Simon Taylor, Co-founder and Director of Global Witness and winner of the Skoll Award among others, has an unflinching blog on up on the Business & Human Rights Resource Centre on Chevron’s vicious retaliatory litigation campaign against its own contamination victims in Ecuador and their lawyer, Steven Donziger:
Chevron has lost this fight. It has lost the legal fight in Ecuador (the jurisdiction it fought to be heard in, but which it now denigrates), where multiple courts have re-affirmed the judgement against Chevron and the multi-billion-dollar compensation penalty it must now pay. It has also lost the fight in the public domain, where its legal strategy seems to be a vindictive effort, by all means, to attack its opponents rather than be held accountable for its liabilities. This charade recently continued with a legal attack, via the New York Bar Grievance Committee, which then applied to court, succeeding in suspending the law licence for the Ecuadorian community’s US lawyer, Steven Donziger – a process which took place like a summary execution, with no hearing, and no opportunity for the provision of evidence. The bar designated Donziger an “immediate threat to the public order” – this about a man who graduated in the same law school class as President Barack Obama, and in his 25 years of law practice, has never received a single complaint.
Taylor goes on to describe some of the many reasons why Chevron’s claims against Donziger and the Ecuadorians are corrupt unreliable, as myself and many others have done. But the blog is more important for its attention to the broader context–which Taylor speaks to on the basis of two decades of experience investigating the extractives sectors–than on the specific details of the retaliation, egregious though they may be.
It is increasingly clear to me how the core of any realistic solution to the problem of “the new corporate playbook” of retaliation against human rights defenders must keep a focus on the forest, even when discussing individual trees. This goes against the instincts of many advocates, who know that drilling-down on the details of individual abuses is typically the best strategy both for garnering public attention and concretizing the human rights issues at stake.
But complex corporate retaliation cases (instances of SLAPPs, Strategic Lawsuits Against Public Participation) are different, and the modality of our response must be different too, for structural reasons.
While the ultimate purpose of a SLAPP is intimidation, it succeeds as much by way of distraction as by attack. A SLAPP is a play to affect the larger public discourse, not just (or not at all) to achieve a judicial outcome. Merely dragging the attention and miscellaneous anxieties of the public (and the targeted defendants) into the muck of the SLAPPer’s exaggerated, manufactured, decontextualized claims counts as a victory, even if the audience comes away disgusted with the SLAPP. The victory is distraction and drainage of time and resources, but also more than that.
Every advocate works to properly frame and promote her advocacy. Every advocate desperately competes for attention in a hyper-competitive environment of contemporary injustices and responsive causes, ideas, approaches. Every advocate I know is flooded with obligations, commitments, ambitions–there is too much work out there, in our moment, needing to be done.
A sophisticated corporate SLAPP can poison advocacy on all these dimensions with little regard to the merits. The corporation swaggeringly deposits itself not just on the advocate’s daily to-do list but also into the advocate’s public-facing identity and messaging. While advocates can transform the SLAPP’s presence in their frame to their advantage–as illustrating the vitality of their challenge to entrenched interests, for example–it cannot be removed from the frame. And while sometimes a SLAPP will generate its own attention, more often it is stealing from what allotment of public concern an advocate can realistically expect in total. Thus even where the public focuses on the bogus SLAPP and comes away disgusted, the victory can be hollow for the advocate’s underlying work.
Also, responding to bogus claims requires time and resources (lawyers, experts, document processing and other legal burdens) that many advocates just don’t have, which means they can drown in the muck of even the most meritless of claims. The truth does not just prevail on its own dime, at least not in the US legal system. Additionally, even the most bogus SLAPPs can put enormous emotional weight on targeted defendants, as I hope to explore in future writing.
Advocates know all these uncomfortable realities. Which means they can be intimidated (“chilled,” to put it more gently) by the prospect of meritless claims. They will steer clear, when they can, of corporations and controversies that threaten to muck up the delicate art of framing and advocating that they are engaged in.
Because a SLAPP is fundamentally a bid for attention and distraction, we must be careful in how we respond to new (and old) corporate attacks on advocates. Entering a corporate SLAPP frame even to dismantle it may be conceding too much. Sometimes it will be important to focus, as Taylor largely does, on contextual factors such as the opportunism of the attack (the extent to which it conveniently serves the SLAPPer’s larger strategic purposes), the reliability of the SLAPPer as a “prosecutor” of its claims, and similar.
An important new Anti-SLAPP movement is emerging. @SLAPPtaskforce #protecttheprotest. It is time for powerful advocacy, but also a time for analysis and conversation about what works and why. Anti-SLAPP efforts are not new. They have, however, been largely ineffective. We need to be looking deeper to find out why and guide our efforts going forward.