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Does the End Justify the Means? Not if the Means are Website Postings Encouraging Imminent Lawless Activity

With the increasing reliance on the internet as a method of social networking, it was only a matter of time before websites became a means to “support the cause.”  Even the noblest of causes, however, cannot be achieved through the usage of any type of means.  Indeed, the end will not always justify the means when the rights of others are treaded upon.  The 2005 New Jersey decision Teva Pharmaceuticals USA, Inc. v. Stop Huntingdon Animal Cruelty USA demonstrates how even the robust protections of the First Amendment not endorse website postings that ratify, encourage, or incite “targeted” imminent criminal action committed by activists in support of a cause.

Background and Wrongful Conduct

            Teva Pharmaceuticals (Teva), a pharmaceutical manufacturer and distributor, sought a preliminary injunction against Stop Huntingdon Animal Cruelty (SHAC) in response to numerous acts of “domestic terrorism” perpetrated by SHAC activists against Teva and its affiliates.  Teva alleged that SHAC, a not-for-profit association organized as an international animal rights campaign against Huntingdon Life Sciences (HLS), committed criminal acts against it as a “secondary” target because of Teva’s contracts with HLS, a company which conducts research for various industries through experimental testing on live animals.  Teva claimed that SHAC “devised, organized, and directed” numerous criminal acts against its employees and their families, such as threats of violence and harassment, breaking and entering into employee homes, and stealing credit cards and travel itinerary.  More importantly, Teva claimed that SHAC was using its website to disclose the personal information of Teva employees and to post information about all the incidents of violence in order to incite further action.

In response, SHAC did not dispute that the alleged conduct occurred, but rather argued that its website explicitly disclaimed responsibility for inciting any criminal action on part of its viewers and activists, and that all the content posted on its site was protected from preliminary restraint under the First Amendment of the United States and New Jersey Constitutions.   The court used the following four-step analysis in deciding whether to grant the preliminary restraints: (1) whether plaintiff suffered irreparable harm; (2) whether the application was premised upon settled law; (3) whether there was a likelihood of success on the merits; and (4) whether the balance of hardships favored equitable relief.

The court first found irreparable harm to exist based on the previous criminal acts, which posed “significant jeopardy to the health and safety of plaintiffs, their employees, and their families,” and the likelihood such acts will continue.   The court then found the application was premised upon settled law because SHAC’s website postings demonstrated that it had knowledge of, encouraged, and ratified unlawful acts of its activists when it published the activities on its website thereafter.  The court powerfully declared that speech that aims to incite or produce “imminent lawless action cannot hide under the veil of the First Amendment” if it is likely to incite such action.  The court then found a likelihood of success on the merits because SHAC did not dispute that the conduct occurred; rather, it merely alleged its related postings were protected.  Lastly, the injunction request demonstrated a balance of the interests of the parties because Teva only took issue with how and where SHAC’s views on animal testing were expressed—in the evenings and at the homes of its employees and their families.

Overall, the preliminary restrictions were granted with regard to acts committed near the homes of Teva employees, affiliates, and their families, but were denied with regard to the acts committed at Teva’s place of business due to lack of evidence that illegal activity occurred on such premises.  The court not only issued the injunction, however, but it ordered SHAC to post a hyperlink to the Order on its website with a notice specifying that the Superior Court of New Jersey has prohibited certain activity relating to Teva, its employees, and their families.

Suggestions to Avoid

            Courts will not turn a blind eye when there is a clear connection between website postings and illegal activity produced thereafter.  Expressions of certain views, such as animal rights, are welcome so long as the means used do not threaten violence.  No matter how noble the cause, the First Amendment will not protect website postings from preliminary restraints when they are intentionally or unintentionally directed toward ratifying, encouraging, inciting, or producing imminent illegal action—especially when the privacy rights of the “targets” are in peril as a result.

 

Mark Keddis has a B.A. in Psychology with a Certificate of Criminology from Rutgers University in New Brunswick, NJ.  He will receive his J.D. from Seton Hall University School of Law in 2012, where he has served as a member of the Appellate Advocacy Moot Court Board and an Associate Editor for the Seton Hall Law Review.

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