Today, the logging company Resolute Forest Products will attempt to convince a federal judge in San Francisco that the environmental organization Greenpeace has engaged in mafia-like racketeering. The accusation is ludicrous and has already been dismissed by the same judge once before. But evidence suggests that Resolute’s leadership does not care whether the case gets dismissed again, because the company is using the lawsuit to intimidate its opponents.
Although Resolute is relatively unknown in the United States, the company is widely recognized in its home country of Canada as the world’s largest producer of newsprint. For years, environmentalists have criticized Resolute for its unsustainable logging practices in Canada’s boreal forest, a region that is home to indigenous peoples and diverse wildlife.
In May 2016, Resolute sued Greenpeace, Stand.Earth, and five individual activists for 300 million Canadian dollars (approximately 239 million U.S. dollars), using the Racketeer Influenced and Corrupt Organizations Act (RICO)—a law that was designed to prosecute the mafia. The company alleged that Greenpeace was an “illegal enterprise” engaged in “a pattern of racketeering activity.”
In October 2017, the court dismissed the case and ordered Resolute to pay the defendants’ legal fees. The company filed a slightly revised complaint three weeks later in order to keep the case going.
This lawsuit is part of a broader campaign that Resolute has initiated to silence its opponents. In 2013, the company also filed a multi-million dollar lawsuit against Greenpeace Canada and two staff members, which is still pending in court. The intended message is clear: environmental activists who dare to speak out against the company will pay an astronomical cost.
Resolute is not the only company to use the courts as a way to intimidate activists and journalists. The tactic is so common that it has a name: “Strategic Lawsuit Against Public Participation” or SLAPP.
Companies that file this type of lawsuit generally do so knowing that their case has no legal merit. But the goal of a SLAPP is not to win. With SLAPP suits, companies are using the courts as a pawn in a larger war. They “win” by creating a chilling effect that discourages public criticism and scrutiny. The goal is to silence critics by inundating them with legal costs, time-intensive litigation procedures, and the threat of having to hand over private communications to the company during the discovery process—including internal documents about advocacy campaigns against the very same company.
SLAPPs are a form of corporate censorship, a way for companies to silence their critics. Legislatures in 31 states have restricted these types of lawsuits because they infringe on free speech. Nevertheless, a number of loopholes exist, which allow companies to go “forum shopping” to find a court that will accept their claims.
Use of the RICO organized crime law is an especially troubling SLAPP tactic, because it allows plaintiffs to recover treble damages. If the plaintiff asks for $100 million in damages, then the court can order the defendant to pay $300 million. This provides the company with an opportunity to sue a civil society organization out of existence. It also allows companies to sue in federal court, which most big corporations prefer over state courts.
As Greenpeace wrote in a response to the Resolute lawsuit: “The impact on the Greenpeace Defendants from this litigation is enormous, but the potential chilling effect on speech by all advocacy groups is even greater, especially now that other multinational companies . . . have brought or are considering copycat lawsuits seeking to intertwine RICO remedies with defamation claims.”
Kasowitz Benson Torres LLC, a New York City-based law firm, is peddling the use of the RICO SLAPP tactic. The founding partner, Marc Kasowitz, has served as Donald Trump’s long-time personal attorney. The firm is known for its aggressive tactics, such as its questionable decision to send a threatening letter to the New York Times on behalf of Donald Trump.
The Kasowitz firm claims that it is shopping the RICO SLAPP tactic around to other potential clients. For the moment, it seems to be focusing on Greenpeace. In August 2017, the firm filed another RICO lawsuit against Greenpeace—this time, a $900 million suit also filed against BankTrack and EarthFirst!, on behalf of Energy Transfer Partners (ETP). ETP has been the target of activism in recent years because of its role in constructing the controversial Dakota Access Pipeline on the traditional land of the Standing Rock Sioux tribe.
Incidentally, in his first month in office, Donald Trump ordered the expedited approval of the environmental review process for the Dakota Access Pipeline. Since that time, the pipeline has experienced multiple malfunctions, including a spill of 210,000 gallons of oil in South Dakota.
Predictable and preventable environmental disasters such as this underscore the important role that civil society organizations play in our society. If companies such as Resolute and ETP succeed in their SLAPP lawsuits, activists across the country—ranging from neighborhood community organizers to national organizations—will face growing pressure to stay silent.
The Resolute lawsuit is not just about environmentalists; the outcome could affect those who advocate on issues as wide-ranging as labor rights abuses, consumer fraud, and privacy intrusions.
Free speech lies at the core of American democracy and it is quietly eroding, one lawsuit at a time. But activists and civil society organizations won’t go away silently. We will raise our voices, and fight for the right to do so. We will dissent. And we hope you will join us.