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The war on climate activists is a war on the First Amendment

Image courtesy Great Plains Tar Sands Resistance

Consider the following two scenarios, which both occurred within the past month in the United States.

On 13 December 2013 about a dozen activists with the Great Plains Tar Sands Resistance walked into Devon Energy’s offices in Oklahoma and staged a peaceful protest to oppose the corporation’s involvement with the Keystone XL pipeline. Two members of the group, Moriah Stephenson and Stefan Warner—a grad student and a pastor, respectively—broke off from the group and headed upstairs to a balcony overlooking the building’s open atrium. They dropped a banner reading “The Odds Are Never in Our Favor,” illustrated with a gold ‘mockingjay’, Hunger Games style. As the long red banner unfurled, some of the glitter on it began drifting down onto the atrium floor below. A few minutes later, they collected the banner, reportedly apologized to a janitor, and left. Stephenson told the Guardian:

"A lot of people when they heard about it they imagined buckets of glitter being dumped on people running and screaming, and chaos and panic. It wasn't chaos and panic at all. It was a pretty boring protest…”

A few weeks later, on New Year’s Day, 2014, a military intelligence analyst and national guardsman named Andrew Scott Boguslawski was pulled over on an Ohio highway, reportedly doing 85 mph in a 70 mph zone. The Ohio State Trooper who stopped Boguslawski says he asked the military man if he had any weapons in the car. After Boguslawski said no, the trooper noticed the butt of a gun sticking out from in between the driver’s legs. A subsequent search revealed that Boguslawski’s car contained 58 explosive initiators, 25 bombs, a remote detonator, and several loaded guns, including an AR-15. He also had blueprints to an unidentified building. Initial reports said that Boguslawski worked at a training facility for Navy Seals.

Which of these scenarios sounds like terrorism? According to the authorities, only one: the anti-Keystone XL protesters’ action in Oklahoma.

The anti-pipeline activists, who possessed no weapons and never threatened anyone with violence, were arrested on so-called ‘terrorism hoax’ charges, a felony under Oklahoma state law. If prosecutors formally charge the pair with ‘terrorism hoax’, they could face up to ten years in prison—as well as be marked as terrorists for their entire lives. Boguslawski, meanwhile, is facing a host of charges that, while serious, do not reference terrorism: “illegal assembly and possession of chemical weapons, [and] illegal manufacture or processing of explosives.”

This disparity seems shocking, but actually makes perfect sense when considered within the context of the federal government's long war against environmental activists. Unfortunately, signs suggest this war is metastasizing.

As close green-scare watcher Will Potter has written, there’s evidence to show that corporations profiting off of environmental degradation work in close cooperation with law enforcement to heighten pressure on climate activists. Recent reports based off of industry documents show that one corporation has even encouraged local law enforcement agencies to charge climate activists as terrorists—something the FBI has long done in its war against so-called ‘ecoterrorism’.

At stake in this war isn’t just the climate. The First Amendment rights of protesters are squarely in the government’s sights when it associates their non-violent civil disobedience with terrorism. Even a smear campaign is enough to do substantial damage, tarnishing climate activists and discrediting their message in the eyes of the public.

Judi Bari v FBI

It remains to be seen whether or not prosecutors will go ahead with the dubious ‘terrorism hoax’ charge against the climate activists in Oklahoma. But no matter what happens, interested parties would do well to remember the case of Judi Bari v FBI.

Back in 1990, EarthFirst! activist Judi Bari was traveling to a speaking gig with a fellow activist in Oakland, CA, when a bomb that had been secretly placed under the driver’s seat exploded, leaving Bari with serious injuries, including a shattered pelvis.

The FBI immediately began smearing Bari as the bomber, even though the physical evidence showed that the bomb was hidden under the driver’s seat, and Bari had repeatedly reported to local police death threats she'd received over the previous months. Despite the facts, government authorities went on a press tour, misrepresenting the physical evidence and naming Bari and her fellow activist as suspects. Even after the Oakland police closed their investigation against Bari, the FBI agents continued theirs, repeatedly telling the press that Judi and her travel companion, Darryl, were their only suspects.

The purpose of this smear campaign was to tarnish Bari's incredibly successful environmental activism as terrorism related, and to provide justification for a sweeping FBI investigation into EarthFirst! and its main organizers. After the bombing, agents promptly got to work creating "dossiers on over 500 people whose only crime was to have received a long-distance phone call from Judi, Darryl, or one of 14 other people associated with them."

Judi Bari responded to this smear by hiring famous civil rights attorneys and suing the FBI, charging the bureau with a conspiracy to violate her First Amendment rights.

Her support website describes the suit:

A year after the bombing, when it was clear that the FBI and OPD were making no genuine effort to solve the bombing, Judi and Darryl filed a federal civil rights suit against the FBI and OPD.  The suit claims false arrest and unlawful search in violation of the Fourth Amendment to the U.S. Constitution. It also claims a politically-motivated conspiracy in violation of the First Amendment which attempted to suppress and chill their free speech by discrediting them in public perception as violent extremists.

“This case is not just about me or Darryl or Earth First!,” Judi said.  “This case is about the rights of all political activists to engage in dissent without having to fear the government's secret police.”

After 11 years of government obstruction, during which Bari died of breast cancer, she was finally victorious against the FBI’s smear campaign.

The evidence was presented in a jury trial that began on April 8, 2002, and ended June 11 with a stunning vindication of Judi and Darryl, and a $4.4 million  award of damages. A full 80% of the damages were for First Amendment violations, showing that the jury understood that the motivation for the false arrest and illegal searches was to interfere with Judi and Darryl's political activism with Earth First! in defense of the redwoods.

Despite this setback in 2002, the authorities haven't given up on their program to discredit and smear environmental activists as terrorists. Indeed, local police appear more integrated into this FBI effort than ever before, working hand in hand with corporations that stand to lose from climate activists' successful campaigns.

Let’s hope that public pressure in Oklahoma and nationwide stops prosecutors from charging the anti-Keystone activists under the insidious ‘terrorism hoax’ statute. As Judi Bari’s court victory demonstrated over ten years ago, when the government’s spies and police call peaceful protesters terrorists, everyone’s First Amendment rights are under attack.

© 2021 ACLU of Massachusetts.