LAS VEGAS (CN) – The First Amendment won't save internet radio broadcaster Peter Santilli Jr. from federal prosecution for asking listeners to participate in an armed protest in Nevada.
U.S. District Judge Gloria Navarro on Monday accepted the recommendation of U.S. Magistrate Judge Peggy Leen and denied Santilli's motion to dismiss the charges against him. Navarro said Santilli did not file an objection to Leen’s recommendation and the deadline to do so has passed.
Santilli is among 19 people charged with 16 felony counts arising from an armed standoff with the Bureau of Land Management in April 2014. Supporters of rancher Cliven Bundy stopped the BLM from gathering about 400 head of cattle that the federal government says were illegally grazing.
The BLM also says Bundy owes some $3 million in unpaid grazing fees over the past 20 years. Bundy and his supporters say the federal government does not have the right to own or control land in Nevada. The first of three trials of 17 remaining defendants begins Feb. 6.
In a 14-page recommendation filed Jan. 6, Leen said “Santilli is not entitled to a pretrial evidentiary hearing to determine whether the government can prove its case.”
She added, “It is well established that the First Amendment does not prohibit the government from criminalizing speech that is integral to criminal conduct.”
Santilli interviewed Cliven Bundy on his California-based radio show on April 8, 2014, and Santilli argued he only called for an “open-carry protest on private property at the Bundy Ranch,” Leen wrote.
The radio host said Bundy “called in to air his grievances about the manner in which the BLM was treating him and his cattle,” Leen wrote.
Santilli said “there were no requests for unlawful conduct or request for violence or unlawful activity,” and amounts to “advocacy speech and lawfully protected speech,” Leen wrote.
Instead, Santilli argued he made a “call for people to stand up and protest with legally possessed firearms is constitutional speech.”
Santilli also argued his speech during that interview and subsequent broadcasts do not amount to a “’true threat’” and is protected by the First Amendment, according to Leen.
“In general, the First Amendment prohibits the government from restricting expression because of its message, ideas, subject matter or content,” Leen wrote.
However, “The grand jury heard the evidence presented and found there was probable cause to charge Santilli,” she said.
Leen said Santilli could move for a judgment of acquittal based on insufficient evidence after the federal government presents its evidence.
“He may assert arguments that the government did not establish that any alleged threats were “‘true threats’” as a matter of law, and whether any speech or conduct introduced in evidence was speech and expression protected under the First Amendment,” Leen wrote.
She said all 16 counts against him comply with federal pleading requirements and “contain a plain, concise and definite written statement of the essential facts constituting the offense charged,” and that “these are not issues this court may decide in a pretrial motion to dismiss.”
Navarro also accepted Leen’s recommendation as to another defendant in the case, Ryan Payne. Payne had argued the government had a responsibility in the indictment to identify what type of firearm he was alleged to have brandished, based on a model jury instruction regarding the crime.
Leen recommended and Navarro agreed the government did not charge Payne with brandishing a machine gun – only a firearm in the general sense – and that the government will be limited to that charge accordingly.