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From Washington to Wisconsin, States Are Punishing Dissent

Faced with the possibility of fines or legal battles, many will choose not to speak at all.

Just over a year ago, after the Trump administration gave the green light to move forward with construction of the Dakota Access Pipeline, an activist group called Red Line Salish Sea staged a peaceful protest in Bellingham, Washington. Demonstrators blocked traffic on a highway for nearly an hour before dispersing. One of the organizers told The Bellingham Herald that "I hope that people take away that it was just a temporary inconvenience, but [pipelines] are impacting people's lives" in more substantial ways.

The county prosecutor's office responded with a disorderly conduct and reckless endangerment investigation of the demonstrators. To uncover their identities, officials repeatedly attempted to obtain a warrant for private information from the group's Facebook page. As the protesters' attorney noted, "The warrant and the county's pleadings do not so much as acknowledge the existence of the First Amendment, nor that this was a demonstration, but simply treat it as supposed criminal activity like a bar fight or drunk driving."

The first two warrant applications were withdrawn after the American Civil Liberties Union and Facebook fought back, noting that they would chill political speech and association. So county prosecutor David McEachran went to the feds, and the Department of Justice chimed in with tips on how to craft a warrant to pass constitutional muster.

Third time was the charm. Must be nice to have friends in high places.

The Washington Court of Appeals declined to stop the warrant, and Facebook was forced to disclose copious amounts of information about the page and its visitors, including the account names of everyone "going," "interested," and "invited" to the protest, contact information for the group's administrators, and all status updates, messages, videos, pictures, and other content tagged on the page.

The court acknowledged a precedent set in the case NAACP v. Alabama, a civil rights–era ruling that prevented that state from forcing the National Association for the Advancement of Colored People to turn over a list of its members to the government. But it decided the decision didn't apply to Red Line Salish Sea, reasoning that the group's members wouldn't face the same harassment and reprisal if their ties were revealed.

Tell that to Michelle Vendiola. After she was outed online, her employer, Western Washington University, faced a wave of public pressure to fire her. A coworker even initiated an ethics investigation. The state looked into it and concluded no violation had occurred, but the university chose not to renew her contract anyway.

Abuses of this sort aren't limited to one side of the political aisle, as a group of conservative citizens in Wisconsin know all too well. Their own saga began around 2010, when the Milwaukee County District Attorney's Office opened a secret probe into the Milwaukee County Executive's Office, run at the time by then-gubernatorial candidate Scott Walker.

Three years later, Wisconsinites affiliated with right-of-center groups that had supported Gov. Walker's collective bargaining reforms had their homes raided by police officers in full riot gear before dawn. American citizens watched law enforcement officers confiscate their personal computers and cellphones, and gag orders prevented those affected from talking about the experience—they couldn't even explain the situation to neighbors who watched the spectacle unfold.

Just when the ordeal appeared to be over, a leak to The Guardian triggered another investigation in 2016. While searching a public building for a missing hard drive, the state Department of Justice then uncovered a file cabinet stuffed with years' worth of personal communications by Republicans—the fruits of an apparent government spying operation on Walker supporters. The cache was labeled "opposition research."

These are different types of abuses of authority, but the crux of the issue is the same: Government officials are wielding regulations and investigations as weapons to silence dissent. Small citizens groups often don't have the means to hire lawyers and accountants to ensure they stay within the confines of complex laws governing political speech. Faced with the possibility of fines or legal battles, many will choose not to speak at all.

Photo Credit: Joanna Andreasson

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  • buybuydandavis||

    "The county prosecutor's office responded with a disorderly conduct and reckless endangerment investigation of the demonstrators."

    Yay!
    Protesting is expressing ideas.
    Blocking highways is a crime.

    "I hope that people take away that it was just a temporary inconvenience"

    I hope the demonstrators take away that their jail terms are just a temporary inconvenience.

  • MasterThief||

    That seems like a bit of context that would frame this situation differently. I definitely agree that the information they seek for prosecution sounds like a 4th amendment violation and would have a huge negative effect on speech. I also notice the ACLU's selective bias in which groups to defend here. Should the lesson here not be that ceding power to the state is a bad idea because that power will be used against you at some point?

  • Mark22||

    No, it doesn't have a negative effect on speech at all. The group wouldn't have been investigated if it had limited itself to legal methods.

    It has a negative effect on membership in organizations that use physical aggression and property rights violation to promote their political goals. I think that is working as intended.

    Pick the organizations you become a member of carefully. Your name and your money lend power, power that can be used or abused by an organization.

  • Quixote||

    That's right, and pick those organizations very carefully, because if you do anything that interferes with the interests of certain individuals and entities, then you can bet your bottom dollar that we will arrest and prosecute you. Heck, if necessary, we will even file thirty or forty bogus charges, whatever it takes to get the job done. You want to get involved in litigation for ten years? You know we can get at least some of the charges by the appeals courts — in fact, they'll even modify some of that there "First Amendment" law and apply the new restrictions retroactively if they have to.

    On the other hand, if you really want permission to demonstrate — in an appropriately discreet manner, of course — then you can start by joining us in protesting the refusal of a so-called judge in New York to jail our nation's leading criminal "satirist." See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • Mark22||

    That's right, and pick those organizations very carefully

    I indeed pick the organizations I am a member of very carefully. In particular, I do not become a member of organizations that condone or use illegal methods, like, say, blocking a road.

  • Mark22||

    No, it doesn't have a negative effect on speech at all. The group wouldn't have been investigated if it had limited itself to legal methods.

    It has a negative effect on membership in organizations that use physical aggression and property rights violation to promote their political goals. I think that is working as intended.

    Pick the organizations you become a member of carefully. Your name and your money lend power, power that can be used or abused by an organization.

  • Shirley Knott||

    Your response more clearly expresses the problem if you replace "legal methods" with the more accurate "legislatively permitted methods."

    "Public property" is a contradiction in terms. Protesters blocking roads is the tragedy of the commons in action.

  • Mark22||

    "Public property" is a contradiction in terms. Protesters blocking roads is the tragedy of the commons in action.

    No, it really isn't. Public roads are really not that different from common areas in an HOA: if you block them, there are serious consequences.

  • Shirley Knott||

    Which is the tragedy of the commons.

  • Johnimo||

    Shirley, perhaps Mark22 isn't familiar with the phrase: "the tragedy of the commons." The trouble I have with this article is that this author tries to equate the two situations, (1) an illegal blocking of public roads with (2) the illiegal invasion of privacy in the Wisconsin raids on private citizens political files.

    Thanks for your comments.

  • Mark22||

    Shirley, perhaps Mark22 isn't familiar with the phrase: "the tragedy of the commons."

    I am quite familiar with it. It applies to non-excludable, rival goods. Roads are rival goods, but they are most certainly excludable.

    the illiegal invasion of privacy in the Wisconsin raids on private citizens political files

    The investigation of crimes is not an "invasion of privacy".

    Thanks for your comments.

  • JesseAz||

    The boat has long sailed that publicly held data is immune from warrants. See telephone company records.

  • SQRLSY One||

    "Blocking highways is a crime."

    I agree! The right way to handle this would have been a bunch of cops showing up with cameras to photo every one of these thugs that blocked traffic, then cart them away one by one. Taze those who fight back. But these methods would require concentrated manpower, and cops might get their hair mussed up. So the piggy state finds an easier way, and more innocent people get snagged.

  • Mark22||

    I disagree that escalating the situation would have been there right thing to do. People here would have complained about police violence.

    When you are a member of an organization, you're partially responsible for all their conduct, not just the conduct you participate in. This organization used criminal methods to achieve its ends, members support those activities, and hence they may be legally responsible.

    Yes, this ought to be chilling: become a member only of organizations that limit themselves to legal methods to advance their cause.

  • Verbum Vincet||

    Very true! There's only one team that consistently limits themselves to legal methods to advance their cause: the government. Just join the state and get on the winning team, right off the bat - you can make laws and then decide for yourself if you've broken them. Much like the police, on that rare occasion when you accidentally do something illegal and immoral, you can make sure you're ALL held partially responsible!

  • UnrepentantCurmudgeon||

    "When you are a member of an organization, you're partially responsible for all their conduct"

    This would be the logic for a RICO prosecution, but there have been no successful RICO prosecutions against political groups.

  • Rossami||

    Please cite the precise federal or state law that supports your claim that blocking highways is a crime.

    Note - if it is a crime, then any police roadblock becomes an unlawful act (regardless of whether or not it is also a constitutional violation). So do many traffic accidents.

    Note 2 - It should be a clue that the prosecutor did not actually charge the protestors with blocking the highway. The charges were disorderly conduct (a charge that is so vague that it should probably be unconstitutional) and reckless endangerment, a very fact-specific charge that might apply to some forms of blocking a highway but would very definitely not apply to others.

  • JesseAz||

    Which state do you want? Almost every state has legislation on impeding traffic.

    Impeding Traffic

    In 2017 there was an attempt at making it specific to protestors, but impeding is impeding.

  • Rossami||

    From your own link, "No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic..."

    The protestors were (presumably) not driving a motor vehicle at all, much less at slow speed. That statute would not apply. As you say, there was an attempt to make it apply to protestors but that failed. So what exact crime was committed that justifies the original post above?

  • Mark22||

    There are separate statutes prohibiting non-motorized use of highways and impeding/interfering with traffic. Pedestrians walking on highways also fall under reckless endangerment.

    FindLaw explains this all quite well

  • Petie Cue||

    But who will build the roads if the state doesn't?

  • Inigo Montoya||

    "Faced with the possibility of fines and legal battles, many will choose not to speak at all."

    That's exactly what government officials are hoping. It's a feature, not a bug. Under Stalin, speaking out would land you in a gulag. This may be less extreme, but the overall effect is the same — a population that is cowed into quiet compliance and, after a while, tried to not even THINK about dissent.

  • Mark22||

    They weren't prosecuted for speaking, they were prosecuted for blocking traffic.

  • Rossami||

    See above. No, they weren't.

  • Mark22||

    See above: you are mistaken when you believe that you can do whatever you want on public property. A lot of public property is entirely off limits, and much public property can be used subject only to strict rules. If you violate those rules, you are violating the law and will be held responsible.

  • JesseAz||

    I remember when protestors we're proud to be arrested as their fork of civil disobedience. Today's millennials can't be inconvenienced though.

  • loveconstitution1789||

    Demonstrators blocked traffic on a highway for nearly an hour before dispersing. One of the organizers told The Bellingham Herald that "I hope that people take away that it was just a temporary inconvenience, but [pipelines] are impacting people's lives" in more substantial ways.

    What a joke. Protesters know that drivers ignore them when there are peaceful protests on the side of the road not blocking traffic. The protester solution is to violate the rules of the road and be unsafe by blocking traffic.

  • colorblindkid||

    Blocking pipelines is incredibly dangerous for people and the environment. The oil and gas is going to be produced. If you stop it from being transported through pipeline, you're just forcing it onto trucks, ships, and trains, all of which are far more likely to spill or crash or kill people.

  • Merl3noir||

    Actually it depends how you want to evaluate it. The number of incidents are lowest for pipelines, then ships, train, and lastly trucks. The amount of damage done in an incident is reversed. Trucks have the smallest per incident damage, then Trains, Ships and Pipelines have the largest effect. So do you want death by a thousand pin pricks, or death by one grenade? Of course ALL of these transportation methods receive protests. It's not really that they do not want to see a pipeline, or Ships, or Trains or Truck. It's that they do not want to see oil pumped from the ground and used to fuel our economy, that they are protesting, but that message does not work as effectively.

  • Mark22||

    Blocking traffic on a highway is a property rights violation, it is trespassing, and should be prosecuted as such.

    As for firing members of activist groups, I don't see a problem with that: employers have a right to free association. You can say and do whatever you want, and people and businesses who don't like it can choose to ostracize you.

  • Conchfritters||

    I'm guessing this person didn't have tenure. And the protesters are lucky the cops show up to these highway protests quickly. I've heard conversations on the CB on channel 19 of truckers begging for the opportunity to encounter any protest in the middle of the highway. You fuck with a person's livelihood, there might be consequences.

  • Rossami||

    Wrong again. Highways are public property. There are many crimes that can be committed on highways but trespassing is, by definition, not one of them.

  • Mark22||

    Wrong again. Highways are public property. There are many crimes that can be committed on highways but trespassing is, by definition, not one of them.

    You can literally be guilty of trespass on public property. But I was actually using the term in a more generic sense, namely "using the property contrary to the legally established rules"; that is often charged under statutes other than trespass (because often those rules themselves are separate laws), but is still a form of trespass.

    In different words, blocking traffic on a public highway is illegal; it is generally a kind of trespassing; it may be charged under more specific laws.

  • JesseAz||

    Yes it is. Definition of impeding traffic.

  • Seamus||

    So occupying the office of the president of a state university isn't trespassing? Cool.

  • Hackmaschine Mutter||

    A state that would allow public officials to dispatch law enforcement swiftly to smack down any protest by "any means necessary" is a chilling dystopia.

  • JesseAz||

    Who was calling for the beating of protestors by the state? This article is decrying any legal inconvenience to a person committing a crime if it's done in the name of politics.

  • Johnimo||

    I suspect this article's author would have a less sympathetic attitude if the protestors came to his house and refused to let him enter. I'm pretty certain he'd be calling the police and asking them to haul their collective asses away in the paddy wagon, don't you?

    Just picture a cold, dark, winter afternoon. The author pulls into his driveway which is blocked by political protestors. He can't put the car in the garage, and there is far too much snow in the streets to park there. I'll bet he calls the police pretty damned fast and doesn't go inside an write an article sympathetic to their sorry left-wing butts.

  • Conchfritters||

    Good reminder to not respond to any invite on Loserbook for any graduation parties, birthday shindigs, reunions, or anything else.

  • DajjaI||

    I kind of dissent with this. I hope I am not punished! But blocking highways is a crime, and if people conspire to do this on facebook then that may not be fully protected speech. Similarly, blocking office buildings is a crime. I strongly support protesters' rights to speak, even if it 'disrupts' a public event. This is perfectly legal and should be exercised liberally. But not if their conduct crosses the line into criminal mischief. It is counterproductive in so many ways. I speak out frequently on issues important to me and have been arrested but never charged because I am always 100% strictly legal.

  • JesseAz||

    Author is an idiot. Blocking traffic isn't peaceful. It is an actual crime. We've had multiple instances of so called "peaceful" protests causes delays in emergency services. It isn't peaceful. When you start from a dishonest premise, you're entire idiotic diatribe loses the small sliver of value you may have thought you had.

    Next up... Destroying pipelines are peaceful protests.

  • bevis the lumberjack||

    The "this person disagrees with us politically, so let's get them fired!" thing is getting really tiresome.

  • Scarecrow Repair & Chippering||

    But "this person trespassed and blocked a highway for an hour so we don't want o employ them" -- how's about them apples?

  • $park¥ leftist poser||

    Demonstrators blocked traffic on a highway for nearly an hour before dispersing.

    Obviously their right to dance around in traffic overrides my right to get to work on time. Obviously.

  • Scarecrow Repair & Chippering||

    Just another consequence of coercive monopolistic government, which is to say all governments. If the definition of government is a geographical monopoly on violence, well, there you go.

  • DeltaTango||

    The Blues Brothers had the right method for the Natzis blocking the bridge.

  • Cynical Asshole||

    Small citizens groups often don't have the means to hire lawyers and accountants to ensure they stay within the confines of complex laws governing political speech. Faced with the possibility of fines or legal battles, many will choose not to speak at all.

    Feature, not bug. /statist asswipe

  • Mickey Rat||

    The first group blocked a public highway as a deliberate aspect of their protest. I expect in the course of that they detained any number of people trying to use the road. That action has no speech protection, no more so than if they had battered the motorists trapped at their roadblock. I am not sure what a legal readon for not granting a warrant tio investigate a conspiracy to commit such crimes.

  • Finrod||

    Punishing dissent? More like punishing crimes. Don't want to be treated like a thug? Don't block the road like a thug.

  • OneMug||

    I am a very progressive resident here in Bellingham, a very progressive city in this progressive state. These individuals, while using their "free speech" blocked the one major interstate highway through town. This poorly planned protest endangered the lives of my fellow citizens, causing at least one serious accident. We are fortunate that is all that happened.
    We don't want this to happen again. I support the prosecutor in his determination to avoid the repetition of such a protest.

  • jdgalt1||

    This is horse hockey. The state isn't punishing dissent; it's quite rightfully putting people's right to travel ahead of thugs' non-right to block that travel. Anyone who blocks a highway on purpose should be arrested, if not run down.

  • damikesc||

    It is a stretch --- a massive one --- to compare people blocking traffic with prosecutors violating Constitutional rights of political opponents.

    Note: The John Doe targets weren't out there violating laws.

  • No Yards Penalty||

    buybuydavies got it right:

    Protesting is expressing ideas.
    Blocking highways is a crime.

    Why do we let smelly hippies and enviro-terrorists hold the rest of us as economic hostages?

    We need politicians who will deliver a 3 line stump speech:
    "The pipeline is going in as planned. If you protest by blocking roads or work you will be arrested. If you use or threaten violence you will be shot."

    Then drop mic and walk off.

  • Curly4||

    Sounds a lot like Muller is doing. So many of the persons that is under investigation are having to role over and admit to the charge if they haven't the means to hire the defense team to represent them before the grand jury. If they try to fight the charge without the proper defense team they will be found guilty of a much harsher charge than the one they were offered if they plead guilty.

  • CptNerd||

    Isn't blocking traffic and preventing people from freely moving a violation of the NAP?

  • markm23||

    Yes. In fact, such protests are usually held whereit's impossible for the drivers to turn around and take another route, so it's (temporary) kidnapping. I'm glad the cops are investigating and citing the protesters. I'm not so happy that they are carrying out a massive invasion of privacy to try to identify them...

  • IceTrey||

    First amendment auditors in San Antonio are being arrested on bogus charges in retaliation for videoing cops.

    https://youtu.be/sQkC2QNhVTc

  • Deplorable Victor||

    These aren't protests. The whole thing is bullshit.

    You should have a right to petition the government, not take me hostage with your fascist thuggery. If you lie down in the street and stop me from going about my lawful business I should be able to run you over. And legal or not, if you do I will.

  • gphx||

    There are better ways to deal with protestors blocking traffic such as snowplows.

  • Bruce D||

    I disagree with the blanket warrant for information even on those not involved. That being said, blocking traffic and barring people's way is not freedom of speech, rather infringement on people's right of travel. They could just as easily have protested along the side of the highway. I mean, how stupid is it to piss people off by getting in their way when they are trying to get somewhere? That makes it much more likely that people will hate one's cause rather than be sympathetic.

  • Kmonsene||

    People should realize that every law we put on the books enables the people in power to take our liberty away. Laws are fences that can slowly choke our liberties.

  • Kmonsene||

    People should realize that every law we put on the books enables the people in power to take our liberty away. Laws are fences that can slowly choke our liberties.

  • UnrepentantCurmudgeon||

    The actions of the ATF and FBI at Ruby Ridge (1992) and Waco (1993) pretty much sealed the book on the broad power of the federal government to intervene in and stop the actions of those who stand against the excessive acts of the government in wielding its power. We've lost that battle much as the South lost the battle for states' rights. All that's left is the shouting, so now we're down to prosecuting those who shout.

  • SgtDad||

    The events in Bellingham were a breach of the peace and a threat to safety. They were illegal no matter what side of the issue one is on. Indeed, breaches of the peace and vandalism are central to the modus operandi of groups that oppose the pipelines.

    David McEachran is still PA in Whatcom County? Wow.

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