New federal anti-SLAPP legislation would protect activists and whistleblowers from frivolous lawsuits

Federal legislation introduced last week would help human rights defenders, environmental activists and ordinary people fight baseless lawsuits designed to drain them of their resources. Strategic Public Participation Lawsuits, or SLAPPs, seek to silence critics of companies or individuals by subjecting them to lengthy and costly litigation. The goal is not to win, but to deter unflattering reviews.

The SLAPP Protection Act of 2022, introduced last Thursday by Rep. Jamie Raskin (D-Md.), would create a pathway for a judge to quickly dismiss a lawsuit if he finds the allegations amount to protected speech by the First Amendment. It would also give judges the power to force those who are behind SLAPP lawsuits to repay the money their targets have spent on lawyers.

“This legislation is super powerful,” said Greenpeace General Counsel Deepa Padmanabha, who is facing two multimillion-dollar lawsuits brought by companies against the environmental organization. “SLAPPs are a desperate attempt to silence resistance, to silence exposure, to silence the public watchdogs of exposing the fossil fuel industry for what it is.”

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The new legislation is part of a renewed effort to advance anti-SLAPP laws after environmental organizations and individual land and water defenders faced massive federal lawsuits under of the RICO Act (Racketeer Influenced and Corrupt Organizations Act), a law designed to eliminate the mafia. In 2018, a coalition called Protect the Protest was launched to push back against RICO cases and advancing anti-protest laws in more than a dozen states. The coalition has helped energize the longstanding efforts of groups like the Public Participation Project to advance federal and state anti-SLAPP laws.

Wealthy Pollsters drive a significant share of SLAPP-style suits. A report released last week by non-profit organization EarthRights International identified 93 lawsuits filed by fossil fuel industry players over the past decade that had the qualities of a SLAPP by targeting, for example , an activity protected by the First Amendment, by making disproportionate damage claims or dragging out of the case. They were aimed at industry critics ranging from international environmental organizations to fracking protesters to TV host John Oliver.

However, opponents of the oil and gas industry are not the only SLAPP targets. “With the MeToo movement, you’ve seen countless survivors (of sexual harassment and assault) face frivolous lawsuits for speaking out about their experiences,” said Evan Mascagni, policy director of the Public Participation Project. The lawsuits he reviewed involved Yelp reviewers leaving negative reviews, community members criticizing developers at local town meetings, and journalists writing unflattering reports about wealthy men.

For Padmanabha, the stakes are high. “We have 10 years to act on the climate crisis — probably even less than that,” she said, noting that SLAPP suits divert time, money and dialogue from bigger issues. “While protecting our right to express ourselves, to organize is critically important to the fight against climate change, this money can and should be spent on tackling the climate crisis that lies ahead.”

The first state anti-SLAPP law was passed in Washington in the 1980s. Since then, 32 states and the District of Columbia have put such laws on the books. However, their strength varies considerably. In 2020, the Uniform Law Commission, a nonpartisan group made up of government-appointed representatives from each state, attempted to change that by introducing model anti-SLAPP legislation, which has since been passed in three states.

Yet plaintiffs can easily avoid the regulations by suing in one of the 18 states without SLAPP protections or in federal court.

In 2016, logging company Resolute Forest Products filed a $300 million RICO lawsuit against Greenpeace in federal court, alleging that Greenpeace and its allies constituted a criminal enterprise and disseminated defamatory information about Resolute. “Maximizing donations, not saving the environment, is Greenpeace’s true goal,” the lawsuit asserted.

A year later, a judge ruled that Resolute’s action was a SLAPP suit under California law and forced the company to reimburse Greenpeace for $816,000 in legal fees associated with the state-level allegations. . However, the suit’s federal claims were not affected by the decision. Although the majority was ultimately dismissed, Greenpeace was unable to recoup the costs of fighting these claims. According to Padmanabha, the federal bill would likely have ensured that Resolute also covered the environmental organization’s costs for federal claims.

Something similar happened in 2017 when Energy Transfer, the company behind the controversial Dakota Access Pipeline, hired the same law firm as Resolute to sue Greenpeace for $900 million under RICO. The lawsuit claimed that Greenpeace conspired with others to frame the Native-led Standing Rock movement as a fundraising stunt. Eventually, a judge dismissed the lawsuit, but, without a federal anti-SLAPP law, Greenpeace had no way to recoup its legal costs.

A federal law would not have solved everything. Six years later, Greenpeace is still challenging two of the logging company’s claims in court. As for Energy Transfer, the pipeline company quickly filed a version of its lawsuit in North Dakota, where there is no anti-SLAPP law. Padmanabha said the energy transfer suits cost the organization millions of dollars.

The Business and Human Rights Resource Centre, an international NGO focused on promoting human rights in business, places SLAPPs within a broader range of attacks used internationally by the industry to silence the opponents. According to a report by the organization, these tactics include arbitrary detention, trumped up charges and abusive subpoenas that compel human rights defenders to divulge personal information.

“In the United States, thankfully, we don’t see assassinations happening,” said Kirk Herbertson, senior policy adviser for EarthRights International. “The militarization of the justice system is the tactic that seems to be the thing here.” The report released last week by EarthRights identified 152 cases of legal harassment in the United States by the fossil fuel industry over the past decade, including 93 SLAPP lawsuits.

Herbertson helped launch the Protect the Protest coalition in 2018 in response to the Greenpeace lawsuits. “For a number of organizations, this posed an existential threat to our work,” Herbertson said. “The idea was that if you come for one of us, you come for all of us.”

The group has submitted amicus briefs in SLAPP lawsuits, collaborated on litigation communications, and advanced policies to protect the targets of those lawsuits.

Protect the Protest has also lobbied against a slew of so-called critical infrastructure bills advancing in the US since 2017, which increase charges for fossil fuel protesters who encroach on private property, and sometimes include penalties. for organizations that “conspire” with intruders.

The new federal bill is narrower than the toughest state anti-SLAPP laws, giving plaintiffs the ability to avoid paying defendants’ legal fees by arguing they didn’t know they were filing a lawsuit. frivolous. This is due in part to federal rules that state that the civil litigation process should favor neither plaintiffs nor defendants.

It is also the result of years of organizing after the failure of a 2015 federal anti-SLAPP bill. In a hearing on SLAPPs at the time, a legal scholar testified that this version of the legislation would constitute barriers to public interest litigation. Mascagni said he and others have worked hard since then to ensure the new bill could gain broad support.

Still, he argues that the exceptions in the bill could be more limited. “If you’re a competent plaintiff’s attorney and have a legitimate cause of action, you don’t have to worry about anti-SLAPP laws,” he said.

ExxonMobil recently tried to use Massachusetts’ anti-SLAPP law to convince a judge to dismiss the state’s attorney general’s lawsuit alleging the company misled investors and consumers about the connection between fossil fuels and the crisis. climatic. The judge denied the request.

During a hearing before the House Oversight Subcommittee on Civil Rights and Civil Liberties last Wednesday, Daren Bakst, senior researcher for environmental policy and regulation at the Heritage Foundation, argued that these are the people who lean left politically who most often try to silence those who lean on energy issues. Presenting arguments that align with industry talking points, he highlighted claims by individuals that fossil fuel industry CEOs should go to jail and the Biden administration encouraging social media companies to limit the spread of climate misinformation. He did not respond to requests for comment.

Mascagni hopes the bill will garner bipartisan support, as anti-SLAPP bills have in many states. He pointed out that even the American Legislative Exchange Council, an organization linked to the billionaire fossil fuel brothers Koch that is made up of right-wing lobbyists and lawmakers, released a model anti-SLAPP bill, apparently after being asked by Yelp. A 2020 op-ed by Bill Easley, a senior policy analyst at the Koch-linked political advocacy group Americans for Prosperity, went so far as to call Energy Transfer’s lawsuit against Greenpeace a SLAPP suit and called for better protections.

Without national protections, Padmanabha said businesses and individuals with deep pockets could pay for censorship. “There must be a mechanism in place to remove the price of free speech,” she said.

About Charles D. Goolsby

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