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ACLU of Utah Warns Governor Leavitt about the Constitutionality of HB 322 "Domestic Terrorism of Commercial Enterprises"

28 February 2001 Published in Legislative Work

 March 1, 2001 

Governor Mike Leavitt 
Utah State Capitol 
Salt Lake City, Utah 84114  

Re: H.B. 322 -- Domestic Terrorism of Commercial Enterprises 

Governor Leavitt,  

We are writing to express our concern about the constitutionality of the above bill. Part 24, “Commercial Terrorism,” states, in part: “A person is guilty of commercial terrorism if he enters or remains unlawfully on the premises or in a building of any business with the intent to interfere with the employees, customers, personnel, or operation of a business through any conduct that does not constitute an offense listed under subsection (2)(A).” (Ll. 98-99b) The definition of “enter” includes “the intrusion of any physical object, sound wave, light ray, electronic signal or other means of intrusion under the control of the actor.” (Ll. 92-94). Part 24 applies to any business or building. (L1. 86-91). 

The above provisions of H.B. 322 criminalize a substantial amount of constitutionally protected speech. They would, for example, make it a crime for demonstrators lawfully assembled on a public sidewalk to engage in verbal conduct targeting an individual business if any “light ray” (i.e., visual message) or any “sound wave” (i.e., audible message) intended to dissuade people from patronizing the business enters the premises. They plainly target the speech of animal rights advocates while specifically exempting speech under the National Labor Relations Act and the Federal Labor Railway Act. (L1. 110b-110d). Unlike a small “bubble zone” created to protect citizens’ health and safety (see Hill v. Colorado, 530 U.S. 703 (2000)), they are not narrowly tailored to serve any significant government interest. And they do not ensure that speakers will have a reasonable alternative channel of communication. To the contrary, the restrictions require demonstrators to be out of sight and earshot of the business they intend to protest, preventing them from reaching their intended audience. 

Part 24 includes a purported “savings clause,” which provides that the intent of the legislature is “that this section does not inhibit or interfere with a person’s exercise of the rights under the First Amendment to the constitution of the United States or under Art. I, Sec. 15 of the Utah Constitution.” (L1.110e-110h). The “intent” of the legislature is irrelevant, because the plain language of the statute can only be read to silence protected First Amendment expression. The government cannot on the one hand criminalize protected speech and on the other hand forestall a constitutional challenge by disclaiming any intent to violate the Constitution. 

For the above reasons, the ACLU of Utah opposes H.B. 322, Part 24 “Commercial Terrorism” and urges you not to sign this legislation into law. 

Thank you for your attention to this important matter. 



Janelle P. Eurick 
Staff Attorney 
ACLU of Utah

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