Democracy is in danger. When governments turn a blind eye, a surprising number of corporations resort to aggressive and even violent harassment and intimidation tactics to silence their critics.
I know this from personal experience. For almost 25 years, my organization EarthRights International has worked to seek justice for people who have suffered human rights abuses at the hands of corporations. We have taken many corporations that are household names in America, like Chiquita, Chevron, and Shell Oil, to court. Our clients come from places like Myanmar (Burma), Colombia, Nigeria and Peru, and have alleged human rights abuses such as torture and crimes against humanity in connection to these companies’ pursuit of profit. This “out of sight, out of mind” mentality is sadly all too common when powerful corporations operate in countries controlled by oppressive, corrupt or undemocratic regimes.
But now this phenomenon is hitting home. Emboldened by a corporate-friendly government, some of the country’s most powerful corporations, represented by powerful lawyers and law firms, are seeking to silence their critics, using litigation as a weapon to deter advocacy, free speech and association.
These legal bullying tactics are called “Strategic Lawsuits Against Public Participation” (or SLAPPs), because their main purpose isn’t to win in court. Their main purpose is to stop free speech and association, although these rights are guaranteed under the First Amendment of the U.S. Constitution. SLAPPs force individual activists, journalists, and NGOs to defend themselves in expensive and time-consuming litigation processes. In doing so, they hope to prevent us from fulfilling our core missions–such as exposing corporate abuse to human rights and the environment.
At a recent teleconference on SLAPPs that I moderated, Senator Sheldon Whitehouse (D-RI) described this tactic, drawing on his experiences as a prosecutor and public official: “They go on offense and pick a small organization that is a thorn in their side and just go to war on them with litigation designed primarily to outlast and outspend them, to go at their funding, to make them burn their resources in litigation. And because these big influencers are so big, they have the money to do that. They can basically win a breath holding contest fighting in the courts.”
When corporations use SLAPPs against organizations and individuals working in the public interest – like environmental groups, journalists, or #MeToo activists – it can create a chilling effect that deters the willingness and ability of public watchdogs to question the actions and decisions of those in power. Dissent and “speaking truth to power” are an essential part of our democracy, the first line of defense against the dangers of tyranny and oppression.
EarthRights International is part of a legal team that is fighting back against a particularly nefarious form of SLAPP. The Racketeer Influenced and Corrupt Organizations (RICO) Act is a federal law that was originally designed to go after criminal enterprises like the mafia, but today it’s being used against environmental and social justice organizations. Kasowitz Benson Torres LLP, one of Trump’s go-to law firms, has been leading the charge in two high-profile RICO lawsuits against a variety of NGOs and individuals critical of their corporate clients’ activities.
Kasowitz represents Energy Transfer Partners (ETP), a Texas-based pipeline company that is developing the controversial Dakota Access Pipeline. The pipeline has faced strong opposition from indigenous groups and their allies in the historic Standing Rock protests. ETP filed a SLAPP and RICO suit against Greenpeace USA, the Dutch nonprofit organization BankTrack, and the Earth First! Movement, as well as some individual activists, seeking $900 million in damages–more than enough to put these organizations out of business. And more than enough to make others think twice about criticizing the Dakota Access Pipeline or any of their other projects for that matter.
But wait, there’s more. In May 2016, with support from Kasowitz, logging giant Resolute Forest Products sued Greenpeace, Stand.Earth, and five individual activists for 300 million Canadian dollars (approximately 239 million U.S. dollars), using RICO. That case is still pending.
Both lawsuits authored by the Kasowitz firm allege that Greenpeace and the other organizations engaged in “racketeering activity.” Both of the lawsuits aggressively use the word “conspiracy” to describe efforts by advocacy organizations to join together in expressing concerns with these corporations’ activities.
When the court dismissed ETP’s lawsuit against BankTrack, the judge wrote, “While [ETP’s] complaint vaguely attempts to connect BankTrack to acts of ‘radical eco-terrorist,’ an international drug distribution and money laundering enterprise, and violations of the Patriot Act, BankTrack’s actual conduct in this was was allegedly writing a few letters to financial institutions and posting links to the letters on its website.”
Imagine the harm to this country and the planet if courts decided that activists and NGOs exposing the truth was economic or environmental terrorism, and that activists and NGOs speaking to each other could become a criminal conspiracy. As Ben Wizner, Director of the ACLU’s Speech, Privacy, and Technology Project, explained last week:
“There is a sense in which all social activism is a kind of conspiracy. Groups of like-minded individuals team up together and “conspire” to do activism to try to make the world a better place. But until these recent abusive lawsuits against Greenpeace and others, that activism has never been considered a criminal conspiracy. And it’s never been the law that if one activist breaks the law, that crime can be attributed to everyone in an entire movement with the goal of bankrupting that activism and that movement.”
SLAPPs do not just affect environmental and social justice activists. Journalists, especially from smaller media organizations, are vulnerable to the chilling effect that SLAPPs can impose.
Trevor Timm, Co-Founder and Executive Director of the Freedom of the Press Foundation, describes:
“In the past few years, we’ve seen an increasing number of wealthy individuals and corporations threaten to sue, or actually sue, public interest news organizations, merely over stories that they didn’t like. And it’s important to point out that in almost all of these cases, these lawsuits were never going to win. Anyone who glanced at the stories in question could tell they were protected by the First Amendment. But the problem is that these powerful people and corporations don’t actually care about winning. They care about inflicting damage.”
This damage can create a chilling effect. Timm said, “The corporations may ultimately lose, but the next time these outlets will want to report or investigate this company, they’ll think twice and potentially not go forward.”
We cannot expect the Trump Administration to take leadership on addressing this issue. The president himself might be one of the most prolific SLAPP bullies in history. He and his companies have brought numerous SLAPP lawsuits against journalists and others who have criticized him publicly. Here are at least seven examples.
We need to address this issue the way we would respond to other types of extreme bullying. While a powerful corporation might trample over the free speech rights of a single organization or individual, attempting to silence a unified movement is much more difficult. That is why ERI has helped launch a new coalition to fight against, and ultimately end, this latest SLAPP threat.
Today, we are launching the Protect the Protest Task Force, because we know from our own experience that these legal bullying tactics will prevail if they’re not fought vigorously and shut down. We are joined by a powerful group of organizations representing a variety of issues and sectors, including the ACLU, Greenpeace, Freedom of the Press Foundation, Amnesty International, Electronic Frontier Foundation, and many others. All of us are standing for free speech and association together–regardless of our particular “issue”, we are saying loud and clear that an attack on one of us is an attack on all of us.
Annie Leonard, the Executive Director of Greenpeace USA, summed it up nicely when she said, “These lawsuits are meant to deter public participation, but they have actually inspired a new wave of unity and resistance.”
The tide is turning.