Portland, OR -- A federal motion in the case of podcaster, blogger, and activist Peter Santilli demonstrates that the Government is prepared to treat independent media outlets as criminal enterprises if their coverage of controversial events makes federal officials look bad. Santilli was arrested in January on charges of conspiracy to impede federal officers.
Santilli, who operates a small online media network, was a prominent participant in the April 2014 standoff between Cliven Bundy and the Bureau of Land Management in Bunkerville, Nevada. He is an unabashed advocacy journalist who often plays a direct role in the events about which he reports. In the motion seeking to deny Santilli pre-trial release, U.S. Attorney Billy J. Williams characterizes him as "Bundy's shill and chief propagandist, using his knowledge of blogging to encourage, counsel, and incite others to travel to Nevada with guns to confront the BLM with violence."
It is indisputable that Santilli urged activists to converge in Nevada, but he insists that the objective was to prevent violence, rather than commit it. In numerous broadcasts and interviews cited within the federal motion, Santilli expressed concern about federal over-kill of the variety previously seen at Waco and Ruby Ridge, and called for armed citizens to gather as witnesses and a "defensive force" if abusive conduct occurred. After the event, he expressed the opinion to internet reporter Adam Kokesh that "both sides were guilty in that confrontation" and later stated that "Bundy Ranch should never have been an armed rebellion."
Those remarks may be considered irresponsible, equivocal, or even, to some, irrational. Are they evidence of a federal crime, or a form of journalism protected by the First Amendment?
"The United States Supreme Court has long held that the First Amendment’s protections of the press extend beyond recognized, mainstream media," points out Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press. "There's some references to the fact that he's calling people to come join them [the Bundy family and their supporters], but even that's not necessarily illegal. It kind of throws his objectivity in question, certainly, but I don't think he's claiming to be objective."
Civil liberties attorney John W. Whitehead of The Rutherford Institute describes the charges against Santilli as nothing less than an effort "to intimidate members of the press who portray the government in a less than favorable light."
"By singling this new media journalist out for arrest and prosecution, the government through its actions presents a grave danger to the First Amendment's protections of freedom of speech and the press," wrote Whitehead in a February 2 letter to Santilli's attorney, Thomas K. Coan. Whitehead contends that the FBI's criminal complaint focuses entirely on his behavior as "a reporter of information and not as an accomplice to any criminal activity."
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Furthermore, Santilli is neither the first nor the only reporter targeted for this kind of treatment. Whitehead points out that several journalists covering the August 2014 upheaval in Ferguson, Missouri were arrested without cause and charged with "interference" or "obstruction." This was "a concerted, top-down effort to restrict the fundamental First Amendment rights of the public and the press," he contends. Similar abuses occurred in Baltimore during riots in the spring of 2015, during which "journalists were subjected to arrests and assaults as they attempted to cover the uprising..."
"The government's own allegations demonstrate that Santilli was acting as a source of news and information for the public," continues Whitehead. "The government's decision to charge and arrest Santilli ... illustrates that it has seized upon a tactic employed by other law enforcement entities of arresting journalists to prevent the public from knowing about civil unrest and the conditions that spawn that unrest."
The Feds and their allies are using other means to restrict access to non-State-centered media outlets. On March 8, for example, when the FBI, Oregon State Police, and Deschutes County Sheriff's Office held a press conference to announce their findings regarding the police shooting of Bundy associate LaVoy Finicum, "the sheriff's office didn't publicly announce the time or exact location of the news conference and asked reporters to send an email to reserve a place," reported The Oregonian newspaper. That arrangement allowed the pre-vetting of journalists allowed to participate -- and permitted the FBI to winnow out any potentially troublesome independent reporters.
Arguably the most ominous element of the motion to deny Santilli pre-trial release is the repeated insistence that his impenitent "anti-government" views make him a "danger to the community."
By publicly criticizing the actions of what he believes to be rogue federal agencies and officials, "Santilli continues to commit crimes using his blog and is a current threat to law enforcement officers," declares the motion. "Santilli's rhetoric and his conduct relating to these charges make clear that he has not changed his mind about the BLM or the federal government."
One example of such a "threat" cited in the document is Santilli's description of an Assistant U.S. Attorney as "a f'n treasonous bastard working for an enemy which is the United States" and his statement that "If you were unconstitutional we are going to squeeze your balls. We will make every step null and void. The U.S. Constitution is non-negotiable."
Vulgar, intemperate, and ill-considered though they may be, those statements do not constitute a "true threat" under existing legal standards. They are squarely in a tradition of patriotic hyperbole that began with Samuel Adams -- another figure who blended direct activism (much of it illegal under British law) and media agitation. This implied comparison would trouble at least some of Santilli's former colleagues, who contend that he has long been a covert asset of the FBI -- and can make a compelling case for that proposition.
It isn't necessary to see Peter Santilli as the heir to Samuel Adams, or sympathize with the cause to which he had attached himself, in order to take issue with the government's effort to imprison him for anti-government media agitation. If, as some erstwhile allies assert, Santilli has been employed by the Feds in as a COINTELPRO-style infiltrator, the government's willingness to use him in that role and then burn him offers an additional cause for alarm.