Federal legislation introduced last week will help human rights defenders, environmental activists and ordinary people fight frivolous lawsuits aimed at depriving them of their resources. Strategic anti-public participation lawsuits, or SLAPPs, aim to silence critics of companies or individuals by subjecting them to time-consuming and expensive litigation. It’s not about winning, it’s about curbing unflattering criticism.
The SLAPP Protection Act of 2022, introduced last Thursday by Rep. Jamie Raskin (D-Med.), would create a path for a judge to quickly dismiss a lawsuit if they find the allegations constitute First Amendment protected speech. It would also allow judges to force those behind SLAPP lawsuits to reimburse their victims for the money their victims spent on lawyers.
“This legislation is very powerful,” said Greenpeace General Counsel Deepa Padmanabha, who is fighting two multimillion-dollar lawsuits filed by corporations against the environmental group. “SLAPP is a desperate attempt to silence resistance, to silence public watchdogs from exposing the fossil fuel industry for what it is.”
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The new legislation is part of a renewed effort to advance anti-SLAPP laws after environmental groups and individual land and water defenders faced massive federal lawsuits under the Racketeer Influenced and Corrupt Organizations Act (RICO), a law designed to eliminate mafia. In 2018, a coalition called Protect the Protest was formed to oppose RICO cases and anti-protest laws advancing in more than a dozen states. The coalition helped reinvigorate long-standing efforts by groups like the Public Engagement Project to advance state and federal anti-SLAPP laws.
Money polluters drive a significant portion of SLAPP-style suits. A the report published last week by the nonprofit EarthRights International identified 93 lawsuits filed by fossil fuel industry actors over the past decade that exhibited SLAPP qualities, such as targeting activities protected by the First Amendment, making disproportionate damage claims, or dragging out the case. They have targeted critics of the industry, from international environmental groups to fracking protesters and TV host John Oliver.
Opponents of the oil and gas industry are not the only targets of SLAPPs, however. “With the MeToo movement, you’ve seen countless survivors (of sexual harassment and assault) face senseless lawsuits for speaking out about their experiences,” said Evan Mascagni, policy director of the Public Engagement Project. The suits he handled included Yelp commenters who left negative reviews, community members who criticized developers at local town hall meetings and journalists who wrote unflattering stories about wealthy people.
The stakes are high for Padmanabha. “We have 10 years to act on the climate crisis — maybe even less,” she said, noting that SLAPP suits divert time, money and dialogue from more important issues. “Even though protecting our right to speak out, to organize, is very important to the fight against climate, this money can and should be directed to the real fight against the climate crisis before us.”
The first state anti-SLAPP law was passed in Washington in the 1980s. Since then, 32 states and the District of Columbia have enacted such laws. However, they differ significantly in strength. In 2020, the Uniform Law Commission, a nonpartisan group made up of government-appointed representatives from each state, attempted to change that by introducing a model anti-SLAPP legislationwhich has since been adopted in three states.
However, plaintiffs can easily avoid the rules by filing suit in one of the 18 states that lack SLAPP protections or in federal court.
In 2016, logging company Resolute Forest Products filed a $300 million RICO complaint against Greenpeace in federal court, alleging that Greenpeace and its allies formed a criminal enterprise and spread defamatory information about Resolute. “Maximizing donations, not preserving the environment, is Greenpeace’s true purpose,” the lawsuit claimed.
A year later, a judge ruled that Resolute’s action was a SLAPP action under California law and ordered the company to reimburse Greenpeace $816,000 in legal fees related to the state-level allegations. However, the ruling was not affected by the court’s federal claims. Although most of them were eventually dismissed, Greenpeace was unable to cover the costs of fighting these allegations. According to Padmanabha, the federal bill would likely ensure that Resolute would also cover the environmental organization’s costs of federal claims.
Something similar happened in 2017 when Energy Transfer, the company behind the controversial Dakota Access Pipeline, hired the same law firm as Resolute to sue Greenpeace for $900 million under RICO. The lawsuit alleged that Greenpeace conspired with others to create the indigenous-led Standing Rock movement as a fundraising stunt. A judge ultimately dismissed the lawsuit, but without a federal anti-SLAPP statute, Greenpeace had no way to recover its legal fees.
Federal law would still not decide. Six years later, Greenpeace is still fighting two claims by the logging company in court. On the power transmission side, the pipeline company quickly rewrote a version of its lawsuit in North Dakota, which has no anti-SLAPP law. Padmanabha said the Energy Transfer suits have cost the organization millions of dollars.
The Resource Center for Business and Human Rights, an international nongovernmental organization that focuses on promoting human rights in business, places SLAPP suits among a broader range of attacks used by the industry internationally to silence opponents. Tactics include arbitrary detentions, trumped-up charges and abusive subpoenas that force human rights defenders to release personal information, the report said. the report by organization.
“In the US, fortunately, we don’t see killings,” said Kirk Herbertson, senior policy adviser at EarthRights International. “Weaponizing the legal system is a tactic that seems to be important here.” The the report published last week by EarthRights found 152 cases of prosecution in the US by the fossil industry over the past decade, including 93 SLAPP suits.
Herbertson helped found the Protect the Protest coalition in 2018 in response to the Greenpeace lawsuits. “For a number of organizations, this posed a threat to the existence of our work,” Herbertson said. “The idea was that if you come for one of us, you come for all of us.”
The group has presented trial court records in SLAPP actions, collaborated on litigation communications and advanced policies to protect the subjects of such actions.
Protect the Protest also opposes a number of so-called critical infrastructure bills moving across the US since 2017, which raise fees for fossil fuel protesters who trespass on private property and sometimes include fines for “collusive” organizations with violators.
The new federal bill is narrower than the strongest state anti-SLAPP laws, allowing plaintiffs to avoid paying defendants’ legal fees by claiming they didn’t realize they were filing a frivolous lawsuit. It is partly thanks to federal rules that the civil litigation process must not favor either plaintiffs or defendants.
It’s also the result of years of organizing after a federal anti-SLAPP bill failed to advance in 2015. At the SLAPPs hearing at the time, the jurist testified that such a version of the legislation would create barriers to public interest litigation. Mascagni said he and others have been working hard since then to make sure the new bill can garner broad support.
However, he argues that the bill’s exemptions could be more limited. “If you’re a competent plaintiff’s attorney and you have a legitimate cause of action, you don’t have to worry about anti-SLAPP laws,” he said.
ExxonMobil recently tried to use Massachusetts’ anti-SLAPP law to persuade a judge to dismiss a state attorney general’s lawsuit alleging the company misled investors and consumers about the link between fossil fuels and the climate crisis. The judge denied the motion.
On a hearing Before the House Oversight Subcommittee on Civil Rights and Civil Liberties last Wednesday, Darren Bakst, senior fellow for environmental policy and regulation at the Heritage Foundation, argued that it is people who lean politically to the left who are more likely to try to silence those who lean right on energy issues. . Making arguments that agree with industry topics for conversation, he pointed to claims by individuals that fossil fuel industry CEOs should go to prison and the Biden administration calling on social media companies to curb the spread of climate misinformation. He did not respond to requests for comment.
Mascagni hopes the bill will gain bipartisan support, as have anti-SLAPP bills in many states. He noted that even the American Legislative Exchange Council, an organization linked to the fossil fuel billionaire Kochs made up of lobbyists and right-wing lawmakers, has published model anti-SLAPP bill, apparently after a Yelp call. A 2020. Published by Bill Easleya senior policy analyst at the Koch-affiliated political advocacy group Americans for Prosperity, went so far as to classify Energy Transfer’s lawsuit against Greenpeace as a SLAPP suit and called for a better defense.
Without national protection, Padmanabha said companies and individuals with deep pockets would be able to pay for censorship. “There has to be a mechanism to remove the price tag on free speech,” she said.