January 19 2012
by Will Potter
recently wrote about Jordan Halliday, an animal rights activist who was
jailed for refusing to name names before a federal grand jury investigating
the release of mink from fur farms. Prosecutors urged a harsh prison
sentence because Halliday has publicly vowed to resist the political witch
In the sentencing memorandum, they said that, while awaiting
sentencing, Halliday continued to protest, continued to associate with
animal rights activists, and continued to urge activists to support him.
And then prosecutors described to the judge what they said is an even
more troubling association.
"Of More Serious Concern"
serious concern is the fact uncovered by the FBI" that Jordan Halliday was
mentioned in a photo caption on this website, they said.
The FBI had
given prosecutors an article I wrote titled, "BREAKING: FBI Raids Activist
House in Utah, Connected to Iowa ALF Investigation." I covered this story as
it happened, and scooped local press. I was able to do this because, as I
noted in the article, "I just got off the phone with multiple housemates who
were there witnessing the raid, and who were able to read the warrant." The
housemates called me because I have been reporting on the FBI's attacks on
animal rights and environmental activists since 2001. I later updated the
blog post with a photo from the scene that credited Jordan Halliday.
To me, this was Journalism 101 -- work fast, then flesh out details and add a
photo. To the FBI, this quick work was the evidence of a network of
extremists. Prosecutors state in the sentencing memo: "The search warrant
was sealed, as is typical, with no warning or public knowledge ahead of the
time of service. Nonetheless, photograph taken contemporaneous with the
execution of the search warrant service has been attributed to the defendant
on the animal rights extremist website" GreenIsTheNewRed.com.
It is not surprising to see a government sentencing
memo try to connect a defendant to "extremists." I've covered this in many,
many prosecutions. The intention is to use guilt by association to secure
additional prison time. For example, prosecutors will say that Joe Defendant
is friends with drug dealers, or that Jane Defendant's family are in a gang.
In this case, the government labels journalism as extremism.
Prosecutors say that since my article mentioned Halliday in a photo caption,
it means he placed himself "above the law" and violated an order to have "No
association with animal group[s] A.L.F., E.L.F., Vegan Straight Edge (VSE)."
[The ALF and ELF are the underground Animal Liberation Front and Earth
Liberation Front. "Vegan Straight Edge" is a punk lifestyle, not a terrorist
group, and I'm having a hard time even typing this explanation without being
reminded by these lyrics.]
Packed into that short accusation are two
dangerous unstated assumptions:
Anyone who takes a photo of law
enforcement is associated with those being targeted. Keep in mind that this
raid led to no arrests. Yet the government says that merely possessing a
photo of it implies criminal association, and is acting "above the law."
Anyone who writes about what the government is doing to animal rights
activists is an "animal rights extremist" by extension. This is the most
dangerous message being sent by the government. My writing and commentary on
civil liberties issues has been featured by NPR, the Los Angeles Times,
Mother Jones, and many other of the top media outlets in the country. I have
lectured at nearly 100 universities and associations, including Georgetown
Law School, Yale Law School, and the House of Democracy and Human Rights in
Berlin. My book was awarded a Kirkus Star for "remarkable merit," and has
been praised by Publishers Weekly, Utne, the Bill of Rights Defense
Committee, and many others. I say all this hoping to make clear that if my
journalism is being labeled "extremist," if my entire body of professional
work can be reduced to extremism because I ask questions about what the
government and corporations are doing, then everyone is at risk.
Chilling Free Speech
If there has been one theme running through all
of my work, through every blog post and book chapter and speaking event, it
is this: fear. Corporations and politicians are using post-9/11 fears of
terrorism to push their political agenda. Fear is being manufactured and
manipulated by people in power in order to make people think twice about
using their rights.
This chilling effect on First Amendment activity
is at the core of lawsuit by the Center for Constitutional Rights
challenging the Animal Enterprise Terrorism Act. The vague and overly broad
language of the law, and the sweeping attempts of prosecutors to utilize it
(such as this grand jury investigation), is unconstitutional not because it
has expressly prohibited First Amendment activity, but because it has
This is another representation of that constitutional
threat, in two ways:
It makes me feel that using my First Amendment
rights puts me at risk. Describing journalism as "extremist" in the context
of a terrorism investigation is, to put it mildly, unsettling. This isn't
the first time I have learned of surveillance like this. I have previously
written about how my writing and speeches have been listed in
Counter-Terrorism Unit briefing documents.
More importantly, it makes
me feel that using my First Amendment rights puts my sources at risk. When I
saw that my work was being used by the FBI and prosecutors against Halliday,
it made me sick to my stomach. It's one thing to see my name in terrorism
files, it's another to see my work being used by prosecutors to punish
people I have written about. An old muckraking motto is "comfort the
afflicted, afflict the comfortable." To have my work afflict people who
already have the full weight of the U.S. government pressing down upon them
goes against everything I believe about this craft.
A Pattern on Behavior
You might be asking: Was the government really trying to send these
messages? Or was this a case of bad FBI intelligence and prosecutors who
don't "get it"? (To steal a line from The Daily Show, "Are they evil, or
I don't know the answer to that question. But I know
government officials have done this before. When I visited Daniel McGowan in
the Communications Management Unit, prison officials did not threaten me.
They did not expressly prohibit me from writing about the experimental
prison units. Instead, they told McGowan that if I wrote about the visit he
would be punished for my words.
I also know that prosecutors said
Jordan Halliday needs to be punished for his "stardom," so "defendant's
supporters are not emboldened to follow the defendant's contemptuous ways."
Through these and many other examples, it's clear that the government is
openly trying to send a message.
And so, as I edit this, about to hit
"publish," I keep hesitating. Will writing about this amplify that message
of fear? Everything I do depends on the trust I have built with countless
activists and their friends and families. What if this makes people afraid
to be mentioned on this website?
The mere fact that I have to ask
myself those questions is a testament to how much we have lost in the name
of fighting "terrorism."
This pattern of conduct by the FBI and
federal prosecutors is nothing less than an attack on the First Amendment,
and an attack on journalism. It is an attempt to foster distrust between
author and source, and it is an attempt to shake the confidence that one can
report freely and without retribution, both of which are essential to any
meaningful expression of journalism in a democracy.