Unprotected Speech: Using a Bogus Green Scare to Subvert Freedom

[Apparently, this appears in a recent issue of Playboy.]

Unprotected Speech
Using a Bogus Green Scare to Subvert Freedom
By Dean Kuipers

As the jury filed into a San Diego courtroom on September 19, 2007, Rodney Coronado had every reason to believe he was on his way to prison. Again. The man The New York Times had called celebrity ex convict in the underground world of environmental and animal rights radical served nearly five years in the early 1990s for firebombing an animal research lab. But back then nobody had branded him a terrorist. Times have changed. This time all he'd done was make a public speech about his radical past, and the feds were trying to put him away for 20 years on terror charges. It didn't matter that the speech was almost certainly protected under the First Amendment. They smelled blood. Only weeks earlier, in Oregon, 10 activists the media had dubbed "the Family" were convicted in connection with various instances of eco arson one of them a much publicized blaze at a Vail ski resort and had their prison sentences more than doubled through the use of federal terrorism sentencing enhancements. It was the first time domestic activists had been sentenced as "terrorists." Elsewhere, six people from a group called Stop Huntington Animal Cruelty, or SHAC, were given long sentences in New Jersey for running a website not connected to any material crime. Three other young folks, from Auburn, California, who identified with the Animal Liberation Front and the Earth Liberation Front awaited trial after being set up by a sexy, young FBI informant. All of them and others had been threatened with terrorism charges.

One thing is clear: The age of The Monkey Wrench Gang is over. The red-blooded American practice of property damage blowing up railroad tracks, burning offensive billboards made famous by Edward Abbey's 1975 book is now treated on a par with the murderous acts of Al Qaeda. Both sides are at fault. When L.A. animal activist Jerry Vlasak went on 60 Minutes and implied it was okay to kill animal research execs and when shadowy figures began leaving firebombs at the homes of UCLA lab directors, it was a no-brainer for Congress to pass new legislation like 2006's Animal Enterprise Terrorism Act. On the other side, huge corporations saw an opening and lobbied hard for the word terrorism to be included so harsh post Patriot Act sentences would apply.

Of all the new prosecutions, however, those involving pure speech have the most ominous overtones. At least the Oregon ecoteurs admitted they had actually done something illegal. Coronado as well as the SHAC 6--was simply being silenced.

On August 1, 2003 Coronado flew to San Diego and gave a speech attended by about 70 people. He says it was his standard speech at the time about his extreme efforts to protect wildlife, which included smashing up fur shops, sinking two (unmanned) Icelandic whaling ships and a 1991 to 1992 arson campaign against fur farms, for which he served 57 months in prison. When he finished, someone asked him how he had made his incendiary devices a dozen years earlier, and in the space of about a minute he told them. "I had answered this question many times before," said Coronado in a 2006 interview in Tucson. (He had been advised not to talk during his 2007 trial.) "I just naively believed speech was protected. Otherwise, I would have told people to go online or go to a gun show, where you can buy manuals," he added. Two and a half years later, in February 2006, the FBI arrested Coronado for responding to that question. The U.S. attorney's office in San Diego contended he had broken a seldom used 1997 law 18 USC § 842(p)(2)(A), sponsored by Senator Dianne Feinstein (D Cal.) that makes it illegal to teach others how to build a "destructive device" with the intent that they use it to commit "federal crimes of violence." The key word in that law, however, is intent. Federal Judge Jeffey Miller sidestepped the issue of whether the 1997 law itself was unconstitutional (the argument is that bomb building instructions, without any link to a crime, are protected speech) by reminding the court that incitement requires (1) intent and (2) imminent action. "This is really asking the court to outlaw a type of speech that has never been outlawed before," says Gerald Singleton, Coronado's attorney in San Diego. "All the case law talks about an individual having criminal liability for aiding and abetting in the commission of another substantive crime. Or if you are inciting violence to such a degree crying 'Fire' in a crowded theater that harm is imminent. That's the Brandenburg test."

The 1969 Supreme Court case Brandenburg v. Ohio established that inflammatory speech by a Ku Klux Klansman against blacks, Jews and others, no matter how disgusting, was protected unless it was likely to incite "imminent lawless action" (in other words, a lynch mob). In Coronado's case, the government waited two and a half years to see if someone would build a bomb based on his words, but no one did.

Are these people terrorists?

For three days in court Coronado heard the U.S. attorneys and a star witness, a longtime San Diego Police Department undercover cop, imply intent by stating under oath that the question from the audience was "How do I make a bomb for an action?" The woman who asked the question took the stand to deny that this was her wording, but things were looking grim for Coronado until late in the trial, when an audio recording of the speech surfaced and proved the cop's "verbatim notes" were grossly distorted. The words bomb and action weren't said.

San Francisco civil rights attorney Ben Rosenfeld wrote a widely published essay on Coronado's case, which states, "This is a pure free-speech case. Measured against any historic test of free speech, Coronado's behavior that is to say, his speech¬was alarmingly innocuous and uncriminal." Lauren Regan, an attorney with the Civil Liberties Defense Center in Eugene, Oregon who represented some of the Family, points out that no terrorism enhancements were used against the Oklahoma City bombers, who killed 169 people; one co conspirator in that case is already out of jail.

"The government is choosing which subject matter it's going to punish and which it's going to turn a blind eye to," Regan says, noting that a right wing website called Target of Opportunity has given detailed information about Coronado and some of the Oregon defendants, clearly advocating their murder by calling them "enemy targets" and including such fines as "One shot is all it takes" (since removed), but the feds have never gone after that site.

It turned out that the jury in Coronado's case was also skittish about the case's implications. On September 19 they came back with a split decision, a hung jury. They agreed he had taught people how to build an incendiary but were stacked against the idea that its use was imminent.

Clear intent to commit crime still mattered. Coronado left the courtroom a free man but not forever . The government is deciding whether to retry him. San Francisco attorney Tony Serra, part of Coronado's defense team and a veteran of civil rights cases, including those of Black Panthers and Hells Angels, said during the trial, "Those of us who've been involved for many years in civil rights movement cases, we are incensed at this litigation. This is a case, like a canary in a miner's cave, that seeks to measure how much free oxygen we still have in this country."