The New Backlash
From the streets to the courthouse, activists find themselves under attack
When Megan Lewis walked up to the Dallas Neiman Marcus on November 27, 1998, she knew she would be arrested. That was the plan. She and two other activists would lock arms inside pieces of PVC pipe, sit down, and non-violently block the store entrance in protest of Neiman Marcus’ support of the fur industry. She expected to be charged with “obstructing a passageway,” a class B misdemeanor. She expected heavy fines, community service hours and time in jail, and she received all of these. But she never expected to be sentenced to “no animal rights protests.”
“I have never heard of anything like this,” Lewis said, hours before she began a 10-day jail term as part of her sentence. Weeks of stress had taken a toll on the soft-spoken 24-year-old, who organizes the Dallas anti-fur campaign on top of taking a full course load at the University of Texas at Dallas and working two jobs. “In a little while,” she said, “I’ll lose my freedom of speech. I will no longer have the right to protest.”
Megan Lewis isn’t alone. The last few years have seen a nationwide—indeed, worldwide—renaissance of non-violent civil disobedience. Authorities have responded with an increasingly aggressive backlash. Much of the crackdown has been in the streets, during massive demonstrations against high-profile meetings of financial institutions like the World Trade Organization, World Bank and International Monetary Fund. Demonstrators have been beaten, attacked with rubber bullets, pepper-sprayed, tear-gassed, falsely arrested, infiltrated and—in Genoa, Italy last July—even killed. Less noticeable, though potentially much more devastating, are the tactics that activists face when they go home to continue their individual campaigns. Increasingly, the counterattack is taking place not only in the streets, but in courtrooms and statehouses.
Sentenced to No Speech
Judge Ralph Taite, who sentenced Megan Lewis, has used similar sentences to keep anti-abortion protestors away from abortion clinics. He said Lewis was involved in non-violent civil disobedience in front of Neiman Marcus once before, so he used the sentence to make sure that she wouldn’t “be back doing the same things again.” Sentencing an activist to stay away from protests, Taite said, is no different than sentencing a drunk driver to stay away from bars, or sentencing a pedophile to stay 100 feet away from schoolyards.
But drunk driving and pedophilia are not protected by the Constitution. Like hundreds of thousands of other activists, Lewis has learned to make effective use of two of her most fundamental rights: freedom of speech and freedom of assembly. Non-violent civil disobedience has become their watchword. In the eyes of Neiman Marcus, Lewis and her colleagues may have learned to use these rights a little too effectively. Lewis is part of a national campaign that uses boycotts, protests and civil disobedience to pressure the company to close its 27 fur salons and stop supporting the fur industry, which kills six million animals each year for fashion accessories. Other chains, like Macy’s, have already yielded to consumer pressure rather than have their name associated with standard fur industry practices: factory farming, gassing, poisoning and electrocution.
A Neiman Marcus spokesperson said the company had no involvement in the case, but Judge Taite said that during the course of the trial, Neiman Marcus liaisons called his office, called the prosecuting attorney and made their presence in the courtroom known. At one point, Taite called Lewis back into court because Neiman Marcus had complained that she was protesting at the Houston store. Lewis had not yet been sentenced, so she was within her rights. But Neiman Marcus had sent a clear message.
“Neiman Marcus is trying to get the most mileage they can out of this,” said Donald Feare, Lewis’ attorney. “They are using the legal system not as a tool for justice, but as a tool to remove their own economic difficulties.” Feare has filed a writ of habeas corpus with the Court of Criminal Appeals in Austin, seeking to remove the “no protest” clause of Lewis’ sentence.
Lewis’ case isn’t the first time a judge has used court sentences to silence activists. A similar case involves Clark Kissinger, one of the “Mumia 8” who were arrested in 1999 when they refused to leave a Philadelphia protest demanding a new trial for death row inmate Mumia Abu-Jamal, the black activist whose case has become a focal point for the growing anti-death penalty movement. As a condition of their probation, the activists were not allowed to leave their respective court districts without permission. This is a routine provision of probation, but permission to travel is usually granted to non-violent offenders. Yet when Kissinger, after serving a year of his probation, asked for permission to deliver a speech at a permitted anti-death penalty rally outside the Republican National Convention in Philadelphia, he was surprised to see his request denied. He had previously been granted permission to travel and visit his mother, but was denied permission to travel for a political speech. Kissinger went anyway. When he returned to New York, he was sentenced to 90 days in jail.
In Texas, state Reps. Harryette Ehrhardt (D-Dallas), Lon Burnam (D-Fort Worth) and Terri Hodge (D-Dallas) say they are working on legislation that would prevent judges from restricting first amendment rights as part of a sentence. If they succeed, it could prevent Texas judges from issuing sentences like those used against Lewis and Kissinger. If they fail, and these types of sentences continue, it could have frightening consequences for activists. “This has a chilling effect on political speech. It scares people into being silent,” said Michael Flinz of the American Civil Liberties Union. “The court can stop illegal conduct. That’s well within its rights. But it’s another matter to say you can’t protest,” he said. “That’s like arresting Dr. King for civil disobedience, and then sentencing him to no more civil rights protests.”
An Activist Mafia?
Activists have found themselves attacked in the courts before. During the civil rights movement, communities boycotted racist stores until they changed their discriminatory policies. One of the targets, Claiborne Hardware Co., retaliated by suing civil rights organizations for malicious interference with business. The Supreme Court eventually ruled that the campaign was constitutionally protected, but until that verdict civil rights groups were in a panic. If Claiborne Hardware Co. had won, the movement would have been severely hobbled.
Now activist groups are facing an even more sophisticated assault in civil court. Huntingdon Life Sciences, Europe’s largest animal testing company, together with Stephens, Inc., its largest investor, have filed a lawsuit claiming that U.S. animal protection groups have violated federal racketeering law by joining together to force the companies to change their business practices. If the company wins, it will bankrupt three national animal protection groups: In Defense of Animals, Stop Huntingdon Animal Cruelty and the Animal Defense League.
“This is nothing more than a retaliatory strike against a successful campaign,” said Elliot Katz, president of In Defense of Animals. Katz said the lawsuit is meant to drain the groups of hundreds of thousands of dollars that would otherwise be used to publicize what goes on in Huntingdon labs, where 500 animals die each day. Five undercover video investigations by activists have shown vivisectors beating four-month-old Beagle puppies and laughing at animals pumped full of pesticides. The investigations have led to fines and dozens of Animal Welfare Act violations, and investors like Citibank, Merrill Lynch and Charles Schwab have divested themselves from the company. The result: Huntingdon stock plummeted from $30 per share in 1997, before the campaign began, to 25 cents per share in 2000. Stephens, a U.S. investment firm, saved the company from financial collapse with a $33 million loan in January 2001. (Neither Huntingdon nor Stephens returned phone calls for comment.)
The companies seek millions in “economic damages” because they say animal rights groups formed a violent interstate network, using cell phones and e-mail, which violates the Racketeer Influenced and Corrupt Organizations Act of 1970. RICO was originally created to bring down mob bosses, not non-profits. It wasn’t used against activists until the National Organization for Women waged a 12-year court battle against anti-abortion groups, claiming they were part of a national conspiracy to shut down abortion clinics. In 1998, the Supreme Court said RICO could be used this way, and the anti-abortion activists were eventually convicted of 21 acts of extortion.
Since then, corporate use of RICO to fight activists has become fairly common, said Phil Hirschkop, one of the defense attorneys in the Huntingdon case. Hirschkop said most of these suits are settled out of court, such as a 1998 case filed by Stephens, Inc. against People for the Ethical Treatment of Animals. The point is not to win, Hirschkop said, but to intimidate.
The tactic may be having some unintended consequences. Kevin Jonas of Stop Huntingdon Animal Cruelty said that by attacking legal, above-ground organizations, the lawsuit has actually increased the number of underground actions against Huntingdon and its supporters. These actions range from rescuing beagles from Huntingdon labs to sinking a yacht owned by a Bank of New York executive. A group calling itself Pirates for Animal Liberation claimed responsibility for the attack, saying that the Bank of New York provides financial services for Huntingdon.
“Each time corporations try to stop legal protest, people take it a step further,” Jonas said. “This is a historic point in the animal protection movement, and we all know it. We can’t afford to lose this one. If we do, [RICO suits] will happen in every campaign from now on.”
Enter the IRS
RICO cases are by no means a surefire way of silencing dissent. They are a long, complicated, expensive way to attack the financial base of activist groups. Anti-environmental “wise-use” organizations seeking a more efficient, head-on method to bankrupt non-profits may have found it in the Internal Revenue Service.
In a six-page complaint filed with the IRS, the Frontiers of Freedom Institute (a right-wing think tank founded by former U.S. Senator Malcolm Wallop, a Wyoming Republican) argues that the Rainforest Action Network violates their 501(c)(3) status by engaging in “lawless” activities, like non-violent civil disobedience, and that this is grounds for revoking the group’s non-profit status.
RAN’s activities do include using civil disobedience—such as hanging banners in public places and occupying offices—to pressure logging giants like Boise Cascade to stop clearcutting 2,000-year-old national forests. The group has also persuaded over 400 companies, including Home Depot and Kinko’s, to stop buying old-growth products. The complaint filed with the IRS says that the group has engaged in a campaign of “harassment and intimidation,” and cites an incident where RAN floated a 120-foot inflatable balloon shaped like a dinosaur over the Boise Cascade corporate offices. The dinosaur held a sign reading: “Boise Cascade: I Love Logging Old Growth.”
Mike Brune, organizer of RAN’s Boise Cascade campaign, laughs at some of the allegations, but takes the IRS complaint very seriously. “The complaint cites civil disobedience as an example of RAN being reckless and lawless,” Brune said. “In our political and cultural environment, this isn’t the case. Civil disobedience has been used for decades in non-violent movements.” Brune fears that if the IRS expands “criminal activity” to mean civil disobedience, RAN will be financially destroyed, and other movements won’t be far behind.
Brune said the IRS petition is part of an ongoing smear campaign by Boise Cascade. The corporation has sent letters to RAN’s large donors urging them to cease contributing to RAN’s campaigns. In a letter to RAN, Boise Cascade CEO George Harad writes that he is “concerned about RAN’s links to other radical organizations,” like the Ruckus Society, a group that trains people for non-violent direct action. Harad calls direct action a “euphemism for violent intimidation and aggressive harassment.” In a press conference earlier this year, Frontiers of Freedom singled out RAN’s campaign against Boise Cascade as an example of “eco-terrorism.”
Doug Bartels, spokesperson for Boise Cascade, admits that letters were sent to RAN’s supporters, but claimed that the corporation wasn’t involved in the complaint sent to the IRS. “We have no involvement with the organizations who are asking that their tax status be looked into,” Bartels said. “We have no involvement whatsoever. We aren’t part of that. We didn’t know a thing about it until we heard the news media.” Eventually, though, Bartels conceded that “we have such a large company, that somebody at some point may have talked to [the IRS]—but who knows?”
The Green Scare
There is nothing accidental about the industry’s use of the label “eco-terrorist” in its campaign against RAN. The term, which did not exist just a few years ago, is now being used to describe everything from pouring sand in a bulldozer’s gas tank to burning down a research facility. What concerns more traditional activists, however, is the growing tendency to lump civil disobedience in with such activities as sabotage and arson under the same label.
In 1998, FBI director Louis Freeh told a European newspaper that these types of actions weren’t even on his “radar screen.” A few months later, he told a Senate subcommittee that “the most recognizable single-issue terrorists at the present time are those involved in the violent animal-rights, anti-abortion and environmental-protection movements.” Why the sudden change of heart? On October 19, 1998, the Earth Liberation Front, an underground group without any formal structure or leadership, claimed responsibility for an arson attack that caused nearly $26 million in damages to a Vail ski resort. An ELF communiqué said the arson was necessary to stop Vail Inc. from expanding into 2,000 acres of wilderness in the Rocky Mountains, which is one of the last habitats for the threatened lynx.
That case remains unsolved, along with, by FBI estimates, over one hundred ELF actions around the country that have caused over $50 million in damage. Despite grand jury investigations, attempts to infiltrate ELF cells, and the FBI’s labeling the ELF the nation’s primary domestic terrorist threat, only five individuals have ever been caught: a group of high school honors students in Long Island that burned down luxury homes in protest of urban sprawl.
Frustrated by ELF’s success, and the FBI’s failure, businesses and researchers have turned to politicians for support. Oregon, which has had nearly 20 environmentally-motivated cases of arson in the last six years, has expanded the state’s RICO law to include actions against the logging, agriculture and animal testing industries. South Dakota, California and Florida have all passed laws that make “midnight gardeners”—who uproot genetically-engineered crops—pay twice the value of the crops they destroy. In Washington, a bill introduced last session would have revised the state’s criminal sabotage laws (first drafted in 1903 to combat a growing anarchist movement there) to specifically include “eco-terrorism.” The bill failed, but legislators say they will try again.
The danger of these types of bills, activists say, is that they may have consequences far beyond their impact on economic sabotage. Arson, vandalism and theft are already against the law, after all, and underground groups know this. “Above-ground” activists are the ones that stand to lose the most from the climate of fear created by such legislation. In 1999, for example, an Oregon bill nearly passed that wou
d have made it a felony for environmentalists to conduct any kind of protest within a quarter mile of a logging site. The justification: fear of “eco-terrorist” attacks.
The end result, activists fear, may be that legislators will use too broad a brush and wind up outlawing activism—outside of letter writing and calls to Congress—altogether. The broadest, most ambitious legislation is the federal Agro-Terrorism Prevention Act, sponsored by Rep. George Nethercutt of Washington. The bill sets minimum sentences for sabotaging environmental and life-sciences research, allocates $5 million to heavily-targeted facilities for security improvements and calls for the creation of a security report to teach these facilities how to deal with environmentalists. But the bill doesn’t stop there. A provision of the bill would create a national clearinghouse of all crimes “directed at any commercial activity because of the perceived impact or effect of such commercial activity on the environment.” It would also create a database of all “suspects” and “relevant information” related to the crime. Rep. Darlene Hooley, D-Ore., has introduced an identical bill, the Environmental Terrorism Reduction Act, that would establish a similar clearinghouse of any crimes “committed in the name of the environment.” Presumably, activists convicted of something as benign as sitting down in front of a Neiman Marcus would find themselves added to the list.
“It’s like a communist witch hunt,” said Craig Culp, a spokesperson for Greenpeace. “To say that anyone who breaks the law in the name of the environment is a subversive that should be put on a list is frightening. These laws are already on the books. So what’s the use, other than, as with McCarthy, using [the list] as a means of intimidating people?”
Nethercutt said that isn’t the intention of the bill. Although no one has ever been injured by an ELF action, he said, “somebody is going to get killed, plain and simple. Their manifestoes say they deplore violence and all, and they only destroy property, but they think humanity should be sacrificed for an animal or a plant. They are basically zealots and anarchists.”
The bill probably won’t intimidate underground activists anymore than it would have intimidated the Sons of Liberty, who protested British taxation by dumping tea into the Boston harbor, said Kevin Jonas of Stop Huntingdon Animal Cruelty. The people it will intimidate, Jonas said, are those who vocally support these actions. “They’re trying to give activists a red label,” he said. “If you support these movements, you’re no longer labeled a communist threat, but a terrorist threat.”
The same safety and security concerns that have been used to justify eco-terrorism laws have also been used to justify crackdowns on activists in the streets at mass demonstrations. This has included massive fences around demonstration sites, confiscation of protest materials like signs and banners, and border closings. Increasingly, it has also included the use of pre-emptive arrests, trumped-up charges, and prohibitive bail—practices in which U.S. courts have been alarmingly complicit.
Large protests like the ones in Seattle, D.C., Prague, Melbourne, Quebec and Genoa are organized by loose networks of individuals and organizations representing a variety of issues, from unions to environmentalists, debt-relief advocates to anarchists. It’s a relatively decentralized process, but some spokespersons have emerged. At the Republican National Convention in Philadelphia last summer, police arrested two of these people, John Sellers and Terrence McGuckin, and accused them of masterminding clashes with police. Lacking any substantial evidence against the two, officers could only report that the men had been observed using cell phones during the time period of the demonstrations. They were deemed a security threat and kept in jail the entire week—until the demonstrations ended—on misdemeanor charges. Sellers, an organizer of the Ruckus Society, was held on $1 million bail, and McGuckin, a Philadelphia resident, was held on $500,000 bail. All charges were later dropped, but Sellers and McGuckin have filed separate federal lawsuits saying that the arrests and bail were meant to prevent political speech.
At last year’s demonstration against the World Bank and IMF in Washington, D.C., up to 500 demonstrators—along with several bystanders and tourists—were arrested en masse at a peaceful rally held the night before the scheduled demonstrations. Dozens of police surrounded the confused group, systematically applied plastic handcuffs, and bussed them off to several D.C. area jails. Virtually all of those arrested were released the next day with no charges filed, but the massive, unprovoked arrest had the apparently desired effect, causing confusion and disarray on the eve of the major action, and physically removing hundreds of bodies from the first day’s demonstrations.
Similar tactics have been used against independent media that report on the crackdown. At the Free Trade Area of the Americas summit in Quebec last April, police security plans for the protest were leaked and anonymously posted on the Seattle Independent Media Center website. Citing security concerns, the FBI obtained a court order requiring the Seattle IMC to hand over their computer server logs, which identify everyone who visited the website that weekend. The order also prevented the Seattle IMC from publishing anything about the FBI’s actions. The FBI withdrew the court order on June 14, 2001—long after the protests ended.
Megan Lewis said her 10 days in the Dallas County jail weren’t as bad as she expected. The jail time and hundreds of dollars in fines were the easy part of her sentence, she said. The hard part will be abiding by the “no animal rights protests” clause of her sentence, and staying silent on something that is such a huge part of her life.
“I guess this is why I’m going to go to law school,” she said. “I have a feeling this happens more than we know.”
Observer intern Will Potter is an activist and writer living in Austin.