By Brian Hauss, Staff Attorney, Speech, Privacy, and Technology Project
If you want to experience 2017 in a nutshell, check out the billion-dollar lawsuit filed by an oil and gas company against Greenpeace and other environmental groups for their roles in the Standing Rock protests.
In a 231-page complaint filed by Donald Trump’s old law firm, Energy Transfer Partners, the company behind the Dakota Access Pipeline, claims that Greenpeace and its partners are engaged in a criminal network of fraud and misinformation. The paranoiac complaint, which includes references to “wolfpacks of corrupt” environmental nongovernmental organizations and describes Greenpeace as a “putative Dutch not-for-profit foundation,” would be amusing if it weren’t so dangerous.
It leverages the RICO Act, a statute that was meant for mob prosecutions, and defamation law to wage a scorched-earth campaign against nonprofits that spoke out against the pipeline’s construction near the Standing Rock Sioux Reservation in North Dakota. Fortunately, as we argue in a friend-of-the-court brief filed yesterday with a coalition of public interest groups, the First Amendment prohibits companies from suing their critics out of existence.
ETP’s lawsuit rests on two theories, neither of which holds water.
First, it argues that Greenpeace and the other defendants are engaged in a broad-based conspiracy to defraud the public by defaming the company. But many of the statements ETP alleges as false or defamatory — such as website posts stating that the tribal consultation and environmental review were rushed and lacked proper consultation — are clearly protected opinions on matters of vital public concern. Other offending statements, such as a post by the Sierra Club’s Executive Director stating “it has never been a question of whether a pipeline will spill but only of when the next disaster will happen,” don’t seem very unreasonable, given last month’s 5,000-barrel spill at the Keystone pipeline in South Dakota. ETP can’t demand punishment for this kind of core political speech just because it doesn’t like the message.
ETP’s second legal argument fares no better. It argues that, because Greenpeace and the other defendants are allegedly engaged in a vast “illegal Enterprise” to persecute ETP, they should be held liable for the allegedly unlawful actions of totally unrelated groups that also happen to oppose the Dakota Access Pipeline. For example, ETP alleges that the hacktivist group Anonymous is a “front” for Greenpeace and the other defendants, but this wild accusation is based on nothing more than the observation that Anonymous targeted the same entities being protested by the defendants.
If accepted, ETP’s theories would make any advocacy group liable for the actions of every fellow traveler, no matter how disconnected. For example, if the ACLU filed a lawsuit challenging a government surveillance program, ETP’s theory of liability could make us civilly, and perhaps even criminally, liable for the actions of any hacker that attempted to take down the program.
If the courts have any sense, this case won’t get to trial. But ETP doesn’t need to win in court to do major damage. Defending major lawsuits like these against deep-pocketed corporations is extremely expensive, time consuming, and stressful, particularly for cash strapped nonprofits. Even if they survive, advocacy groups have to divert serious resources away from their missions to litigate these issues. That’s why it’s important for courts to dismiss these cases early, before things get really expensive.
Protesters and advocacy groups should never have to fear the weight of groups like ETP as a condition for expressing their First Amendment rights. The court should see this lawsuit for what it is and toss it.