WASHINGTON -- Last week, federal law enforcement officers stopped two cars carrying a handful of men and women who had occupied the Malheur Federal Wildlife Refuge near Burns, Oregon, for weeks. Law enforcement shot and killed one occupier, LaVoy Finicum, after he fled. The feds arrested eight people that day. But one of the people they arrested was different from the others: Pete Santilli, 50, an Ohio talk-radio host who was clearly sympathetic to the occupiers' cause, but has repeatedly said he was covering the standoff as a journalist.
During the first week of the occupation, Santilli was often seen at the wildlife refuge brandishing a camera on a pole, and wearing a bright vest that said press. When the occupiers held one of their morning press conferences, he wasn't behind the podium -- he was in the pool asking questions and heckling reporters. "I'm here acting as a reporter," Santilli told The Huffington Post in an interview in the refuge parking lot on Jan. 3, well before the confrontation that ended in his arrest. He said that he supported the occupiers, but was not involved in plans to seize the federal building. "I was opposed to coming over here," he said. "I didn't even know about it." But as of Wednesday, he was still in jail, facing federal charges of conspiracy to "impede U.S. officers from doing their duties by force, intimidation or threat” that carry a maximum sentence of six years in prison.
Santilli's activities at the wildlife refuge were protected by the First Amendment, he said in a court filing on Tuesday in support of his pretrial release. He produces the "Pete Santilli Show" with his domestic partner, Deborah Jordan, and bills himself as "the most controversial talk show host in the USA." Santilli broadcasted his show daily on YouTube, and amassed about 65,000 subscribers. "The United States Supreme Court has long held that the First Amendment’s protections of the press extend beyond recognized, mainstream media," he argued in the court filing.
The government doesn't see Santilli's actions as those of a journalist. Federal prosecutors say that by communicating and "working together" with Ammon Bundy, the leader of the armed occupation, and the other occupiers, Santilli effectively became part of a wide-ranging conspiracy to "impede U.S. officers from doing their duties by force, intimidation or threat." Conspiracy charges are famously easy for prosecutors to prove: To win a conviction, all they have to show is that the person charged with the conspiracy discussed committing a crime, even if they didn’t necessarily participate in it.
Santilli, prosecutors suggest, was not at the refuge as a journalist, but a conspirator. As evidence, they cite his YouTube videos, including one in which Bundy is heard telling Santilli off-camera to "let everybody know" that "we're continuing the stand," and others where Santilli appears to be calling people to join the occupiers. "I want one hundred thousand people out here, shoulder to shoulder, uh, unarmed," he reportedly said in the video. Santilli denied that he was asking people to do anything violent or unlawful. The U.S. Marshals Service is also reportedly investigating Santilli for allegedly threatening a federal judge in Florida.
Santilli was “charged solely as a reporter of information and not as an accomplice to any criminal activity,” John Whitehead, the president of the Rutherford Institute, a conservative-leaning civil rights organization, said in a press release Tuesday. The group warned of a “chilling effect on reporters such as Santilli” and pointed to the treatment of journalists covering unrest in Ferguson, Missouri, and Baltimore. “The tactics employed in Ferguson, Baltimore and here against Santilli are inimical to a free press and will result in stifling freedoms protected by the First Amendment,” John W. Whitehead, the organization's president, wrote in a memo to Thomas K. Coan, Santilli's lawyer, on Tuesday.
"It's really just a question of whether he did anything illegal," said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press. "There's some references to the fact that he's calling people to come join them, but even that's not necessarily illegal. It kind of throws his objectivity in question, certainly, but I don't think he's claiming to be objective," he added.
Santilli wasn't friendly with the mainstream reporters covering the occupation. He shouted at some people, and clearly had a point of view, but neither is uncommon in the news media. And his presence in the car on the day Bundy was arrested indicates little: It's common for reporters to go on ride-alongs with controversial people they're covering. Like the other reporters who flooded Burns, he said that he stayed at a local motel, not the refuge headquarters. Even that wouldn't be unusual: two Reuters reporters crashed with the occupiers for a night.
The Obama administration's treatment of reporters has caused controversy before. In 2009, the Department of Justice targeted a Fox News reporter in an investigation. Three years later, DOJ seized Associated Press reporters’ phone records. After that, former Attorney General Eric Holder ordered a review of the Justice Department's news media policies. DOJ employees must consult with a unit within the Criminal Division before they arrest someone when there is a “question regarding whether an individual or entity is a ‘member of the news media,’” according to a January 2015 memo from Holder to DOJ employees. But the department's definition of a journalist does not include “a person or entity who posts information or opinion on the Internet in blogs, chat rooms or social networking sites, such as YouTube, Facebook, or MySpace, unless that person or entity falls within the definition of a member of the media or a news organization under the other provisions within this section (e.g., a national news reporter who posts on his/her personal blog).” If the DOJ counted Santilli as a member of the media, any charges against him should have required a higher review within the department. Citing the ongoing criminal investigation, Justice Department spokeswoman Melanie Newman declined to comment on how Santilli’s case was handled internally.
A judge ruled on Monday that Santilli is a flight risk and a danger to the community, then on Tuesday another judge delayed a decision until a further hearing on Thursday. For now, he will continue to sit in jail with the armed protesters, even though he insists he was an unarmed journalist.
"I'm not armed. I am armed with my mouth," Santilli said in one video cited by the FBI. "I'm armed with my live stream. I'm armed with a coalition of like-minded individuals who sit at home and on YouTube and watch this."