Some defendants in Nevada, Oregon prosecutions claim 1st Amendment press protection
By April Kiessling – 3-11-2017
A flurry of dramatic property and civil rights-related trials is taking place across the western U.S. in federal courts, in which defendants, including independent media representatives, are charged with up to 17 crimes each, from trespass to terrorism.
All the accused had confronted or ignored law-enforcement officers in group protests in either 2014’s Bunkerville, Nevada, confrontation or 2016’s similar standoff in Harney County, Oregon. Both showdowns were responses to perceived overreach of federal bureaucracies – chiefly the Bureau of Land Management and the U.S. Fish and Wildlife Service.
Since 1994, the Bundy family of Bunkerville, Nevada, had grappled with authorities over grazing rights in contested areas near their land. On April 5, 2014, hostilities erupted into open conflict resembling a range war. Armed Bureau of Land Management employees and rangers removed and shot the family’s cattle, supposedly as a way of recouping fees the federal government claimed rancher Cliven Bundy owed. Masses of protesters, some armed, stood in open confrontation with federal and local law enforcement for a week, until the BLM finally backed down and left.
Two years later, treatment of the Hammond ranching family in Burns, Oregon, triggered the occupation of the nearby Malheur Wildlife Refuge starting Jan. 2, 2016, and lasting 41 days. The main cause of the protests was the re-imprisonment of ranchers Dwight Hammond, 74, and son Steven, 47 – after they had already completed their original sentences. The Hammonds had been charged and convicted under the “Anti-Terrorism and Effective Death Penalty Act of 1996,” when back-fires they started spread onto federal lands. Even the Hammond case presiding judge, Michael Hogan, claimed both the severe “terrorism” criminal charges and mandatory minimum five-year sentence the statute imposed were excessive, and in fact that imposing such a long sentence “would shock the conscience to me.” Nevertheless, after serving relatively short sentences and being released from prison, the federal government doubled down on the “terrorism” charges and appealed the sentence – winning on appeal due to the lack of judicial discretion allowed under the “mandatory minimum sentence” part of the law. So the Hammond father and son went back to prison where they are now.
The initial trial for seven of the Oregon protestors took place in the fall of 2016, and ended with a surprising “not guilty” verdict for all defendants – including ringleaders Ryan and Ammon Bundy. At the time, the Obama administration admitted that federal officials were “rattled by the Oregon verdict.” Federal prosecutors have since added new charges for some defendants, which will not be eligible for jury trials.
Judge Anna J. Brown presided over the entirety of the Oregon trials. Many trial observers, especially those sympathetic toward the defendants, have reported a flagrant bias on the judge’s part against the defendants, but there’s more. In fact, as news reports document, Brown either ordered or allowed Ammon Bundy’s attorney, Marcus Mumford, to be tackled and tased inside the U.S. District Courthouse in Portland right after the conclusion of the fall trial in which his client was found not guilty.
Journalists and bloggers among the defendants
Among the 32 defendants are a disturbing number of writers, bloggers and video teams. And although journalism certainly isn’t cited as a crime, many charges appear to hinge on the motivation, speech and political beliefs of the “journalist” defendants. Dozens who gathered at either place were informed they were considered “unindicted co-conspirators.”
Comparing media members who face charges with those who are not, the major difference appears to hinge on expressions of support for the “occupation’s” organizers or their causes.
Witnesses at both Malheur and Bunkerville described a constant media presence, including major networks. CBS, CNN and others were either present or remotely covered the confrontations. RT showed up in courthouses, as did press from Britain and Norway. Freelance journalists and documentary film crews spent nights at the Oregon refuge. None of these was arrested, regardless of length of time spent or the number of trips.
Santilli is no novice to alternative news. His “Pete Santilli Show” claims to critically analyze the U.S. government and has amassed tens of thousands of listeners since 2011. Santilli was accused of helping plot the Burns occupation and was indicted on conspiracy and other charges. Although he also covered the Bundy standoff in 2014, he was not arrested until January 2016, toward the end of the Oregon occupation.
Oregon Public Broadcasting acknowledged “the case against Santilli [is] so far largely based on words,” offering a snippet of his anti-government rhetoric from a broadcast at the refuge: “I dare you, you government fricking Nazi pukes, I dare you to continue to spread lies, fear and intimidation and threats!” Before his death, LeVoy Finicum said Santilli was there as press, not as a protestor. And in fact, witnesses claim Santilli “provided most of the media coverage” with snippets of his broadcast being used by global media. A Burns resident claimed many people depended on Santilli and other embedded journalists because of news blackouts.
Defendants are divided into three levels of alleged offenses. Santilli is one of a few in the top tier, charged with leading events in Burns. The state asserts that his broadcasting was inflammatory, although the only casualty during the entire six-week occupation was Finicum, shot at a police roadblock. Although all charges were dropped against Santilli in Oregon, he now awaits trial in Nevada, facing up to 94 years in prison, as do other defendants charged under the 1996 Anti-terrorism Act.
Santilli’s defense claims false evidence was manufactured by the FBI in its case against him. He also “outed” at least one covert FBI informant in Burns and led a protest in front of a makeshift FBI headquarters there. It was part of his war over now-sanctioned FBI agent Daniel P. Love, whose covert work allegedly led to two suicides. Santilli blasted Love as “the most evil man in America, immune from prosecution” in a 2015 broadcast.
Nevada Assemblywoman Michelle Fiore appeared on Santilli’s YouTube channel in support of defendants held in her state. She demanded an investigation of the BLM, leveling serious charges against them. Other Nevada politicians joined Fiore in this, noting that Santilli was arrested immediately after accusing Hillary Clinton of links to Russia and uranium in the contested areas of Nevada.
Blaine Cooper, who was involved in both the Bunkerville and Burns occupations, claims he was threatened into a plea agreement and given poor advice by his court-appointed attorney. Cooper has a prior rap sheet, but in February 2016 his charges appeared to be related to online support of patriotic groups in the western U.S.
Founder of the alternative news site “Third Watch Productions,” Cooper made live-feed videos from Burns, describing the situation and, the state charges, encouraging people to join the occupiers’ efforts. Cooper remained after LeVoy Finicum was killed, insisting the rancher was unarmed when shot. “I wanted to be a voice on social media, but I never thought this would get me incarcerated,” he said. Cooper has since turned state’s witness and has testified for the prosecution in Portland.
Tom Lacovara hosts the Internet show “Resurrect the Republic Broadcasting” and produced “Dirty Uncle Sam” radio, with various contributors. Although he claimed to be in Burns in a media capacity only, Lacovara was arrested at Philadelphia in December 2016, almost a year after the occupation ended. He was charged as a “felon in possession of a gun,” although he was unarmed when detained. As the first trials began in Oregon last fall, Lacovara penned articles in support of Malheur defendants. Shortly before his arrest, he made scathing videos charging the government with collusion to deny Cooper competent counsel as well as of outright lying. After his arraignment, Lacovara was sent to Oregon, where he awaits his own trial.
War of words
Defendants insist the Nevada indictments – coming as they did some two years after the peaceful, non-violent end of the Bunkerville standoff – constitute a form of retaliation from the agencies involved.
Only alternative or patriot media voices such as Emry and Santilli were arrested for their actions at Burns and Bunkerville. Fox News reporter Dennis Michael Lynch covered most of the Bunkerville protest live, but of course was never arraigned as an “occupier.” Likewise, Joe Biggs experienced no repercussions over his presence at the Bundy Ranch in Nevada while working for the “Alex Jones Show.”
The prosecution’s case against defendants appears to relate to their words and motives as much as their actions. Defendant Sandy Anderson was released after months in jail after it was noted she “had no history of protests.” Prosecutors insist the standoffs were potent rebellions against the U.S. government despite lack any assaults or physical injuries. Public calls to attend either event, disliking the government, or anger expressed at officials, whether written or verbal, were cited as examples of activities constituting “conspiracy.”
Other protestors face the same grim charge, or weapons charges or a series of minor crimes such as trespass or misuse of government property. Emry, Cooper and other defendants made plea deals, claiming they had little choice. Even pleading guilty in U.S. federal courts may cost hundreds of thousands of dollars.
What makes a true journalist?
Possibly a quarter of the protestors at Burns considered themselves de facto broadcasters at some point of the occupation. Prosecution challenged some defendants who claimed media status, asking for press credentials or credits. Yet alternative and social media are almost impossible to categorize this way. This arguably dilutes the immunity the press enjoys under the First Amendment, but is part of a larger issue now playing out as technology, the Internet and especially social media revolutionize the traditional meaning of “news” and “journalist.”
Ironically, the Bunkerville trials in Nevada could come to a crashing end with the revelation that an FBI team posed as a fake documentary film company and fished for incriminating answers from defendants. Snippets of these videos are now being used against defendants at court in Las Vegas.
Gary Hunt, who meticulously documented the Oregon standoff, is now ordered to stop writing about court proceedings from his home in California. So far, he has refused to honor Judge Anna J. Brown’s request and hasn’t appeared before her Portland courtroom to reveal his sources. Brown reportedly subpoenaed Hunt in connection with exposing identities of covert agents.
Hunt had an interesting confrontation with an FBI agent on a short visit to Burns in 2016.
“I asked him if he recognized me as press … and he responded that he thought I worked in a gray area,” Hunt recalls. “I asked him if the FBI wasn’t also working in a gray area.”
April Kiessling is a long-time contributing writer for WND.
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