What Happens in this Utah Courtroom Affects Everyone

The trial of open rescue will affect your rights, too – from food safety to free speech.

UPDATE: The trial has been postponed to October 3 in the wake of death threats against animal rights advocates. The Facebook event page for trial support is here.

Today, we are facing an important pre-trial hearing in the prosecution of two animal rights activists (including me) in relation to an investigation and open rescue at the largest pig farm in the nation, Smithfield-owned Circle Four Farms. The court will likely decide a number of key issues, including: whether the trial should be moved to a different venue, in light of death threats against animal rights advocates; whether key witnesses (such as the CEO of Costco Craig Jelinek) will be called to testify; and whether I will have the right to represent myself.

But while Paul and I are the ones technically in the crosshairs in this trial (which begins on Sept 9 and to which 150+ people have already registered to attend), there are crucial rights at stake for us all. Our rights are being fundamentally attacked by some of the most powerful figures in politics and industry, and what happens in this Utah courtroom could vindicate our rights — or undermine them entirely. The rights at stake include:

• our right to a safe and transparent food system;

• our right to an impartial system of laws; and

• our right to speak against powerful institutions, such as Costco and Smithfield.

Our nation is in what economist Noah Smith calls a “shake down” moment, i.e., a moment of crisis that can irrevocably change the future. And in moments like these, when our nation has faced challenges from women’s suffrage to civil rights, the courtroom has been the place to resolve them. The reason is that what happens in court can set political precedents.

What is happening in this Utah courtroom, in turn, will set important precedents regarding your rights. Smithfield, Costco, and the Utah authorities are prosecuting us, not because of the removal of two sick baby pigs, but because of the principles we stood for, and published openly in the largest publications in the world — including the right of every person to a transparent system of food. And if they prevail, the largest corporations in the world will learn that they can get away with violating our rights – and will surely choose to violate them again.

Take, for example, the right to a safe and transparent food system. In theory, Costco, Smithfield, and the US government are all committed to this principle. But the reality we found at Circle Four, and at other Smithfield facilities across the nation, was very far from that. For one, Smithfield was lying about the end of gestation crates, the 2 x 7 metal cages that pose serious threats to public health and animal welfare. Even animal advocacy groups that initially praised Smithfield’s commitment, such as the Humane Society of the United States, have turned around and are now suing them for misleading consumers. Costco, in turn, continues to advertise its animals as being granted Five Freedoms, including the freedom to engage in natural behavior, while confining mother pigs in crates like this:

To Costco, this is what “freedom” looks like: life in a metal cage.

For another, the food safety risks we found at Smithfield, including the use of a carcinogenic drug called Carbadox, and the rise of antibiotic resistant staph infections, are surely inconsistent with Smithfield’s motto: “Good Food, Responsibly.” or Costco’s promise to keep food both “Clean” and “Safe.”

But when we reported problems to Costco’s CEO Craig Jelinek — in conjunction with credible and mainstream reports in The New York Times, Washington Post, and numerous other outlets — instead of investigating the problems or starting a dialogue, Costco sent the FBI after us. Documents in the investigatory file of our case show extensive correspondence between the FBI and high-level executives at Costco, including Jelinek and VP of Food Safety Craig Wilson. The executives complained about “a larger scheme to defame Costco” and about “reputation and public image damage to Costco.” Perhaps most ironically, the very executive who was corresponding with the FBI on the matter, Wilson, is the President of the nonprofit Center for Food Integrity, whose mission is to “help today’s food system earn consumer trust.”

Let’s just say this again, more clearly. Costco’s VP of Food Safety, who serves as President of the the Center for Food Integrity, responded to a concern about food safety and integrity by working with the FBI to imprison the people who reported it. And perhaps most disturbingly, the FBI — which nominally serves the people and not just a corporation — went along with it.

This has dramatic consequences for us all. Costco is, of course, one of the largest retailers in the world; if they fail to offer a safe and transparent food system, that endangers people everywhere. Smithfield, in turn, is owned by WH Group (formerly Shanghui Group), which has been implicated in all manner of food safety scandals in recent decades, including the use of clenbuterol, a steroid banned as a performance-enhancing drug, to accelerate the growth of pigs. If the largest corporations in the world learn they need not deliver on their most crucial commitments, and can instead simply crush or imprison their critics, this does not just endanger me and Paul; it’s a danger to the entire global food system.

But there are rights even more fundamental than food that are affected by this trial, including the right to impartial administration of the law. Like must be treated alike, under any well functioning system of justice. If some people are punished severely, while others are not punished at all for the same conduct, then everyone will lose faith in the law; it becomes apparent that the “law” is just an arbitrary exercise of power. My co-defendant Paul has previously stated one glaring violation of this right in our case: the massive prosecutorial investment into the “theft” of two piglets who, even by the government’s own statements, were worth less than $50. As Paul puts it, if you’ve had something stolen for less than $50, or heck even much more than $50 (say, an iPhone), try calling the FBI and seeing how many agents they assign to the case. In contrast, our case has seen a small armada of federal, state, and county authorities and likely millions of dollars in taxpayer resources mobilized to punish us for removing piglets that were, commercially, worth nothing.

The principle of impartial administration of laws, however, will be affected by many other rulings in this case, including the hearing today. For example, every defendant has a right to a jury that has not prejudged a case, and will make a decision based on the law, and not a pre-existing prejudice. If we are required to go to trial in a county where people are already threatening to kill us, that right will be fundamentally undermined. Similarly, every defendant has a right under the Sixth Amendment “to have compulsory process for obtaining witnesses,” i.e., to compel witnesses to testify at trial. If we are denied the right to call Costco’s CEO, simply because of his power and wealth, that will be a violation of our most basic constitutional rights. It will show that power is warping the impartial administration of laws in its favor. And that affects us all.

Maybe it’s a workplace dispute with your employer. Maybe it’s an improper bill that was placed on your credit card. Maybe it’s even just a wrongful parking ticket by an irresponsible cop. If we cannot count on the impartial system of law, when a powerful party — a large corporation or an officer with a gun — is on the other side, then none of us can have faith that any of these disputes will be addressed fairly. And it is trust in our legal system, and not just a few criminal defendants’ freedom, that will be lost.

But the third and most important right at stake for us all is the first right established by the US Constitution and Bill of Rights: the right to free expression. Because at the root of this prosecution, and the motions being heard today, is the question of whether we truly live in a free society, or whether those who have power can use the tools of government to silence those who dissent. One of the most bizarre things about the Prosecution Summary in this case, a document prepared by the FBI to explain the basis of the charges against us, is that it says almost nothing about burglary and theft. Instead, it is almost entirely focused on protests, demonstrations, and our supposed “scheme to defame Costco.” What does this speech activity have to do with a supposed burglary prosecution?

The prosecution has never been able to state how we “defamed” Smithfield and Costco – because the allegations of our investigation were true.

The prosecution has lived up to its initial summary document by taking every effort to gag our speech. My co-defendants, for example, were coerced into an unconstitutional plea bargain, which gagged them from any “online criticism of Smithfield,” by the threat of potentially 60 years in prison. Paul and I received similar offers and declined them.

The bizarre conditions imposed on my co-defendants included one that banned them from online criticism of Smithfield — undermining their right to free expression.

But perhaps most disturbingly, the prosecution is also attempting — and, so far, succeeding — to gag us at trial. I’ve written previously about the unprecedented court rulings in this case, that will prohibit us from, among other things, playing the video of the alleged crime at trial, or even speaking about our motive. In my nearly two decades studying or working in the law, I have never heard of such gag orders in any criminal case.

Today’s motion hearing may go a step further, and gag us from even asking questions of witnesses, such as Costco’s Jelinek, or gag me from speaking for myself at trial. And this is the key thing — the impact of these rulings will go far beyond this case. If corporate CEOs realize that they can insulate themselves from questions, what does that mean for us all? If the one place where our most sacrosanct right to speak against those in power has been protected — in a criminal case where our freedom is at stake — if even in that one place, we are being gagged, then what does that say about the future of free speech? What does that say about the future of a free society?

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What I’ve written so far may sound grim and pessimistic. But as I said at the start of this blog, we are in a shake down moment in human history. So there are opportunities that come with these risks. And here is the most important one: if we continue fighting, regardless of what happens to Paul and I at trial, we will win — and set a precedent for the future.

There is a very real chance that Paul and I are incarcerated if convicted.

However, the important precedent set by this case will not be determined by the judge and jury. It will be determined by you. Because if you keep advocating for a safe and transparent food system; if you decry the biased administration of law in this case; and if you keep speaking even when corporate power has tried to silence us… if you keep fighting this fight, then we will win. Costco and Smithfield will realize that they can’t get away with telling lies. The government will learn that it can’t keep bending to corporate power. And our entire society will see that our right to free expression — and a free society — is being attacked.

Let’s make this very concrete. Say I am sitting in a Utah prison 2 months from now. But say that there are thousands of people, across the nation, picketing Costco for abuse of animals — and for attacking our rights. Say that articles are written in the largest newspaper in the world about how two people are sitting in prison because a Chinese corporation, with a history of food safety scandals, wanted them punished for pointing out its misdeeds. And say millions of Americans are disturbed when they hear these stories — and share their concern in their local communities.

Corrupt, corporate power cannot beat people power of this sort. And, so long as you help us — help me and Paul — build people power, then whatever sacrifice we suffer will be worth it.

As I said, what happens in this Utah courtroom will affect all of us. But with your help, we’ll make that effect beautiful, inspiring, and good.

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The quick updates for the week.

• The Friday Night Hangout today will be particularly timely, as we won’t just be discussing the issues in this blog — we’ll be breaking down what just happened in court. Here’s the event page. Hope you can make it out in person, but if you can’t, shoot me an email to be added to our WhatsApp group to get a Zoom link.

• At long last, we’re holding the kick-off event for the organization behind this blog, The Sanctuary Initiative - along with my “going to trial” party. The central idea behind the new org, founded by me, Priya, and Dean, is to give everyone (including animals) a supportive community. To do that, we need stories to inspire us to be our best selves, leadership structures that allow the right leaders to make the right decisions, and community building efforts that can scale up to 8 billion. Here’s the event page.

• There’s no survey this week because the blog and discussion next week will be focused on the launch of TSI. But instead of a survey, take a look at this memo and send along whatever questions, concerns or criticisms you have for us! Here’s a flowchart that describes our theory of change.

• Today we are exactly 3 weeks from the start of our trial in Utah - and I’m grateful to you all. So I just want to end by saying thanks to all of you who have written in, offered comments, or shared the content from this blog or the podcast. I’ve been slammed over the last couple weeks — barely sleeping on many days to keep up with all the work — but just know that I do appreciate all your feedback, support, and even criticism! I’m going to try to catch up with correspondence this week.

Until next time!