Greener Times

Promoting a sustainable society…one day at a time.

October 19 – 25

Posted by Trey Smith on October 18, 2009

Greener Times for the Week of October 19 – 25
Volume 4 No. 27
an e-publication for Greens anywhere and everywhere

Greener Times Collective: Maryrose Asher, Duff Badgley, Tom Herring and Trey Smith (Editor)

In This Week’s Issue
* Appellate Court: Encouraging Civil Disobedience is Not Protected Speech
* Roof Tiles That Change Color
* Thoughts By the Way: Extremes
* Our Climate Crisis: Polar Bear to Be Arrested at Federal Building
* Un-Spinning the Spin: Daybreak: Undoing the Imperial Presidency & Forming a More Perfect Union
* This Week in History
* Pencil Shavings: Easy Rider
* News You May Have Missed

Appellate Court: Encouraging Civil Disobedience is Not Protected Speech
by Will Potter on

The conviction of the SHAC 7 – animal rights activists hit with “terrorism” charges for publishing a website and vocally, unapologetically supporting direct action – has been upheld by a U.S. appellate court. It is a landmark free speech ruling that lowers the threshold of what types of conduct are protected by the First Amendment, and upholds a law that is so broad that it targets civil disobedience as “terrorism.”

Learn more about the SHAC 7.

As a brief introduction: The “SHAC 7” of Stop Huntingdon Animal Cruelty ran an effective campaign that had the sole purpose of putting Huntingdon Life Sciences, a notorious animal testing company, out of business. The campaign pressured corporations to sever ties with the lab. The SHAC 7 were never accused of breaking windows or releasing animals from labs, but they supported those who did. They published a website which posted news of both legal and illegal tactics, and supported all of it. The website had also posted names and addresses of individuals connected to the corporations targeted.

The ruling was issued today and, although there are many aspects that deserve attention, I want to walk through what I think are by far the most dangerous and troubling implications of this ruling–those related to the First Amendment:

PDF of the SHAC appeal ruling

Supporting and facilitating non-violent civil disobedience is not protected speech.

As part of their campaign, SHAC supporters were emailed about “electronic civil disobedience.” The email and message board posts included instructions on how electronically “sit in” on corporate web sites through emails, faxes and phone calls.

Now, one of the benchmarks in First Amendment law is what is called the Brandenburg standard. It holds that even the most controversial and inflammatory speech is protected as long as it not likely to incite “imminent and lawless action.” That is a very high threshold. In this court ruling—which, to the best of my knowledge and the attorneys I have spoken with is the first of its kind—the written word can be construed as promoting, or resulting in, imminent and lawless action.

To put it more plainly: Vocally supporting civil disobedience, explaining what it involves, and encouraging/facilitating people to take part is not protected speech.

This is so important let me say it again, another way: People who write about civil disobedience and encourage people to take part can be found convicted of a crime even if they do not take part in the civil disobedience.

This has dangerous implications far beyond this case. For instance, I wrote about the recent call by mainstream environmental groups for massive non-violent civil disobedience in defense of the environment. Under this reasoning, organizers of that event who published a website aren’t protected by the First Amendment.

[UPDATE: One person had this question, so others might as well: I am not at all saying that simply endorsing civil disobedience is now not protected speech. However, doing so and also facilitating civil disobedience is what the court ruled is not protected. So in the example above, the organizers promoted civil disobedience, encouraged it, set up a website telling people where to go and when, and there were people involved to specifically support those arrested. I think there is a very real danger of that type of conduct being affected by the reasoning presented in this ruling. That is what I had meant by the headline and preceding points.]

Fiery rhetoric is a “true threat” when illegal conduct has taken place in the same campaign.

Another measurement of whether speech is protected by the First Amendment is whether it is a true threat. Throughout the appellate court ruling, the court argued that SHAC’s speech did, in fact, constitute a true threat.

SHAC pressured corporations to divest and sever ties with HLS and “used past incidents to instill fear in future targets” (by publicizing illegal conduct, supporting that conduct). “In this regard, their actions meet the standard of a “true threat” as articulated in Watts, because viewed in context, the speeches, protests, and web postings, were all tools to further their effort.”

The court’s reasoning goes something like this: SHAC wants to close HLS, SHAC supports legal and illegal activity, therefore when SHAC targets a new corporation there is a true threat that the company will be the victim of illegal activity. So SHAC’s speech is not protected.

There are two huge problems with this. The first is that social movements throughout history have had both legal and illegal components. I have interviewed countless activists who only take part in legal protest, but vocally and unequivocally support illegal tactics, and recognize their role in the broader movement. The court argues that it doesn’t matter if you are not breaking the law; if you support illegal tactics, note their efficacy, and believe they play a role in the broader movement and your own campaigning, it is tantamount to a “true threat.”

The second problem is that no action by animal rights or environmental activists in the United States has ever resulted in physical injury or death. Not one. That’s by the admission of the FBI and DHS, along with groups that track animal rights crimes, like the Southern Poverty Law Center. It defies logic how even the most outlandish rhetoric can be construed as a “true threat” that places someone in reasonable fear of physical violence, when the movement has never engaged in physical violence.

The Animal Enterprise Protection Act and “animal enterprise terrorism” charges can be applied to First Amendment activity.

The court ruled that the defendants were guilty of “conspiracy” to commit animal enterprise terrorism because of:

Speech — Josh Harper “wrote editorials and gave speeches praising militant tactics and direct action.”
Running a website — Jake Conroy “designed and maintained multiple websites affiliated with SHAC–the primary tools of the campaign against Huntingdon.”
Protest — Andy Stepanian told Kevin Kjonaas “that he could not explain over an unprotected phone line what protest activity he had planned for the following weeks.” (The court argues that this implied illegal activity).
Computer encryption – Kjonaas and Gazzola used “encryption devices and programs to wipe their computer hard drives” and protect their email. “While alone this evidence is not enough to demonstrate agreement, when viewed in context, it is circumstantial evidence of their agreement to participate in illegal activity,” the court said. To most people, it is evidence of their intent to protect their privacy from FBI spying.

This Ruling is Bigger than the SHAC 7
This ruling is disappointing, to put it mildly, for the SHAC 7 defendants still behind bars. They will serve the remainder of their sentence in prison and, if this appellate court decision stands, be forever marked as “terrorists.”

But this case is much bigger than the SHAC 7, and it is bigger than the animal rights movement. The AETA 4 are facing terrorism charges for chalking slogans and protesting with masks. Climate groups are organizing massive civil disobedience campaigns. These movements continue to grow, and so does the crackdown against them.

This is critical time in American history. Corporations, working alongside ambitious prosecutors, are radically expanding cultural and legal conceptions of “terrorism” in order to push a political agenda. Mainstream animal and environmental groups, the press, civil liberties groups, they have all largely remained silent on this historic case. As a result, this appellate court has issued its sweeping ruling with impunity.

It is all too easy to weaken the First Amendment when it comes to the rights of “radicals” and “extremists.” It is even easier when no one is paying attention.

Roof Tiles That Change Color
from e360

A group of recent Massachusetts Institute of Technology graduates has developed a roof tile that remains white in summer to reflect the sun’s energy then turns black in winter to absorb the sun’s rays and heat buildings. The so-called “thermeleon” (rhymes with chameleon) technology uses a common commercial polymer trapped between layers of plastic, including a black layer at the back. When the temperature drops, the white layer disappears, exposing the black layer. The MIT graduates say the tiles reflect about 80 percent of the sun’s heat when they are white, translating into a 20 percent savings in cooling costs. When the tiles turn dark, they absorb about 70 percent of solar energy. The MIT team, which last week won a $5,000 prize in the school’s “Making and Designing Materials Engineering Contest,” is now trying to commercialize a version of the tile that can withstand harsh winter conditions. They also are trying to develop a cheaper version of the technology that integrates the polymer solution into paint that could be brushed onto existing black tiles.

Thoughts By the Way: Extremes
Tom Herring is a former Vashon Island Community Council member, but now chooses to sort nails in his shop. Catch more of Tom’s thoughts on his blog.

The very large and the very small share the notion of extreme, which found generally can be dangerous, necessary, or even unavoidable. An ordinary use arises in arithmetic. Say that you get stuck because you cannot decide if item A is to be divided by B, or the other way around. Do this: take one of them to an extreme, say that item A becomes very large. The proper choice then may be obvious. That wisdom passed on, consider now some willy nilly extremes that are giving me fits. One is in medicine and the other is creation of the universe.

Between breast cancer and multiple sclerosis women have sacrificed much of their fifty percent share in the joy of life. You’d think that between Pelosi and Clinton there’d be enough clout to get those afflictions on Congress’s health care agenda. The reason this hasn’t happened of course is there’s no money to be made in prevention. But what’s of interest here is Western medicine’s extreme concentration on biochemistry, on molecules. I’ll illustrate with MS as several young women I know have central nerve disease. The search for a cure for MS has spiraled down to a pin-ball game of cells, cell receptors, cytokines, and the DNA molecule. Half the news is on chemotherapy and its manufacturers. The other half is on measuring damage. None of this is bad but all of it is played on a compromised pin-ball machine: the body lying about in pieces. Most prominently lacking is attention to stress. Other whole-body aspects include vitamins. The body is an organism of complexity and wonder beyond the pale. It follows that the search for a cure for MS should include a host of considerations extending to the whole body and the environment with which it tries to cope. Similar remarks describe the situation with breast cancer where chemo also rules. So here’s the question, what is the proper road to understanding health? Is it nitty picky molecule this and compound that, or is it a conversation in a different language? One example: national health care should begin with cleaning up the chemical contamination in our food. Maybe the new language is like nothing more than reversing the two words, health care becoming care for health.

There’s a pretty good consensus among one percent of educated atheists that in the time of a nanoblink something called the big bang created an expanding universe. This one-ups the Bible where the job took the better part of a week but at least got it done, not left expanding. While absurd, the big bang theory at least fits most if not all observations by telescope and spectrometer. Of interest here, the theory implies that before the bang there was nothing everywhere. That is, beyond the reach of the Hubble telescope, beyond the leading edge of expanding matter, there is nothing. This is an extremely troubling notion which I think relates to humankind.

Space comprises distance and time, and space is infinite. Secular comprehension of this is possible only through the language of mathematics. So most of us secular people have no way to speak of the meaning that infinity gives to life. In English, space is a place to park your car, distance is something measured by a yardstick and time is the ticking of a clock. Spanish no better because the Oxford English Dictionary says in its introduction that English is the best language. So here’s a thesis: all our talk of civilization’s survival is compromised by the underlying unmentionable of existence. Our talk is incomplete. In the context of a pale blue dot suspended in infinite space we don’t have a clue. We need a new language that recognizes the mystery of existence, a text for the Hubble pictures. The Bible isn’t hacking it, a fact painfully obvious in the crimes perpetuated by Christians. The only viable approach to our survival is the extreme of reverting to social units no larger than a day’s walk. That will give us the time needed to work on a language.

That time should be seized. Threats to US hegemony are resisted militarily which puts us in a state of perpetual quasi-war to which we object and so increasingly are in danger from our police, Homeland Security contractors, and the military itself. The G-20 thuggery is but one of dozens of warnings. Just today, Oct 15, a US appeals court ruled that speech can be considered action:

“The conviction of the SHAC 7 – animal rights activists hit with “terrorism” charges for publishing a website and vocally, unapologetically supporting direct action – has been upheld by a U.S. appellate court. It is a landmark free speech ruling that lowers the threshold of what types of conduct are protected by the First Amendment, and upholds a law that is so broad that it targets civil disobedience as “terrorism.””

My Vashon will serve to illustrate the need to abandon futile attempts to sway Congress and instead attend to matters within walking distance. You might call it a move from one extreme to its opposite. If the King County Sheriff is ordered to take into custody residents labeled as terrorists — you may know of a few candidates — then as presently is the case, they would be taken without protest by our Council. But if Vashon were to mind the infinite then it might shortly develop a tight network of informed minds sharing the view that we would be willing to get in the way. These may or may not be the same minds currently members of our Neighborhood. Emergency Response Organization who await an earthquake. It should not be necessary to remind readers of this column that being able to “circle our wagons” would give us far more political clout stateside than we now possess.

The quote comes from Green is the new Red by way of Elliot Stoller. It reads like the threshold was increased, not lowered.

Our Climate Crisis: Polar Bear to Be Arrested at Federal Building
Duff Badgley is the leader of the One Earth Climate Action Group and was a candidate for Governor as a Green in 2008. He can be reached at 206-283-0621.

Dressed in polar bear costume, the co-founder of a national group opposing federal cap-and-trade bills will be arrested at the Seattle Federal Building on October 24, National Climate Action Day. Climate SOS will join with Seattle climate activists from One Earth Climate Action Group to support the non-violent civil disobedience, and to demand cap-and-trade bills be killed.

“We are ready to risk prison to salvage our Earth,” said Duff Badgley, national organizer for Climate SOS, “and we’re always peaceful.” “The time is now to show senators Cantwell and Murray, and all federal lawmakers, we are in climate emergency. Emergency response is demanded—or we will doom ourselves and our children.”

“If we are going to have a Livable Planet,” he said, “Business-as-Usual must stop in every sector—government, industry, personal. Cap-and-trade is a subterfuge for business-as-usual.” The world’s pre-eminent climate scientist, Jim Hansen, calls cap-and-trade the “Temple of Doom”. Hansen has personally endorsed the Climate SOS campaign against it.

Cap-and-trade is worse than nothing. It locks us in to a failed strategy. We lose our chance to develop alternatives. Hansen says, “I’d rather climate talks fail than we agree to a bad deal”. Federal cap-and-trade bills are this “bad deal”. They will:

1. Doom us to upward spiraling carbon emissions. Cap-and-trade won’t work because it can’t work. Trading and offsets gut the cap. Our worst polluters keep polluting. The European Union’s Emissions Trading System is a massive failure.
2. Defy the science. All congressional cap-and-trade bills deliver us to a hideous fate by deliberately ignoring our best climate science. All these bills promote 450ppm of atmospheric CO2 as a target for climate stability. But the science shows us 450ppm means mass deaths and catastrophic extinctions.
3. Sell or give away rights to our biosphere to our worst polluters. Our air, our seas, our soil, our forests become the property of those who are fast ruining our Earth.
4. Destroy our natural forests by converting them to vast biofuel farms and tree plantations. Species across the spectrum—including humans—will be devastated.
5. Block conversion to a clean energy economy. Cap-and-trade prevents structural changes we need now. It rewards dirty industries like coal and petrol and keeps them dirty. Hansen: cap-and-trade is a “subterfuge allowing business-as-usual to continue”.
6. Invite Enron-style corruption. Cap and trade is the scheme of choice for polluters and Wall Street executives ready to game the system and bring climate chaos. The Wall Street Journal said, “…(cap-and-trade) will make money for some very large corporations, but don’t believe for a minute that this charade will do much about global warming.”

Un-Spinning the Spin: Daybreak: Undoing the Imperial Presidency & Forming a More Perfect Union
Maryrose Asher is a former Chair of the Green Party of Washington State and a tireless activist of many causes.

David Swanson, co-founder of the After Downing Street Coalition and a board member of Progressive Democrats for America, has written a book titled, Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union. Swanson was also press secretary for Dennis Kucinich’s 2004 presidential campaign and creator of

Swanson’s book starts out strong with not only laying out the facts for the impeachment of Bush and Cheney but criticizing the Obama administration for its failures as well. He also outlines what kind of government we should have. Swanson gives us his view of the rights we need and the changes we need to make in order to form “a more perfect union.”

Of interest to readers of Greener Times, with so much emphasis within the Green Party on clean campaign financing and implementation of instant runoff voting (IRV), Swanson agrees with the need to have campaign financing reform but comes out against IRV.

Below is taken directly from his book, pages 251-252.

And while IRV works well to create a record of protest votes for unlikely candidates, it does not always avoid the waste/spoiler effect when your first choice candidate is actually competitive. He or she can finish second, your second-choice candidate third, and your last-choice candidate can win. And when there are a great many candidates in a race, your vote can still be wasted on an unpopular candidate.

While IRV is a wonderful and well-intended idea, it accidentally conflicts with a more important one. The biggest weakness in our elections system is our inability to be certain our votes have been accurately counted. If we cannot count our votes in a public and verifiable manner at the level of each polling place, but must count them only at the district or state or national level, and if the entire counting process must begin again when a few lost votes are discovered late, we are tying two hands and a foot behind our backs. With ordinary voting, the totals for each candidate can be publicly tallied in front of diverse witnesses at a polling place and then forwarded to be added to the full district-, state-, or national-level count. With IRV voting, that isn’t possible, and a tremendous amount of additional data has to be forwarded from each polling place without anyone having any idea what it means or whether it is accurately received an included. That’s a recipe for disaster.

…the best compromise that would allow the use of IRV would be paper ballots counted by optical scan machines, with a requirement that the paper ballots be locally and immediately counted and the results announced. However, the results would be either insufficient or too complicated for anyone to judge whether what was forwarded to the districts, state, or national processing center was accurate. So, I would regretfully forego IRV and begin reforming elections by repealing the Help America Vote Act (HAVA) and legislating verifiable elections with local hand-counting of paper ballots, whether we yet have a constitutional right to that or not.

I was also troubled by the lack of mention of the Green Party. Swanson does write about the film by David Earnhardt, Uncounted: The new Math of American Elections, and states, “viewers come away from this film understanding that the Democratic Party landslide in 2006 likely fell far short of what voters actually voted for, that George Bush was never once elected president, and that the solution to the 2000 Florida debacle (the solution of buying electronic voting machines) took a relatively small problem and made it enormous.” Just where you think Swanson might drop in some mention of the Green Party, its absence raises questions as to why he does not. Searching the index, one finds no listing for the Green Party. Ralph Nader is mentioned once and only to quote Nader’s conversation with Supreme Court Justice Antonin Scalia (pg. 229) and, likewise, a single mention of Cynthia McKinney’s name in regard to her introducing articles of impeachment against Bush on the last day of the 109th Congress in 2006 — and her last day of service as she lost her re-election bid (pg. 129).

Most telling are the summation paragraphs where Swanson encourages being an activist for peace and justice and lists, among the organizations to support, After Downing Street,, Progressive Democrats of America, the National Accountability Network, Peace Team, and CODEPINK. Glaringly absent is the Green Party or any third party outside the Democratic Party.

For an explanation as to Swanson’s motives, I strongly recommend listening to a 30-minute presentation by Arun Gupta, founding Editor of The Indypendent. Gupta speaks quite critically of the antiwar movement and explains how leaders within the peace and justice movements have “shepherded” progressives into the Democratic Party.

Bottom line, Swanson’s book is another attempt to make sure we all stay under the umbrella of the Democratic Party and continue to work within the Party.

My rating: Two thumbs down!

This Week in History
This Week in History, published by Carl Bunin and edited by Al Frank, is a collection designed to help us appreciate the fact that we are part of a rich history advocating peace and social justice. While the entries often focus on large and dramatic events there are so many smaller things done everyday to promote peace and justice. Find more info at

October 20, 1962: A folk music album, “Peter, Paul and Mary,” hit No. 1 on U.S. record sales charts. The group’s music addressed real issues – war, civil rights, poverty – and became popular across the United States. The trio’s version of “If I Had A Hammer” was not only a popular single, but was also embraced as an anthem by the civil rights movement.

October 23, 1915: 33,000 women marched in New York City demanding the right to vote. Known as the “banner parade” because of the multitude of flags and banners carried, it began at 2 o’clock in the afternoon and continued until long after dark, attracting a record-breaking crowd of spectators. Motor cars brought up the rear decorated with Chinese lanterns; once darkness fell, Fifth Avenue was a mass of moving colored lights.

October 24, 1970: Salvador Allende Gossens, an avowed Marxist and head of the Unidad Popular Party, became the president of Chile after being elected and confirmed by the Chilean Congress. For the next three years, the United States exerted tremendous pressure to destabilize and unseat the Allende government. In 1958, and again in 1964, Allende had run on a socialist /communist platform. In both elections, the United States government (as well as U.S. businesses such as International Telephone and Telegraph (ITT), which had significant investments in Chile) worked to defeat Allende by sending millions of dollars of assistance to his political opponents.

Pencil Shavings: Easy Rider
Pencil Shavings appears in this space most weeks and solely represents the opinions of the publisher. If you’d like to read more of Trey’s ruminations, visit The Rambling Taoist.

While it’s often difficult to persuade people of all political stripes to support ANY specific legislative initiative, I think I know of one that most people would agree on — we need to get rid of legislative riders. A rider is a piece of legislation attached to a bill that is not germane to the main topic or thrust of the overall bill. For example, if a bill concerns appropriating funds for public education, adding language concerning the war in Iraq would be a rider.

The purpose of a rider is to get something passed that most likely wouldn’t pass on it’s own or to poison a piece of legislation to ensure it that won’t pass. In common parlance, it’s underhanded and sneaky. It’s a proven method to slip really bad policies into bills — right under our noses — with little fanfare and, sometimes, no analysis of the pros and cons whatsoever.

Most other democracies in the western world either outright ban riders or strongly discourage them. In the few places where they still exist, they are easily countered by the line item veto. As usual, unfortunately, riders are par for the course in the US Congress and there is no countermeasure to them.

In many states that have the citizen-based initiative mechanism, one way you can be certain that your ballot measure will be thrown out is if you try to accomplish too many things and/or try to cover unrelated subject matter.

For democracy to work at its best, information plays a key role. Our elected representatives need to know what they are voting on and the public needs to know as well so we can communicate our positions to those who cast the votes. Legislative riders subvert this process by allowing key segments of legislation to fly under the radar unnoticed. It’s a travesty that this unethical mechanism continues to exist unabated inside the beltway.

Regardless of a where a person stands on the political spectrum, we should all work together to rid our nation of the “easy rider”.

News You May Have Missed

Ireland Says Not in this Country: Bans Genetically Modified Crops
Ireland will ban growing of GM crops, and a voluntary GM-free label can be placed on all animal products–such as meat, poultry, eggs, fish, crustaceans, and dairy–that are raised with GM-free feed, according to a GM-Free Ireland press release. Ireland joins Japan and Egypt as one of the few but growing number of countries that have banned the cultivation of GM crops…

The Spread of New Diseases: The Climate Connection
As humans increasingly encroach on forested lands and as temperatures rise, the transmission of disease from animals and insects to people is growing. Now a new field, known as “conservation medicine,” is exploring how ecosystem disturbance and changing interactions between wildlife and humans can lead to the spread of new pathogens…

Vancouver Planning Olympic Homeless Evictions
Yesterday, the city of Vancouver announced that they will begin ridding the streets of homeless individuals to prepare for the 2010 Winter Olympics starting in February 2010. Despite repeated assurances that these individuals will be connected with services, something about this announcement doesn’t jive. Maybe if our cities tackled the issue of homelessness with the same fervor as preparations for the Winter Olympics, there would be no homeless people on the streets in the first place..


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