The debate over proposed crude oil shipping through the Port of Grays Harbor has generated strong feelings both for and against, but it’s also brought another debate home locally: Balancing First Amendment speech protection and public safety in the post-9/11 world.
How do public officials protect a core right while at the same time upholding their obligation to protect the public? When does free speech cross the line of what’s protected?
Hoquiam resident Kevin Gavalis’ opposition to crude oil created a local example of the perennial issue. He’s attended public meetings on the Port’s proposals and sent emails to the Port stating his strong opposition to shipping oil through Grays Harbor, but was surprised to get a call Feb. 20 that special agents from the FBI Joint Terrorism Task Force were knocking on his door.
Port officials reported his conduct to the Coast Guard’s Investigative Service, which is a part of the task force.
The Evergreen State College student, focusing on environmental science, said he’s been involved in other protests and environmental causes, but has never been contacted by a Homeland Security agency before.
“They’re trying to be intimidating. I don’t think it’s necessary from two meetings and a few emails, and it’s not going to work. The Port is being a little bit of a bully,” Gavalis said.
Port Executive Director Gary Nelson said it was simply a situation that left some question about Gavalis’ intentions, and the Port had an obligation to report it to the Coast Guard.
“All we did was report it, we’re a federally regulated facility … we have a responsibility to report any perceived threats,” Nelson said. “It’s not for me to judge whether it was a legitimate threat.”
Gavalis’ language is strong, but he says his goal was only to inform the Port of his passionate opposition.
One email, sent after a public meeting to discuss the proposal, read:
“The opposition you faced at the dog and pony show that your fascist administration held last night is only the beginning of the resistance you will encounter. Prepare for more, prepare for numbers, prepare to refuse crude-oil in Grays Harbor.”
Gavalis said he used the phrase “expect resistance” in emails and at meetings, and that it could include civil disobedience or “direct action” such as a blockade, protest or leafletting, but said he doesn’t have a specific plan yet.
In another email, he notes:
“If you felt threatened by the previous email, then maybe you should re-think what you stand behind. I, in no way threatened you, but stated my position and intentions on the subject. NO CRUDE OIL IN GRAYS HARBOR!”
In his meeting Feb. 20 with the two agents, Gavalis said they asked questions about his intentions, to make sure he didn’t have any criminal plans, and to get a sense of whether he might pose a physical threat. Gavalis reported the agents’ response to his plans was that they were within his free speech rights, and he’d have no trouble with them if that was all he did.
The fact they came all the way out from their Seattle office to meet with him left Gavalis feeling like he was getting an implied message from the Port to back off.
It touches on the legal notion of a “chilling effect.” Webster’s New World Law Dictionary defines it as “the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.”
Legal scholar Frederick Schauer wrote about chilling effects in a Boston University Law Review article, “Fear, Risk and the First Amendment: Unraveling the Chilling Effect.”
“Deterred by the fear of punishment, some individuals refrain from saying or publishing that which they lawfully could, and indeed, should.
“This is to be feared not only because of the harm from the non-exercise of a constitutional right, but also because of general societal loss which results when the freedoms guaranteed by the First Amendment are not exercised,” Schauer wrote.
Why would someone be afraid of punishment when what they’re doing is legal?
“In an ideal world, there would be neither error nor uncertainty in the legal process. … One need not be overly skeptical to appreciate the difference between this model and reality. … It is, broadly speaking, this possibility of error and the consequent uncertainty which create the chilling effect,” Schauer wrote.
How much consideration should be given to chilling effects balanced against a possible physical threat is a question officials are often in the difficult position of answering.
Nelson declined to directly respond to Gavalis’ complaint, but noted the Port is a public entity with the goal of informing the public about its activities.
He said nothing specific Gavalis did made staff feel threatened, but “just based on training we get from the Coast Guard, if you ever have a question, you just pass it on and let somebody that’s more trained in that make that determination.”