The First Amendment to the US Constitution reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There have been thousands — maybe tens of thousands — of legal decisions interpreting the First Amendment. Some attorneys and legal scholars build entire careers on nothing but First Amendment law. As much as people assume the words are clear and their meaning is self evident, the whole idea of free speech has changed considerably since the time when those words were first written.
In America today, fossil fuel companies are employing armadas of lawyers and lobbyists to eviscerate the whole notion of free speech. It’s perfectly OK to use it to allow bakers to refuse to make wedding cakes for gay couples, but if two or more people even think about protesting against a pipeline somewhere in America, they should be subject to the harshest of punishments — 20 years in prison and a fine of $250,000.
Think that is preposterous, that it couldn’t happen in America? Think again. According to The Advocate, there is a bill pending in the Louisiana legislature right now that would do precisely that. KARE 11 News in Minneapolis reports there is similar legislation working its way through the Minnesota legislature. It would impose a prison term of up to 10 years on any person who “recruits, trains, aids, advises, hires, counsels, or conspires with” another to damage a pipeline.
According to Grist, similar legislation is under consideration in Oklahoma, Iowa, Ohio, Wyoming, and Pennsylvania. Why are these bills being filed in so many states simultaneously? It’s no coincidence. It is the result of an actual conspiracy, one that exposes all that is wrong with America today. The fossil fuel industry, through its many influence peddling organizations such as the American Petroleum Institute, the Heritage Foundation, the Heartland Institute, and the American Legislative Exchange Council, has crafted a unified strategy to prevent citizens from opposing pipeline construction. They call it “eco-terrorism,” a phrase that conflates protesters with the the 9/11 bombers, ISIS jihadists, and extremists of all stripes.
The basis of their strategy is to take anti-racketeering laws once used against organized crime and turn them into a weapon against those who dare oppose their plan to flood the nation with pipelines that will transport fossil fuels in various forms. Damn the spills, the clear cutting of forests. To hell with the concerns of native people and their tree hugging mysticism. There’s money to be made, dammit, and anyone who stands in the way must be stopped!
It’s how business is done in America today. If you are rich enough, you pay to get people elected to public office who will do your bidding. If they don’t, you replace them with those who will. It is nothing less than a massive criminal conspiracy to wrest sovereignty away from the American people and give it to corporations. And it is working, as anyone who is watching the current administration dismantle air and water pollution regulations to please the fossil fuel industry will attest.
There was a small victory for ordinary people recently. 23 persons were arrested in Boston in 2016 for protesting against a high pressure natural gas pipeline. In March, after prosecutors reduced the criminal charges against the defendants — including Kareena Gore, daughter of Al and Tipper Gore — to a misdemeanor, the judge dismissed all charges against them.
News reports suggested the judge’s ruling was based on a finding that the protest were a legal necessity in the fight against climate change since the protesters had been rebuffed at every turn as they tried to make their case through prescribed channels. Bill McKibben tweeted about the ruling.
Good golly! A few minutes ago a Boston judge acquitted 13 pipeline protesters on the grounds that the climate crisis made it necessary for them to commit civil disobedience. This may be a first in America. Details to follow, and go to @ClimateDisobey for some live video
— Bill McKibben (@billmckibben) March 27, 2018
Actually, the victory was not really about civil disobedience. It was about a prosecutor begin told to stand down. Had the charges not been reduced, the protesters would have been entitled to a jury trial. The corporate masters behind this charade didn’t want to risk the possibility that a jury filled with bleeding heart liberals from Boston might actually turn the case into a show trial with national implications.
There is one concept that even the most powerful people and corporations fear. It is called jury nullification and it goes all the way back to the English common law. Juries have more power than they know. Prosecutors and judges won’t tell them. Defense attorneys are barred from mentioning it. Advocates for jury nullification have been jailed for daring to speak about it.
Juries are not required to sit mute and listen. They have enormous power. They can conduct their own investigations, issue subpoenas for documents, and compel witnesses to testify. They can refuse to convict someone of a crime if they feel the law is wrong or immoral. That is exactly what the people behind the prosecution of the pipeline protesters in Boston were afraid of and why they told the prosecutor to back off.
[Jury nullification has a darker side as well. It is the reason juries in the South often refused to convict white people of crimes against blacks. Some believe it is the reason why OJ Simpson was acquitted.]
Donald Trump is busy weaponizing the courts by appointing hard right ideologues like Neil Gorsuch who will defend corporate interests over the rights of individuals. Corporations are busy getting laws passed that will criminalize protest, often using the justification that fossil fuels are essential to national defense. Protesters are banned from the grounds of the Supreme Court. Those who dare to voice opinions at odds with the government are increasingly subject to arrest and prosecution for felonies that could result in a long prison sentence.
There is a move afoot to do away with juries. The argument is they are an anachronism, that they no longer serve the interests of justice and delay the legal process. But the real reason may be a desire to peel away one more mechanism that protects the people against tyranny.
Some view any suggestion that America has been taken over by corporations as crazy talk, but the evidence is there for all to see. It is no coincidence that 6 states are now considering new laws to criminalize peaceful protest or to even discuss peaceful protest with another person. These things do not happen in a vacuum. They are planned and plotted at the highest levels and they have one thing in common — unlimited quantities of money.
Thanks to Citizens United, whoever spends the most money now controls policy decisions at the federal, state, and local level. That case was decided on free speech grounds. The US Supreme Court rules that corporations have the same free speech rights as individuals, a thought that would have been very surprising to the people who wrote the First Amendment.
Conservative judges make a big show of being “originalists,” people who believe what the Constitution means today is the same as it meant in 1787. But decisions like Citizens United give the lie to those pretensions. The framers would have been horrified to think that a corporate entity would have the same rights as an individual.
As long as we allow how we vote to be swayed by sophisticated media campaigns, whether in the press or on social media, we are playing into the hands of those who would enslave us in order to pursue their own economic interests. The right to protest is fundamental to democracy. It is those who seek to intimidate us into remaining silent who are the real terrorists.