“I dare you, you government fricking Nazi pukes, I dare you to continue to spread lies, fear and intimidation and the threats,” he said during a mid-January show broadcast from Harney County.
Since then, federal prosecutors in Oregon and Nevada have brought felony charges against Santilli, who says he’s a journalist. So far, much of the prosecution’s case centers around things he’s said — raising questions about the First Amendment and the power of speech.
Santilli was a strong advocate for Ammon Bundy and other leaders of the occupation. But at times, he sounded like a traditional news reporter.
Santilli played a similar role during the 2014 standoff in Nevada between ranchers and the Bureau of Land Management.
“I want to call upon every single militia member,” Santilli said on his show in April 2014, days before the Nevada standoff peaked. “I want to call upon every single God fearing, America loving Patriot that can get out to Clark County and show support.”
While in Harney County in January, Santilli was often combative with members of the media or protesters who showed up to speak out against the occupation.
Kieran Suckling, the executive director of the Center for Biological Diversity, protested the militants. But Santilli attempted to intervene, yelling into a megaphone while Suckling tried to speak to reporters.
“We’ll take media questions afterwards,” Suckling said over Santilli’s shouting.
Santilli was arrested on Jan. 26 near Burns. Since then he’s been charged with the same crimes as the leaders of the Malheur occupation and leaders of the 2014 Nevada standoff.
With one exception, it’s Santilli’s words prosecutors appear to be using against him.
Tom Coan, Santilli’s court-appointed lawyer in the Oregon case, said his client is not a traditional reporter, but rather an independent “new media journalist.”
“All of his speech was protected. He did nothing more down there than exercise all sorts of First Amendment rights,” Coan said. “His right to protest, his right to assemble people, his right to publish information. So he was hitting on all cylinders (on) the First Amendment.”
Federal prosecutors in Portland didn’t return calls for comment. But during Santilli’s detention hearings, prosecutors have argued his speech went too far – outside the protections afforded under the First Amendment.
“If it’s fundamental, to the crime itself, it’s not going to be protected,” Coan said. “And I think that’s where the government’s going to argue what Pete’s speech – why it’s not protected.”
Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, said for that the purposes of this case, it doesn’t matter whether Santilli is a journalist. She said the protections — as well as the limitations — of free speech are the same for everyone.
“The question is ultimately going to turn on whether his expressions could constitute a true threat or incitement to violence,” Kirtley said.
Those questions, she said, will likely have to be decided by a jury.
In the Nevada indictment, prosecutors say repeatedly that Santilli “encouraged and incited others” to travel to the standoff and engage in unlawful activities.
But for the speech to be incitement, Kirtley said, it requires immediate action.
“If he was making these statements with the expectation that people would come from far and wide, jumping in their trucks and loading up their families and coming, that’s not immediate,” she said. “That’s something that’s going to take some time, at least hours and maybe longer. So that too you see would be an impediment to arguing that this really is incitement.”
In February, the ACLU of Oregon issued a statement in support of Santilli’s speech.
Mat dos Santos, the group’s legal director, told OPB’s Think Out Loud the government appears to be “cherry picking” Santilli’s comments in determining his risk without providing context.
“We do really need to be careful when we are criminalizing words alone. When we’re taking statements by someone and throwing them in jail based only on those statements,” dos Santos said. “The First Amendment protects people to say things, even wild and outrageous things, no matter who they are and what they believe in.”
Santilli is currently being held at the Multnomah County Jail on pre-trial detention for the charges he faces in Nevada. He’s scheduled to argue for his release Monday.