Update: On Feb. 14, the United States District Court for the District of North Dakota dismissed all claims against defendants in the lawsuit brought by Energy Transfer Partners.
“Justice has been served," wrote Greenpeace General Counsel Tom Wetterer. "This is a huge victory not just for Greenpeace but for anyone and everyone who has ever stood up against powerful corporate interests. Today’s decision to dismiss Energy Transfer’s baseless lawsuit against Greenpeace and others sends a clear message to companies trying to muzzle civil society that corporate overreach will not be tolerated. It is also a check on corporate efforts to silence dissent."
A harrowing lawsuit poses a serious threat to the First Amendment and press freedom, but it isn’t coming from legal action against a newspaper. Instead, it originates from legal action against environmental advocacy organizations.
Last year, Greenpeace—along with countless other environmental and human rights groups—reported on and advocated against the construction of the Dakota Access Pipeline due to environmental and human and indigenous rights concerns. In response, a company behind DAPL, Energy Transfer Partners (ETP), is suing Greenpeace, along with small Dutch organization BankTrack.
The lawsuit also names Earth First!, which it calls a “radical eco-terrorist group.” But because Earth First! is not an organization but rather a environmental movement and idea, the legal complaint was mailed to small environmental news publication called Earth First! Journal.
Filed last August, the $900 million lawsuit accuses them of defamation and racketeering, and essentially calls them a criminal enterprise. On February 8, ETP filed its opposition memo to Greenpeace’s motion to dismiss the lawsuit, but the organizations continue to fight to have it dismissed.
When we talk about censorship, we often center government actors. But increasingly serious threats to advocacy and free expression are also being brought by corporations. Lawsuits like ETP’s against Greenpeace—called strategic lawsuits against public participation (SLAPP)—are a kind of privatized censorship. As their name implies, SLAPP lawsuits are a tool used by corporations to silence critics and First Amendment-protected speech. They are often filed not because the plaintiff thinks they can win, but to harass and bleed the defendant of funds, and hopefully make them think twice about public criticism in the future.
In the suit, ETP alleges that the defendants engaged in criminal conspiracy to defame the company. ETP further claims that Greenpeace ran a media campaign that aimed to cut the company’s profits through its criticism and campaign for divestment in the company, and therefore should be punished. As the ACLU wrote, if ETP’s theory were adopted by courts, “Public campaigns, routine fundraising appeals, conversations with allies, and vindication of legal rights, in court could all be targeted.”
Outrageously, ETP is attempting to hold Greenpeace responsible for acts such as property destruction committed by completely unaffiliated groups and individuals simply because they advocated against the construction of a pipeline. Greenpeace is not even alleged to have done anything violent themselves.
“ETP’s theory would deter speech and association related to any issue that might provoke various forms of protest, that is to say, almost any controversial matter of public import about which people hold passionate views—the decision to go to war, the barring of immigrants from certain nations, the boundaries of police officers’ actions, the legality of abortion, and the tension between federal authority and local control, to name just a few,” the ACLU wrote in its amicus brief strongly opposing the lawsuit.
The press freedom implications of this claim are chilling. Say a news organization like the Washington Post publishes a story about activists boycotting internet services providers who refuse to treat digital content neutrality. Under this legal theory, internet service providers could conceivably sue the Washington Post and try to hold it responsible for the actions of unaffiliated individuals or groups because they read the story and took independent action.
ETP’s lawsuit is especially concerning because they are also claiming violations under the Racketeer Influenced and Corrupt Organizations Act (RICO), a sweeping law that originally intended to address organized crime like the mafia. It provides for extended penalties for acts performed as an alleged “criminal enterprise,” and it also prescribes damages of triple the amount claimed by the plaintiff.
Parties that bring SLAPP lawsuits don’t necessarily aim to win — instead, they are designed to intimidate their targets into silence on issues of public significance. Even filing such a suit drains their targets of energy and resources, and diverts defendants’ staff energy and time that would have been spent on advocacy work to drawn out litigation. BankTrack, one of the defendants in the ETP lawsuit, doesn’t have libel insurance, and because it’s based in the Netherlands, insurance would be unlikely to help with lawsuits filed in the United States. Corporations attempt to inhibit political advocacy work by making fighting the suit in court so overwhelmingly expensive that organizations abandon their position or risk their very survival.
Greenpeace, thankfully, refuses to bow to intimidation. Tom Wetterer, General Counsel for Greenpeace USA, told the Freedom of the Press Foundation that the lawsuit has only underscored the importance of Greenpeace’s work and emboldens the organization to fight even harder for environmental and humans rights.
This isn’t the first time Greenpeace has been targeted by corporations in SLAPP suits. The year before the ETP lawsuit in May 2016, logging company Resolute Forest Products filed a similar RICO SLAPP suit in which Greenpeace is also a defendant. It also alleged that Greenpeace’s campaigns against logging amounted to criminal enterprise, suing the nonprofit for approximately $300 million. While this suit was dismissed in October 2017 after a judge found that Resolute had not made proper legal claims, the company has amended its complaint and the case might not resolve for many months.
When the Resolute case was dismissed, Greenpeace executive director Annie Leonard wrote, “If it had won, Greenpeace USA would likely have been forced to close its doors.” These lawsuits could not just silence but shut down organizations completely, chilling their crucial advocacy work.
Resolute Forest Products is North America’s largest newsprint producer. While newspapers across the country are doing important work of publishing the news and keeping the public informed, they are doing so on materials produced by a company attempting to silence free expression.
Donald Trump’s former law firm, Kasowitz and Benson Torres LLC, is representing both Resolute and ETP in the suits.
It’s difficult to overstate the implications of these lawsuits for journalism and news organizations. While Greenpeace isn’t a news organization, this type of legal action has huge implications for news organizations. The use of defamation lawsuits by corporations as a tool for draining organizations of resources that publish critical speech is, disturbingly, increasingly frequent.
Billionaire Peter Thiel famously bankrolled a series of lawsuits against Gawker, contributing to the publication’s declaration of bankruptcy and eventual demise. After TechDirt published articles critical of businessman Shiva Ayyadurai, he sued the publication and its founder. The same attorney, Charles Harder, represented both plaintiffs. Last year in June, Sarah Palin filed a lawsuit against the New York Times that was ultimately dismissed which alleged that an editorial mistake was defamation. These are just a few of many recent examples.
From news organizations to nonprofits, those that seek to hold the powerful to account are all too often hit by these lawsuits that drain them of resources and attempt to deflate their work.
SLAPP lawsuits are baseless attempts to mischaracterize constitutionally protected speech and criminalize legitimate political protest, and the suit against Greenpeace should be dismissed immediately. These lawsuits are intended to intimidate critics into silence, and pose a fundamental threat to any advocacy that challenges the powerful.