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.
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.
The decision, by inimitable senior federal district judge Bill Wilson (a semi-retired judge from Arkansas sitting by designation in the District of North Dakota) dismisses all of Energy Transfer Partners utterly bogus claims against the Dutch NGO BankTrack. The Earthrights analysis is here. The dismissal is so blindingly obvious and necessary on the merits that it can be hard to cheer for: yay for the return of a bare minimum of normalcy!
However, the decision is notable for the power of the counter-punch it packs right at the heart of ETP’s RICO theory, i.e. that a participant in a social movement protest can be drawn into the notoriously impossible tar-pit of “conspiracy” and “racketeering” under RICO merely because someone else in the protest engaged in demonstrably illegal behavior. As Earthrights notes, the judge uses an example pretty clearly geared to catch the attention of ETP’s counsel, the Kasowitz Benson firm, which is famous for representing President Trump:
Under Energy Transfer’s interpretation, President Trump, who has solicited donations to help him end illegal immigration and stated immigrants are rapist, drug dealers, and animals, would be part of a RICO enterprise with racist criminals who have violently attacked immigrants on these express grounds.
Even more interesting will be to see what kind of attorney fees award BankTrack gets. BankTrack’s press release hopes that “the ringing rejection of this case will discourage other corporations from launching these kinds of SLAPPs.” Not sure about that. ETP got a hell of a lot of press for its narrative; even though the claims were obviously baseless from the beginning, the “sophisticated” legal press couldn’t help itself but report on them seriously, even breathlessly. (“Greenpeace should be worried.”) The lawsuit invariably put a lot of pressure on BankTrack in the process, and the organization is likely to be more “restrained” after the lawsuit even though it won — that’s called “chill” in First Amendment parlance. However, if ETP has to pay up a few hundred thousand dollars to cover every penny that BankTrack spent on the case and fully pay up environmental lawyer Robin Martinez at his top billable rate, then companies might really start thinking twice about filing these suits and organizations like BankTrack might be able to adopt a genuinely “bring it on” attitude, which is the only way to truly defeat the chill the lawsuit has already inflicted.