courts and this morning i judge builder of the eastern district of pennsylvania has agreed to give us a hand just fisher and i want to thank judge that are very much for helping us out this morning or right will call the first greg good morning if it please the court just in general review the argument is going to be spread by myself i'm going to be talking in general about that the speech that was involved in this case is and it's our position that under brandon very good it's our constitutionally protected free speech mr starr will talk about some particulars is just dealing with the statutory construction and mr goldberg grow up talk about some of this case really involves where we are in the modern world now that we have the internet and websites and we can communicate with one another via the internet as opposed to radio television or newspapers or in fact in person to person and what happened here was it clearly this was a political campaign to bring about some social change the social change being is it relates to animals the use of animals and testing pharmaceutical products and that there was a group of individuals who had gathered together that were actually the man the messengers that they would carry messages on a website that didn't announce that they are you know they're what they're actually were and that they wanted to try to convey the message that they're having in life sciences was a laboratory located here in new jersey that was using dogs cats monkeys and other animals in testing various products and that they were treating them in an abusive fashion even to the extent of bashing a dog in the face and making some announcement about it it was the position of these young people that they wanted to stop in and how they wanted to do it was a traditional american way of of protest by going out and trying to create in the past it's been done in clay borne and cases such as that is to create secondary boycotts and to encourage not only since the lab wouldn't listen to them directly th went they went around and they encouraged people to do demonstrations both places of employment in places where people lived they were all generally they were most often were peaceful demonstrations many of them the demonstrations that had imposed civil and junctions had been secured by huntington life sciences or in fact by some of these companies that were being boycott the boycott huntington live sciences and they attempted in most instances to control whatever crowds were there and by making sure that the injunctions were complied with is it turns out many of the people who are the recipients of demonstrations found themselves were just bothered by the demonstrations and didn't like the idea that people were out there many of the targets that were designated to where at that particular demonstration would take place in advance not even know that people were coming they weren't on they didn't know nobody had been sent from from  said there's going to be a protest at your house it was there was a message on this web site that indicated that there would be a particular demonstration on a particular day and how these people reflected that may have been  conveyed to them via messengers from huntington life sciences tried to exaggerate you know in to discourage people from following which jackie had to say seems to be a lot more than that in reading the record i  know that there were acts of specific physical intimidation were rocks and stones were thrown and property through windows where cars were overturned were specific there were things like that there were things like that that happened but he counterpose that with what your beginning stated this was an issue all american protests but again it's not different then you know you know some of that did happen but whatever happens in demonstrations demonstrations start out in the past labor unions when they would gather together and they would have demonstrations or they were picket there's always an there may be an individual who goes too far and if that individual has gone too far then individuals should be prosecuted for violating the law or criminal acts posting the amalie of persons who were involved with huntington life sciences their home address the age of their children and where their children go to school do you think that's an accepted that her protests the purpose of doing that was not to intimidate her and steal the idea that we're going to create the fear of serious bodily harm or death the reason for that is is to say we're going to out you we want people to know that you are doing business with or you work at a business that does the following activity and what they were trying to do in and again they didn't convey direct threats all our clients did is they posted you know after incidences occurred or that protest occurred that a protest did occur the writing may not have been pleasant but not all writing about things are always pleasant that doesn't mean it incited anybody to immediately act that way and that this type of activity was completely covered by the supreme court in brandenburg where the idea of i can write things i can advance you know criminal behavior in the future as long as i don't incite and want to act now immediately doesn't he have a purpose to threaten to intimidate those who are associated with h l a s if i directly communicate with him that i did not in general they were not directly communicated the website indicated something may occur the way that they knew it was is it people from huntington life sciences said called in let people know they called marsh they called their employees they said there's going to be demonstrations by this group this is what's going to happen they didn't convey it i didn't see end the messenger the message only said that there would be a demonstration that would be taking place they never said they they they did say that we do except direct action to convey our message if it happens but they didn't say this is what you have to do they didn't incite that people had the time to reflect on how they were going to act they were there are multipl demonstrations of which there weren't problems they were annoying to people but again because a few individuals in a group you don't shut down the press because somebody misinterprets it or somebody acts contrary to what the message was you don't kill the messenger and i think this is what's happened here they've gone after a messenger they've created a theory here that is contrary to what has been provided is protected free speech and brandenburg it's no different again in the threats that were made in claiborne's where it is you argument is your argument on the the free speech aspects of this challenge more related to the animal immediately incites one to go do it i believe that would violate the law but it's not here i don't think that when you're dealing with first amendment i don't think it's really appropriate to put them in together and claim a conspiracy because then every association that forms to get a political protest or in that encourages civil disobedience it's happened in the civil rights movement in the seventies of encouraging people to sit in the front of the but sort the canners and so on would be then we'd be in a conspiracy to violate the law and would be guilty of a violent conspiracy to commit various crimes if particular individuals go too far they're the ones that should be held responsible again not a person that put something out there this political hyperbole it's no different than charles ever saying you know anybody that crosses the picket line of break their necks you know that's directly that's saying an act of violence that's political hyperbole i morning are such unlike a follow up that one says with your question in addition to the first amendment defenses what we have here is an insufficiency of the evidence and i think that is highlighted most effectively by the two commerce for the purpose of causing physical disruption to the functioning of the animal enterprise and intentionally damages or causes the loss of any property including animals or records used by the animal enterprise and what we have here is the government chose to indict this case in such a way and then present the evidence in such a way they ignored that aspect and focus rather on the secondary targets such as the the acts of violence that you secondary targets and the government indicted it as one of the objects of the e p a conspiracy was to shut down h l s through the secondary boycotts the secondary tertiary targets and so witness after witness spoke about demonstrations both where there was injunctions in place and ones that were not of the statute specifically refers to property of the enterprise of the animal enterprise yes which would be h l s itself however the vast majority of the evidence in the trial record was true witnesses including the stalking alleged victims by said they're all secondary targets they were from marston sure stevens the the financial i think that what happened here is that the original statute no two was geared towards the typical demonstrations and interference physical disruption of the physical location of the animal enterprise that's when you look at the language of the statute itself the legislative history it dealt with individuals that would go and break into these facilities liberate the animals destroy the testing records and the animal records in two thousand and six the statute was widely amended to cover almost the specific acts that the government chose to resent during the stage during the trial and that was targeting of secondary tertiary targets to put financial pressure on the animal enterprise it would have bought would have bought the destruction of the electronic gas it's in the computers the funds the faxes isn't that sufficient under the two thousand and two stance you forget the secondary characters and you know you could argue that perhaps the government is trying to establish disruption physical disruption by proof of the secondary targets or you could say that evidence related more to the stocking count but if in fact the physical disruption of the electronic assets was shown and you know we there's a very debt we're at a very deferential stage as to whether or not any reasonable jury could have found sufficient evidence here beyond reasonable doubt wasn't that enough in and of itself i think there's some bushes with those questions and i know it was multifaceted one one before i move exactly the question would be that the government not only presented in their opening their summation in their arguments to the judge and pretrial motions that it was the targeting of trying to shut down in the secondary targets that was their theory of loss in this case so they did more than try to present it as an overview of a conspiracy or towards the stock but to move directly to your question is that with that theory in mind in pretrial motions the defense constantly asked for or what the government was going to present as proof of direct difficult disruption they argued you were entitled to one they argued that it wasn't necessary because their theory of the case was that they were that this group shack was trying to shut down forty thousand dollars used to get their computers back up and running now we the question is is that a physical disruption under the two thousand and two e p a and we argue that is not the physical disruption under the two thousand and two statute was interrupting their physical plant by breaking in by protesting by present preventing people from entering by disrupting their experiments what we're talking about is an overloading of a computer system through perhaps through sending e mails not sending a virus but but communicating which we believe under mr surface first men are going to protected speech but communicating with the company and sending emails and if that overloaded their system is that a physical disruption of the two thousand and two statute and we don't believe that that is what was intended by that statute now clearly the two thousand and six amendments went much further in the explanation of what is the statute what are we trying to cover under this law the mere fact that the two thousand and six amendment babies were more specific doesn't mean if the two thousand two language didn't include with two thousand and six amendments specified it's correct that we cannot presume that there is a direct a to b link i think that when you look at all the legislative history is not binding on the court i think it certainly helps explain what was looked at in the two thousand and six was a drastic expansion not just a clarification your honor of explaining what was meant by the two thousand and two statute because when you look at the stalking counts we charge under federal stocking which is a very specific statute that requires specific intent by the speaker to create reasonable fear of death or serious bodily injury which is is explained in the statutes and a reasonable interpretation by the listener is a very specific statute there's probably no doubt that the comments that were made were intended to annoy and harass but those there's other statutes particular state statutes cover those and they're usually misdemeanors of disorderly persons there's no intent here and there's no evidence a specific intent by any of the sentence to cause fear of death or serious bodily injury to fund the statu were there not evidence of intent to cause this disruption of the property or prize i don't believe that there was evidence in the record that the people that were on trial intended to cause physical disruption informed whoever wanted to read it exactly how to disrupt the facts of the series as well as the computers judge again i believe that that goes back to how do we interpret physical disruption under the statute that these people were charged with and in this modern day and age is sending in in times before the internet is sending massive amounts of mail that require staff to open it to unload it to read it to stand outside of protests to write articles is that any different than sending emails that because their computer system could not handle that is that the physical disruption the congress was getting at in the two thousand and two statute as opposed to what it what it clearly appears to be what exactly happened your argument would be stronger if the if this statute said physical damage but physical disruption why wouldn't interfering with the operations of one's  faxes computers come within the scope of the term physical disruption certainly was disruptive well it says physical disruption and intentionally damages or causes loss of property  and or so i believe that it has to be coupled together with that and i think that's where the government fails under the two thousand and two version of two thousand and six it may be covered if you're argument is that the evidence was insufficient  i know you have co counsel who's going to who's going to talk about the stocking took over i was going to talk about the protest situations and political actions and people coming from the best of intentions there's some things that are done there distasteful to outsiders and to the people that's involved in the the that was a product of the name and shame game and that was to out the businesses doing business with the animal enterprise and to shame them and their workers into saying we're weak we do not want to do business with an enterprise that harms and kills and abuses animals and to effect that goal individuals that were associated with those secondary tertiary companies they were named and their locations where they work sometimes a home and on rare occasions there was an instance where the children went and i think that that intent was to further shame those individuals on the d n a was to was to out those individuals in the community by doing life by causing that and then and their neighbors and the people in their community to understand that these individuals and the companies that they represented were doing business with a a whore and company that was abusing animals and in that wasn't the intent to create fear i don't believe your child i don't believe so your honor i do not believe there is evidence in the record all nothing happened there was no protest at the schools nothing happened to the children no one child was approached there was demonstrations at these individuals offices and their homes what other purpose with their be in publishing the children's names if it wasn't to place fear in the minds in the hearts of their parents who were somehow connected to a t l s isn't it isn't that all that needs to be proven stocking on the stocking  believe there has to be your honor specific intent by the speaker and the result perception of the listener and it must be for death or serious bodily injury which is a very high threshold as it wasn't  reasonable for the parents to hold a fear of death or serious bodily injury for their children over that process in light of everything that had gone on and then all of a sudden their children's names in schools are published over the internet judge when you say in light of everything that went on there were acts of vandalism there were acts of annoyance there were acts of protests there were time place and manner restrictions during some of these during some of the incidents the government brought out with an individual defendant screaming at a homeowner this police officer standing right next to that individual in the videotape that was presented what we have are acts of annoyance inconvenience and and hurt quite badly well judge her in the sense of emotional distress is not covered under the federal stocking statute most of this press maybe may be covered now in the two thousand and six minutes of the p s a which i think explains further that the two thousand and two acted not cover this but emotional distress where you are embarrassed in your neighborhood or you do not want to drive through picketers every day or you do not want to come home and find people in part of your house or posters hung up on telephone poles is different th being recently in fear of death or serious bodily injury which includes maiming loss of a limb very expects dream acts of violence is just so i don't know how much time you have remaining i thought your time had run over go in i'm intimidating in a sense the pun or and as a result he kicks a bad punt there's been no physical contact i have not entered into it becomes a personal foul when i actually come come up to him and i the physical disruption would mean really coming on to the plant on a cutting offense grabbing the fax machine breaking it physically there is contemplated idea of something that goes through any email because too many get sent there or too many dollars of the several elements that seem to at least limit the statutes at application but again physical destruction means physically being there doing it and stopping is the way i would interpret it i think it's overbroad the statute itself is overbroad because the only affirmative defense is i'm allowed to publish information of what may be going on in the land that sort of thing that we typically juries this i think on an over breath if it silences and has a chilling clients there are cases that have held but i think that it would be unfair to say then i'm and then i think i'm being expos facto and i think it would be no you're challenging the statute in the congress already i think that that was my intention to address the counts six of those black facts conspiracy but it fits right into the pattern of what we've been talking about black factors were an illegal tactic that was described even recommended in the context of this wider moral social and political campaign against h l s the government never proved that there was a specific criminal conspiracy as charged in count six to agree on and plan a actions in violation of the telecommunications act this statute this new conspiracy is an important one it doesn't just sort of riot under the others because because of an anomaly in the way the statutes written as a three year maximum of the conspiracy to violate it is not a misdemeanor has a five year maximum the heaviest sentences were imposed on this count all the charges by the way on all the counts against all of these six defendants are based on a are aiding and abetting counts and the theory the government's theory of conspiracy and of aiding and abetting against all of them and in particular on count six focusing on how was the improper treating of the political campaign as the political as a criminal conspiracy and just reflecting back on fisher's question and i'm not sure that it's just all gave the answer that we would give to that to that question about the evidence  it evidence yes of what they said is circumstantial evidence the point is that the jury was not instructed in the government's argument and theory of this whole case failed to apply the strictest meijer us first amendment principle which applies when protected and unprotected conduct that is speech and crime are together interwoven as tactics for the advancement of a social this is not a new problem in the animal rights movement this is something which came up in the smith act cases in the fifty's and in civil rights cases in the sixty's came up in and the work is in the seventy's and there's a law on it that we discuss in artery which the government's theory completely obey literates and the jury instructions in this case failed to protect what we are i it is your instructions it seems to mean the seeming to you speak that this is really the essence of the defense at trial that the conduct was perfectly legitimate protest constitutionally protected such but i would say that there was as you're pointing out there because there was plentiful evidence of improper and illegal and outrageous conduct by certain individuals not by these defendants which was in because of the nature of a conspiracy trial the first amendment required a much higher level of protection to to see that the jury could not convict them conspiracy joining a group and calling it a conspiracy because within the larger i'm grella of that cause and that roof and that pattern was included some illegal activity illegal activity which was described and discussed and even crazed on the group's web site in a way which to hearken back to the very beginning of mr circuits argument never across the line drawn by the supreme court granted it's not just legal and illegal conduct it's protected and illegal conduct that is makes these cases so hard that defen things he describes and praises the use of black boxes no evidence of an agreement a criminal agreement of the nature of conspiracy among these defendants to advocate the commission of that crime that  way separated or the jury could on this record have separated from the political speech that fell short of prohibited incitement mr goldberg i want to ask you one specific question about  just and that's not just a theoretical question because just going to take my client mr harper is this workshop in seattle he talks about the use of of the black fax tactic in relation to a local campaign by a local goes to little rock arkansas and he gives a speech in little rock about the campaign against the stevens company a secondary target of the campaign which is a arkansas why they're in little rock because there's a little rock company and he advocates and bravely and talks about black faxing again could be understood to be local not interstate so first that elements missing second you have the broadening problem the constructive amendment the indictment charged only a conspiracy to use a telecommunications device statute talks about using to harass its health communications device or a telephone so the statute draws a distinction between telephones and other devices which communicate and it was clearly understood by the defendants as i threw out the record reflects that this was a conspiracy to use fax machines to harass that is to send continuous streams of mass through a fax machine instead of communicating and yet in the under the jury instructions the jury was told they could convict under the statute and which have the indictment covered they could of harassing by making telephone calls there was evidence of telephone calls that the jury could have taken as harassing was evidence the jury could take as a conspiracy to make telephone calls to harass so there was clearly the possibility of prejudice and i understand you so you have a constructive amendment covering an area of the morning your honor obviously there's a lot here and i'm happy to address whatever the court is most interested in and i guess i'll start at the beginning with mr circuits argument which is premised it seems to me pretty much on brandenburg and this court held in united states versus bell that brandenburg does not apply to unlawful speech acts and it cited things like aiding and abetting extortion criminal solicitation conspiracy what but i don't fundamentally disagree with a lot of the thrust of what mr certain was saying in terms of you have to look and see what the thrust of this whole campaign was mr starr can i just disagree about what the facts showed here and the jury certainly concluded that these people were not the mere messengers of someone else a statement that when you look at this record as a whole it's pretty clear that this is a plan that these defendants pretty much at least the lead defendants pretty much divide is that olaf mr conway are the leaders of shaq and that their plan is to engage in unlawful direct action that's really the net that check serves in the animal rights movement that's how they advertise themselves that's what all their literature says and so the question of whether or not these were sort of isolated acts by other people that they had no control over in that they didn't endorse i mean this is a very very different case f worn i mean that case really turned on the fact that the supreme court stated that there was no evidence that the end of the lace he can do own individual acts of violence that that may have been committed over the course of this and they were looking at the end  p as we all understand it as the nation's premier civil rights organization but if there had been evidence like there was here for example if you look at misc is always radio interview which i would argue is tantamount to a confession to i make a mistake ok we support property destruction in order to close this place down as soon as possible we support illegal action we support home demonstrations and economic sabotage she explains that this is the most successful campaign  animal rights history the reason she says is because they're not being bound by the law that they're taking that is into their own hands she said people are tired of just standing around and waiting placards and holding up poses and having nobody agree with them it's when actions like this now the defense objected at the end of trial and said it should apply also to count six but i six was useful now count six was the telecommunications there was actually no objection at the end of the trial saying additional plotted stalking and i think that's in light with judge fisher's question earlier which is you know if you meet the statutory criteria for stalking it clearly isn't first amendment protected speech and that's that is how judge johnson struck the jury here and at the very end of her charge she said you know are there any of directions to the to the instruction is given and their objection at that time was we think the first amendment should also apply to count six so it was really sort of off the table for the peace now i do want to also point out this question of you know death or serious bodily injury you know and whether or not it was reasonable for these individuals to fear that i'm going to just say one thing from the  to the marsh employees it said marsh employees calling we know where you work we know where you eat we know where you sleep is h l s really worth it we will treat marcia no differently than we would treat brian i think that statement alone should do it in obviously the the statements against young children speak for themselves as as any real it was communicated with as they communicated with the one i just read of the children the one you just this underwear off the website to her home in something that would be very sort of was it enough to put it on the website without showing that it was disseminated three no communication certainly your honor this was anyone  that these individuals were going to go to the web site where you have one of the victims bob parker saying he was obsessed with the website he spent hours on it every day and he was afraid of what was going to happen and this is how they were communicating this was a mode of least what he said was i was afraid i was going to get hit on the head with an axe with a pick axe like somebody else had been so i don't think you remembered by and cast his name but he was aware of the incident and how do you distinguish between these true threats  s well the question is what is the intent here i mean that's what you have to get down to and that certainly is a jury question i think when you look at at the wealth of evidence here you look at some of the sha newsletters and they specifically talk about again shaq's role here and they don't talk about education they say that this is this is affective because this is this is affected because they're able to sort of convince people to back down because it's not really worth their you know all the fear and danger that it's causing to people i'm trying to  that ok they have two thousand and one to year in h l a s and they list all the accomplishments of what they've done in the campaign against h l s and they're the majority of them are legal actions they're liberating forging beagles they're smashing car windows evacuating five city blocks in seattle they're we basing their internet attacks they're sinking a yacht they're stink bombs there's vandalism this is the kind of stuff that they're glorifying on the web site every day when you go to their web site they're listing the names and addresses of individuals which is frightening enough but they're listing them next to pictures of overturned cars they're listing them in such a way that anybody would be fearful that these sorts of things are going to happen to them and then they're trying to walk away from that was on civility they're using the web site as a tool to still fear in people they can't guarantee that anyone's going to go to it but but i think a reasonable person would assume that if you know i mean if you knew you were being targeted by the shack i mean one of the first things you would do is find out who they are and find out as much as you could about what was going on you would almost certainly go to their web site and you would  violence and they would hopefully not you know have your home number and have your children go to school or have you know who what your route to work may or may not be but that's the kind of thing that obviously would place this more markets turn to the  statute two thousand and two so the one that they were charged on and the question is of the sufficiency the evidence for the individual defen you will you will agree that in order to violate a t m a there had to be evidence that was offered against the specific individual defendants  to one of the elements which would be a violation it use this talk about physical disruption you know what's your best evidence against the various defense well let me also say that i look at the record fairly closely not as closely as you have and others who have lived with us but as  establish was that there was a conspiracy to disrupt this organization to also cause physical damage and that it was to be done through illegal means that in order to draw these people into the conspiracy because i think everyone agreed at the opening statements that that the goal of this conspiracy was to shut h l a s down that really wasn't going to cause as much damage as they could the what was in dispute was whether or not these people shared the illegal or the desire a shack to do it through illegal as well as legal means so what we were trying to do is draw people into the conspiracy by showing that they weren't just like one conspirator may have been responsible for the destruction of the computers but if the other people join the conspiracy knowing its overall objective they could still be liable under the conspiracy theory they don't have to know each particular act  so in that regard but we what we showed was that convoy in particular was the i called the computer guy the guy in the information technology guy was lance of a for the web site responsible for doing a lot of a lot what's in her mind i mean she's one of she's one of the generals here she's one of the people who's running shaq and this is a prominent part of shaq's of shaq's you know modus operandi so you know if she gave this if she gave this statement a true confession you i don't think this court would have any problem saying yeah ok she admitted what we're looking for she gave it in an open interview over the over the television over the radio station and she said you know this is this is what i believe are about  the argument here isn't this the crux of the argument a sufficient evidence counts yes i mean you can each person in a conspiracy serves a different role what we showed through abundant evidence was that jonas cod white and good zola were the leaders of this organization and they could not be unaware of what this organization was doing given you know given their their interval involve but they're the ones who pick up the phones of the ones who do everything isn't the real problem here that at least as developing the two thousand us if they were actually people from other districts it was not it was not your prospect ok actually what i mean we you know we went forward with this statute and you know i mean i i appreciate what you're saying about you know we we tried to get everything what we did though and i think what we did appropriately was for some of the stuff that didn't fit we charge the stalking i mean we didn't charge the jury was never instructed it damages against third parties you know could could be part of the violation that they were intimidating third parties to try to drive each of us out of business and so their intent and it certainly all that was evidence about stalking but the instructions were clear on what had to be shown in regards to liability under the under the a p a we were trying very hard obviously to to show economic damage to show this it will disruption but i do think that all these conspirators understood as if you just go through the website in the shack newsletters they're explaining that what our role in the animal rights community is we're not the nice guys we're not the good guys we're not the fuel good guys we're the natural we're no apologies we do what has to be done in order to take this place down and so people who were in leadership positions there certainly knew about the goals and for example here's another thing that was again a conspiracy doesn't have to be successful they put on their website a a layout of the facility and they started talking about there had been fourteen vehicles that were liberated liberated from a stolen from the from the laboratory and get on the website so they say you know support the heroes of april eleventh which is i guess when it happened and they could then they provided the blueprints for how you can do it yourself it was something they were clearly you know trying to get other people to do part of their skiing to shut down last there's no reason to include the blueprints business unless you're trying to help people break in they were pointing out where the animals are kept on the map in different places so it was clearly farmer he was the leader of the animal defense league in new jersey and there are a series of e mails where he says basically we're interested in the fur trade but we're going to get involved in the shack campaign and we're going to start showing up a demonstrations every friday but then he embraces the illegal black facts part of the conspiracy and he sends out a sends out a e mail to all of his members and sufficient evidence to say he's part of this in spirit the knowing they're not going to just stand on the sidelines and engage in first amendment protected activity he is listed as the national rate unless coordinator on the shack web site he did agree and this is one of this one of the main ways that they try to escape liability and for to some extent it was effective one of the things that this organization does is when it does something it tries to put it in somebody else's name so there's where they agree to put the animal defense leagues name on an activity that jack is clearly planning in advance is explaining we're trying to pretend we're just an organization that communicates ideas so we can't be involved here can i use you know you judge thompson kind of struggled with a little she was saying you know with the evidence a little bit close on foam or to some extent on said having this wealth those were the two she seemed to be most concerned with to try to suggest where they really you know what did the government have there and imus just a penny and what we had was his leadership position in this in the state of new york there are conversations between still planning to jonas when they're discussing sort of three days of action in new jersey and what was telling was there was a point where i said hang on just stops talking and says i can't say that over the phone and it was pretty clear from again other avid that they were using this program  at his home they got to see a video he actually played guilty to his conduct there which which was also before the jury at the time so he's screaming banging on her door he's in violation of a court water so he's clearly  himself as somebody who could control the protests that were going on i said you better deal with me otherwise it's going to be a full fledged campaign now a full fledged campaign mean something to him it means you know not just having nice little protesters  stand outside your door and leaflet it means being engaged in illegal conduct again direct action is is probably the most important concept here because that's what shaq embrace and they direct action has a meaning to the animal rights community it means breaking into labs and rescuing animals and it means things like economic sabotage and breaking the law in order to get this done and a lot of the animal rights organizations frown on this obviously most of them do and so when you again go through the shack literature on their web site and their newsletters they they sometimes ridicule the other organizations and they say they're not really animal rights groups you know they sold out they're not willing to take a stand we are we embrace direct action and they were people on the website when they tried to recruit them to take part in the campaign the electronic civil disobedience they say just remember e c t is against the law only do this if you're willing to face the legal consequences and go to jail as martin luther king did but they're the ones promoting it they're the ones who are saying this is what you should be doing and they're the ones who in their individual capacity  clearly seem to be embracing it i mean harper goes to us to a school in washington i believe it was and gives a speech saying i'm going to talk about how not to get caught and he extols how to make black taxes how to how to do them how to you know and these are provided on the shack website all the tools that you need to conduct the black facts are provided there now i know that under the statute one of the arguments has been that we interpret to broadly i mean we did have two theories going before the jury in terms of this this notion of physical destruction we said on the one hand they wanted to put h l a s out of business entirely and on the other hand they also actually caused property damage and destruction in excess of ten thousand dollars now on the the second theory i'm clearly the evidence was sufficient and we had mr michaels and testify largely undisputed that there was fifteen thousand dollars in damage done to the computers they took down the website that's obviously a physical disruption to the to the business and they had to replace the equipment because it couldn't do the function that they needed to do because it was so vulnerable to this attack so clearly that two theories presented one of which is invalid and one is valid we argue about the jury we had sufficient evidence for both but if they say there was some problem with the instruction you can still do harmless error and when you're doing a harmless error i can in this case i would suggest that it should be approached the way the way the trial was approach which was this case was never full watt on the basis of what actually happened by and large in terms of everybody admitted that these bad things happened and scope of the george first of all the most important the most important thing i would say is there was no challenge to the jury instruction and there was no challenge to the closing argument so this is all an appellate you know plain error issue that's being  e correct me if i'm wrong but this this was not an objection to anything that happened at trial i don't doubt that they considered the black facts conspiracy but the but the indictment as written isn't limited in its scope the fact that it says and you know a single uses the singular term that's how we would always charge something we don't want to say that we have to charge multiple you know multiple things  certainly true that if you look at just the substantive acts in that it talks only about the black faxes i don't think this was a focus you know i don't think this is this new issue that peter's raised  was something that the jury i don't predict what the jury focused on but if everybody a trial side is a black that's in serious even probably that's what the jury did as well but but it was you know again it just wasn't the thrust of what was going on in counts x and again it's should be subject to underplay never review you know the kind of i would say fairly minimal screwed here i mean sometimes it's easy to sort of you know after the that i didn't attend any of those rallies i don't know you know i don't know anything about them there's a lot of plausible deniability going on here but when you see that they're using ases when they you know when they make some of these statements that they don't identify themselves when they're on the web site they identify themselves as you know a new york activist or they clearly know who they themselves are there's obviously a lot going on here and i'm happy to address any other specific questions the court has and try i think we just heard an oral argument that shows that the united states still in graces the theory of this case which is a complete misunderstanding of the robustness the breadth the strength of the first amendment to cannot understand the sufficiency of the evidence in this case on any count if you do not understand the scope of the first amendment protection that's involved yes the first amendment protects those who stand on the sidelines and act nice yes the first amendment protects those who write books and discuss but the first amendment also protects the ku klux klan speaker on the stand who says we should kill the niggers and the likes brandenberg the first amendment also protects the nazi march or the first amendment protects lauren  she says we support illegal action we condone illegal action this is what i believe she said the first amendment protects that speech so what do we do when the government then charges a conspiracy or an aiding and abetting count three conspiracies in this indictment three or four more of aiding and abetting and says if you support the illegal actions you are a member of the conspiracy to commit those actions and then guilty of the conspiracy charge this is the first amendment problem which was answered by the supreme court in one thousand nine hundred fifty seven in the  highest level of law the protection through jury instructions and then through sufficiency review at the trial and appellate levels certainly the subversive have and protects those who say there are people who do this and that is illegal and it is a form of civil disobedience and if you do it you will be punished or if you get caught and you may go to jail and that's part of our campaign too and yet i heard the government just say that that was not protected speech to say if you do this it is a crime and we will support you if you do it that's not outside the first amendment to say it is outside the first amendment to do it it is outside the first amendment to conspire or to aid in the event with the person who does it but it must be very close to the actual act brandenburger you need incitement in the very eminent sense these descendants yes they were conscious of where their constitutional rights were and went very near the line they were not nice they did not stand on the sidelines but they stood on the first amendment and they swear some should have been safe in doing so did they not give their name sometimes yeah true did they use encryption yes why because they were afraid the government did not understand the first amendment and that they could be prosecuted and they could be sitting in prison as they are today for acts which are not crimes not crime under the statute and not a crime under the first and if it does come within the statute when you look at the sufficiency of the animal enterprise count in this whole hour so far we have not heard the elements of this crime described heretical yet look at the two thousand and two offense statute carefully there are three separate elements three not to an intent to travel interstate commerce with the intent to just finish if with the intent to cause physical destruction there is no requirement under even a substantive violation of the statute not the one was charged that anyone ever cause physical disruption there is no element in this crime of causing physical disruption it's an inten t element that's the intent with which the travel is done second that the person intentionally cause damage to or loss of property which is used by the enterprise that's the action element intentionally cause damage or loss of property used overloading a computer system which does not cause the computer system to burn or rake but causes it to fail in the sense of shutting down because it can't handle the problem and why was the computer out of service not because it didn't work but because it didn't intruders out they didn't have enough software are the right kind on the computer and they didn't want to start it up until they did we just heard that in it but that was their theory of damage that's not damage that's saying i left my door unlocked somebody walked into my