I was sitting on the back porch with a friend recently, discussing the affairs of the world as men do when our wives are busy doing important work elsewhere. The topic of protest in America today came up and I told him about how some of those who protested against the Dakota Access pipeline at Standing Rock and other locations were charged with major felonies that could have put them behind bars for 40 years or more.
One of them was documentary filmmaker and journalist Deia Schlosberg, who was arrested and charged with felonies carrying a maximum sentence of up to 45 years in prison simply for reporting on the ongoing Indigenous protests against fossil fuel infrastructure, according to Common Dreams. The situation was so outrageous that Edward Snowden commented on it on Twitter.
This reporter is being prosecuted for covering the North Dakota oil protests. For reference, I face a mere 30 years. https://t.co/GzMbwCVV40
— Edward Snowden (@Snowden) October 14, 2016
My friend was shocked that such things could happen in the United States of America, the land of “Let Freedom Ring” and the constitutionally protected right to peacefully assemble and petition for redress of grievances. It’s right there in the First Amendment. He was unaware that such things were going on in the alleged Land of the Free. So I put together a little primer on the criminalization of protest in America, particularly when components of the the nation’s vast fossil fuel infrastructure are involved.
It looked like this:
- “Oil Lobbyist Touts Success In Effort To Criminalize Pipeline Protests, Leaked Recording Shows.” — The Intercept
- “Wave Of New Laws Aim To Stifle Anti-Pipeline Protests, Activists Say” — The Guardian
- ” Red States Are Criminalizing Speech to Wage War on Environmental Activists” — GQ
- “Oil Companies Persuade States To Make Pipeline Protests A Felony” — Bloomberg
Required Reading For All Americans
You are encouraged to read the stories available at all four of those links. Knowing more about what’s going on in your own country is a good thing. Let’s take one of those articles — the one from GQ — and examine it more closely. During the extraordinary Dakota Access pipeline protest in 2016, the state of North Dakota spent $38 million policing the demonstrators. Part of that money went to hire a team of ex-military mercenaries known as TigerSwan to infiltrate the group and identify the principal organizers.
Alarmed by the activists in North Dakota, other states quickly passed legislation designed to severely punish anyone who dared speak out against pipelines. A group known as the American Legislative Exchange Council — created and funded largely by Charles and David Koch — was only too happy to help by drawing up so-called model legislation designed to protect the interests of pipeline operators. It will come as no surprise that Koch Industries is a major player in the pipeline business.
Here’s what happens when ALEC goes to work. It sends in well paid lobbyists to buttonhole state legislators. “Hey, we’ve got a great piece of legislation here. It’s all written up and ready to go. All you have to do is submit it. If you do, we will generously support your next reelection campaign. If you don’t, we will find someone who will shut up and do what they’re told to oppose you and we will spend whatever it takes to get that person elected. What do you want to do?”
If this sounds a little like the proverbial “offer you can’t refuse” from The Godfather, you’re right. Not surprisingly, versions of the Koch Brothers sponsored legislation start popping up in states all across America. Oklahoma, Louisiana, and Texas have passed new laws that are within a gnat’s eyebrow of being identical. In total, six states now have similar legislation.
Oklahoma Cracks Down On Protesters
In 2017, Oklahoma Governor Mary Fallin signed a law that makes it a felony to enter a pipeline property to “impede or inhibit operations of the facility.” It carries a maximum fine of $10,000. If the intruders do actually “impede or inhibit operations,” the penalty is ten years in jail and a maximum fine of $100,000. In case you are thinking maybe a person could get out early for good behavior, be aware that in many states a convicted felon can be kept in prison for the maximum period of time specified by law unless and until any fines are paid in full.
Even assuming you think ten years in prison is an appropriate punishment for someone who dares to interfere with a pipeline, the Oklahoma law has more sinister provisions. It make anyone who “compensates, remunerates or provides consideration to someone who causes damage while trespassing,” liable as well, according to Public Radio Tulsa. This deliberately vague wording can easily apply to organizations and environmental groups that might only be tangentially related to the person charged with trespassing — like Bill McKibben’s 350.org, for example. And the added kicker in the legislation is a provision that applies the specified penalties to anyone arrested even if they are never convicted of anything. Welcome to fascist America.
Vagueness & Chilling Effects
In case you happen to know a little constitutional law and plan to challenge the statute on the grounds of vagueness — an abstruse topic known only to legal scholars — be advised that the opening bid on legal representation before the Supreme Court is $1 million of more. Ordinary people seldom have access to such extraordinary resources.
ALEC does not confine its efforts to the states, however. Earlier this year, the Pipeline and Hazardous Materials Safety Administration, (Who even knew such an agency existed?) which is part of the Department of Transportation, unveiled a proposal that closely resembles the various state statutes. The difference, according to Politico, is that the penalties are more extreme, with a maximum of 20 years in federal prison. Not to worry, though. In a statement given to Politico, a spokesperson for the agency offered these reassuring words: “This proposal is not meant in any way to inhibit lawful protesters from exercising their first amendment rights, and PHMSA is committed to working with Congress to make sure that this is clear in any final legislation.”
That is great news, isn’t it? Not really. If a legislature or an agency can criminalize the act of protesting itself, then anyone daring to protest is ipso facto no longer a “lawful protester,” in which case the full weight of the law can be lawfully applied. As GQ says, if the laws convince people to stay home instead of joining a protest, then they never become protesters at all and their voices have been effectively stilled.
The US Supreme Court used to spend inordinate amounts of time erecting barriers to government actions that might potentially exert a “chilling effect” on the exercise of free speech as guaranteed by the Constitution, but in the age of John Roberts and company, that is now just a quaint old fashioned notion that can be safely ignored. The rights of corporations must be preserved at all costs, which is another bedrock tenet of the gospel according to Charles and David Koch that is vigorously promoted by another Koch supported special interest group, the Federalist Society.
A Small Protest In New Hampshire
I got to thinking about all this when CleanTechnica reader Dan Allard sent me a link to a New Hampshire Public Radio (NHPR) story about 67 people being arrested and charged with felonies recently for daring to walk on railroad tracks leading up to the largest coal-powered generating station still operating in New England — the Merrimack Station located in Bow, New Hampshire. About 150 protesters carrying signs locked arms and sang songs to draw attention to the health and climate risks of burning coal. How dare they! Keep in mind the official motto of the Granite State is “Live Free Or Die!”
The rail line, it should be pointed out, is used only once or twice a year to bring coal to the generating station, which is only used to make electricity when warm temperatures raise the demand for air conditioners or low temperatures increase the demand for electric heat. There were no trains scheduled for the day of the protests, which were associated with the week of climate protests around the world in September. Local and state police in full riot gear followed the group and ordered them to disburse. When they began to sing, that was too much for the constabulary and the arrests began while a helicopter circled overhead. A total of 67 people were arrested and charged with criminal trespass — a Class B misdemeanor.
If you think that has no significant consequences, think about what happens to these people the next time they apply for a job and have to answer the question “Have you ever been arrested?” While you’re at it, call your local attorney and ask what the going rate is for conducting a criminal defense, even for a low level Class B misdemeanor. Chances are you won’t hear any numbers lower than $5,000.
The photos in the NHPR story show the unruly mob that caused such consternation for the authorities. Isn’t it interesting how the forces of law and order in America today are all in the service of corporations? None of them care two hoots and a holler whether those corporations are poisoning people or the environment with their activities or what the Constitution may say about peaceful protest. Property rights must be given the highest priority in all circumstances.
The people of America have willing surrendered their civil rights to authoritarian state actors. Drive by your local police station and notice the assortment of military-style vehicles parked outside, many of them emblazoned with the word SWAT on their flanks. We all assume those special weapons assault teams are there to protect us from gang members and “those people,” whoever “they” are. But when they swing into action, ask not for whom the SWAT team rolls, it rolls for thee.
There are those who hide behind the old bromide, “If you haven’t done anything wrong, you have nothing to worry about.” But that simplistic circumlocution won’t protect you when the law in your jurisdiction makes it a crime to even think about supporting an anti-fossil fuel protest. Your descent into the clutches of the law could involve something as simple as liking a post on Facebook by 350.org or commenting favorably on a tweet by Bill McKibben.
We have willingly given away our personal liberties so fossil fuel companies can continue to pollute our air, our water, and the very ground we walk on. The Founding Fathers never would have guessed their descendants would give up the civil rights they so carefully crafted with barely a hint of protest. America can never pretend to greatness so long as it fails to protect the bedrock principles upon which it was founded, namely equal justice under the law and a government of the people, by the people, and for the people.
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