CLDC is one of the fastest-growing and most important civil liberties organizations in the country. Like so many others, they are outraged at what the New York federal courts are trying to do to Steven Donziger, who is being prosecuted under the criminal law (contempt of court) by private lawyers with an undisclosed relationship to his litigation opponent Chevron, and who is currently in the middle of an effective 13-month pretrial “sentence” of home confinement before he even gets a trial. A recent sign-on letter by the National Lawyers Guild garnered 475 signatures from individuals and groups around the world. People are standing up and speaking out on this. It is time. CLDC press release here.
A fantastic and necessary essay series just published by the Toronto-based Centre for International Governance Innovation (CIGI) on the above subject, with a range of authors (many if not most Indigenous) providing serious and creative viewpoints on the current state of Indigenous politics, governance, and government relations in Canada. My contribution is here. I will update this to discuss some of my thoughts about particular contributions shortly, but wanted to get the link across as soon as possible.
Headlines from the growing anti-SLAPP movement on the recent decision by Judge Tigar in N.D. California dismissing most of Resolute’s bogus claims against Greenpeace, some of its employees, and STAND.earth:
A Win for Advocacy: Court Dismisses SLAPP Suit Against Environmental Activists [CIEL]
District Judge Dismisses Corporate-Led Racketeering Claims Against Activist Groups [Taskforce]
DISMISSED! Vast Majority of Lawsuit Defeated! [Greenpeace]
That last one hints a little bit at the problem that remains: the court didn’t dismiss the Resolute’s SLAPP suit entirely, it left a few defamation claims hanging. That means that litigation against Greenpeace (and certain of its individual employees caught up in this sludge match) are heading into intrusive discovery, burdensome summary judgment proceedings, and potentially trial. Per Resolute’s lawyer: “We are pleased that the Court has correctly held that Resolute has properly alleged defamation and unfair competition claims and we will be proceeding aggressively through discovery to trial.”
I get the inclination to declare victory, build momentum and positive energy, and start framing Resolute’s tactics as failing practically as well as ethically. It is also important that Judge Tigar took RICO off the table entirely and returned the lawsuit, however sordid, to the routine realm of defamation. Greenpeace has an incredibly strong case and will almost surely win on summary judgment. So starting the march toward “victory” is perhaps the right move and perhaps the one I would be making if I were representing these defendants.
But for the larger anti-SLAPP movement, it is far too quick and far too simple. As an advocacy matter, the recent anti-SLAPP campaign work of course has a larger focus than just RICO attacks, which are rare. The focus is on all litigation of a certain purpose and on a certain tactical logic, namely using the burden and anxiety produced by litigation to chill speech and vigorous participation by advocates on public issues like environmental defense. These characteristics can apply to defamation claims just as well as RICO. From this perspective, the ugly reality is that the headlines could read: Judge allows lawsuit targeting Greenpeace environmental advocacy to proceed.
And while it is good that the case is narrower, Resolute’s ability to impose burden and intrude on Greenpeace’s constitutionally protected associational activity dramatically escalates past the motion-to-dismiss stage. Resolute will seek dozens of depositions, where its lawyers will stray from the relevant, narrow topic — but the rule at depositions is that you have to answer a question (and challenge it only later) unless you are asserting a privilege. Resolute will also ask for the universe in terms of documents, and while it is easier to narrow document productions on the basis of privilege objections, if Greenpeace resists on the basis of its constitutional rights or privileges, it will have to engage in significant additional legal briefing and maybe even compile an incredibly burdensome log of all documents they claim are privileged.
Finally, it is hard not for conspiracy-minded among us (or those of us who have unfortunately learned to respect the deviousness of the warlike legal teams these companies hire) not to wonder if this was Resolute’s plan all along. As mentioned, the defamation claims are weak. So weak. They should have been dismissed. But by packing them next to a scarecrow army of 296 utterly batshit RICO claims, the weak defamation claims start to look reasonable.
It also appeals to the solomonic instinct, which is strong in every judge I’ve ever been in front of in 15 years of practice. Give a little bit to one side, a little bit to the other. When you issue a decision and both sides claim victory, that’s a smart judge.
Here, all it means it that well over two years after it was filed, now thousands of pages of filings and millions of dollars of legal fees later, we are going to have to keep watching the Resolute v. Greenpeace case. Greenpeace obviously has the energy and resources to keep fighting — and most critically, it has the unwavering support of the environmental and human rights communities. But for most of the rest of the advocates in those communities, watching the case, the SLAPP dynamic is still hard at work.
As Michael Marx told Inside Climate News last year:
An attack against Greenpeace and Stand, two groups that have been really at the forefront of corporate campaigns, is not just an attack on those groups but is an attack on the strategy that NGOs have used to really bring corporations back under control in terms of their social and environmental behavior.
With huge respect to Greenpeace’s victory for what it was, the recent decision is unlikely to dent growing corporate enthusiasm for SLAPP tactics. In fact, perhaps the opposite. Thus an equally valid strategic response might have been to decry it as a failure to confront the main problem presented by the case. Yes, a federal judge needs to fairly process a litigant’s claims. But Resolute’s lawyers used their bogus claims, and the hyperbolic attack language in their briefs, to frame the perception of reasonableness around the facts of the case (and the larger identity of Greenpeace and movement activism) powerfully in their favor. Anti-SLAPP efforts should be aimed at correcting that shift, which in turn could require more loudly defending the principled outer-ring argument on their end, i.e. no SLAPPs on advocacy, period, go home. From this perspective, the early celebrations of victory can be seen as validating the result of a framework that is still dangerously skewed against vigorous advocacy.
U.S. attorney Steven Donziger, who has represented indigenous and other Ecuadorian Amazon communities in the historic environmental case against Chevron Corporation for over 25 years, is petitioning the Inter-American Commission on Human Rights, claiming that by embracing Chevron’s retaliatory litigation and “demonization” campaign against him, U.S. judicial bodies and other public authorities have inflicted and enabled severe violations of his rights to due process, freedom of expression and association, privacy, and property under applicable international human rights instruments. This Briefing Memorandum serves to apprise the public of the content of the petition, the disturbing facts of the persecution suffered by Mr. Donziger, and the larger context of the threat that such attacks pose to human rights and environmental advocacy more broadly.