Case 2:16-cr-00046-GMN-PAL Document 703 Filed 10/02/16 Page 1 of 8

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CHRIS T. RASMUSSEN, ESQ.

Nevada Bar 7149
RASMUSSEN & KANG
330 South 3 rd Street, Suite 1010
Las Vegas, Nevada 89101
(702) 464-6007
Attorney for Peter Santilli

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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PETER SANTILLI,
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Defendant.
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________________________________)

2:16-cr-00046-GMN-PAL

SANTILLIS MOTION TO DISMISS

INDICTMENT AS HIS CONDUCT
IS CONSTITUTIONALLY PROTECTED
[Evidentiary Hearing Requested]

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Defendant, Peter Santilli, through his attorney, Chris T. Rasmussen, Esq.,
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hereby submits Santillis Motion to Dismiss Indictment as his Conduct is Constitutionally
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Protected.
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Pursuant to Rule 12(b) of the Federal Criminal Rules of Procedure and the
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United States Constitution, defendant Peter Santilli by and through his counsel, Chris T.
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Rasmussen moves this Court for an Order dismissing the indictment as the conduct
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charged is protected speech under the First Amendment rights of free speech, freedom
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of press, and assembly.
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Evidentiary Hearing is requested as the speech in question is recorded on audio
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and video which combined with testimony from Santilli and the agents will assist the
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Court in determining the context of the speech.
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MEMORANDUM OF POINTS AND AUTHORITIES

Factual Summary

Santilli is charged in the instant case for his alleged involvement in a protest that

took place in Bunkerville, Nevada. Santilli is a internet radio host that focuses on

controversial issues surrounding a myriad of news topics. Some have called him a

shock jock in the manner in which he reports, comments and advocates his positions

in his self-entitled radio program, www.thepetesantillishow.com.

The Indictment charges Santilli with conduct relating to conspiracies and/or his

alleged aiding and abetting those involved in protests at or near Bundy Ranch. The

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behavior that is under indictment relates to Santillis role as a new media journalist.

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Some of the alleged speech takes place in studios in Southern Calif ornia and

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Cincinnati, Ohio. All of his charged conduct is protected by the First Amendment of the

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United States Constitution.

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Specific Speech Outlined in the Indictment is Constitutionally Protected

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Paragraph 61 & 62 (Cliven Bundy Telephones The Pete Santilli Show) of the

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indictment alleges that Santillis interview on The Pete Santilli show on April 8, 2014

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constitutes threats. See broadcast at this link:

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https://www.youtube.com/watch?v=-nTspLiE6jg .

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This interview on the Pete Santilli show takes place on his regular broadcast in

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which Cliven Bundy calls into air his grievances about the manner in which the BLM are

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treating him and his cattle. There are no requests for unlawful conduct. No imminent

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requests for violence or unlawful activity. In fact, Santilli is sitting in California when he

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takes the phone call during his radio show, when he calls for a open carry protest on

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private property at Bundy Ranch in support of his radio guest.

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This advocacy speech by Santilli of stand up and fight for your rights is lawfully
protected speech.
Paragraph 69 (Santilli Meets BLM Agents to Discuss Media Issues) of the
indictment alleges that Santillis meeting with the Special Agent in Charge on the side of

Case 2:16-cr-00046-GMN-PAL Document 703 Filed 10/02/16 Page 3 of 8

the road is unconstitutionally protected speech. Santilli as a journalist asks many

questions surrounding the unfolding events as to the amount of people that are

traveling to the area to protest. One of the agents, even remarks that there is not

enough rest room facilities. Nothing in the encounter between Santilli and the agents

suggest an imminent unlawful threat of violence or misconduct.

Paragraph 73 & 74 (Roadside Protest of Heavy Equipment to Capture

Cattle) of the indictment alleges that on April 9, 2014, Santillis call for a public protest

and his capture of video footage of BLM agents using police dogs for crowd control is

what ultimately caused the crowds of people to come and legally assemble at Bundy

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Ranch. This roadside protest involved all unarmed citizens standing on the side of the

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road with signs demanding answers as to why the BLM were harming the cattle, and

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destroying infrastructure used to water the cattle. As the vehicles were leaving the

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desert area, the BLM decided to use a show of force to keep the protestors away from

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the civilian vehicles, such as the dump truck that contained the remnants of the water

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holding structure, used in the operation of cattle in the area. The video that Santilli

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recorded and broadcast was unedited footage of the unfolding events, and what the

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Bundy supporters believed was an unlawful use of force against unarmed citizens

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protesting.

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Paragraph 75 & 76 (Broadcasting Events of Roadside Protest) of the

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indictment alleges that Santillis broadcast of his version of events violates federal law

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and/or is an act in furtherance of a conspiracy. The language Santilli uses to describe

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the events on the roadside is advocacy journalism and sensationalism that is protected

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speech. There is no call for imminent violence or unlawful conduct.

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Santillis calls for large numbers of people to participate in open carry protests at
Bundy Ranch to display the will of the people is protected journalism.
Paragraph 77 & 78 (Call for Ten Thousand Protestors) of the indictment

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alleges that on April 10, 2014, Santilli broadcast an illegal message to the public that

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caused unlawful behavior. However, Santillis broadcasting for ten thousand protestors

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to assemble at Bundy Ranch is protected speech and does not elicit unlawful behavior.

Citizens assemble in disputes against local, state, and federal authorities all over the

country, in a show of force that their position is of the people, as part of protected First

Amendment protests regularly. This call for protestors and the advocacy to have

people stand up to the government, by a show of large numbers of people is not a

crime as alleged.

Paragraph 79 (Santilli Records Conversation with SAC for the Public to

Listen) of the indictment alleges that on April 11, 2014, Santilli met with a government

agent who was in charge of the impoundment of cattle on or near Bundy Ranch.

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Santilli recorded and broadcasted this conversation as part of his coverage of the

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unfolding events. This speech outlined in paragraph 79 of the indictment is a

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conversation between Santilli and the agent. Santilli took it upon himself to discuss the

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escalating situation and record the conversation to allow the public to know what the

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Bureau of Land Management position was toward the protestors. The speech alleged

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in paragraph 79, is not inciting violence, impeding official conduct, or an any other

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manner criminal in nature. The story Santilli was exposing involved the militarization of

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the BLM and aggressive posture they were taking to round up cattle.

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Santilli while out at the Bundy Ranch with his news gathering equipment

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interviewed many people and streamed all of his video and audio onto the internet.

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During these broadcasts he called for people who were legally allowed to carry a

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firearm to come out to the private property on the Bundy Ranch to participate in an

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open-carry protest. His call for people to stand up and protest with legally possessed

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firearms is Constitutional speech. His style of advocacy journalism, is controversial and

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disliked by some. However, this is the type of disliked speech that is protected.

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Legal Argument

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I. True Threat Jurisprudence

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Although the recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015),

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deals with the issue of threats, it never addressed the constitutional protection afforded

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by the First Amendment. The Courts ruling was limited to finding that the federal threat

statute at issue in that case required a showing that the defendant intended to threaten

the alleged victim, and that the fact that the victim reasonably believed he had been

threatened was not sufficient. Given this disposition, the Court held that it was not

necessary to consider any First Amendment issues, id. at 2012, and it did not discuss

what expression constitutes a true threat outside of the protection of the constitution.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Court made it clear that the

First Amendment protects speech that advocates violence, so long as the speech is not

directed to inciting or producing imminent lawless action and is not likely to incite or

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produce such action. Accord Planned Parenthood of Columbia/Willamette, Inc. v. Am.

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Coal. of Life Activists, 290 F.3d 1058, 1071 (9th Cir. 2002) (en banc). Sim ilarly, in

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Watts v. United States, 394 U.S. 705 (1969), the Court ruled that under a statute

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making it a crime to willfully make a threat of bodily harm to the president, the

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prosecution was required to prove that the defendant had uttered a true threat. It went

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on to rule that the kind of political hyperbole engaged in by the defendant1 did not

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constitute a true threat. It wrote that the decision whether an utterance constitutes a

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true did not constitute a true threat must be determined

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against the background of a profound national commitment to the principle that

debate on public issues should be uninhibited, robust, and w ide-open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials. New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964). The language of the political arena, like the language used in
labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53,
58 (1966), is often vituperative, abusive, and inexact. We agree with petitioner
that his only offense here was a kind of very crude offensive method of stating a
political opposition to the President. Taken in context, and regarding the
expressly conditional nature of the statement and the reaction of the listeners,
we do not see how it could be interpreted otherwise.

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Watts, 394 U.S. at 708.
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Based on Watts, the Ninth Circuit has set forth the following criteria for
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determining whether statements constitute true threats beyond the protection of the
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First Amendment:
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Under our cases, a threat is an expression of an intention to inflict evil, injury, or

damage on another.. . . Alleged threats should be considered in light of their
entire factual context, including the surrounding events and reaction of the
listeners.. . . The fact that a threat is subtle does not make it less of a threat..
. . A true threat, that is one where a reasonable person would foresee that the
listener will believe he will be subjected to physical violence upon his person, is
unprotected by the first amendment.

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Planned Parenthood, 290 F.3d at 1075 (citations omitted). That court summarized that
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a true threat is a statement which, in the entire context and under all the
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circumstances, a reasonable person would foresee would be interpreted by those to
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whom the statement is communicated as a serious expression of intent to inflict bodily
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harm upon that person Id. at 1077.
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The Ninth Circuit also noted that other cases have identified several factors
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bearing on whether expression is a true threat: the reaction of the recipient and of other
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listeners, whether the threat was communicated directly to its victim, whether the maker
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of the threat had made similar statements to the victim in the past, and whether the
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victim had reason to believe that the maker had a propensity to engage in violence. Id.
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at 1078 (citing United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996)).
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II. Under this Analysis, None of Santillis Statements Identified by the
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Government Constituted True Threats and as Such Were Expression
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Protected by the First Amendment.
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A. In particular, the statements were made as part of Santillis commentary on
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the government and his expression of generalized opposition to it. His statements were
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in the context of discussions on public issues dealing with the growing aggressiveness
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of law enforcement and the movement to deprive citizens of their Second Amendment
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right to bear arms. As such, these statements are no different from the political
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hyperbole the Supreme Court ruled was not a true threat in Watts.
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B. As in Watts, any statement by Santilli of an intent to employ force or violence
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also were conditional and did not evince a present intent to harm anyone. Thus, any
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statement that he would shoot persons entering his house present an implausible
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hypothetical that cannot be taken as a serious threat. Indeed, Santilli stated that law

enforcement should knock and announce themselves if they raided his house, and it

was only in the situation where he did not know who was attacking his home that he

would employ violence. This is a far cry from a statement that Santilli was seeking out

officers to harm them, which might be considered a true threat. The opposite has

occurred, Santilli requests people that can legally carry firearms and protest to come to

the private property of Bundy Ranch.

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C. Also telling is that until proceedings involving Santillis eligibility for pretrial

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release, the government agents had made no issue of Santillis statement and never

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indicated that they believed these statements constituted a true threat to federal

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officers. This reaction is significant because it shows that even the government did not

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consider these statements true threats against federal officers. This is almost certainly

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because the government realized that Santilli has no history of violence, much less

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violence against government officials, and so understood that his statements were

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political rhetoric devoid of any purpose to threaten.

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The indictment attempts to post all of the sensational journalism broadcast by

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the Pete Santilli Show in an effort to establish he was more than merely present at

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Bundy Ranch during the alleged stand off with the BLM. However, the government is

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fully aware that Santilli was not in the wash area. Instead, Santilli was mingling with

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other news media outlets on Interstate 15 awaiting anything newsworthy to unfold.

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In the prosecution in Oregon, the government eventually analyzed the speech

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and came to the determination through consultations with main justice that Santillis

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coverage of the refuge stand off were protected speech. The Oregon prosecutors

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motioned for dismissal. An evidentiary hearing will allow this office of prosecutors to

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specifically identify and discovery that Santillis conduct mirrors Oregon and dismiss this

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case on their own accord.

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D. Finally, the statements do not identify or target any specific individual and

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were not disseminated in a way that would indicate any individual was being singled

out. They were made in connection with his news and commentary shows and were

meant for mass dissemination. Santillis expression was not sent to discrete individuals

or groups of persons by some targeted form of communication (such as e-mail or

telephone). Moreover, no individuals were specified or named in the statements; any

listener would understand that the statements were meant to express dissatisfaction

and anger with the government writ large, and not as a warning of violence against a

particular person or group of individuals.

Considering all the circumstances and factors, it cannot be doubted that the

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statements the government points to as justifying Santillis were not serious expressions

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of an intent to do harm to government officers. As such, they were not true

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threatsthey constituted political speech protected by the First Amendment. Santilli

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should not suffer adverse consequences at the hand of the government as a result of

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this exercise of his fundamental right to freedom of speech and the indictment should

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be dismissed.

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Conclusion
Santilli respectfully requests that this Court dismiss the indictment as his conduct
comported with the First Amendment of the United States Constitution.
DATED this 1st day of October, 2016.

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/s/ Chris T. Rasmussen

_____________________
CHRIS T. RASMUSSEN, ESQ.
Nevada Bar 7149
RASMUSSEN & KANG
330 South 3 rd Street, Suite 1010
Las Vegas, Nevada 89101
(702) 464-6007
Attorney for Peter Santilli