When Environmental Group Greenpeace lost a nearly $670 million verdict over its role in the oil pipeline's protest this month, $15 billion in damages was awarded for the honor and loss of the pipeline owners rather than an actual demonstration.
The costly verdict has issued an alarm between activist organisations and some amendments experts, saying that litigation and damages awards can block freedom of speech far beyond the environmental movement.
“We're a scientist at Georgetown Law,” said David D. Cole, a professor of law at Georgetown and former director of the National Legal Affairs Bureau of the American Civil Liberties Union. “If you're a Sierra Club, NAACP, or NRA, or an anti-abortion group, you'll be very worried.”
The lawsuit, filed in 2019 by Energy Transfer, accused Greenpeace of masterminding an “illegal and violent scheme” to harm the company's finances, employees and infrastructure and block the construction of the Dakota Access Pipeline. Greenpeace fostered peaceful protests and countered that it had played a small role in demonstrations led by the Standing Rocksou tribes regarding concerns about its ancestral land and water supply.
An important part of the energy transfer case relied on claims for honor and loss. For example, the ju apprentice found Greenpeace slandered the company while working on the pipeline by saying it had “damaged cultural locations at least 380 sacred sites.”
Greenpeace called the Energy Transfer lawsuit a bluff of company critics. “This case requires everyone to be vigilant regardless of political trends,” said Sushma Raman, interim executive director of Greenpeace USA. “We all need to worry about the future of the First Amendment.”
Greenpeace said it would appeal to the Supreme Court in North Dakota, the state where the trial was held. It is widely expected that the issue of free speech will be clearly grasped through its filing.
However, Greenpeace was not the only party to call the First Amendment.
When he left the court, the lead energy transfer lawyer, Gibson's Trey Cox, Dan & Crutcher called the verdict “a strong affirmation of the First Amendment.” “Peaceful protest is an inherent American right,” he said. “But violent and destructive protests are illegal and unacceptable.”
Energy Transfer spokesman Vicki Granado described the verdict as “a victory for all law-abiding Americans who understand their freedom of speech and their right to break the law.”
Clashing comments shed light on the central tension of the debate. Where do you draw a boundary between peaceful protests and illegal activities?
“If people engage in non-expression acts like vandalism that blocks the roads so that vehicles and passersby cannot use those roads, the First Amendment does not intend to protect them,” said JT Morris, a senior supervisor at the Foundation for Personal Rights and Expression. “But peaceful protests, criticism of businesses about public concerns, all of which are protected.”
The verdict landed in the midst of a larger debate on the limitations of free speech. President Trump has accused the press of losing his honor, and it has been found that he is liable for his honor loss. His administration targets law firms he perceives as his enemy, and believes international students are too critical of Israel and the US foreign policy. Conservatives accused social media platforms of restraining freedom of speech and vowed to stop what is called online censorship.
“There's nothing shocking about this particular political situation anymore,” said Jack Weinberg, a prominent free-speak activist in the 1960s and later worked at Greenpeace. (He is also known for the phrase “Don't trust anyone over 30,” but that's not the way he said it.) “But that's wrong,” he said of the verdict.
In the United States, there have been high bars for long periods of honor loss lawsuits.
The First Amendment protects freedom of speech and the right to protest, and the 1964 Landmark Supreme Court decision, the New York Times v. Sullivan, strengthened these protections. To win a honour-damaged lawsuit, public figures must prove that the statement is false and made of “actual malicious”. This means the knowledge that the statement was false or recklessly ignored its truthfulness.
Carl W. Tobias, a professor at the University of Richmond Law School, said the ruling intentionally raised the bar to win a case of honor and loss. “It's extreme,” he said. “I'm going to do that.”
Eugene Woloff, a senior fellow at the Hoover Institute at Stanford University, pointed to the history of the famous incident. It was about an advertisement in 1960, when police acted against civil rights protesters in Alabama as an “unprecedented wave of fear.”
The police sue the paper and won. However, the Supreme Court overturned the verdict. The court held that it is necessary to protect such speeches, even if errors were included, to ensure robust public debate.
In Greenpeace's appeal, Vorov said that when Greenpeace's statement evaluates the verdict, the issue of whether Greenpeace's statement is a constitutionally protected expression of opinion is important.
Other looming questions: what were allowed to enter evidence in the first place, and whether directions to the ju apprentice are sufficient. He then said that if the statement turns out to be clearly false, there is sufficient evidence to show that Greenpeace is engaged in “reckless falsehood, so-called actual malicious acts.”
The honor-defective awards make freedom of speech cold, Voloff added, whether against Greenpeace or Inforers host Alex Jones.
In Greenpeace's case, nine statements found ju apprentices to be defamatory refer to energy transfers and its subsidiary Dakota Access. According to one statement, Dakota access officials said they “deliberately seced the burial site.” Another said the protesters encountered “extreme violence, including water cannons, pepper spray, concussive hand rena bullets, Taser, LRAD (long-range sound equipment), dogs, local and national law enforcement agencies, and energy transfer partners and their private security.”
Other statements were more common. “For months, Standing Rocksou has been resisting the construction of pipelines that run through tribal lands and waters that carry oil from Fracking Field in North Dakota to Illinois.”
The protests attracted tens of thousands of people from around the world from mid-2016 to early 2017 and were widely documented on news crews and social media.
Janet Alkia, chairman of the Standing Rocksou tribe, argued that Greenpeace's statement was true and not defamatory. “The false and selfish story of energy transfer, in which Greenpeace protested the Standing Lock and manipulated it into DAPL, makes our people aloud and disrespectful,” she said in a statement, using the abbreviation for the Dakota Access Pipeline.
She said “sequels of guard dogs threatening tribe members” has been released “on the news and on the internet.”
Videos of the incident in question have not been shown in court. Everett Jack Jr. of Davis, Wright Tremaine, Greenpeace's main lawyer, declined to discuss why.
The 1,172-mile pipeline, which was priced at $3.7 billion when it was announced, has been operating since 2017. It transports crude oil from North Dakota to Illinois.
During the trial, there was some debate over whether the pipeline had crossed the lands of Standing Rock or whether it would define the lands of the tribe. The pipeline is just outside the boundaries of reservations, but it goes beyond what the tribe calls unknown lands that they have never agreed to give up.
There was also debate as to whether the tribe's burial sites were damaged during construction. The experts working in the tribe proved to be so, but not the experts brought about by energy transfer.
Even if the statement was false, Cole said the defendant could not be held liable if there is a basis for them to believe it. He also predicted that if not overturned, the penalty would likely be reduced upon appeal.
Veteran First Amendment Attorney Martin Garvas led a delegation of lawyers to North Dakota to observe the trial. The lawyers say the ju court was biased against the defendant and the trial should have been moved to another county. He expressed concern that appeals to the US Supreme Court could be used to overturn Era vs Sullivan. He noted that Judge Clarence Thomas asked the Supreme Court to reconsider the case.
But Cole, Tobias and other experts said they don't expect the court to rethink the Era vs Sullivan.
Greenpeace has previously said the scale of the damage could force an organization to close its US operations.
The lawsuit nominated three Greenpeace entities, but focused on the actions of Washington-based Greenpeace, organising campaigns and protests in the United States, taking responsibility for over $400 million.
The second organisation, Greenpeace Fund, the Funding Division, was responsible for approximately $130 million. Greenpeace International, the third Amsterdam-based group, is responsible for the same amount. The group said its sole involvement is signing letters along with hundreds of other signatories and asking the bank to stop the pipeline loans.
Earlier this year, Greenpeace International submitted a countersuit to the Netherlands for energy transfer. The suit was filed under the European Union Directive, which was designed to combat what is known as the SLAPP lawsuit, or strategic litigation against public participation – legal measures designed to curb critics. (North Dakota state law in which Energy Transfer filed a lawsuit against Greenpeace does not have an anti-slap clause.)
The next hearing in the Netherlands case will be in July.
