Melanie Crean: I just started recording.
Steve Kurtz: Well, my whole life is recorded. I’m used to cameras and tape recorders and whatever else. As far as free speech goes, I am not sure my case was so precedent-setting. I think mine was part of a long list of free speech cases, from the Palmer Raids to McCarthyism and Cointelpro to the present day. Where it was precedent-setting was in how the federal prosecutors were framing the charge. It would have completely changed contract law. It would have done away with civil law completely, by making any contract dispute potentially a criminal case. The Department of Justice would then have had the discretionary power to make a civil complaint a criminal case any time it wanted to; in other words, they would have had the ultimate tool for selective prosecution. They had never tried to pull that before.
MC: Who brought the civil complaint?
SK: There was never any criminal or civil complaint in my case—that was the crazy thing! Those who I supposedly defrauded didn’t bring any charges, whether civil or criminal. It was the government that brought charges. They were saying, “You broke this civil contract” (the Judge later ruled I didn’t even do that)—“and actually this isn’t a civil dispute but a criminal offense.” This outrageous claim was what was really out of control in my case.
They were doing this for three main reasons. One was to control free speech. Second, it was the birth of Ashcroft’s preemptive justice policy, and for whatever reason the Department of Justice decided that I was the kind of person who might commit a crime against the state sometime in the future, and hence needed to be put in jail immediately. And third, they were trying to intimidate artists, academics, and activists—demographics they viewed as left-leaning and out for trouble. With me, they got all three demographics in one person.
MC: So you mentioned McCarthyism, and I know that there were plenty of literary people and cartoonists that were convicted at that time. Were there any artists or activists over the past 10 or 15 years that had similar charges brought against them?
SK: Not that I know of, but many activists were arrested who were doing what could very easily be considered performance art. Most notably a student who was re-enacting one of the infamous Abu Ghraib Torture scenes was arrested and charged with the very serious felony of creating public emergency. “Disciplining The Avant-Garde, The United States versus The Critical Art Ensemble” by Gregory Sholette also chronicles how people were arrested for freedom of expression, and charged for going outside the bounds of what the Bush Government thought was proper speech.
MC: I know it’s very complicated, but could you give a brief summary of the charge that was brought against you so that it can be put in the context of this interview?
SK: The Defense Fund Website goes into detail in the Overview paper by Claire Pentecost, but basically, I was charged with mail and wire fraud. What the government alleged was that one of my colleagues (Bob Ferrell, a professor of Human Genetics at the University of Pittsburgh School of Public Health, who served as a consultant on a number of our projects) had sent me some bacteria: two samples of completely harmless Bio Safety Level 1 bacteria. The Department of Justice [DoJ] said that the school had an agreement with the American Type Culture Collection (the distributor) that disallowed the transfer of their products to a third party. The DoJ claimed Bob and I “schemed” to send bacteria to me through the mail, which in turn broke the contract and defrauded the distributor. Because Bob mailed two “fraudulently” acquired samples to me it was two counts of mail fraud. Then he had written me an email saying: “I mailed you the samples.” And I wrote back and said: “Thank you, Bob” and that constituted the two counts of wire fraud.
As it turned out, there was no agreement whatsoever between the University of Pittsburgh and ATCC about sending bacteria back and forth. In fact, according to the University, their position was that anything sent to them, they owned outright. They didn’t even recognize the intellectual property of ATCC.
When you open a package from ATCC there’s a paper, which Bob would have received, with a bunch of liability clauses, some of which say the product can’t be sent to a third party, and others of which say the product can be sent to a third party—in other words it’s self-contradictory. But the point is, a company can’t send someone something after the fact and say: “Now you are bound to a contract.” Yet this was what the government tried to claim, and they further claimed that since Bob was bound to this “contract,” and that since he sent the samples to me, therefore we were guilty of mail fraud. Perhaps you could try to make a contract dispute out of it (which the judge also threw out), but the DoJ was going for broke and trying to make a criminal charge out of it.
An investigative reporter at the end of the case indicated that the prosecuting attorney, William Hochul, might not have even been trying to win this case. Instead, he thought Hochul was actually hoping that he could get me on the witness stand and cross examine me about books that I had written in the hopes that I would incriminate myself in some way. He hoped that I would admit that I was advocating terrorist activity in my books. In this way, they could reinstate a terrorism charge, which is what he really wanted.
MC: So there was an incriminatory aura surrounding the case in the hopes that artists, scientists or researchers might in some ways incriminate themselves. This is disturbing, especially since the charges were eventually dropped. Do you think the case had a chilling effect on artists’ and researchers’ activities that has remained? Do you think the case was in any way a win for the government for this reason?
SK: Yes, they got something out of it. It was a public relations disaster for them, but they didn’t completely lose. I doubt they will ever try it again (especially given the precedent set by the case), but it did put the clamp down. It didn’t work very well with activists—we are used to going to jail and we expect that we are going to have run-ins with disciplinary agencies. It didn’t work that well for artists, either, because what have they got to lose? Nothing really. If an artist gets sent to jail it gives them street credibility.
MC: What about scientists?
SK: Scientists are scared to death. They are completely beholden to their institutions. They are completely reliant on their funding…
MC: Public funding.
SK: For a scientist, if you are put into a situation where you are accused of a felony, you will have problems getting funding. If convicted, you might only be sentenced to probation, but your days as a scientist are over because you will never see another cent of public funding. As we all know, you can’t do serious science without a great deal of money. It scared scientists, and they were watching our case very carefully. It scared them more than the Butler prosecution because this one seemed so frivolous, and it showed how easy it would be for our situation to befall any them. It was a problem because in order to do life science, samples have to be mailed around, often in a casual way. One slip in the paper work and you could be facing jail time.
I had an interesting experience in Austin where I met a molecular biologist who had been a friend of Bob Ferrell for years. I assumed that if our case went to trial, he would serve as an expert witness for us. But he said he wouldn’t do it. I was shocked. I said, “You’re Bob’s friend, you’ve known him for forty years, you came through the ranks together! You’re not going to come to his defense?” He still refused, and I said, “How can you live with yourself?” He said, “I get what you’re saying—’First they came for my friends, and when they came for me there was no one left’ —but I’m not doing it. I’m not jeopardizing my career.”
It had a very strong effect on the sciences.
Apparently the FBI also gave a very serious warning to one of the distributors I used to get various enzymes that I needed for molecular biology. Now they won’t sell to amateurs anymore, only to universities and corporate labs.
MC: The relationship between the legality and issues of free speech is interesting on so many levels. I had also read from your defense website that you were never Mirandized.
SK: That is true, I was never Mirandized. Now the Supreme Court has ruled that you don’t have to be Mirandized anymore. To get your rights you have to say, “I want my rights.” Of course, anyone who has ever been arrested knows you don’t get Mirandized. The police want to coerce you as long as possible and will do almost anything to try to get a confession or to create “evidence” and better link you to a crime. They are not interested in Mirandizing anyone and hardly ever do so unless they absolutely must.
MC: How did it affect your ability to articulate your defense? Did it make a difference?
SK: No, I don’t think it would have. I was arrested on the way to the funeral home to make arrangements for my wife who had died the day before. At that time I was not thinking very clearly to say the least. In terms of trying to figure out my legal options, it really was not working out for me. It wasn’t until the next day that I had a moment of clarity about what I should be doing. In the beginning I just wanted them to let me go so I could finish arranging the funeral. I was talking to them and I should not have been doing that. I didn’t give them any “evidence,” but generally speaking, you never talk to police or an FBI agent or any agent of the law. You never say anything to them for any reason without your lawyer present. The Center for Constitutional Rights and the National Lawyers Guild both have good primers on this—on how to protect yourself if you’re ever arrested.
MC: I read some strange information that they had a warrant to search your house. I don’t know if they got it for legal reasons or if they manipulated facts to get it. The FBI took your files and manuscripts and writing, possibly in hopes of you incriminating yourself. Did they ever give you a complete list of what they had taken from you? Did you even know what they had taken from you? Did you know what you were defending yourself against at the time?
SK: There are disclosure laws. They have to give you a receipt for everything they take. They have to tell you what evidence they are bringing against you in court. Once I won the case they had to give everything back. We got everything back 4 years after they took it.
MC: The manuscripts and years of stolen work seems pretty bad.
SK: It was bad.
MC: I don’t know if you are following this so much, but just recently the Supreme Court has been deciding issues about the First Amendment. Under the PATRIOT Act, how do you feel lfree speech has been affected? What affect do you think it has had on artists?
SK: In June the Supreme Court ruled that the 1996 “material support for terrorism” law, which was really enhanced under the PATRIOT Act, could legally prohibit speech and advocacy, even advocacy in support of human rights and international law. Under this interpretation, anti-apartheid and solidarity activists in the 1980s could have been subject to harassment and prosecution. Pure speech advocating lawful, nonviolent activity can now be criminalized. In September the FBI raided homes and issued grand jury subpoenas to anti-war activists in several cities in search of “material support for terrorism” charges, and it appears the witch-hunt is continuing, with the FBI continuing to harass other activists at their homes and workplaces. So while the Obama Administration is not pursuing pre-emptive justice in the same way the Bush Administration did, the Department of Justice has clearly not been de-politicized. This should concern everyone. The fight against authoritarian power is a never-ending one, regardless of who is in office.
MC: Is performance speech? Are their qualitative differences, like I am sitting here at this lunch counter, and with my body I am saying something? Would it be the same if I were speaking? Is it more or less?
I know you do bacterial releases in your work. Performance and speech are often grouped together under freedom of expression, but are there important differences between them that people tend to overlook?
SK: I look at it from a semiotic perspective. I see performance as being a subcategory of speech. The thread that ties them all together, whether images or sounds or spoken words, is that they are all coded textualities. If you are in that realm you are in the realm of speech. Those are speech acts.
MC: Do you think your work has changed in a way that it wouldn’t have if this experience had not happened?
SK: No, it hasn’t. Critical Art Ensemble’s work is very forcefully anti-authoritarian and anti-majoritarian power. That has never changed. After I got arrested we were even more emphatic. We knew people were watching us and that we were role models. Even though the role was forced on us and my whole life was on camera, we felt we had now, more than ever, to walk it like we talk it. We had to show that we would not be intimidated and that we would continue exactly as we always had, regardless of the pressure that was put on us. The projects that the FBI were so keen to confiscate, we just remade.