The Gibson Lacey Act “Raid”: Failing to Bridge the Gap

What Youtube and the Gibson Factory Raid Have to Teach Us About Public Communication on Environmental Issues

Roy Carpenter
Assistant Professor/Maître de Conférences
University of Grenoble/Université de Grenoble-Alpes, France

To say that politics has become ‘divisive’ or ‘sectarian’ in recent years is now a truism almost not worth stating any longer. News sources are replete with references to ‘tribalism’ and ‘polarization’; ‘populists’ are pitted against ‘elitists’ and accusations of ‘fake news’ fly in all directions. The result appears to be a society split into two irreconcilable camps which have neither the ability nor the desire to engage the other meaningfully. While these camps share a common interest, particularly when it comes to environmental issues, one reason for the schism are the narratives formulated, often on the same topic, by both sides of an issue. Sometimes one side’s narrative is more effective than the other, and scoring a narrative “win” (whether in line with the facts or not) helps shift public perception in a way that harms environmental goals.

Sometimes the truth driving these narratives is stranger than fiction. Even Simpsons fiction. Remember the Simpsons movie? After Homer dumps a silo full of pig excrement into Lake Springfield, the town turns into an environmental disaster zone. The administrator of the EPA then convinces the president to place a protective dome over the entire town and surround it with federal agents armed with automatic weapons. The confrontation between the American heartland and the EPA is perhaps a more pertinent political allegory than one might have imagined when the film came out in 2007 – just before the election of Barack Obama.

As it turns out, a surprising number of narrative elements from the Simpsons movie can be found in the way the federal government’s raid on the Gibson guitar factor in Nashville was portrayed in populist media outlets. Indeed, the Department of Justice and its partner agencies’ failure to sell their policy to the public created a void that eager propagandists were only too happy to fill—scoring a narrative win. In fact, looking back to 2009, it isn’t difficult to see how public mistrust of the Obama administration could be used by its opponents to foster a more toxic form of discontent that paved the way to the Trump presidency, the appointment of a climate change denier to the head of the EPA, and a mandate to undo Obama-era environmental regulation.

 

1. A strange case about an obscure law

In 2009, luthiers in the iconic Gibson guitar factory in Nashville, Tennessee were told to go home: the entire site was going to be shut down for an unspecified amount of time to allow federal agents to carry out an inspection of the wood they were using to make musical instruments. As it turns out, the company was guilty of violating a relatively obscure law called the Lacey Act of 1900, which, on the surface of it, was is not one of the sexiest pieces of legal writing out there. Mainly enforced by the Department of Agriculture and the Fish and Wildlife Service, it was originally conceived as a means to combat trafficking of bird feathers; as a part of that effort, it also stiffened rules intended to stop the transportation of illegally killed animals between states. The idea was that products obtained through criminal actions in one state should not be allowed to be sold freely in others, even if the seller in the second state had nothing to do with the original illegal act. But this relatively innocuous notion took on new meaning toward the end of the 20th century when trade of exotic animals became more common, not so much between U.S. states any more, but between countries. Accordingly, the act was amended in the 1980s and again in the 2000s, to bring the federal law into line with international treaties, especially the Convention on International Trade in Endangered Species (CITES).

Nevertheless, the animating principle of the law was the same: moving an animal or animal product from one legal jurisdiction to another should not become a means of evading punishment for activity deemed illegal in the state or country from which the animal originally came. The writers of these later amendments probably imagined customs officers examining suspect parcels coming from foreign countries, freeing exotic reptiles from cruel conditions, seizing ivory that had been harvested by poachers and breaking up illegal networks involved such trafficking.

But then a whole new dimension was added to the law in 2008 when Congress passed yet another amendment, this time adding plants to the list of products covered by the act. This meant that not only living plants, but also wood, wood products and even products containing only parts made of wood would now be subject to the law. For example, according to explanation given by the Department of Agriculture, a Scottish dance club in the United States involved in importing bagpipes for its members would be violating the law if it turned out that the instrument’s pipes were made from wood from an endangered species of tree.

Unlike the hypothetical Scottish dance club, however, Gibson Guitar Co.’s importation of wood was one of its central activities and they were bound to comply with all relevant regulations concerned with the basic building material of their products. Moreover, given the quantities of wood involved in the mass production of guitars, as well as the rarity of the sorts of wood in question – mahogany for soundboards, Indian rosewood and ebony for fingerboards – it was incumbent upon Gibson to verify the legality of plant products stored in its Nashville factory.   And while the law provided no leniency for importers working through intermediaries, representatives of Gibson had direct relations with wood harvesters in foreign countries, presumably in an effort to further reduce costs of obtaining the materials they needed. In this case, Gibson had obtained some of the wood from Madagascar, but the government of Madagascar had explicitly given them permission to buy it, even providing the American company with documentation to prove the legality of the transaction. So how could the Nashville-based guitar maker be violating the Lacey Act if the wood was bought legally in the source country?

 

2. Jurisdictional imperialism?

According to the various federal agencies involved in the case, the law authorizes the U.S. government to prosecute violations of the laws of other countries’ domestic laws – even when the country in question has given explicit permission to the importer to purchase the material.  As the Department of Justice’s official announcement of their settlement with Gibson explains, “Since May 2008, it has been illegal under the Lacey Act to import into the United States plants and plant products (including wood) that have been harvested and exported in violation of the laws of another country.”  So despite having received the blessing of the Malagasy government, the Lacey Act’s provision for US enforcement of foreign laws kicked in and the US government held Gibson responsible for violating a law that the local government refused to enforce. So why would the United States be using its own resources to protect plant species in foreign countries? And is this not a form of what might be called jurisdictional imperialism?

In fact, the amended Lacey Act, as interpreted by the Department of Justice in 2009, aims at combating not only illegal importation practices and protecting endangered plant and animal species, but it also intends to prevent American actors from participating in policies that contribute to the degradation of the environment in general, one of the main concerns being global warming.  Again, as the DOJ explains, “Congress extended the protections of the Lacey Act, the nation’s oldest resource protection law, to these products in an effort to address the environmental and economic impact of illegal logging around the world.” (My emphasis.)  Hence, despite the fact that Madagascar itself had authorized the sale of the wood in question, American federal agencies were bound to take into account the environmental impact of Madagascar’s decision both on its own territory and on the earth in general.

But if the environmental effects of harvesting the wood were so dire, why would Madagascar allow the sale in the first place? Actually, in response to the adverse effects of overharvesting, Malagasy law had indeed attempted to limit the amount of trees that could be cut down, but after a coup in 2009, the new military government saw the sale of ebony from protected forests as a potentially lucrative source of ready tax revenue. This puts Gibson’s overtures to loggers in that country into a new light: a poor country’s economy plummets after a brutal military takeover, plunging the local population into a more miserable situation than what it was already in, when a rich American company arrives on the scene and offers to inject cash into the system if the locals will just turn their backs on their silly policies of forest preservation. Indeed, the Department of Justice documented how a Gibson employee went to Madagascar in person to inspect the wood under consideration, was told that it would be illegal to buy it and informed the decision-makers of this situation upon returning to the U.S. The higher-ups at Gibson nevertheless decided to go through with the transaction, probably assuming that the documentation provided by the Malagassy government would provide them with the necessary legal cover back in America.

If the above description seems overly pessimistic, it should be born in mind that Gibson’s situation, in terms of its need to find sources of wood to make its products, is not unique and other companies facing the same predicament have nevertheless come up with different solutions. There are thus points of reference by which Gibson’s can be judged. Both Taylor Guitar and Martin Guitar, direct competitors with Gibson on the acoustic market, have made a point of communicating to the public how their purchasing policy both conforms to the law and fits into a larger policy of sustainability.  (See, for example, a statement by Taylor Guitar, or more recently, Martin Guitar’s joining up with the Rainforest Alliance).  This is not to put them forward as examples of good business practice – indeed, the example of Gibson may have helped them decide upon such an environmentally friendly course of action – but it serves to show to what extent Gibson deliberately sought to avoid compliance with legislation designed to impact the material that they were most concerned with, wood.

In the end, Gibson was forced to admit wrongdoing, pay a $300,000 fine and do “community service” in the form of contributions to environmental awareness programs.  By way of contextualizing the amount of this fine, the annual earnings of the company in the years following the factory raid fluctuated around $2 billion, so the fine amounted to about 0.02% of their annual earnings.  The Department of Justice’s official communiqué on the case stated: “Gibson has acknowledged that it failed to act on information that the Madagascar ebony it was purchasing may have violated laws intended to limit overharvesting and conserve valuable wood species from Madagascar, a country which has been severely impacted by deforestation.” So the wrong-doer was caught doing wrong, punished for its actions, learned its lesson and reformed its practice. And thus the story comes to an end – or so it should have.

 

3. The rise of the alternative narrative.    

It is now twenty years since the events described above took place. But the memory of what happened in Nashville does not center around the fact that Gibson knowingly broke the law, nor on the issue of deforestation, which, according to Scientific American, is the leading cause of global warming.  Instead, as a quick Google search will reveal, the most commonly told story is one of ‘government overreach.’ As Gibson CEO Henry Juszkiewicz claimed: “It has nothing to do with conservation and it had nothing to do with how scarce or not scarce the rosewood or ebony is. It has to do with jobs.” According to Juszkiewicz’s argument, had the ebony been shaped into fingerboards in Madagascar, Gibson would not have been subject to regulation under the Lacey Act. Therefore, he reasons, the point of the DOJ’s intervention was to encourage American companies to outsource their work to foreign countries. Obama, in other words, was trying to promote employment in Africa at the expense of workers in the United States.

From the very start of the case, therefore, two different stories have been available to the public: that of the Department of Justice (in cooperation with the Department of Agriculture and the Fish and Wildlife Service) centering on the breaking of a law whose goal is to protect endangered plant species and prevent deforestation, and that of Gibson’s CEO who claims that his company was singled out by an authoritarian government because he was a Republican party donor or perhaps because left-wing unions sought revenge against Tennessee, a so-called ‘right to work’ state. In any event, interest in the case was immediate and articles were published steadily for about five years, through 2014. But the DOJ was out-gunned from the start. Not only did major media outlets recount how surprised employees were sent home that day, but right-wing sources immediately integrated the incident into a pre-existing narrative about how the government under the presidency of Barrack Obama was accumulating power and increasingly using it to interfere in the honest daily business of innocent American citizens.

Thus, Henry Juszkiewicz’s version of events was a ready-made example of what a certain politicized portion of the media had already set out to prove. If the two stories could be considered to be competing for public attention, Gibson’s version won the contest hands down.  In all fairness to the reading and viewing public, however, it must be admitted that Gibson’s tale of victimhood, invading government agents and complicity with socialist unions and foreign entities is far more entertaining than the boring, legal issue described above.

During those first five years of intense interest in the case, even without clicking on the links, headlines were dripping with emotional verbiage, such as, “abuse-of-power scandal from President Obama’s first term,” “Government run amok,” or how “lumber union protectionists incited [a] SWAT raid.” A writer for Forbes, claiming to “chronicle the decline and fall of entitlement democracy,” went so far as to provide a dramatic re-enactment of the raid:

“Henry. A SWAT team from Homeland Security just raided our factory!”

“What? This must be a joke.”

“No this is really serious. We got guys with guns, they put all our people out in the parking lot and won’t let us go into the plant.”

“Whoa.”

“What is happening?” asks Gibson Guitar CEO Henry Juszkiewicz when he arrives at his Nashville factory to question the officers. “We can’t tell you.” “What are you talking about, you can’t tell me, you can’t just come in and …” “We have a warrant!” Well, lemme see the warrant.” “We can’t show that to you because it’s sealed.”

While 30 men in SWAT attire dispatched from Homeland Security and the U.S. Fish and Wildlife Service cart away about half a million dollars of wood and guitars, seven armed agents interrogate an employee without benefit of a lawyer. The next day Juszkiewicz receives a letter warning that he cannot touch any guitar left in the plant, under threat of being charged with a separate federal offense for each “violation,” punishable by a jail term.        [Italics and ponctuation are from source.]

Evidently, the story of what happened had captivated the public mind and provided imaginative inspiration for writers with a taste for the dramatic. Still, while the above description is largely fictional, it is based on an original kernel of truth. So what is it about the situation that lends itself so easily to exaggeration and poetic license?

Whether intentionally or not, Juszkiewicz succeeded in tapping into a deep vein of American mythology, a narrative tradition in which the little guy stands up against the tyrannical juggernaut of centralized government. It constitutes what could be called a meta-narrative, providing the broad outlines of a chain of events that repeats itself throughout history, allowing present day observers to merely identify another of its recurring manifestations and slip the case at hand into the larger narrative structure. In its noblest forms, we find it articulated by Thomas Jefferson in the Declaration of Independence and Henry David Thoreau in Civil Disobedience. In less eloquent and intellectually rigorous forms, it is expressed by Youtubers, such as this one who  opined, “Gibson raided by the Feds. This is a little extreme. What happened to our liberties. I produced this video in response to our out of control tyrannic government. We are now at a all time Historical low. Police state and the disrespect to our Republic, Constitution and the will of the people.” On a certain level, then, Juszkiewicz is right: this is not about environmental issues, it’s about the narrative impact of the government’s action. It’s really about what we think it’s about.

How then does this come about? To successfully make the link between the present event and the meta-narrative, the level of emotional intensity must be high. This is achieved through creating a feeling of proximity: if the federal government can send a SWAT team into a factory in Nashville, they might just show up in your town next. This is compelling stuff.  The government’s version of events just doesn’t have the same punch: “We target corporations and individuals who are removing protected species from the wild and making a profit by trafficking in them.” Indeed, storytelling does not seem to be the government’s forte.

At this stage, however, we are still just dealing with impressions. So it is possible to constitute a more empirical basis on which to analyze what John Wargo, professor of environmental law at Yale, has called “narrative advantage,” meaning that various narratives are in competition to win over the public to their side. Advantage is achieved when one narrative is more believed than another, regardless of its factual basis or level of accuracy. For the listener or viewer, the most important thing is to be able to see herself as part of the story. Clearly, the logic-based discourse of the various governmental agencies involved in the Gibson case made no attempt to show the public how they fit into the larger narrative of environmental degradation and global warming. Evidently, they did not see bridging the gap between the legal case they were building and the public who heard about them raiding the factory in Nashville as part of their mission. Obviously, from one point of view, they were correct. But in the post 2016 election era when ‘fake news,’ foreign influence, propaganda and disinformation are now central questions of public debate, it’s fair to wonder if bridging that gap shouldn’t actually become part of their mission.

 

4. Quantifying the problem

One way to attempt to put figures on what happened in terms of narrative advantage is to count viewers on Youtube and classify the types of videos they are watching. The results tend to support the hypothesis stated above. At the time of this study, there were a total of 49 videos dedicated to this case on Youtube, 46 of which support the narrative of ‘government overreach,’ the rest being relatively neutral and none actually defending the actions of the government. Looking at the actual sources of information, two in particular account for nearly half the overall number of views: Fox News and Alex Jones’ Info Wars. (See graph).

graph of video stats

Unsurprisingly, Henry Juszkiewicz is interviewed on just over half of the available videos (25), so that the development of the ‘Gibson as victim of government overreach’ narrative was a joint effort on the part of the company and media outlets. He was also invited by Senator Rand Paul to testify in the US Senate.

Concerning the actual narrative itself, a common story line runs through all the partisan reporting of the case: most of them begin with a portrait of Gibson’s most famous guitars and the musicians who played them. Paul McCartney and B.B. King feature prominently. The camera then turns to the factory workers, a multi-ethnic group comprised of both men and women — an idyllic image of Gibson employees hard at work. Next, CEO Henry Juszkiewicz describes how armed federal agents made a surprise appearance, shutting down the factory and proceeding to search the premises. The journalist then announces – dramatically – that the object of the investigation is neither drugs nor terrorism but (after a pause)…wood. The camera then turns back to Juszkiewicz who expresses his innocent shock and the report concludes that the government has indeed gone amok. The viewer is thus left with two impressions: first, that there must be some hidden motive for such a disproportionate use of force, and second, that if it can happen there, it could happen anywhere. He has been successfully brought into the story.

workers & juszk for site

As to the ‘real motive’ behind the raid, the reports offer a different explanations, though most of them imply that it can’t be a coincidence that Juszkiewicz was a Republican donor and he was the object of an investigation by the Department of Justice under a Democratic administration. Most sources finish by allowing the CEO to put forward his main arguments for the company’s innocence, of which there are three. First, why would Gibson be singled out when other companies – whose owners or CEO’s have contributed to Democrats (i.e. Martin Guitars) – use the ‘same wood’ yet they weren’t raided. Of course, by the ‘same wood,’ Juszkiewicz means the same kind of wood, which is to say ebony or rosewood for fingerboards; but this does not address the question of where Martin’s or Taylor’s wood came from; presumably it did not come from Madagascar after having made deals with the military junta in power. Juszkiewicz then asks ‘why now?’ pointing out that they have always been making guitars with ebony and rosewood, though again, this does not address the question as to where this specific batch of wood came from as opposed to those used in the past by Gibson, which may not have been illegally harvested. Moreover, the fact of past innocence or guilt has no bearing at all on present guilt or innocence. Last, Gibson claims to have documents showing that the Madagasy government authorized the sale, so how can it be illegal? This point was already explained above, but the overall implication is that the DOJ was not actually trying to enforce the Lacey Act’s 2008 amendment, rather it was involved in a kind of subterfuge to catch the innocent company off guard.

The actual narration of the events by the various media outlets, while they all turn around the general anti-tyrannical theme, can be divided into various categories using the titles as a rough guide: the dominant theme is that of government overreach (“Government run amok—Gibson Guitar factory raid,” “Runaway Government—The Spectacle of Homeland Security’s Raid on Gibson Guitar,” “Gibson Guitars Raided by SWAT Team: Gov’t Gone Wild”), followed by incomprehension on the part of various parties (“Ted Nugent On Gibson Raids: “Illogical, Anti-American, and Contrary to Claims of Creating Jobs,” “Gibson Guitar Raid Unnecessary,” “Gibson Guitars raid madness”), and the shocked public (“Tea Partiers Outraged by Gibson Raid,” “Public Reacts to Feds Raid on Gibson Guitars,” “The Lacey Act Declarations Form! Are you kidding me?”); a sub-category of violence tends to emphasize the immanent danger of a government attack (“FED ATTACKS GIBSON,” “Gibson Guitar Company ‘Attacked’ by FEDs,” “Stringing Up Gibson Guitar by Rand Paul”), while other videos attempt to prove the illegality of government action (“Overcriminalization in America: Tuning out Justice,” “Judge Napolitano Slams DOJ Over Gibson Guitar Raid: ‘Unjustifiable, Use Of Force Was Criminal’,” “Gibson Guitar-Legal Extortion,” “Green Police Mafia Raid Gibson Guitars”), and finally the ‘real motive’ genre comes closest to purporting an actual government conspiracy theory (“Still no charges months after armed raid on Gibson Guitars,” “Blackburn: President Obama Should Come Clean on Gibson Guitar Raid,” “Was Gibson Guitars Also Targeted by the IRS?,” “Gibson Guitar Raids—Another Case Of Unfair Targeting By Obama Admin?,” “Obama’s Gestapo Raids Gibson Guitars for Being a Republican Donor”).

Corpus analysis is particularly helpful to better discern how the ‘tyrannical government’ theme functions linguistically. Using Antconc software as the analytical tool and the Brown corpus as a reference database, I constituted a corpus of some 55,000 words, the total content of the transcripts of all the videos, in order to determine actual word frequencies and their relative importance (keyness). The result of this analysis shows that one of the most significant semantic fields common to the videos constituting the corpus is that of military operations. The adjective-noun-verb combination of “federal” (103 occurrences) / “raid” (92) / “target” [as verb] (26), for example, paints a picture of some kind of military operation being carried out in a civilian context. While it is true that we are dealing with a form of hyperbole (in some sense the inspection did constitute a raid that was indeed carried out by federal agents) the agents were not in fact members of the armed services and the weapons referred to are actually service pistols safely carried in closed holsters.

The drift into fiction occurs mainly through the addition of adjectives like “semiautomatic” or “automatic” as applied to the noun weapons (14 occurences) and “bulletproof vests” (37), neither of which is true. Similar liberties are taken with numerical attributes as seen in the above quoted piece from Forbes where “30 men in SWAT attire” are claimed to have arrived, whereas video and photographs of the actual intervention show perhaps five men and women in polo shirts and khaki pants carrying clipboards, briefcases, cameras and bubble wrap. Apparently the image of a “SWAT (Special Weapons And Tactics) team” was particularly difficult to resist using as it occurred no fewer than 37 times. A significant minority of videos went even further, indulging in such terminology as “jackbooted,” “at the barrel of a gun,” “Nazi” and “Stalin”! These linguistic elements were accompanied by an equally unrestrained use of imagery taken from unidentified sources but having no relation whatsoever to the actual event showing black clad, helmeted troops ready to shoot in Hollywood style configurations. (See photos.) At this stage, we are now involved in purely fictional narrative.

 (See photos.)

agents for site

And yet it worked. No better proof of Juszkiewicz’s victory in gaining narrative advantage could be imagined that the actual fabrication by Gibson of a commemorative electric guitar made from the previously confiscated wood. In fact, Gibson settled the case by paying a fine and agreeing to make contributions to certain environmental groups (or “paying off environmentalist groups,” as one writer put it), after which the wood that had been seized was released back to Gibson, who immediately converted the scandal of its criminal activity into a marketing ploy: the “Government Series II” Les Paul guitar sells for a little over a thousand dollars and was designed to celebrate “an Infamous Moment in Gibson History.” (See photo.)

commemorative guitar

The L.A. Times later wrote, “The company produced 750 instruments for that first batch, which quickly sold out. Responding to continued demand, Gibson this year released about 1,000 more Government Series guitars, which sold out “in minutes,” according to Chief Executive Henry Juszkiewicz.

 

One might ask if it’s fair to blame Juszkiewicz for trying to put the best spin he could on what was clearly a potentially disastrous public relations fiasco. After all, the CEO of Gibson did not create the meta-narrative of government overreach, he only used it, somewhat instinctively no doubt, in the interest of his company. And on the other side, can one really expect the Department of Justice to do more than prosecute violations of federal laws? Yet, if the defenders of environmental standards don’t make the case for why they are important, who will? The problem, of course, is that the issues at hand are far too serious to accept defeat, even – maybe especially – in the battle for narrative advantage. For anyone who might think that those seeking to undo environmental protection legislation have missed the point, that it is mainly the alt-right fringe media who cares about manipulating language as a means of building support for their policies, consider the efforts of the late EPA administrator Scott Pruitt, under whose leadership references to climate change, greenhouse gases and clean energy disappeared from the EPA website.  Other Trump administration agencies soon followed suit because they understood the importance of winning the battle of words. Thus the gap between environmental law and public understanding widens. The question remains, if the Obama administration’s DOJ failed to bridge the gap, who can be expected to do it now? Maybe it’s up to us.

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