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When Our Soapbox Has a Slippery Slope: A Clear and Present Danger? Part IV

Abandoned Farm, Tetons, circa 1993

Abandoned Prairie Farm, Tetons, circa 1993


This is Part IV of our series, When Our Soapbox has a Slippery Slope: A Clear and Present Danger?

The earlier links: Part I and Part II and Part III.

In Part III we began our examination of Professor Leitler’s criticism of Professor Waldron’s idea that the First Amendment Free Speech cannot be absolute and we should regulate hate speech. Professor Leiter’s concern is that the law would be shaped to benefit the politically powerful. We examined the Patriot Act, designed as a tough law on terror, and its abuses – its use in context for which it was never designed, and its use in interfering with peaceful protest, a prime tool for the democratic exercise of free speech. We ended with an introduction to eco-terrorism, and closed offering two movies about the Sea Shepard and its captain, Paul Watson.

As our inquiry into the Patriot Act is intended to be illustrative and not the source of the final answer regarding regulation of free speech, our brief interlude into the realm of the eco-terrorist is intended to be provocative and illustrative of the issues surrounding the right to protest, particularly by the highly passionate like Watson and his Sea Shepard organization. Paul Watson and Greenpeace, which he helped form, separated because he became convinced that passive protests directed toward changing the conduct of abusers of our earth do not work, and he and his clan have been willing to risk their lives and spend time in jail to make their point. In Part III, we quoted Professor Bron Taylor, who neither condones nor champions such tactics:

“Yet given the mounting evidence of the precipitous decline in earth’s life support systems, the apocalyptic expectations that fuel environmental resistance are also understandable.”

• There are those who are empathetic. In 2011, Deborah Bassett wrote an article for the Huff Post, Sea Shepard: Eco Terrorism or Environmental Justice?, where she writes about Watson, who, she says, has been a consultant to the FBI on eco-terrorism (before the 2013 injunction regarding the Japanese whaling in the Antarctic):

“There are no words to express my gratitude to Captain Paul Watson for his valiant pursuit of defending those who cannot defend themselves. He will no doubt be remembered by history as a trail blazing pioneer of the modern day direct action environmental movement and society should be so truly honored to be amongst a living legend in his own time.”

• There are those who are not empathetic. In the eyes of the 9th Circuit Court of Appeals that issued the 2013 injunction, Watson and his clan were pirates. Chief Judge Kozinski wrote in his opinion:

“You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.”

In Part III, we pointed out that the Antarctica whaling activities of Japanese, carried out under the guise of scientific research, were declared illegal and the Japanese abandoned the Antarctic, where Watson and the Sea Shepard confronted them. Thus, though his actions were not condoned by law, and he has been branded an eco-terrorist, the objectives for which he and his clan risked their lives were achieved. As we ponder the righteousness and wisdom of Watson’s actions and his willingness to flaunt the 2013 court injunction – and perhaps speculate whose side Sam Adams and the original Tea Party would be on – let us continue our inquiry.

As a frame for our continuing discussion:

• In testimony of the Domestic Terrorism Section Chief before Congress in 2002, the Chief, James F. Jarboe, said:

“Generally, extremist groups engage in much activity that is protected by constitutional guarantees of free speech and assembly. Law enforcement becomes involved when the volatile talk of these groups transgresses into unlawful action. The FBI estimates that the ALF/ELF have committed more than 600 criminal acts in the United States since 1996, resulting in damages in excess of 43 million dollars. Special interest terrorism differs from traditional right-wing and left-wing terrorism in that extremist special interest groups seek to resolve specific issues, rather than effect widespread political change. Special interest extremists continue to conduct acts of politically motivated violence to force segments of society, including the general public, to change attitudes about issues considered important to their causes. These groups occupy the extreme fringes of animal rights, pro-life, environmental, anti-nuclear, and other movements. Some special interest extremists – most notably within the animal rights and environmental movements – have turned increasingly toward vandalism and terrorist activity in attempts to further their causes.”

• Will Potter’s blog has a January 8, 2015 post titled, Eric McDavid Released from Prison, Feds Withheld Evidence:

“Eric McDavid was convicted on conspiracy charges in 2007 related to what the government called a plot to blow up the Nimbus Dam. This “conspiracy,” though, was the creation of a paid government informant named “Anna” who traveled the country with the group of activists, encouraged them to plot illegal activity, supplied them with food and housing and even provided, with the FBI’s direction, bomb-making recipes. . . . McDavid’s release is a victory, and should be celebrated. But it is also a reminder of how the FBI’s obsession with “eco-terrorists” — who have never injured anyone — and the relentless drive to proclaim victories in the War on Terrorism, have robbed McDavid and his family of years of his life. The brutal reality is that there will be more cases like this, and the FBI’s rogue operation will continue, until there is a fullscale government inquiry into how “terrorism” resources are being used to persecute political dissidents. Without a massive change in oversight and accountability, the FBI will be allowed to continue sabotaging the lives of those who dare to speak out.”

• Will Potter’s Ted Talk, March 2014, a 4 1/2 minute must: The shocking move to criminalize nonviolent protest: YouTube Preview Image

Is Activism Terrorism?

Potter’s blog theme is: Activism is not Terrorism

I shared the videos, cases and articles I reviewed for these series of blogs with Joanie, my bride of some 60 years. She told me what’s going on politically regarding the gagging of our Bill of Rights freedoms makes her nervous about the wisdom of me continuing this intellectual inquiry into our First Amendment Freedom of Speech rights. Should she be? As we ponder, let us look at our agricultural beginnings.

Our Agricultural Beginnings and Where We Are Today

Pioneering spirit formed America. Not only were our skies spacious but so was the land we chose as our home. Our founders were not corporate or financial giants, they were farmers – about 90% of our colonial population made their living from agriculture. Cities weren’t places to escape to or to go to for jobs, they were distribution centers for farmers’ goods. Family farming was an honorable and respected profession.

The idea of liberty – the foundation for the American Dream and the Bill of Rights – tied into farming and was based on space. We had the geography of space, an infinite amount of space, as the colonials saw it. If they couldn’t make it in Virginia, or their libertarian spirits felt crowded, they could hitch up their wagons and go west to Illinois, or maybe cross the wide Missouri. There was no reason that with the right amount of effort they couldn’t succeed – if not where they started, then down the road or across the river or over the hill. This idea of self-fulfillment, guts, and hard work became part of our psyche, our American Dream, if not our DNA. The farmer – the pioneer- was master of his own fate.

The number of farms grew to 4 million in 1880 and 6.4 million in 1910. Then the number started to decline. In 2012 there were 2.1 million farms, and the decline in the number of farms continues. The middle-sized farm is disappearing. Farmers are getting older. And corporate farms are replacing individually-owned farms. The Department of Agriculture reports as of 2007: “In spite of the predominance of family farms, there is strong evidence of a trend toward concentration in agricultural production. By 2007, a mere 187,816 of the 2.2 million farms in this country accounted for 63% of sales of agricultural products (USDA, 2007 Census of Agriculture).” Thom Hartmann writes in Unequal Protection:

“Although large agricultural corporations numerically own only 6 percent of U.S. farms, that 6 percent accounts for almost two-thirds of all farm income.”

Politicized Libertarianism

The corporate farm block has political power that individual farmers never had. And, as Potter points out in his Ted Talk, and as we will comment on in Part V, the politically powerful, including corporate farmers, have been using their clout to restrict First Amendment Freedom of Speech Rights of disagreeing individuals, particularly when the disagreement threatens corporate profits.

Though the libertarian mind-set continues to provide us with emotionally-satisfying metaphors that shape our American Dream, the Libertarian idea of “maximum freedom and minimum government” has dangerously morphed into a different corporate form of libertarianism: “maximum freedom for me and maximum government restraint for those who disagree or limit my profits.”

Let us define this inappropriate morph as “Politicized Libertarianism.” It goes with “Politicized Science,” a Part III discussion. Neither is good and both would rankle Constitutionalists like Madison and Jefferson and Holmes and Douglas. And both should rankle us. They do me.

The Citizens United Case, discussed in Part II, confirming corporations are persons with First Amendment Rights, coupled with essentially the right to spend unlimited funds to get their way, have further skewed our Libertarian American Dream for the worse. In January 2015, the Washington Post editors wrote in, The legacy of ‘Citizens United’ strays from the Supreme Court vision:

“What went wrong? The court’s vision of disclosure and transparency is nowhere in sight. In fact, campaign finance in the United States has, by many measures, fallen into an era dominated by “dark money,” with donors hiding in the shadows and hundreds of millions of dollars of contributions flowing through politics without a trace of who gave it or why.”

Dark money dominates, funding lobbyists, shaping our politics, trashing First Amendment Bill of Rights freedoms of those who disagree, frightening citizens into inaction.

We pointed out in Part I that the Bill of Rights was designed to protect individuals from the “tyranny of the majority.” But the rights of individuals are falling prey to a different tyranny, the tyranny of Politicized Money – of enormous, undisclosed, essentially unlimited political expenditures – that favor and support Politicized Libertarianism, contaminating and squelching our Bill of Rights in ways never intended or dreamed of by our Founding Fathers. And that is a Clear and Present Danger of enormous proportions Oliver Wendell Holmes could never have envisioned when he opined against falsely crying fire in a crowded theater.

We continue in Part V.


Abandoned Farm, Tetons, circa 1993
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