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The North Dakota ruling against Greenpeace is a threat to free speech | Sushma Raman and Anthony Romero

The first amendment guarantees freedom of speech and freedom of assembly. It will have little meaning if multibillion-dollar corporations can sue peaceful protesters out of existence for their speech. Yet, that’s exactly what was decided in a small courtroom in Morton county, North Dakota.

Energy Transfer – a Dallas-based fossil fuel company that is responsible for the Dakota Access pipeline (DAPL) – sued two Greenpeace entities in the US (Greenpeace Inc and Greenpeace Fund), and Greenpeace International. Energy Transfer was awarded more than $660m in a highly watched, month-long case. Greenpeace will appeal the verdict.

The company sued Greenpeace entities simply for peacefully supporting the Standing Rock protests against the Dakota Access pipeline back in 2016-2017. At issue in the North Dakota case are nine statements made by Greenpeace that are alleged to be defamatory. All of the statements at issue are legitimate expressions under the first amendment, and none of the statements in question were original to Greenpeace.

Energy Transfer also claims that Greenpeace made alleged false statements to financial institutions involved with financing the Dakota Access pipeline – and that based on those statements, the financial institutions took action that cost Energy Transfer hundreds of millions of dollars. The financial institutions, however, had their own commitments and conducted their own due diligence regarding the Dakota Access pipeline.

An initial lawsuit was filed in 2017 in federal court but it was dismissed in 2019. Energy Transfer immediately refiled a virtually identical suit in state court in North Dakota, a conservative state with strong ties to the energy sector. It is a jurisdiction where public sentiment ran against the DAPL protests – which were organized by the Standing Rock Sioux Tribe and Indigenous water protectors.

The ruling in the Energy Transfer case could have wide ranging consequences on first amendment rights in the US. By attempting to hold Greenpeace liable for everything that happened at Standing Rock, the case attempts to establish the idea that, for any participation in a protest, you can be held liable for the actions of other people, even if you’re not associated with them or if they’re never identified. It’s easy to see how this win for Energy Transfer could chill speech and silence future protests before they even begin.

Greenpeace USA was one of many organizations that supported the Indigenous-led resistance. Answering a request for trainings in de-escalation and non-violence, Greenpeace USA supported a delegation from the Indigenous Peoples Power Project (IP3) to travel to Standing Rock and run non-violence trainings. In no way did Greenpeace direct the Standing Rock protest movement, or engage in (or encourage others to engage in) property destruction or violence.

The legal tactic being used against the Greenpeace movement is a classic example of what’s known as a Strategic Lawsuit Against Public Participation (Slapp). Slapps are frequently used by wealthy people and corporations – in this case, the oil and gas industry – to silence constitutionally protected free speech.

Rather than a good faith attempt to seek remedies for harm, the goal of these lawsuits is often to bury the defendant in legal fees and waste their time on frivolous litigation. When used to silence criticism – including from whistleblowers, journalists and environmental advocacy organizations like Greenpeace USA and Greenpeace International – they essentially function as a tax on free speech by making it too expensive to speak truth to power. These abusive legal tactics can be used to sue critics into bankruptcy, and they serve as a threat to anyone who may want to speak up in the future.

Although 34 states and the District of Columbia have passed anti-Slapp laws, North Dakota is not one of them. And, while support for federal anti-Slapp legislation is growing in the US, there is currently no federal law on the books. That means that corporations can continue threatening abusive lawsuits in federal court or in states without protections. Without any provisions protecting public protest, corporate operations that harm the social good can proceed without restraint.

Perhaps equally worrisome, this case is an attack on the type of ordinary advocacy that organizations like Greenpeace and the ACLU – alongside many others – rely on to do their work. Everyday actions like attending a protest, signing a letter of support, or supporting communities at risk should never be considered “unlawful”. Otherwise, the future of everyone’s first amendment rights could be at risk.

If corporations can weaponize the court system to attack protesters and advocates for their speech, then any political speech or cause could become a target. And in an environment where the Trump administration is regularly leading dangerous attacks against our basic rights and liberties, including against the press and activists, this threat is all the more serious.

The right to protest and speak out must be embraced as a core pillar in a functioning democracy – even when that speech threatens the rich and powerful, and even when it’s speech we don’t agree with.