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War on the First Amendment

The Great Green Scare and the Fed’s "Case" Against Rod Coronado

by BEN ROSENFELD

The federal government has been champing at the bit to put Rod Coronado back in prison since the moment he got out in 1999, refusing to repent for his role in a 1992 arson at a Michigan State University fur research lab. Federal officials have publicly branded Coronado a leader of the Animal Liberation Front, even though the ALF is apparently non-hierarchical. He is, however, an unabashed advocate of property destruction in defense of animals, and his indictment in San Diego in February, for giving a speech in which he explained how the incendiary devices used in the Michigan arson were made, is a flimsy pretext to punish him for his radical views.

The government’s vendetta against Coronado is a campaign in a broader witch hunt against radical environmentalists and self-identified "green anarchists" — those who merge ecology, animal rights, and anarchism in a vision of freedom and sustainability for all living beings. After Coronado’s arrest, the U.S. Attorney for San Diego, Carol Lam, stated in the government’s official press release, pre-judging the case for the public: "Teaching people how to build explosives in order to commit violent crimes is unacceptable in civilized society. There is no excuse for it." And so, through sophistry and syllogism, the government has transformed speech into violence.

On December 13, 2005, Coronado was convicted in Arizona for peacefully attempting to disrupt a mountain lion hunt, which the U.S. Forest Service organized after a hiker reported seeing a lion in a popular canyon — even though Arizona’s Fish and Game Department searched and didn’t find any tracks. The public came out strongly against the hunt, prompting authorities in the end to trap and relocate two lions without killing them. After Coronado’s conviction, Assistant U.S. Attorney Wallace Kleindienst told reporters that Coronado is "a danger to the communityI know he wasn’t tried here for being a violent anarchist. This trial wasn’t about Rod Coronado being a terrorist, but he is one." The AUSA thus revealed the government’s two ulterior motives for going after Coronado: One, it has a vendetta against him personally, and two, it has quietly embarked on yet another war against an abstract concept — anarchism.

The new case against Coronado is as stark a case about free speech as this country has ever seen. Measured against any historic test of free speech, Coronado’s behavior — i.e., his speech — was alarmingly protected and uncriminal. [1] On July 30, 2003, persons unknown torched an apartment complex under construction in San Diego, causing millions of dollars in damage. The day afterward, Coronado flew to San Diego to lecture at a previously scheduled event. In response to a question from an audience member, Coronado — who has been a public figure on the environmental lecture circuit since his release from prison in 1999 — demonstrated how someone had constructed a non-explosive, incendiary device out of a plastic jug filled with gasoline to commit the Michigan arson for which he did his time. The government does not suspect, and has not accused, Coronado of any involvement in the fire set the day before his speech.

The Supreme Court has carved out three famous exceptions to free speech: the "fighting words" exception (Chaplinsky v. New Hampshire), the obscenity exception (Miller v. California), and the "clear and present danger" exception (Brandenburg v. Ohio). [2] However, each exception is extremely limited. As Justice William Brandeis eloquently wrote in 1927: "Fear of serious injury cannot alone justify suppression of free speechIt is the function of speech to free men from the bondage of irrational fears[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion[T]he remedy [then] to be applied is more speech, not enforced silence."

But playing gotcha, the government has charged Coronado under an obscure, anti-First Amendment law which makes it "unlawful for any person to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destructionwith the intent that [it] be used for, or in furtherance of, an activity that constitutes a Federal crime of violence." [3] The law has yet to be challenged on constitutional grounds.

The DOJ reportedly has used this law only four times, but has used it twice now against dissidents. [4] In 2003, Sherman Austin, the then 20 year old founder of the anarchist website www.raisethefist.com, pleaded guilty under the law in order to avoid a possible 20 year sentence for merely hosting and linking to another website on his server, which provided crude, Anarchist Cookbook-style information on bomb-making.

The same information is widely available elsewhere. Austin otherwise had nothing to do with the site he linked to. But according to the government’s theory of the case, Austin’s anarchist beliefs and the political content of his website furnished the requisite intent. Thus, the government substituted other speech for intent, thereby nullifying the only part of the statute which required something more than mere speech. (Query whether it would also be illegal to show snapshots of the websites in question on a site devoted to stimulating discussion about threats to free speech?) Austin served one year in prison. [5] So much for the First Amendment.

The arrest of Coronado occurs in the midst of a new Green Scare, in which the FBI would have us believe that eco-saboteurs who engage in property crimes such as arson and vandalism, but studiously avoid causing injury to people, constitute "the number one domestic terrorism threat," as FBI Deputy Assistant Director for Counterterrorism John Lewis told a Senate panel on May 18, 2005. Apparently, according to the FBI, the threat is greater than that posed by neo-Nazis, systemically brutal and racist police forces, or Al-Q’aida.

Since then, the FBI’s Joint Terrorism Task Forces (multi-agency units operating out of every FBI field office) have mercilessly harassed numerous environmental and animal rights activists by conducting paramilitary-style raids on their homes; seizing computers, papers, photos and other personal effects; subpoenaing scores of people to grand jury inquisitions; engaging in electronic surveillance; dispatching informants to demonstrations; and even planting informants in people’s homes.

In December 2005, the DOJ unsealed a 65-count indictment in Oregon against 11 alleged eco-saboteurs accused in a series of arsons committed under the banner of the Earth Liberation Front. Even though the ELF disavows violence and no one was hurt, the government has branded them terrorists, thereby cheapening a term which, by its very mention, alters policies and budgets. The DOJ is seeking, in some cases, life terms for the young activists, where the same crimes, if committed to defraud insurance, would land them a few years in prison.

The Green Scare picks up where the Red Scare left off — with the FBI bruised and reprimanded by Congress for engaging in illegal, KGB-style break-ins, wire-taps, frame-ups, and even assassinations of members of targeted political groups. Now, Congress is the enabler of such FBI dirty tricks — not so much legalizing them as laundering them through the passage of flagrantly unconstitutional laws like the USA-PATRIOT Act, reauthorized by Democrats and Republicans alike, and the incipient, retroactive legalization of the NSA illegal domestic spying program.

Both the Red Scare and the Green Scare fuel and are fueled by a hysterical hatred for a broad political philosophy — Communism, and now Anarchism — caricatured as a tangible threat casting a shadow across the land. Thus, anarchists — a diverse group of people across all walks of life who generally agree that most government structures are repressive, that we shouldn’t be greedy, and that we should help one another, but who are probably more likely to disagree on the specifics of history, social organization, or political strategy than any two people who identify as Christian, Muslim, Republican, or Democrat — are reductively drawn as bomb-throwing lunatics. MIT Professor Noam Chomsky, who has lobbed many books at the public, is an anarchist. Probably, this is small consolation to the current Administration, but that is all they should have to say about it. George Orwell was one too.

In January 2006, with the arrest of three suspected eco-saboteurs in Auburn, California (Sacramento County), the FBI revealed that it is investigating the "anarchist movement", writ large. Special Agent Nasson Walker disclosed in an affidavit that the FBI had embedded a paid informant with the suspects, recruited when she was only 18 or 19. The FBI had dressed her up as a medic and dispatched her to participate in numerous peaceful, large-scale protests against, e.g., free trade and its concomitant race to the bottom in wages, human rights, and environmental standards. Needless to say, most if not all of the people she interacted with (politically organized with, treated medically, and lived with) were not plotting crimes of violence or sabotage. Yet the FBI can claim — with a whiff of legitimacy, even — that it has the right to engage in such intimate espionage and dragnet-style policing because ex-General John Ashcroft relaxed the Attorney General Guidelines to permit widespread snooping. Originally created to protect the public from FBI-KGB tactics after the exposure of its COINTELPRO operations in the 70s, , the A.G. Guidelines now permit the FBI "to go anywhere the public can go" in Ashcroft’s words, without any foundation of suspicion that a crime is afoot. [6] Undoubtedly, the FBI did not blow "Anna" the informant’s cover without leaving other agents in the fieldand in political meetings, in decision-making positions in groups, and in people’s homes.

Agent Walker’s affidavit is further revealing of the FBI’s backslide into politically motivated investigations. It references "anarchist" or "anarchism" 26 times in its mere 14 pages. In it, the FBI seems obsessed with the anarchist "lifestyle", anarchist literature, and anarchist gatherings. These invocations of dread anarchism add nothing more to the scales of probable cause than if all the terms were replaced by the word "Christian", and no one can gainsay that Christians have committed more atrocities in history than anarchists. It is elemental that a person is not guilty by association to an unpopular (or popular) cause in this country. But as a PR move — in seeking more constitutionally suspect laws, higher bails, more warrants, longer sentences, and a bigger chilling effect on progressive activists — the government’s projection of a giant anarchist menace is highly effective.

On January 13, 2006, the FBI’s David Picard flatly admitted to CBS affiliate Channel 13 in Sacramento that the FBI is again investigating an entire ideology as if it constitutes a domestic security threat.[7] He said, "one of our major domestic terrorism programs is the ALF, ELF, and anarchist movement, and it’s a national program for the FBI."

Against this backdrop, it is clear that the Arizona Assistant U.S. Attorney who labeled Rod Coronado a "violent anarchist" after prosecuting him for trying to save otherwise condemned mountain lions was not just spouting personal invective. He was reading from the official talking points memo.

Standing up for people’s rights of free expression, whether one agrees or disagrees with the message, is fundamental to a free society. As Noam Chomsky put it in Manufacturing Consent: "If you believe in free speech then you defend speech that offends you, because to only defend speech that you agree with is a function of the commissars Soviet Russia and Nazi Germany." Or as the ACLU says on its website: "The best way to counter obnoxious speech is with more speech. Persuasion, not coercion, is the solution."

Some questions which arise in Coronado’s case include whether he intended that his demonstration would be used to further an act of violence, and whether his intent, whatever it was, meets the clear and present danger test articulated by the Supreme Court in Brandenburg v. Ohio. The audience he was speaking to probably was not comprised of glazed-over Manchurian candidates, determined to and capable of going out and making violent revolution — if ever such a group existed. The law has long treated people, who are autonomous moral agents, as breaks in the chain of causality and guilt. Otherwise, Pat Robertson might be doing consecutive life sentences for his many intemperate remarks. Moreover, the steps involved in making an incendiary device from readily available materials such as a plastic jug and gasoline hardly constitute an opaque science. The term "destructive device" might turn out to be too vague to satisfy constitutional due process standards, if it includes items so simple to construct.

One thing we know for sure is what the government has already told us: "This trial [isn't] about Rod Coronado being a terrorist." The other thing we know for sure is that while real environmental terrorism goes unabated, forests recede, species go extinct, ice caps melt, and the sea level continues to rise.

BEN ROSENFELD is a Civil Rights attorney in San Francisco.

Note

[1] In legal parlance, "speech" includes expressive conduct, broadly.

[2] For example, relic that it is, the 1940 "Smith Act", which prohibits advocating the overthrow of a government of the United States, is still on the books. (See Smith Act, 18 U.S.C.A. § 2385.)

[3] See Dept. of Justice press release The statute, 18 USC § 842(p)(2)(A), states in its entirety: "It shall be unlawful for any person to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence"

[4] See article in San Diego Union-Tribune, reporting that law has only been used four times.

5] The 16 year old white kid who designed the website Austin linked to was never even arrested. For more information, see www.freesherman.org.

[6] See CNN article quoting Ashcroft at May 30, 2002 press conference.

[7] See second television news broadcast