UPDATE: ACLU of Oregon keeps a close watch on court case

COURTESY OF THE PETE SANTILLI SHOW - Bombastic Internet talk show host Pete Santilli says he is a journalist reporting on the Harney County standoff and should be protected by the First Amendment. Federal prosecutors say he is a co-conspirator in the Malheur National Wildlife Refuge takeover and occupation.Pete Santilli has an answer for people who don’t think he’s a legitimate member of the news media.

“Oh, I’m with the press all right,” he says. “I’m just nonconforming press.”

The 50-year-old Santilli was arrested Jan. 26 in Burns for what federal prosecutors say was his part in a conspiracy of threats and intimidation preventing federal employees from doing their jobs during the five-week occupation of the Malheur National Wildlife Refuge.

COURTESY OF MCSO - Pete Santilli was arrested Jan. 26 along with leaders of the armed militant occupation of the Malheur National Wildlife Refuge.As he sits in a cell at Multnomah County’s Inverness Jail, Santilli’s legal defense could hinge on one big question: Was he a news reporter like dozens of others who covered the refuge takeover and occupation and thus deserves protection under the First Amendment, or was he just another right wing Internet shock jock inciting YouTube viewers with the legal equivalent of shouting “fire!” in a crowded theater?

“He reported as a journalist,” says Deborah Jordan, Santilli’s partner and producer of the online Pete Santilli Show, in a Feb. 6 YouTube video update for Santilli’s Internet subscribers. “He gave a view of Malheur (refuge takeover and occupation) that nobody else gave, and he’s being punished for that. That’s my view. He’s being punished for this.”

“The FBI’s prosecution of this radio shock jock is consistent with the government’s ongoing attempts to intimidate members of the press who portray the government in a less than favorable light,” said John W. Whitehead, head of the conservative Rutherford Institute in Charlottesville, Va., who offered help and support to Santilli’s defense attorney, Thomas K. Coan of Portland, with a seven-page memo outlining the case’s free-speech issues.

COURTESY OF THE PETE SANTILLI SHOW - Internet radio talk show host Pete Santilli spent two months in Burns reporting on the wildlife refuge takeover and expressing strong opinions about the occupiers' cause. He disagreed with the takeover, however.

Rally for the Hammonds

A bombastic conservative firebrand who uses his Internet radio talk show followed by about 65,000 subscribers to rail against government conspiracies and injustices, Santilli and his attorney hope to convince a federal judge that he is a journalist, and all the reporting, interviewing and face-to-face confrontations he did during the takeover and occupation of the wildlife refuge fall under free-speech protections in the First Amendment.

Santilli spent nearly two months in Harney County, broadcasting his Internet show from room 123 of Burns’ Silver Spur Motel, loudly supporting the wildlife refuge occupiers’ cause, but also expressing disagreement with the takeover and occupation. He confronted FBI agents and law enforcement outside their base at the Burns Municipal Airport, asking them to leave the county. He made a pest of himself during a counter protest at the refuge, and he was escorted out of a lively Jan. 19 community meeting in Burns, where he was asked to leave because he interrupted a speaker. He also berated mainstream media reporters covering the occupation, demanding that they “tell the truth.”

Santilli is no stranger to trouble. In 2013, the U.S. Secret Service investigated him after he said on broadcasts that former Secretary of State Hillary Clinton should be shot in the vagina and that President Obama should be executed for crimes against the people.

“If you’re a freelance independent (reporter), this case should interest you.”

National organizations like Right Wing Watch and the Southern Poverty Law Center, which follow militias, fringe militants and hate groups, have reported on Santilli’s Internet rants about immigration issues and the April 2014 Cliven Bundy ranch standoff with federal employees and law enforcement, in which he called the confrontation “a fight to the death.”

The case has also attracted the attention of ACLU of Oregon, which is keeping a close watch on it because of free-speech implications. ACLU is not representing Santilli, and hasn’t offered legal help to the refuge takeover leaders in federal custody.

A Feb. 9 post on the ACLU blog by Legal Director Mat dos Santos points out that Santilli’s words didn’t pose a threat during the takeover, even though they may have been disagreeable.

“While many people might disagree with statements made by those involved in the Malheur takeover, Americans have a fundamental right to freedom of speech,” dos Santos writes. “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.”

A partisan character

In mid-December, Santilli and Jordan drove from their Cincinnati apartment to Burns to broadcast during rallies and protests linked to the federal legal case of Harney County ranchers Dwight Hammond Jr. and his son Steven Hammond, who are serving five-year prison sentences for setting fires on federal land. With his staff, Ken Rhoads and Ben Matthews, Santilli set up in the Silver Spur Motel and broadcast about the Hammond case.

Federal prosecutors say Santilli acted as a spokesman for the group organizing the rallies, and for the group that eventually took over the wildlife refuge. Santilli’s attorney denies that, saying he only supported rallies for the Hammonds, and argued on his broadcasts against the refuge takeover. Coan also points out that Santilli talked Brandon Curtiss of the Idaho Three Percenters (a militia) out of joining the group occupying the refuge.

Santilli was the only journalist arrested in connection with the refuge occupation, even though several reporters, photographers, bloggers and freelancer writers descended on Burns and Harney County to chronicle the situation. Each time he went out in public, Santilli sported a mesh vest with green fluorescent lettering on the back spelling PRESS: PETE SANTILLI.

He was not armed and did not carry a weapon during the two months he was in Harney County, Jordan says. His only “weapon” was his Internet show, she says.

COURTESY OF THE PETE SANTILLI SHOW - Deborah Jordan has been Pete Santilli's producer and partner for more than four years.“This sets a precedent for everybody who practices free speech, everybody who is a podcast journalist or a YouTuber or anything like that,” Jordan says. “If you’re a freelance independent (reporter), this case should interest you.”

A few journalists who ran into Santilli while covering the Harney County standoff say he seemed to be more an activist supporting the Bundy group than a reporter. Spencer Sunshine, an associate fellow at Political Reseach Associates in Boston who writes about militia movements, says Santilli’s antics at some rallies and community gatherings resembled a “rodeo clown.”

“He was clearly a partisan character,” says Sunshine, who spent five days in Harney County reporting on the refuge standoff for several publications. “He was crossing boundaries that anyone who could normally be considered a journalist would never cross. There was no pretense about playing by journalistic rules.”

Freelance writer and licensed investigator John Stevens says he was troubled by Santilli’s actions during the early days of the Bundy protest. Before the Jan. 2 rally in Burns, Stevens says Santilli hinted at the impending takeover of the wildlife refuge, as if he knew it was about to happen.

“I had attempted to talk to Pete Santilli during the rally because some of the things he was saying sounded like an agitator or activist, not like a journalist,” Stevens says.

Can't break the law

In a Jan. 26 criminal complaint, and again in a Feb. 4 indictment, federal prosecutors outlined their belief that Santilli used his YouTube show to cheer on the refuge occupation and to incite others to join the nearly two dozen people holed up at the compound. Prosecutors cited several YouTube broadcasts in which Santilli called for “100,000 people out here, shoulder to shoulder, unarmed.”

Santilli’s attorney counters that the rallying call for supporters was protected speech and that Santilli “never called for them to do anything unlawful.”

If prosecutors can prove their case, it won’t matter that Santilli was reporting on the occupation, or that he claims free-speech protection, says Carrie Leonetti, a University of Oregon professor of criminal and constitutional law at the university’s Portland campus (and a former federal defense attorney in Central California). If he incited people to continue the occupation and the obstruction of federal employees, Santilli’s actions could nullify his First Amendment protections, Leonetti says.

“It’s irrelevant that he’s a journalist,” she says. “A journalist just can’t break the law that applies to all of us.”

Gregg Leslie with the Reporters Committee for Freedom of the Press in Washington, D.C., agrees with Leonetti. Even if Santilli was reporting on the standoff as an unconventional journalist, he still couldn’t break any laws and expect to be protected by the First Amendment, Leslie says.

“We’ve never had any success arguing that reporters have any kind of special right to violate the law and not be arrested just because they’re reporters,” he says. “That just doesn’t fly with courts.”

COURTESY OF THE PETE SANTILLI SHOW - Pete Santilli and Deborah Jordan broadcast The Pete Santilli Show from a makeshift studio in a room at the Silver Spur Motel in Burns.

‘Poked FBI in the eye’

Santilli was swept up in the Jan. 26 arrests of more than a dozen people involved in the Jan. 2 refuge takeover and occupation. Federal prosecutors say the leaders of the group called Citizens for Constitutional Freedom used threats and intimidation to prevent federal employees (the U.S. Fish and Wildlife service operates the refuge) from doing their jobs.

Today, Santilli sits in his jail cell for most of the day (he’s working on his memoirs and posting short recorded messages on his YouTube channel, saying once he gets out of jail he'll speak out "louder than ever"), being held on the same federal charge facing leaders of the refuge takeover, even though he didn’t take part in the incident or agree with the tactics. Santilli was arrested hours after refuge occupation leaders Ammon Bundy, his brother Ryan Bundy and several others were taken into custody during a traffic stop on Highway 395 about 20 miles north of Burns. During the stop, 54-year-old Robert “LaVoy” Finicum was shot to death by Oregon State Police when he refused to surrender.

Santilli was taken into custody outside Harney District Hospital as he pleaded with law enforcement officers to let him take a convoy of vehicles to the refuge (about 30 miles south of Burns) so women and children at the compound could leave without fear of attack by police and FBI, which all of the occupiers expected to happen that night (the attack never came).

"There was no pretense about playing by journalistic rules.”

The arrests haven’t ended the refuge standoff. Four people are still holding down a corner of the compound, refusing to leave their cold, muddy camp as long as they face arrest. The four — David Fry, Sean and Sandy Anderson and Jeff Banta — also have been indicted on federal charges in the refuge occupation. Their communication with the outside world was cut off last week when FBI negotiators blocked their personal cell phones and Internet access, leaving only one cell phone to talk with law enforcement officials trying to bring the standoff to a peaceful resolution.

That blackout was short lived. Fry began posting YouTube videos on Feb. 6, some taunting FBI and law enforcement, others decrying vandalism to a small memorial to Finicum that sprang up at the Highway 395 site of his death. The four have named their muddy corner of the compound “Camp Finicum.”

Ammon Bundy, ringleader of the takeover and occupation, also sent a recorded message Feb. 6 to supporters saying his group’s actions should be protected under the First Amendment. Bundy’s attorney, Michael Arnold of Eugene, is trying to raise $100,000 for Bundy’s legal defense through So far, 603 people have donated $36,586.

“To those who disagree with my speech or our civil disobedience, and may dislike our ideas regarding that the land belongs to the people, please remember that you do not want free speech to be retaliated against by government officials,” Bundy says. “If you do not advocate for government to tolerate ideas that it hates, then the First Amendment and free speech mean nothing.”

COURTESY OF THE PETE SANTILLI SHOW - With others looking on, Pete Santilli talked with FBI and law enforcement outside Harney County's airport, asking them to leave the county. FBI officials politely declined his request.In his 16-page memorandum calling for Santilli’s release from jail, Coan says Santilli wants to return to doing his Internet radio show from the Cincinnati apartment he shares with Deborah Jordan. Coan says Santilli was an “unconventional news-gatherer” who should be accorded the same First Amendment protections as “an employee of a mainstream television station.”

A federal judge rejected that idea during a Feb. 5 hearing, holding Santilli until his trial after prosecutors showed video clips of Santilli bragging about have a cache of guns and threatening to shoot law enforcement officers if any tried to break into his home.

During last week's detention hearing, Judge Michael Mosman considered whether Santilli was safe to release pending trial. He stressed that his ruling was not based on evidence of guilt, which he described as relatively weak and a “troubling factor for the United States.”

But Mosman said videos played by prosecutors of Santilli’s show indicated a potential danger to law enforcement if the “shock jock" was asked to come in for questioning or show up for court.

Jordan says Santilli’s attorney will try again to secure his release so they can return to Cincinnati and continue broadcasting The Pete Santilli Show.

Santilli’s arrest isn’t something new in the news-gathering world. Nineteen reporters were arrested during riots and unrest in Ferguson, Mo., following the August 2014 shooting death of 18-year-old Michael Brown. Several others were hit with minor offenses months after the unrest ended, as law enforcement filed charges before a statute of limitations deadline.

Four reporters sued the St. Louis County Sheriff’s Office and other law enforcement officers in federal court last year, claiming their constitutional rights to free speech and unreasonable search and seizure were violated. No court date has been set for that case. Law enforcement officials have denied the claims.

Jordan says Santilli’s incarceration is retaliation for speaking out on an unpopular issue, and for exercising his free-speech rights. She warned that other freelance or independent reporters could face the same fate in future protests, no matter the cause.

“Anybody who goes to any kind of protest and they report live or they have an opinion about the cause, they’re going to run the risk that the FBI will run a case against them,” she says.

Santilli, Jordan says, used his platform to poke “the FBI in the eye,” and that didn’t sit well with law enforcement.

“He really pissed them all off,” she says. “They wanted him really, really bad. He’s suffering for having a voice and having an opinion.”

Kevin L. Harden is digital media editor for Pamplin Media Group. 503-546-5167. email: This email address is being protected from spambots. You need JavaScript enabled to view it.
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