The First Amendment Rights of “Shock-Jock” Pete Santilli

The ACLU of Oregon stands in solidarity with the thousands of Oregonians, particularly in rural communities, who are peacefully protesting the unwanted militia occupation in Harney County. There are reports that some of these occupiers have been intimidating and threatening community members. These are not social change strategies we support. Likewise, it is not lost on us that what was framed as a protest about land rights has ignored the historic territory of the Burns Paiute Tribe and desecrated sacred cultural properties. 

Although it may be easy to form a negative opinion about the tactics used by the people involved in the occupation, it is much harder to assess the government’s response. We have been watching how one of the people arrested, Pete Santilli, has been treated in court and we have real concerns. 
It is in this context that the ACLU of Oregon is compelled to speak out, not because we endorse the messages of the speaker or condone the tactics of the protesters.

by Mat dos Santos, Legal Director, ACLU of Oregon

There is no doubt that when Pete Santilli gets in front of the camera he is politically polarizing and, to many, downright offensive. He challenges government authority through brazen, political statements. But does he pose a real threat? That’s the question asked of a federal judge last week: Should Pete Santilli remain in custody while awaiting his criminal trial for charges related to the Malheur Refuge takeover? While many people might disagree with statements made by those involved in the Malheur takeover, Americans have a fundamental right to freedom of speech. Law enforcement can and should differentiate between controversial statements and real threats. What’s at stake here could indeed be larger than a radio personality’s career, Malheur and Oregon.

Santilli, who hosts an internet radio show and YouTube channel with over 60,000 viewers, had dedicated his show to covering the occupation of the Malheur National Wildlife Refuge as an embedded journalist. This coverage was the basis for his arrest warrant as well as a threadbare indictment on a charge of conspiracy to impede federal officers by use of force, intimidation and threats. If convicted of this federal felony, Santilli could face up to six years in prison.

In deciding whether to release Santilli prior to trial, the judge needed to determine whether Santilli was a flight risk or a danger to the community. Santilli’s court-appointed attorney highlighted his nonviolent record and presented videos of his compliance with law enforcement during the occupation, including at the time of his arrest. Also in the defense’s evidence was a note from the Harney County Sheriff thanking him for going on-air to request that his media followers cease all threats. There was evidence that as a member of the public interacting with law enforcement, Santilli has been calm and compliant and that he has no known history of violence. The government’s own testimony showed that unlike many of the protesters, Santilli did not carry a firearm. And when he urged others to join the protest he regularly told them to come unarmed. The government, however, pointed to a number of Santilli’s “shock-jock” style statements to support keeping him in jail—including one from two years before the arrest occurred to urge his continued detention. In the end, the judge sided with the prosecution and ruled to keep Santilli in custody.

Situations like this - where words alone are used to label a speaker so dangerous or somehow threatening as to warrant the deprivation of his liberty - demand the highest caution. Where there is any question, we should err on the side of the speaker.

It is especially troubling that the prosecution and the court relied on statements made months and even years prior to the incident at issue in order to “prove” Santilli’s risk. If all of our statements can be cherry-picked and strung together over a number of years to label us a “danger,” we risk silencing our civil discourse. Recognizing and respecting the line between protected beliefs, even radical beliefs, and violent or criminal activity does not undermine our security, but rather strengthens it.

Did the decision to continue to hold Santilli in jail sufficiently protect his First Amendment rights? There are less restrictive means of controlling an individual who is awaiting trial, such as a house arrest. We can all agree that we should not hold members of the media or protesters in jail without bail simply because they have shocking or abhorrent views. These are principles that we must stand by, even when we disagree with the message of the speaker.

The occupation of Malheur National Wildlife Refuge has been a divisive issue in Oregon. Many Oregonians see the protesters as outsiders, and the residents of Harney County were united in asking for a swift and peaceful end to the standoff. Even so, regardless of our political beliefs, Santilli’s case may have far reaching implications on our American values that we must consider. Although the ACLU of Oregon is not representing Santilli, or any of the other people accused of conspiracy, we will continue to watch the situation closely to ensure that our basic constitutional principles are the basis of any government action.