The Green Scare and the Government’s “Case” Against Rod Coronado

The federal government has been champing at the bit to put Rod Coronado back in prison since he got out in 1999, refusing to repent for his role in an Animal Liberation Front-related arson. His indictment in San Diego in February for an exercise of free speech (explaining how he made an incendiary device used in that arson) is a flimsy pretext to do just that.

After Coronado’s arrest, the U.S. Attorney for San Diego, Carol Lam, stated in the government’s official press release, pre-judging the case for the public: “Teaching people how to build explosives in order to commit violent crimes is unacceptable in civilized society. There is no excuse for it.” And, “When organizations such as ELF/ALF engage in these senseless acts of violence, it threatens us all. ATF will continue to aggressively pursue these types of cases, and bring this type of criminal activity to a halt.”

And so, through sophistry and syllogism, the government has turned speech into violence.

But the government’s vendetta against Coronado is a campaign in a much broader conspiracy against anarchists – especially so-called “green anarchists”. On December 13, 2005, Coronado was convicted for peacefully attempting to disrupt a thinly-veiled sport hunt of mountain lions in Arizona, which the Department of Fish and Game organized after a lion essentially had scowled at someone on a path and run away. After Coronado’s conviction, Assistant U.S. Attorney Wallace Kleindienst was quoted as saying, Coronado is “a danger to the community…I know he wasn’t tried here for being a violent anarchist. This trial wasn’t about Rod Coronado being a terrorist, but he is one.” The AUSA thus revealed the government’s two ulterior motives for going after Coronado: one, because it has a vendetta against him, and two, because it has quietly embarked on yet another unlawful war against an abstract concept: Anarchism.

Make no mistake; Coronado’s is a pure free speech case. Measured against any historic test of free speech, Coronado’s behavior – that is to say, his speech – was alarmingly innocuous and uncriminal.[1] On July 30, 2003, persons unknown torched an apartment complex under construction in San Diego, causing millions of dollars in damage. The day afterward, Coronado flew to San Diego to lecture at a previously scheduled event. In response to a question from an audience member, Coronado – a public figure on the environmental lecture circuit – demonstrated how he had constructed a non-explosive, incendiary device out of a plastic jug filled with gasoline to commit the old arson for which he did his time. The government does not suspect, and has not accused, Coronado of any involvement in the fire set the day before his speech.

The Supreme Court has carved out three famous exceptions to free speech: the “fighting words” exception (Chaplinsky v. New Hampshire), the obscenity exception (Miller v. California), and the “clear and present danger” exception (Brandenburg v. Ohio). For example, relic that it is, the 1940 “Smith Act”, which prohibits advocating the overthrow of a government of the United States, is still on the books. (See Smith Act, 18 U.S.C.A. § 2385.)

However, each exception is extremely limited. As Justice William Brandeis so eloquently wrote, concurring in Whitney v. California, 274 U.S. 357, 377 (1927):

“Fear of serious injury cannot alone justify suppression of free speech…Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears…[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

In the newest case, the government has charged Coronado with a single felony under 18 USC § 842(p)(2)(A).[2] The statute states:

“It shall be unlawful for any person to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction, or to distribute by any means information pertaining to, in whole or in part, the manufacture or use of an explosive, destructive device, or weapon of mass destruction, with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence”

The government reportedly has used this law only four times. It has never been subjected to constitutional challenge.[3] In the only other known political application of the law in 2003, Sherman Austin, the then 20 year old founder of the anarchist website http://www.raisethefist.com, pleaded guilty to avoid a possible 20 year sentence merely for hosting and linking to another website on his server, which provided crude, Anarchist Cookbook-style information on bomb-making. The same information is widely available elsewhere. Austin otherwise had nothing to do with the site he linked to. But according to the government’s theory of the case, Austin’s anarchist beliefs and the political content of his website furnished the required intent. Thus, the government substituted speech and association for intent – the only part of the statute which requires something more than speech alone. So much for the First Amendment. Austin served one year in prison.[4] The 16 year old white kid who designed the website he linked to was never even arrested. (For more information, see http://www.freesherman.org.)

Query whether it would also be illegal to show snapshots of the websites in question on a site devoted to stimulating discussion about threats to free speech?

The arrest of Coronado occurs in the midst of a new Green Scare, in which the government would have us believe that eco-saboteurs who engage in property crimes such as arson and vandalism, but studiously avoid causing injury to people, constitute “the number one domestic terrorism threat,” as FBI Deputy Assistant Director for Counterterrorism John Lewis told a Senate panel on May 18, 2005. Apparently, according to the FBI, the threat is greater than that posed by Neo-Nazis, systemically brutal and racist police forces, or Al-Q’aida.

Since then, the FBI’s Joint Terrorism Task Forces (multi-agency units operating out of every FBI field office) have mercilessly harassed numerous environmental activists – most of them public, above-board people – by conducting paramilitary-style raids on their homes; seizing computers, papers, photos and other personal effects; serving scores of grand jury subpoenas; engaging in electronic surveillance; dispatching informants to demonstrations, and even planting them in activists’ homes.

The Green Scare picks up where the Red Scare left off – with the FBI bruised and reprimanded by Congress for engaging in illegal, KGB-style break-ins, wire-taps, frame-ups, and even assassinations of members of targeted political groups. Now, Congress is the enabler of such FBI skullduggery, not so much legalizing it as laundering it through the passage of such flagrantly unconstitutional laws as the USA-PATRIOT Act.

Both the Red Scare and the Green Scare fuel and are fueled by a frenzied, cartoonish hatred for a broad political philosophy – Communism, and now Anarchism – molded into an incarnate, shadow-casting beast. Thus, anarchists – a diverse group of people across all walks of life who are probably more likely to disagree on history, philosophy, social organization, or political strategy than any two people who identify as Christian, Muslim, Republican, or Democrat – are drawn as bomb-throwing lunatics. Professor Noam Chomsky is an anarchist. This is probably small consolation to the current Administration, but that is all they should have to say about it. George Orwell likely was one too.

In January 2006, with the arrest of three suspected eco-saboteurs in Auburn, California (Sacramento County), the FBI made clear that it is investigating the “anarchist movement”, writ large. Special Agent Nasson Walker revealed in an affidavit that the FBI had embedded a paid informant with the suspects, recruited when she was only 18 or 19. The FBI had dressed her up as a medic, of all the dirty tricks, and dispatched her to participate in a number of peaceful, large-scale protests against, e.g., unrestrained trade and the genetic modification of food. Needless to say, most if not all of the people she interacted with (politically organized with? treated medically? lived with??) were not plotting crimes of violence or sabotage. Yet the FBI can claim – with a whiff of legitimacy, even – that it has the right to engage in such intimate espionage and dragnet-style policing because ex-General John Ashcroft relaxed the Attorney General Guidelines to permit excessive snooping. Originally created to protect the public from FBI-KGB tactics after the exposure of its COINTELPRO operations in the 70s, , the A.G. Guidelines now permit the FBI “to go anywhere the public goes” in Ashcroft’s words, without any foundation of suspicion that a crime is afoot. Undoubtedly, the FBI did not blow the cover of “Anna” the informant without leaving other agents in the field – and at political meetings, and in people’s homes.

Agent Walker’s affidavit is further revealing of the FBI’s backslide into politically motivated investigations. It references “anarchist” or “anarchism” 26 times in its mere 14 pages. In it, the FBI seems obsessed with the anarchist “lifestyle”, anarchist literature, and anarchist gatherings. These invocations of dread anarchism add nothing more to the scales of probable cause than if all the terms were replaced by the word “Christian”. But as a PR move – in seeking more constitutionally suspect laws, higher bails, more warrants, longer sentences, and a bigger chilling effect on progressive activists – the federal government’s projection of a giant anarchist menace is highly effective.

Summing it up, on January 13, 2006, the FBI’s David Picard told CBS affiliate Channel 13 in Sacramento that “one of our major domestic terrorism programs is the ALF, ELF, and anarchist movement, and it’s a national program for the FBI.” Piccard thus established that the FBI is again investigating an ideology, and equating it with a domestic security threat.

Against this backdrop, it is clear that the Arizona Assistant U.S. Attorney who labeled Rod Coronado a “violent anarchist” after prosecuting him for trying to save condemned mountain lions was not just spouting invective. He was reading from the official cue card.

Even though the statute under which Coronado has been indicted has not been constitutionally challenged, another very similar statute, passed in 1968, has – and it has survived, albeit with limitations. This older statute, 18 U.S.C. § 231(a)(1), provides:

“Whoever teaches or demonstrates to any other person the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder which may in any way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function…[s]hall be fined under this title or imprisoned not more than five years, or both.”

In U.S. v. Featherston, 461 F.2d 1119 (5th Cir. 1972), the Fifth Circuit Court of Appeals upheld § 231(a)(1) in the face of a constitutional challenge based on First Amendment and due process vagueness concerns, finding the requirement that a person act with “intent or knowledge that the information disseminated would be used in the furtherance of a civil disorder” sufficient protection under the First Amendment. (WE have seen where that got Sherman Austin.) The Court concluded:

“Here the evidence showed a cohesive organized group [the Black Afro Militant Movement]…engaged in preparation for ‘the coming revolution.’ This group included a force regularly trained in explosives and incendiary devices, standing ready to strike transportation and communication facilities and law enforcement operations at a moments notice. [Footnote omitted.] Taken within this factual setting, we hold that there was a sufficient showing of clear and present danger to justify governmental intervention and the prosecution of appellants for teaching the use and manufacture of explosives and incendiary devices, as provided in § 231(a) (1).”

The Court thus based its holding on the clear and present danger exception to the First Amendment, under a test established by the Supreme Court in Brandburg v. Ohio, 395 U.S. 444 (1969). The Brandenburg Court nevertheless emphasized the imperative of giving wide berth to free speech:

“[C]onstitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [T]he mere abstract teaching...of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action….A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.” [Internal quotes and cites omitted.]

Comparing the two statutes side by side – the one under which Coronado has been indicted, and the older one – it appears that Coronado’s statute is broader, and criminalizes even more conduct. This should mean two things: One, that Coronado’s statute is subject to the same limitations as found by the Fifth Circuit in U.S. v. Featherston (provided the Ninth Circuit agrees), and two, that Coronado’s statute is subject to even further constitutional challenge. Specifically, the statute Coronado is charged with:

- applies generally to any “destructive device”, rather than just to a “firearm or explosive or incendiary device”;

- criminalizes the distribution of information “by any means”, not just by teaching or demonstrating;

- adds the phrase “in whole or in part”, implying that even partial and ineffective teaching, demonstration, or distribution of bomb-making information is a violation;

- describes the aim or result, generally, as “a federal crime of violence,” rather than, specifically, “a civil disorder”; and

- does not, on its face, limit its scope to things in interstate commerce as the older statute does.

(Note that Coronado has been indicted under a subsection which requires the Government to prove “intent” rather than mere knowledge that others intended...as provided for by a different subsection of the statute, 18 U.S.C. § 842(p)(2)(B).)

Needless to say, standing up for people’s rights of free expression, however odious one might find the message, is fundamental to a free society. As Noam Chomsky put it in Manufacturing Consent: “If you believe in free speech then you defend speech that offends you, because to only defend speech that you agree with is a function of the commissars Soviet Russia and Nazi Germany.” Or as the ACLU says on its website: “The best way to counter obnoxious speech is with more speech. Persuasion, not coercion, is the solution.”

Some questions which arise in Coronado’s case include whether he intended that his demonstration would be used to further an act of violence, and whether his intent, whatever it was, meets the Brandenburg clear and present danger test. The mixed audience he was apparently speaking to hardly seems to have been comprised of the glazed-over Manchurian candidates the Featherston court thought it was dealing with, determined to and capable of going out and making violent revolution – if ever such a group really existed. Moreover, the steps involved in making an incendiary device from readily available materials such as a plastic jug and gasoline hardly constitute an opaque science. It may turn out that “destructive device” is too vague a term to satisfy due process standards, if it includes such simple to construct.

The one thing we know for sure is what the government has already told us: “This trial [isn’t] about Rod Coronado being a terrorist.”

Ben Rosenfeld, Civil Rights Attorney

San Francisco

[1] In legal parlance, “speech” includes expressive conduct.

[2] See press release at http://www.usdoj.gov/usao/cas/pr/cas60222.1.pdf

[3] See article in San Diego Union-Tribune, reporting that law has only been used four times: http://www.signonsandiego.com/news/metro/20060223-9999-1m23rod.html

[4] The prosecutor originally sought only a month, but the Regan-appointed Judge, Stephen V. Wilson, imposed a year, as well as a restrictive, three year term of probation which forbids Austin from associating with certain groups and individuals, and owning or using a computer.