Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 1 of 13 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

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1 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 1 of 13 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS SARAHJANE BLUM; RYAN SHAPIRO; LANA LEHR; LAUREN GAZZOLA; and IVER ROBERT JOHNSON III, Plaintiffs, Civil Action No. 1:11-cv v. ERIC HOLDER, in his official capacity as Attorney General of the United States, Defendant. UNOPPOSED MOTION OF NATIONAL ASSOCIATION FOR BIOMEDICAL RESEARCH, ASSOCIATION OF AMERICAN MEDICAL COLLEGES, ASSOCIATION OF AMERICAN UNIVERSITIES, ASSOCIATION OF AMERICAN VETERINARY MEDICAL COLLEGES, ASSOCIATION OF PUBLIC AND LAND-GRANT UNIVERSITIES, FEDERATION OF AMERICAN SOCIETIES FOR EXPERIMENTAL BIOLOGY, MASSACHUSETTS BIOTECHNOLOGY COUNCIL, MASSACHUSETTS SOCIETY FOR MEDICAL RESEARCH, THE GENERAL HOSPITAL CORPORATION D/B/A MASSACHUSETTS GENERAL HOSPITAL, THE BRIGHAM & WOMEN S HOSPITAL, INC., AND THE MCLEAN HOSPITAL CORPORATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT S MOTION TO DISMISS The National Association for Biomedical Research, the Association of American Medical Colleges, the Association of American Universities, the Association of American Veterinary Medical Colleges, the Association of Public and Land-grant Universities, the Federation of American Societies for Experimental Biology, the Massachusetts Biotechnology Council, the Massachusetts Society for Medical Research, The General Hospital Corporation d/b/a Massachusetts General Hospital, The Brigham & Women s Hospital, Inc., and The McLean Hospital Corporation respectfully seek leave to file a brief amicus curiae in support of the

2 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 2 of 13 Defendant s motion to dismiss. The proposed brief is submitted herewith. The parties do not oppose this motion. Amici have strong interests in ensuring that the government has the necessary tools to prohibit violent attacks and threats against their facilities and personnel. The Animal Enterprise Terrorism Act, 18 U.S.C. 43 (2006) (AETA), represents a measured and important response to several alarming and dangerous incidents, in which extremists broke into and destroyed research facilities, stalked, assaulted, harassed, and threatened members of the research community and their families, and engaged in a disturbing series of bombings and acts of vandalism and arson targeting research facilities, suppliers, and the homes and vehicles of individual scientists. It is of the utmost importance to amici that the research community continue to be protected by the AETA. As the proposed amicus brief explains, the AETA accomplishes that goal while leaving untouched and unchilled legitimate expression protected by the First Amendment. Amici provide the following statements of their mission and interest in this case: National Association for Biomedical Research The National Association for Biomedical Research (NABR) is the only national nonprofit organization dedicated solely to advocating for sound public policy recognizing the essential role of animals in biomedical research. NABR s membership comprises more than 325 public and private universities, medical and veterinary schools, teaching hospitals, voluntary health agencies, professional societies, pharmaceutical companies, and other animal research-related firms. NABR s members include many Massachusetts academic institutions, hospitals, and corporations. NABR supports the responsible use and humane care and treatment of laboratory animals in biomedical research, training, and education. NABR agrees that biomedical researchers - 2 -

3 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 3 of 13 should only use animals when necessary. Researchers are required by law to minimize any pain or distress these animals may experience and to develop and employ alternatives to the use of live animals wherever feasible. Nonetheless, for now and in the foreseeable future, the use of animals and the study of whole, living organisms is an indispensable element of vital biomedical research aimed at finding cures and treatments for deadly diseases and disabling conditions and improving the quality of life of both people and animals. NABR s members are the entities most likely to be targeted by extremists bent on lawless and violent activities that are designed to intimidate research facilities and scientists into abandoning life-saving research that relies on the use of animals. The AETA represents a strong bipartisan effort to counter such criminal activity, without restricting lawful advocacy and demonstration protected by the First Amendment. NABR s members rely on law enforcement and the courts to protect the safety and security of their workplaces, their employees, and their employees homes and families, and accordingly have a strong interest in ensuring that the AETA is upheld as constitutional. Association of American Medical Colleges The Association of American Medical Colleges (AAMC) is a not-for-profit association representing all 137 accredited U.S. and 17 accredited Canadian medical schools; nearly 400 major teaching hospitals and health systems; and 93 academic and scientific societies. Through these institutions and organizations, the AAMC represents 128,000 faculty members, 75,000 medical students, and 110,000 resident physicians. The AAMC supports the entire spectrum of education, research, and patient care activities conducted by its member institutions. The AAMC has an interest in supporting responsible and humane research involving live animals in advancing biological knowledge, human health, and animal welfare. Animal research - 3 -

4 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 4 of 13 has played a key role in virtually every major medical advance of the last century, including advances in antibiotics, blood transfusions, dialysis, organ transplantation, vaccinations, chemotherapy, bypass surgery, and control of disease, pain, and suffering to the benefit of both human and animal health. In addition, as animal research continues to be important in undergraduate, graduate, and continuing medical education, the AAMC supports the humane use of animals to meet essential educational objectives. AAMC member organizations engaged in responsible and humane animal research in the advancement of biological knowledge and human health have been the targets of threats, harassment, intimidation, and in several cases, violent attacks (including firebombings) on research laboratories and the homes of individual researchers. This type of criminal activity harms not only the individuals and organizations it touches, but jeopardizes health advancements for all. Therefore, the AAMC has a strong interest in ensuring that the AETA is upheld as constitutional. Association of American Universities The Association of American Universities (AAU) is a nonprofit 501(c)(3) organization of 61 leading public and private research universities in the United States and Canada. Founded in 1900 to advance the international standing of U.S. research universities, AAU today focuses on issues that are important to research-intensive universities, such as funding for research, research policy issues, and graduate and undergraduate education. AAU member universities are on the leading edge of innovation, scholarship, and solutions that contribute to the nation's economy, security, and well-being. The 59 AAU universities in the United States award more than onehalf of all U.S. doctoral degrees and 55 percent of those in the sciences and engineering

5 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 5 of 13 AAU acknowledges that animal research has played a significant role in virtually every major biomedical advance of the last century increasing scientific knowledge while furthering human and animal health. The research community and AAU are committed to ensuring that animal research adheres to ethical, legal, and safety requirements and maintains the highest standards of animal care. This commitment includes effective training and education of investigators and support personnel, as well as rigorous oversight of animal research. Despite the safeguards in place to ensure responsible stewardship of laboratory animals in research programs, animal rights extremists harass, intimidate, and use violence against those conducting animal research. AAU has long championed academic and scientific freedom. Universities should continue to provide a forum for civil discourse and the open exchange of ideas. However, just as universities protect the rights of those who wish to express particular points of view through campus policies regarding free expression, they must also ensure a safe environment for all, free from intimidation and violence, including for those whose research involves the use of animals. As some of the nation s and the world s leading research universities, AAU members are obligated to protect faculty, staff, and students from harassment, threats, and physical harm, and to work with law enforcement authorities to safeguard animals and facilities, as well as the families and homes of university personnel. AAU believes that the AETA is critical to fulfilling this obligation and has a strong interest in ensuring that it is upheld as constitutional. Association of American Veterinary Medical Colleges The Association of American Veterinary Medical Colleges (AAVMC) provides leadership for and promotes excellence in academic veterinary medicine. The scientific knowledge and skills of a well-prepared veterinary workforce are required to meet societal needs - 5 -

6 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 6 of 13 through the protection of animal health, the relief of animal suffering, the conservation of animal resources, the promotion of public health, and the advancement of medical knowledge. Member institutions advance medical knowledge by conducting studies under rigorous animal welfare guidelines and by strictly adhering to policies that call for refinement, reduction, and replacement of animals in research when possible. Animal welfare is of the highest concern to the AAVMC, but AAVMC members strongly believe that criminal acts are not protected forms of speech and, beyond the harm to the targeted individuals and their property, impede otherwise promising research into serious diseases of humans and animals. Association of Public and Land-grant Universities The Association of Public and Land-grant Universities (APLU) is a research and advocacy organization of public research universities, land-grant institutions, and state university systems with member campuses in all 50 states, U.S. territories, and the District of Columbia. The association s 217 members include state universities, land-grant universities, state-university systems and related organizations. APLU institutions enroll more than 3.5 million undergraduate students and 1.1 million graduate students, employ more than 645,000 faculty members, and conduct nearly two-thirds of all federally-funded academic research, totaling more than $34 billion annually. The use of animals in scientific research continues to provide the basis for critical innovations that have benefited our country and the global community. APLU s members endorse the use of animals to advance medicine and science when it is done in a legal and ethical way. APLU s members are committed to ensuring that research involving animals conforms to ethical, legal, and safety regulations and to the high standards of animal care and treatment

7 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 7 of 13 Unfortunately, animal rights extremists have used harassment, intimidation, and violence against researchers, their staff, and their families. The AETA provides APLU members strong protection against such criminal activity, without restricting the rights of those who wish to advocate or demonstrate lawfully on member campuses. APLU members are committed to protecting their faculty, staff members, and students from harassment, threats, and physical harm, and accordingly have a strong interest in ensuring that the AETA is upheld. Federation of American Societies for Experimental Biology The Federation of American Societies for Experimental Biology (FASEB) is an organization of 26 professional societies representing over 100,000 scientists and engineers. FASEB s mission is to advance health and welfare by promoting progress and education in biological and biomedical sciences through service to member societies and collaborative advocacy. FASEB affirms the essential contribution of animals in research and education aimed at improving the health of both humans and animals. The role of animals remains critical in understanding the fundamental processes of life and in developing treatments for injury and disease. FASEB believes that the use of animals in research and education is a privilege that imposes a responsibility to provide for their proper care and humane treatment. Many of the researchers of FASEB s member societies work with animals in their research and are potential targets of the violent activities perpetrated by extremists. The AETA provides them with peace of mind knowing that there are statutory tools in place to protect them from those who advocate arson, personal assault, and vandalism as appropriate means to an end. Biomedical researchers are dedicated to advancing knowledge and improving health, and FASEB believes that it is important that they continue to be able to do so in safety and security

8 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 8 of 13 Massachusetts Biotechnology Council The Massachusetts Biotechnology Council (MassBio), a not-for-profit organization that represents and provides services and support for the Massachusetts biotechnology industry, is the nation s oldest biotechnology trade association. Founded in 1985, MassBio is committed to advancing the development of critical new science, technology and medicines that benefit people worldwide. MassBio has more than 600 members, consisting of biotechnology companies, universities, academic institutions and others dedicated to advancing cutting edge research, much of which depends on the humane use of animals in biomedical research. MassBio is the leading advocate for the Bay State s world-class life science cluster. MassBio supports the responsible use and humane care and treatment of laboratory animals in research, training, and education. Unfortunately, MassBio s members and their employees and their families have serious concerns about becoming targets of threats, vandalism, arson, and bombings by animal rights extremists. The AETA was enacted to provide protection to MassBio and its members against such criminal actions and was carefully drafted to ensure lawful advocacy and demonstration were expressly protected. Because MassBio s members have an obligation to protect the safety and security of their workplaces, their employees, and their employees homes and families, MassBio accordingly has a strong interest in ensuring that the AETA is upheld as constitutional. Massachusetts Society for Medical Research The Massachusetts Society for Medical Research (MSMR) is a regional 501(c)(3) nonprofit organization focused on the entire scope of issues regarding animals in biomedical research. MSMR s members include over 70 public and private research colleges and universities, including every New England medical school, non-profit research institutes, - 8 -

9 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 9 of 13 pharmaceutical firms, biotechnology firms, professional associations, and vendor/suppliers to the biomedical research enterprise. MSMR s member organizations follow the tenets of highly responsible and ethical animal use, complying as appropriate with all international, federal, state and municipal regulations, as well as the widely adopted principles called the 3 R s of animal research (reduce, refine, replace), laid out half a century ago in The Principles of Humane Experimental Technique by W.M.S. Russell and R.L. Burch. MSMR provides professional development training to members to increase their skill and fluency in applicable regulations. A well-recognized principle of research, teaching, and testing with animals is that the best science and the best results arise from minimizing stress and discomfort to the animals: MSMR s members strive continually in numerous ways to achieve that end. Nevertheless, despite both their legal compliance and their efforts above and beyond the regulatory minimums, MSMR s members are at risk of being identified and targeted by extremists who use illegal activities to threaten research facilities and intimidate scientists into stopping crucial animal research and teaching. MSMR member organizations and their employees are well aware that they may have to live with protected, if scary, speech and protest, but they should not have to fear actual attack on their persons, their families, or their property. The AETA, though sparingly used, curbs illegal activity while preserving all the protections of the First Amendment for those who oppose animal research. Because MSMR strongly seeks to help protect the persons and property of its many members, it has a compelling interest in ensuring that the AETA is upheld as constitutional. The General Hospital Corporation d/b/a Massachusetts General Hospital, The Brigham & Women s Hospital, Inc., and The McLean Hospital Corporation The Brigham and Women s Hospital (BWH), The General Hospital Corporation d/b/a Massachusetts General Hospital (MGH), and The McLean Hospital Corporation (McLean) are - 9 -

10 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 10 of 13 each members of Partners Healthcare System and teaching affiliates of Harvard Medical School, as well as members of NABR. All three hospitals rank in the top eight in the nation in their peer groups, as listed in the most recent US News & World Report survey. Since their origins, all three hospitals have been responsible for many major healthcare breakthroughs, including the first use of anesthesia for surgery, the first heart bypass machine, the first organ transplant, and the first psychiatric nursing school. All three hospitals remain global leaders in biomedical research, pursuing cures for some of the most common and vexing diseases afflicting patients today, including cancer, dementia, AIDS, and stroke. These hospitals spend an aggregate $1.4 billion per year in research alone, the largest such total of any independent hospitals in the world. In the hospitals view, animal models of human diseases continue to play a crucial role in research that leads to new medical breakthroughs and better outcomes for many diseases. At the same time, BWH, MGH, and McLean are committed to the proper and humane care and use of laboratory animals used in research and education. The hospitals recognize that the use of laboratory animals is of concern to some, and they support the First Amendment rights of individuals to express those concerns peacefully. However, animal rights extremists continue to break into research facilities and destroy medical research across the country, as well as harass, threaten, and assault members of the research community and their families. Given the prominence and size of these teaching hospitals, they are concerned that their scientists are potential targets for such illegal intimidation, threats of bodily injury or death, and firebombs. BWH, MGH, and McLean have a strong interest in continued enforcement of the AETA to protect their researchers from illegal threats and violence that inhibit biomedical research and deny patients and the public the benefit of such research

11 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 11 of 13 For the foregoing reasons, amici respectfully request that the Court grant leave to file the attached amicus brief in support of the government s motion to dismiss. March 12, 2012 Respectfully submitted, NATIONAL ASSOCIATION FOR BIOMEDICAL RESEARCH, ASSOCIATION OF AMERICAN MEDICAL COLLEGES, ASSOCIATION OF AMERICAN UNIVERSITIES, ASSOCIATION OF AMERICAN VETERINARY MEDICAL COLLEGES, ASSOCIATION OF PUBLIC AND LAND-GRANT UNIVERSITIES, FEDERATION OF AMERICAN SOCIETIES FOR EXPERIMENTAL BIOLOGY, MASSACHUSETTS BIOTECHNOLOGY COUNCIL, MASSACHUSETTS SOCIETY FOR MEDICAL RESEARCH, THE GENERAL HOSPITAL CORPORATION D/B/A MASSACHUSETTS GENERAL HOSPITAL, THE BRIGHAM & WOMEN S HOSPITAL, INC., AND THE MCLEAN HOSPITAL CORPORATION /s/ Mark C. Fleming Seth P. Waxman (pro hac vice motion pending) WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, N.W. Washington, D.C Seth.waxman@wilmerhale.com Mark C. Fleming (BBO #639358) WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA (617) Mark.fleming@wilmerhale.com

12 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 12 of 13 CERTIFICATE OF CONFERENCE PURSUANT TO LOCAL RULE 7.1(A)(2) I, Mark C. Fleming, state that I have conferred with Rachel Meeropol, Esq., counsel for Plaintiffs, and with Deanna Durrett, Esq., counsel for Defendant, regarding the substance of this motion. The parties do not oppose the relief sought herein. /s/ Mark C. Fleming Mark C. Fleming CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served upon the following persons on the 12th day of March 2012 through the Court s electronic filing system. Howard Friedman David Milton Law Offices of Howard Friedman, P.C. 90 Canal Street 5th Floor Boston, MA hfriedman@civil-rights-law.com dmilton@civil-rights-law.com Alexander A. Reinert c/o Benjamin N. Cardozo School of Law 55 Fifth Avenue, Room 938 New York, NY areinert@yu.edu Rachel Meeropol Alexis Agathocleous Center for Constitutional Rights 666 Broadway 7th Floor New York, NY rachelm@ccrjustice.org aagathocleous@ccrjustice.org Deanna L. Durrett United States Department of Justice Civil Rights Division, Employment Litigation Section 26 Federal Plaza

13 Case 1:11-cv JLT Document 17 Filed 03/12/12 Page 13 of 13 New York, NY /s/ Mark C. Fleming Mark C. Fleming