing not only these employees’ home addresses and phone numbers, but other
more personal information, such as the names and ages of their children, and the schools
and churches and social organizations the employees and their families attended or
belonged to.
Although SHAC never directed any illegal conduct on the website, it did
publicize “news” accounts of anonymous acts of harassment, vandalism and property
damage that sometimes followed postings of the identity and personal information of
“target” individuals. Id. 893-94, 927-28, 962, 977-78. For instance, the website
recounted the organized protest activity at Stephens, Inc., an investment company
“besieged by three days of protests, constant media coverage and police who turned the
area into militarized zone, making seven arrests”; the damaging of an HLS executive’s
car by unknown activists; and the vandalism of Bank of New York windows and ATM
machines by the "Animal Liberation Front" and the "Earth Liberation Front," two
radical activist groups associated -- unlike SHAC -- with secretive methods more akin
to sabotage. Id. 818-822.
Inevitably, there were rogue acts of vandalism and other criminal conduct
perpetrated by anonymous individuals which overshadowed the legal protest activities
such as letter writing, home and office demonstrations, and pamphleteering. The record

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below is replete with testimony by individuals identified on the website that their
homes, their families, and their peace of mind were besieged by animal rights activists
after publication of their personal information. In some cases, anonymous third parties
targeted individuals and their homes, spray-painting property, throwing rocks through
windows, calling late at night with veiled threats, and posting neighborhoods with
“puppy killer” signs. Anonymous activists attacked “target of the week” companies at
their workplaces with smoke bombs, voluminous emails, or glue and paint. The website
posted news accounts of such events, disowning responsibility, but continued to post
information on “targets” in the wake of these incidents.
Three categories of witnesses were represented at trial: HLS executives and
employees; employees of the secondary targets of the campaign (the non-"animal-
enterprise" businesses contracting with HLS); and law enforcement witnesses, who
testified as to electronic or personal surveillance of the petitioners’ activities. The
evidence can also be summarized in categories. First, there was the testimony of
witnesses recounting their experiences as targets or subjects of home demonstrations,
office protests, or the like. Second, there were exhibits of evidence such as video of
demonstrations, notebooks and mail taken from the home-office where Kjonaas resided
with Gazzola and Conroy, and numerous printouts of pages from the SHAC website
made at various known and unknown times. Witnesses recounted the web postings,
ostensibly offered as evidence of the conspiracy but utilized in truth to provide a
supposed account of SHAC-supported “actions” for which there were no first hand
witnesses in many cases. The key evidence is recounted in detail in the Third Circuit’s
opinion. Appx. A, 584 F.3d at 138-51.
There was no evidence that any of the petitioners participated or directed others
to participate in criminal activity. Nor was there evidence that the website or any
petitioner directly threatened the “targets” or incited imminent lawless action against
these individuals, entities and their homes and businesses. Rather, the Government’s

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case hinged primarily on its theory that SHAC USA, through its website, encouraged
and intended anonymous “co-conspirators” to act upon the personal information and
news accounts published on the website to conduct criminal activity such as property
vandalism, harassment, and trespass -- and that the individual petitioners, through their
active participation in SHAC, were responsible for all of the content of the website as
well as for any actions taken by unknown others who might read the website, or whose
actions were recounted and celebrated there. The evidence at trial propped up this
theory: that SHAC had the "illegal" motive of driving HLS out of business, and thus
any action, conduct, or protest activity in support of that goal was itself illegal and not
protected by the First Amendment. While the court below did not accept the govern-
ment’s theory in its full sweep, it nevertheless upheld petitioner’s convictions on the
basis of a "totality of the evidence," and notwithstanding the absence of any jury
instruction to ensure that only unprotected acts supported the verdicts.

c. Statement of Lower Court Jurisdiction Under Rule 14.1(g)(ii). The United


States District Court had subject matter jurisdiction of this case under 18 U.S.C. § 3231;
the indictment alleged federal offenses committed in the district. The court of appeals
had jurisdiction under 28 U.S.C. § 1291.

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REASONS FOR GRANTING THE WRIT
1. This case presents critically important issues concerning the application of this
Court’s firmly established First Amendment doctrine governing "incitement" and
"true threats" to political speech on the Internet.

Petitioners’ convictions on three conspiracy charges and (as to most of them)


substantive charges of stalking were predicated on their association with a political
action organization and its website. The decision of the court below acknowledges that
much of the petitioners’ charged conduct -- namely the posting of “news” summaries of
past protest activity, website coordination of future demonstrations at homes and
offices, and the ironic, mocking re-publication of the “Top Twenty Terror Tactics” flier
(created by one of SHAC’s adversaries) -- was protected speech. Yet over a dissent, the
court of appeals affirmed the convictions. Petitioners engaged in public speech, on an
Internet website, on a topic of legitimate public interest; their protest was, in First
Amendment terms, core political speech. Such speech may be restricted if directed at
inciting imminent lawless action, but it cannot be the equivalent of a face-to-face (or
otherwise individually delivered) threat. This Court should grant certiorari to examine
some of the important issues that arise in the context of political speech on the Internet.
Petitioners’ conduct, even viewed in the worst possible light, could not be
condemned as “incitement” under this Court’s existing precedent, because it did not
satisfy the imminence requirement of Brandenburg v. Ohio, 395 U.S. 444 (1969) (per
curiam), and Hess v. Indiana, 404 U.S. 105 (1973) (per curiam). Appx. A, 584 F.3d at
154-55. Speech posted on the Internet may reach millions, or it may reach no one, and
there is no telling when it will reach anyone. It can be read (or viewed and heard, in the
case of video postings) immediately, or long in the future. Most important, the speaker
cannot know who, if anyone, s/he is reaching or when, if ever, that audience will be
reached. The "speaker" cannot modulate the message to engage and galvanize the
audience, so as to steel it to action. Upon examination of the context, this Court may

-12-
find it prudent to hold the line just where it was drawn 35-40 years ago in Hess and
Brandenburg, or it may find that the new mass electronic, potentially instant
communications environment calls for some new approach. There can be no denying,
however, the importance of the issue.
The court below ruled that SHAC’s explicit coordination of a particular
“electronic civil disobedience” (denial of service, or "DOS") episode was unprotected,
because it constituted Internet "incitement" to criminal activity planned to occur at a
definite time in the near (but not immediate) future. Id. 155. Yet that kind of "speech"
-- to a faceless audience comprising an unknown number of individuals, most of whom
do not and cannot know of one another, and who may read the posting (or not) at an
unknown time, is far different from the Klansman’s platform speech in Brandenburg, or
the street protester’s profane exhortation in Hess. The court below tried to shoehorn the
website’s encouragement of the DOS attack into the "incitement" box, but for lack of
imminence the court in reality was creating a new First Amendment exception by
extending an old one and through a balancing of costs and benefits. This Court has
been highly reluctant to allow such extensions of existing rules allowing punishment of
speech. "The First Amendment reflects a judgment by the American people that the
benefits of its restrictions on the Government outweigh the costs." See United States v.
Stevens, 559 U.S. --, 130 S.Ct. 1577, 1585 (2010). "The mere tendency of speech to
encourage unlawful acts is not a sufficient reason for banning it." Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 253 (2002). See also Stewart v. McCoy, 537 U.S. 992
(2002) (Stevens, J., respecting denial of certiorari, addressing "imminence" aspect of
incitement doctrine).
The court of appeals majority concluded that the evidence was sufficient to
support a conclusion that in some respects the conduct of the petitioners charged with
stalking constituted unprotected “true threats” under Watts v. United States, 394 U.S.
705 (1969) (per curiam), and Virginia v. Black, 538 U.S. 343 (2003) (plurality). Appx.

-13-
A, 584 F.3d at 156. This conclusion, too, imported concepts from the rather different
context of personal threats to the "cooler," more removed setting of a website. That
targets may have felt apprehension when reading about themselves on SHAC’s website
does not mean that any of the petitioners did, or conspired to, threaten these individuals
personally. Indeed, when noting that the threatening conduct (publishing of individual
names and personal information) facilitated others’ direct action against the targets, the
majority opinion at points appears to discuss threats as if they were interchangeable
with incitement. Perhaps the Internet setting tends to dissolve that distinction. See
Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life
Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc) (6-5 split). If so, that would be a
significant change in settled First Amendment doctrine, warranting this Court’s close
attention.
Under existing law, the petitioners’ political speech cannot be stripped of its
constitutional standing by stretching the "threats" category to reach it. See NAACP v.
Claiborne Hardware, 458 U.S. 886, 928-29 (1982).7 That the panel was at times equi-
vocal about the extent of the First Amendment exception it was making (or expanding)
only makes matters worse. The court said that the Internet postings which
“disseminate[d] the personal information of individuals employed by Huntingdon and
affiliated companies” were “problematic.” Appx. A, 584 F.3d at 155. First Amendment
rights are destroyed by an environment of uncertainty. "To be sure, there remains an

_____________________
7 The most compelling detail in the majority’s recitation of the “threat” evidence,
however, is based on a misapprehension of the record. Without attributing this conduct
to any defendant, or identifying any occasion when this supposedly occurred, the
majority asserts that “SHAC displayed placards with photos of Brian Cass [a HLS
executive in the U.K.] after his beating, with his injuries highlighted in red, at protests.”
Appx. A, 584 F.3d at 156. To the knowledge of petitioners’ counsel, the record
contains no such evidence. There is no evidence that any of the petitioners ever
displayed or otherwise used any poster or placard of Cass at all, or caused others to do
so, much less in the manner described in the opinion. (Nor did the government’s court
of appeals brief, anywhere in its dramatic, 71-page statement of facts, assert otherwise.)
-14-
important distinction between a proposal to engage in illegal activity and the abstract
advocacy of illegality." United States v. Williams, 553 U.S. 285, 298-99 (2008).
Despite the failure at trial to differentiate clearly between protected and
unprotected conduct, the majority opinion upholds the convictions for conspiracies to
violate the AEPA, 18 U.S.C. § 43, to harass by telecommunications, 47 U.S.C. § 223(a),
and to commit stalking, as well as all of the substantive stalking counts under 18 U.S.C.
§ 2261A.8 Appx. A, 584 F.3d at 162-64. The Court should grant certiorari and reject
the dangerous decision of the Third Circuit in this case. After exploring the contours of
the incitement and "true threats" doctrines, and their relationship to one another, all as
applied to political speech on the Internet, the Court should reverse these petitioners’
convictions.

a. On at least some of the counts, the difficult constitutional questions


presented can be avoided by correcting the erroneous statutory construction
applied at trial and affirmed on appeal, which fails to give a strict and
narrow reading to the plain language of the Animal Enterprise Protection
Act.
Count One of petitioners’ indictment charged a conspiracy to violate the Animal
Enterprise Protection Act, as it stood prior to its 2006 amendment. The 2002 version of
18 U.S.C. § 43 prohibited interstate travel (or other use of a facility in interstate
commerce) with the intent to cause “physical disruption to the functioning of an animal
enterprise,” and the “intentional damage to or loss of any property used” by that enter-
prise, along with conspiracies directed at these particular objectives. 18 U.S.C.
§ 43(a)(1),(2) (2002) (emphasis added).9 As recognized by the dissent, the opinion of
the majority below impermissibly broadens the meaning of “physical disruption” as
used in the statute to encompass mere interference with HLS’s business operations.

_____________________
8 Petitioners Kjonaas, Gazzola, Conroy, and SHAC itself were charged with and
convicted for these alleged offenses.
9 See Statutes Involved, ante.
-15-
Appx. A, 584 F.3d at 159-60. This construction -- which endorsed the government’s
factual theory at trial and was echoed in the trial court’s jury instructions -- takes all the
significance out of the word “physical.” This ruling flies in the face of this Court’s
statutory construction decisions. See Jones v. United States, 529 U.S. 848, 857 (2000);
Salinas v. United States, 522 U.S. 52, 65 (1997); Ratzlaf v. United States, 510 U.S. 135,
140-41 (1994); Moskal v. United States, 498 U.S. 103, 109-10 (1990) (criminal statutes
should not be construed so that any word or clause is rendered superfluous). What
makes the case particularly worthy of this Court’s review on certiorari, however, is that
the majority of the Third Circuit reached this conclusion despite the challenging consti-
tutional issues it raises in the circumstances of this case.
At trial, the government relied on a theory of “economic disruption” once
removed. The prosecutors’ theory of the case was that SHAC’s “direct action”
campaign, conducted through its website, intended to shut down HLS’s animal testing
operations through a campaign of protest, threats, and harassment directed mostly not at
HLS, but at the businesses and individuals associated with HLS. As the prosecutor
argued in closing, “Closing Huntingdon Life Sciences would have physically disrupted
its business and ultimately would have caused the loss of that property.” CA3 App.,
vol. 7, at 3467.
By what amounted to a play on words, the government thus attempted to turn the
2002 version, under which the defendants were prosecuted, into the exact equivalent of
the 2006 revision, which did not apply. SHAC’s direct action campaign would force
these “targets” to sever their ties with HLS, making the business of animal testing more
difficult, which in turn would increase the costs of doing business, and make animal
testing “unprofitable,” the prosecutor noted. The government’s theory was that the
“physical” disruption element could be satisfied by the eventual closing of HLS, as
envisioned by the conspirators. According to the prosecutors, this ultimate goal would
also satisfy the element requiring “loss” or damage to the property of the animal enter-

-16-
prise, in that a moribund company produces no profits, a form of “property.” The
required strict construction of criminal statutes could not support that enervating inter-
pretation. See Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 408
(2003) ("this being a criminal statute, it must be strictly construed").
The panel majority misapprehends the plain meaning of the Animal Enterprise
Protection Act (18 U.S.C. § 43, former version) and deviates from this Court’s prece-
dent when it upholds convictions for conspiracy to cause “physical disruption” and to
“damage or cause the loss of any property” of an “animal enterprise” on the basis of
speech and conduct protected by the First Amendment and/or directed at non-“animal
enterprise” entities and persons. The majority below acknowledged that the amended
version of the AEPA, which permits prosecution for conduct directed at businesses and
individuals which are merely associated with an animal enterprise, and substitutes
simple "interference" with an animal enterprise for “physical disruption,” is not
applicable to the present case. Appx. A, 584 F.3d at 159. Nonetheless, the majority
analyzes the evidence and the law as if the revised version of the statute were at issue.
See id. at 167 (Fisher, J., dissenting). The language of 18 U.S.C. § 43 does not support
the majority’s interpretation. The result is an impermissible expansion of the statutory
meaning and conviction without the requisite proof of all statutory elements, making
half the statute’s 2006 amendment meaningless.
This Court should reject the Third Circuit’s endorsement of the government’s
overreaching construction of the 2002 statute not only because a plain meaning inter-
pretation would avoid the incitement/threats problem (as to this Count at least), but also
because it raises unnecessarily a difficult constitutional question in its own right. See
United States v. Lopez, 514 U.S. 549, 562 (1995) (avoidance of unnecessary constitu-
tional issues); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 (1936)
(Brandeis, J., concurring); see also Jones v. United States, 526 U.S. 227, 239-40 (1999)
(related doctrine of “constitutional doubt”). The aggressive use of secondary economic

-17-
boycotts in support of political aims -- to which the government’s broad construction of
§ 43 would unnecessarily extend the applicable version of the AEPA -- was held by this
Court in NAACP v. Claiborne Hardware, 458 U.S. 886 (1982), to be within the ambit of
First Amendment protection.10 Yet under the majority opinion, a course of conduct
presumptively embraced within the First Amendment’s coverage would be at the core of
a federal offense. Such interpretations must be avoided if, as here, they reasonably can
be, particularly by taking the simple and uncontroversial course of reading the statute
narrowly, according to its plain language.
At trial, the government’s proof matched its legal theory, consisting almost
entirely of evidence that SHAC effected a “direct action” campaign against business
entities associated with HLS, and against those ancillary concerns’ employees, rather
than against HLS itself. Similarly, proof of loss of or damage to property was confined
to the vandalism committed at the homes and offices of these various business entities,
none of which were “animal enterprises.”11 This theory, implicit in the indictment, was
eventually argued to the jury. The government thus encouraged a verdict that rests upon
conduct (“economic disruption” of HLS, physical disruption to non-animal enterprise
businesses) and consequences (loss of profits, loss or damage to property used by non-
animal enterprises) outside this statute’s apparent scope and thus both factually and
legally insufficient.

_____________________
10 Petitioners had relied extensively on Claiborne Hardware in their appellate briefs
below -- just as some of the SHAC organizers apparently did in designing the tactics of
their anti-HLS campaign, intending their campaign against HLS to be lawful under that
precedent. The majority cited the Claiborne Hardware decision only for a different
proposition and not in relation to the principal constitutional issues. See Appx. A, 584
F.3d at 160.
11 The only testimony of "loss" to HLS was estimates for the value of "lost business,"
"staffing costs" and "replacement" of equipment that proved vulnerable to computer
disruption. See Appx. A, 584 F.3d at 142, 159. There was no physical damage or loss
to property of HLS, so far as the record demonstrates, of the kind addressed in the
statute.
-18-
The panel majority identifies only one instance of SHAC’s campaign against
HLS that was directed against the “animal enterprise” itself and which was even
allegedly damaging to property in the way that the 2002 version of the statute prohibited
-- that is, the “electronic civil disobedience” (a “denial of service” attack) against HLS’s
computers in October 2003. Appx. A, 584 F.3d at 141-42, 150, 161. Even if the Count
One conviction were to be assessed on the narrow basis of this single tactic, when the
trial focused on so much more that was outside the statute’s bounds, the convictions
would fail on the issue of "loss" or "damage." The stated measure of “loss” attributed to
the cyber-attack, according to the court of appeals, was: “$400,000 in lost business,
$50,000 in staffing costs to repair the computer systems and bring them back online,
and $15,000 in costs to replace computer equipment.” Id. 142. In fact, the record does
not disclose any evidence at all of physical harm to any equipment that would call for
“repair” (as indicated by the reliance on “staffing costs” rather an any real “repair” in
the physical sense)12; what the record shows is that the “replace[ment]” cost represents
HLS’s choice to improve its cyber-security, not the replacement of anything physically
harmed. If a homeowner experiences a burglary through an unlocked window, and
afterwards chooses to install a home security system, the cost of installation is not a
measure of the “loss of” or “damage to” property of the homeowner committed by the
burglar. Only by an unacceptably broad construction of the terms “damage to” and

_____________________
12 See CA3 App., vol. 6, at 2802 (“the website actually crashed”; in response, “we
purchased new hardware, new fire walls and some additional software”), 2853 (“There
is about $400,000 in lost business or business that we normally would get during a time
period like that, but obviously didn’t because the computer system wasn’t operating.
There was about $50,000 of costs of staffing in order to address getting the computers
backup [sic] and about $15,000 of costs in replacing certain computer equipment to
address it.”). In short, nothing in the record would support a jury in finding, beyond a
reasonable doubt, that HLS had suffered a “loss of” or “damage to” physical property in
the sense implied by the majority’s use of the term “repair.” Neither that term nor
anything equivalent was employed by any witness. All that the evidence shows is that
the capacity of the HLS computers was exceeded by a malicious attack, and as a result
the system shut down. HLS addressed the issue by upgrading its hardware and
software. No “loss of” or “damage to” property was proven, if those statutory terms are
strictly construed, as required.
-19-
“loss of” “property” could an electronic overloading of a computer system’s capacity,
designed to (and succeeding at) causing that system to shut down, be deemed to come
within those terms.
As Judge Fisher recognized in his dissent, sufficiency of evidence, especially in a
conspiracy case, can be measured only against a sharply focused recognition of the
illegal objective defined in the charged statute, properly construed. Appx. A, 584 F.3d
at 165-69. A general agreement to something "illegal," unless it is precisely the
illegality charged in the indictment, will not suffice. The petitioners did not conspire to
violate 18 U.S.C. § 43, the AEPA, properly construed. To the contrary, they explicitly
designed their anti-HLS campaign so as to avoid violating that law. The Court below
failed to apply strict construction, and thus raised a host of unnecessary constitutional
issues. This Court should grant the writ to correct that deviation from proper judicial
practice, to adopt a properly limited construction of the statute, and to conform the
judgment of the court below to the settled precedent of this Court.

b. As to the three conspiracy counts, the decision of the Court below


conflicts with this Court’s precedent and decisions in other circuits
concerning the "strictissimi juris" doctrine.

To win convictions on the Count One conspiracy, the government was required
to demonstrate, beyond a reasonable doubt, that (1) the defendants agreed with one
another or with others; (2) to use a facility in interstate or foreign commerce; (3) for the
purpose of causing (a) physical disruption (not merely economic harm) to the func-
tioning (not to the profitability), (b) of Huntington Life Sciences (rather than of its
vendors and contractors); and (4) to intentionally damage or cause the loss of property
used by Huntington. As to that count in particular, no conviction could properly be
upheld unless each defendant was shown -- by evidence untainted by reliance on mere
“agreement” in the constitutionally protected sense, that is, political or philosophical
agreement -- to have specifically intended (that is, shared “the purpose of”) “causing

-20-
physical disruption to the functioning of an animal enterprise.” 18 U.S.C. § 43(a)(1)
(2002 rev.). Moreover, each defendant must have specifically (and separately) intended
that the impact of the conspiracy would be “to damage ... any property ... used by the
animal enterprise” or to “cause the loss of” such property. Id.(a)(2).
As Judge Fisher’s dissent correctly emphasizes, a criminal conspiracy conviction
cannot be upheld (despite the majority’s ruling) simply because some of the defendants’
conduct or intentions was illegal in some way, and not constitutionally protected. The
government had to show at trial, beyond a reasonable doubt, that each defendant
“agreed,” not to the commission of “illegal acts” generally, but specifically that the
illegal acts described in 18 U.S.C. § 43 be committed, under the circumstances
described there, and with the effect proscribed there. And at the same time, this Court
has a special responsibility under the First Amendment to ensure that no defendant was,
or even may have been, convicted because he or she “agreed” in the intellectual sense
(as opposed to the way that word is used in the law of criminal conspiracy) with the
general aims (or even all of the tactics) of SHAC as a political and moral campaign.
The opinion below claims to recognize this, in principle. See Appx. A, 584 F.3d at 160-
61 (explaining and acknowledging doctrine of “strictissimi juris”). Yet in examining
the sufficiency of the evidence of the three charged conspiracies, and particularly as to
Count One, the majority fails to enforce the rules of law that it endorses in the abstract.
This Court’s review is required to establish that acknowledgment of principles will not
suffice, if those principles are not applied in practice.
As the government perceived the matter, the “direct action” to end HLS’s animal
testing was illegal, simply because it was designed to drive HLS out of business (if HLS
did not change its practices). Thus, any SHAC-USA member, or person acting in
accord with its agenda to end animal testing at HLS -- a lawful end under Claiborne
Hardware -- engaged in criminal conduct and a criminal conspiracy. It is therefore all
the more important that this Court, on review of the stalking counts as well as on Count

-21-
One, should apply the First Amendment strictissimi juris standard, as established in
Noto v. United States, 367 U.S. 290, 299-300 (1961), and elaborated in NAACP v. Clai-
borne Hardware, 458 U.S. 886, 918-19 (1982). Those cases hold that the First Amend-
ment requires the strictest examination of evidentiary sufficiency, not the normal jury-
deferential test, to ensure that no defendant is convicted of conspiracy for “agreeing”
with co-conspirators on anything but the objective of committing crimes.
As the Seventh Circuit explained in a leading case:
When the group activity out of which the alleged offense develops can
be described as a bifarious undertaking, involving both legal and illegal
purposes and conduct, and is within the shadow of the first amendment,
the factual issue as to the alleged criminal intent must be judged strictis-
simi juris. This is necessary to avoid punishing one who participates in
such an undertaking and is in sympathy with its legitimate aims, but does
not intend to accomplish them by unlawful means. Specially meticulous
inquiry into the sufficiency of proof is justified and required because of
the real possibility in considering group activity, characteristic of poli-
tical or social movements, of an unfair imputation of the intent or acts of
some participants to all others.

United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972) (emphasis added). In
Dellinger, the “Chicago 7” Anti-Riot Act appeal, the court observed that the doctrine of
strictissimi juris would preclude finding that any defendant had an unlawful intent if the
finding were based solely on the fact that he participated in planning and organizing the
activity out of which “riots” arose, or on the mere imputation to him of the plan of any
associate that illegal activity occur. Id. In such cases the typical approach to criminal
liability, particularly where conspiracy is charged, is simply inapplicable. As observed
in United States v. Spock, 416 F.2d 165, 173 (1st Cir. 1969), “The metastatic rules of
ordinary conspiracy are at direct variance with the principle of strictissmi juris.”
Such evidence is, of course, a large part of the case against these petitioners,
particularly Kjonaas and Gazzola, as the prosecutors painted them as the propelling
forces and orchestrators of the direct action campaign and the authors of the content of
the website. As the prosecutors put their case to the jury, it did not matter if a defendant

-22-
was directly involved in the harassment and vandalism that sometimes followed the
website postings. The acts of these third parties, and any threats communicated to the
victims, were part of the direct action campaign and the intended result of the charged
defendants’ criminal objective, the prosecutors reasoned. CA3 App., vol. 6, at 2704.
The failure to apply strictissimi juris underlies the convictions of all the
petitioners. The case of petitioner Joshua Harper, for example, is particularly troubling.
Harper engaged exclusively in conduct which the Third Circuit correctly determined to
be protected by the First Amendment. Appx. A, 584 F.3d at 150, 155, 158. Yet the
majority concludes from the same “constellation of evidence” -- plus additional
evidence showing Harper’s friendship with petitioner Kjonaas and his longstanding
political and personal support for the cause of animal rights -- that his convictions for
two criminal conspiracies can be upheld. Id. 161-62. This Court’s strictissimi juris
doctrine, as ostensibly recognized in the majority’s opinion (Appx. A, 584 F.3d at 160),
does not tolerate that result. A conclusion of criminal conspiracy cannot constitution-
ally be inferred from protected speech and conduct or from expressions of sympathy (no
matter how “enthusiastic[],” id. 162) with a group’s legal and illegal goals.13 Similarly,
the majority’s analysis of the evidence against petitioner Stepanian (admittedly, says the
panel majority, “not as overwhelming,” id.) fails to differentiate between the legal and
illegal aspects, or between the actions addressed and those not addressed by the words
of the 2002 AEPA under which he was convicted.
The majority opinion glosses over the key requirement that the government
provide specific evidence of each defendant’s embrace of the illegal goal of each

_____________________
13 Just as the evidence was insufficient to prove petitioner Harper’s membership in the
Count One conspiracy, so it was insufficient to prove his alleged membership in the
conspiracy to use telecommunications equipment to harass, as charged in Count Six.
That he mentioned and described, or even praised, the "black fax" tactic in an on-
campus talk he gave in Seattle, not sponsored or otherwise connected with the New
Jersey-based SHAC campaign, could hardly make him a conspirator with SHAC-USA,
Inc., Kjonaas, Gazzola and Conroy, simply because he shared their commitment to the
cause and advocated the same tactics.
-23-
conspiracy, as well as the illegal means. This problem with the opinion exists not only
as to the conspiracy counts, as the dissent observes in its analysis of Count One, but also
the substantive stalking counts. It is telling that the opinion of the court below finding
sufficient evidence of the conspiracy and stalking counts consists of rather general
references to “illegal” actions. Those referenced actions were rarely if ever committed
by any of the petitioners. Most were engaged in by unknown third parties who alleg-
edly acted under the influence of the website and its proprietors to commit the harass-
ment and vandalism that plagued the targets of the direct action campaign and supplied
the factual context for the finding that the activities and website speech constituted “true
threats.”
Herein lies a central flaw of the majority opinion: Because of the pervasive
intertwining of constitutionally protected activity with a small dose of legally prohibited
conduct, the court below was required under the strictissimi juris doctrine to conduct a
much more precise analysis and a much more demanding and particularized summary of
the evidence as to each petitioner. Under that approach, the statements and conduct of
others cannot be proof of a defendant’s illegal intent. Spock, 416 F.2d at 173-74. A
defendant’s support or sympathy for those who embrace illegal action is not advocacy,
nor is it illegal, and neither is a defendant’s knowledge of any illegal aspects of the HLS
campaign or the activities of its supporters. See id. 178-79. Much more is demanded,
and those demands were not met by the government’s evidence or the analysis by the
court below.
This Court has not discussed and explicated the application of strictissimi juris in
a criminal case in nearly 50 years. Its important expansion of that doctrine into civil
rights cases occurred almost 30 years ago. The decision below conflicts with those of
other circuits applying this doctrine. To resolve the circuit split thus created and to
emphasize this important but lesser-known aspect of the constitutional limits of
conspiracy law, as applied to concerted political action, certiorari should be granted.

-24-
2. The decision of the court below conflicts with this Court’s precedent governing
the proper disposition of an appeal where the jury instructions invite conviction on
alternate grounds, some valid and others legally impermissible.
The court below overlooked that the constitutional flaw in this prosecution
requires reversal even if a small number of specific actions for which one or more of the
petitioners could be held responsible was constitutionally unprotected. The jury charge
delivered at trial attempted succinctly to articulate some of the First Amendment restric-
tions on criminal prosecutions of protest activity, but the court expressly limited those
instructions to Count One, the AEPA conspiracy. CA3 App., vol. 7, at 3377-80.
Although defense counsel objected at the conclusion of the charge to the court’s failure
to apply the First Amendment instructions to Counts 2-6, as required by Fed.R.Crim.P.
30(d),14 see CA3 App., vol. 7, at 3743-45, 3753-62, no corrective action was taken.15
Here, SHAC-USA’s campaign without doubt included lawful protest, as evidenced by
the home demonstrations conducted pursuant to legal injunctions and with properly
issued permits, postings on the website describing past activities and providing news
summaries, and distribution of materials describing HLS and its animal testing program.
Because the jury instructions failed to limit the permissible grounds of conviction to

_____________________
14 See Black v. United States, 561 U.S. --, 130 S.Ct. 2963, 2969 (2010); Jones v.
United States, 527 U.S. 373, 387 (1999).
15 The only First Amendment-related instruction given in relation to the stalking
charges (Counts 2-5) and the telephonic harassment conspiracy (Count 6) -- to which
defense counsel objected, id. 3744 -- was a charge that:
The defendants claim that their statements or conduct are permitted
under the First Amendment. You will have to decide looking at the
language in those counts, 2, 3, 4, 5, and 6, whether the Government has
proven the elements beyond a reasonable doubt. If the elements as
alleged have been proven, then they would not be protected in those
counts. That’s 2 through 6.
Id. 3381. In other words, as to Counts 2-6, the trial court explicitly instructed the jury
that there was no First Amendment issue in the case that need concern them. Not only
was this error -- as even the panel majority’s opinion clearly shows -- but it created a
record upon which reversal of those counts became mandatory, because evidence on
which the jury may have relied to convict was in actuality protected expression.
-25-
those which were legally valid, the court below should have reversed petitioners’
convictions even though the court found some of SHAC’s activities to be outside of
constitutional protections.
Even if there were sufficient evidence of some or all of the defendants’ specific
intent to violate the 2002 statute, this Court’s precedent still requires reversal whenever,
as here, a legally inadequate ground -- such an invitation to convict based on conduct
which did not come within the statutory definition of the crime -- is submitted to a jury.
Griffin v. United States, 502 U.S. 46, 55-56 (1991); see also Hedgpeth v. Pulido, 555
U.S. --, 129 S.Ct. 530, 531-32 (2008) (per curiam); Chiarella v. United States, 445 U.S.
222, 237 n.21 (1980); Yates v. United States, 354 U.S. 298, 312 (1957). A jury is
presumed capable of choosing the well-supported theory, where several are offered and
one or more is factually insufficient. But the jury has no such ability to disregard a
legally mistaken theory. Here, the jury was permitted under its instructions to convict
on Count One on an improper, overbroad legal basis, consistent perhaps with the 2006
revision of the statute, but not with the 2002 version under which the petitioners were
prosecuted. See CA3 App., vol. 7, at 3375 (defining “physical disruption” element as
“an action using interference with the normal course of business or activity at an animal
enterprise”), 3376 (including “loss of profits” within explanation of “economic
damage,” and conflating that separate element with the required “damage to” or “loss
of” property).
Under Stromberg v. California, 283 U.S. 359 (1931), and a long line of
subsequent precedent, if one possible ground for conviction is premised on First
Amendment-protected activity, and a general verdict is rendered, the conviction must be
overturned, whenever under the instructions the jury may have rested its decision on a
legally impermissible ground. Accord Street v. New York, 394 U.S. 576 (1969)
(reversal required if constitutionally protected words used by defendant could have been
cause of conviction); Thomas v. Collins, 323 U.S. 516, 528-29 (1945) (conviction for

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contempt cannot be sustained on premise of a valid, constitutional ground where penalty
was also based on constitutionally protected speech). In such cases it is “impossible to
tell” whether the jury relied on the erroneous alternative, Yates, 354 U.S. at 312, and
reversal is required.
According to the government’s theory of the case, the "stalking" was
accomplished through two avenues. First, SHAC-USA members would report the
names, addresses, and personal information about individuals and “exhort” others to
engage in direct action. Second, the website would post the results of “direct action”
demonstrations on the homes and offices of targeted businesses and individuals, with
the purpose of encouraging additional acts of vandalism, harassment and the like, and to
advise other potential targets of what types of activity they could expect should they
continue to have ties with HLS and animal testing. The prosecutors also relied on
evidence that some of the defendants, particularly petitioners Gazzola and Kjonaas,
coordinated protests at homes and offices which were often followed, outside the
parameters of injunctions which limited and regulated such actions, by late night
vandalism and harassment by unknown third parties. Indeed, as the government
conceded and the majority opinion acknowledges, the direct action campaign at the
heart of this indictment intertwined legal and illegal acts, and constitutionally protected
and unprotected speech and activities.
The government’s case at trial relied heavily on what the majority has properly
defined as constitutionally protected First Amendment speech and activity. The jury
instructions then failed to prevent the jury from convicting on this impermissible basis.
See CA3 App., vol. 7, at 3377-80.16 Because constitutionally protected conduct --

_____________________
16 This is particularly true of petitioner Conroy, whose convictions for stalking the
court below upheld purely on the basis, characterized as an “aiding and abetting”
theory, cf. 18 U.S.C. § 2(a), that he administered the website that “made the stalking
possible.” Appx. A, 584 F.3d at 164. Nothing in the instructions limited the jury’s
consideration of Conroy’s guilt to a narrow theory that would thread the constitutional
needle.
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however rude or abrasive -- was intertwined with the behavior upon which the court
below sustained the stalking convictions, and neither the instructions nor the general
verdict insure that the jury properly distinguished between the constitutional and uncon-
stitutional grounds for conviction, the stalking counts, at least, cannot be sustained.
Since reversal, not affirmance, of the convictions is the legally mandated outcome of the
panel’s constitutional holdings, certiorari should be granted. Petitioners respectfully
suggest that this particular point is so clear that a summary reversal could be in order on
this point.

3. The decision below regarding restitution should be vacated and remanded for
further consideration under this Court’s recent decision in Dolan v. United States,
560 U.S. --, 130 S.Ct. 2533 (2010).

As part of their sentences, each of the petitioners was ordered to pay over $1
million in restitution to HLS. The court below remanded for the district court to set a
schedule for each defendant’s payments toward the $1,000,001 joint and several restitu-
tion. Appx. A, 584 F.3d at 165. The court of appeals, however, failed to address the
substantive issues with respect to the restitution penalty, which were advanced at
sentencing and on appeal, but not addressed by the court below, apparently having been
overlooked.17
The AEPA directs the sentencing court to grant restitution under the Mandatory
Victim Restitution Act (“MVRA,” 18 U.S.C. § 3663A) and also authorizes restitution
for “any ... economic damage resulting from the offense.” 18 U.S.C. § 43(c)(3) (2002
ed.). The phrase “economic damage,” in turn, is defined in § 43(d)(3) to mean “the
replacement costs of lost or damaged property or records, the costs of repeating an inter-
rupted or invalidated experiment, or the loss of profits ....” The sentencing court relied
on the testimony at trial of Richard Michaelson (as recounted in the opinion, Appx. A,
_____________________
17 The Third Circuit did affirm summarily on all issues going to “the reasonableness of
their sentences.” Id. Conceivably, one could say that the restitution issues were
subsumed in that ruling.
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584 F.3d at 142) with respect to the “electronic civil disobedience,” to reach the million
dollar figure. The court below failed to address petitioners’ substantial arguments that
this determination was both legally and factually invalid.
First of all, the government offered no evidence at all with regard to HLS’s “lost
profits.” Rather, Michaelson offered a very general, estimated figure for “lost
business,” apparently meaning gross income, but did not relate that figure to any profit
margin much less offer any accounting to justify it, despite a timely defense objection.
Nor did evidence of interrupted experiments exist in this case. Since “replacement costs
of lost or damaged property” would be allowable under the MVRA in any event,
nothing in § 43(c) actually adds to the restitution analysis in this case.
In Dolan v. United States, 560 U.S. --, 130 S.Ct. 2533 (June 14, 2010), this Court
held, by a 5-4 vote, that the district court’s violation of a deadline established in the
restitution statute, 18 U.S.C. § 3664, did not require invalidation of the restitution order.
The court there had failed to finalize a restitution decision within 90 days after the prin-
cipal sentencing proceeding, after announcing at sentencing that it intended to fix and
impose a restitution amount. The defendant did not object until long after the statutory
deadline had expired. Here, the deviations from the governing restitution statute were
far more substantive, and the defense did object. The court below did not have the
benefit of this Court’s Dolan ruling when it decided petitioners’ case.
In petitioners’ case, the government made no effort at all, despite timely and
repeated objections, to tie the Michaelson testimony directly to criminal conduct of
these defendants. Lost business opportunities and losses due to intervening and
noncriminal causes are not countable under the statute. See United States v. Fallon, 470
F.3d 542, 548 (3d Cir. 2006). Yet the Michaelson testimony expressly lumped together
all costs, direct and indirect, from the entire anti-HLS “campaign,” CA3 App., vol. 6, at
2853, even though much of the widespread public effort to stop Huntingdon’s use of
animals for product testing was not merely legal but actually consisted of constitution-

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ally protected expressive activity. Only losses directly tied to the criminal offense of
conviction can be counted. Hughey v. United States, 495 U.S. 411 (1990). The district
court’s total disregard of this critical limitation must not be countenanced.
Moreover, a victim’s legal and other costs of repossessing property are indirect
and therefore not recoverable through restitution. Thus, the legal costs and value of
diverted management time and “staffing” that Michaelson emphasized were all non-
cognizable. See United States v. Pollak, 844 F.2d 145, 152-54 (3d Cir. 1988). The only
item he mentioned that could conceivably refer to something legally countable toward a
restitution figure was “about $15,000 of costs in replacing certain computer equipment
to address it.” CA3 App., vol. 6, at 2853.18 But even this item seems more likely to
refer to a decision by HLS to replace equipment that had proven vulnerable to a denial-
of-service attack with a newer and more sophisticated server. Since there was no
evidence that the old computer equipment had been “lost or damaged,” 18 U.S.C. §
43(d)(3), the government failed to establish that even this item was appropriate as a
measure of restitution. Cf. 18 U.S.C. § 3663A(b)(1)(A) (“damage to or loss or destruc-
tion of property of the victim of the offense”). Yet under Hughey, 495 U.S. at 422, a
criminal restitution statute must be narrowly and strictly construed. Similarly, the
Crime Victims Rights’ Act provides that victims are entitled to receive restitution only
"as provided in law," and not otherwise. 18 U.S.C. § 3771(a)(6).
A computer, after all, ordinarily does not “crash” like a car, causing it to need
physical repairs and replacement parts; in this case, the “crash” resulted from an
overload of data, with unexplained and therefore unknown physical consequences (if
any). The government offered no evidence or explanation to show what sort of
response was required, and thus failed to prove that there was either “damage” to or

_____________________
18 In its appellate brief below, the government admitted this $15,000 was the only
"direct damage to HLS property" (Gov’t Br. 38) that was proven at trial and attributable
to the petitioners.
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“loss or destruction of” any property. Whatever HLS did to remedy the computer
problem did not come within any applicable statutory language of either pertinent
restitution law, so far as this record shows. The restitution amount was not established
by the evidence at trial; it was a sentencing issue. The prosecutors were placed by the
defendants on fair notice of their objections to the restitution claim, and yet the govern-
ment failed and refused at sentencing to prove any legitimately cognizable basis for
restitution. The government never requested any extension of time, nor did it seek a
post-sentence proceeding on restitution under 18 U.S.C. § 3664(d)(5). See Dolan, ante.
It may be that the Third Circuit may find these violations excusable, as did the five-
Justice majority in Dolan with respect to the missed deadline. But at least equally
likely, the Court would find that the kinds of circumstances mentioned in Dolan do not
justify the violations here. In any event, the issues raised by petitioners on appeal in this
regard should be addressed, not ignored.
The enormous judgments of restitution imposed in this case -- which will follow
and crush these young defendants economically for the next 20 years or more,19
completely preventing them from establishing normal economic lives -- are utterly
unlawful. At the very least, the judgments of sentence in this case should be vacated
and remanded for reconsideration of the $1 million+ restitution orders in light of this
Court’s recent decision in Dolan.

_____________________
19 See 18 U.S.C. § 3613(b) (civil liability for criminal restitution for 20 years after
release from imprisonment), id.(c) (restitution is lien in favor of U.S. on all property or
rights to property of convicted defendant),
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CONCLUSION
For the foregoing reasons, petitioners pray that this Court grant their petition for
a writ of certiorari, and reverse the judgment of the United States Court of Appeals for
the Third Circuit affirming the judgments of conviction. At the least, the judgments for
payment of restitution should be vacated and remanded.

Respectfully submitted,

H. LOUIS SIRKIN PETER GOLDBERGER


SCOTT NAZZARINE Counsel of Record
Sirkin, Kinsley, & Nazzarine PAMELA A. WILK
810 Sycamore St., Second Fl. 50 Rittenhouse Place
Cincinnati, OH 45202 Ardmore, PA 19003
(610) 649-8200
Attorneys for Lauren Gazzola peter.goldberger@verizon.net

HAL K. HAVESON Attorneys for Petitioner Harper


Haveson & Otis
194 Nassau St. ROBERT G. STAHL
Princeton, NJ 08542 LAURA K. GASIOROWSKI
Law Off. of Robert G. Stahl, LLC
Attorney for Jacob Conroy 220 St. Paul Street
Westfield, NJ 07090
PAUL J. HETZNECKER
1420 Walnut St., Suite 911 Attorneys for Kevin Kjonaas
Philadelphia, PA 19102
ROBERT A. OBLER
Attorney for Andrew Stepanian Bldg. 3D, suite 200
3131 Princeton Pike
Of Counsel: Lawrenceville, NJ 08684
ANDREW F. ERBA
Williams, Cuker & Berezofsky Attorney for Darius Fullmer
Woodland Falls Corporate Center
210 Lake Drive East, Suite 101
Cherry Hill, NJ 08002-1163

October 1, 2010.

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