Thanks in large part to the indigenous-led mass mobilization at Standing Rock, there has been a major shift in and for environmental activism. In turn, the government has gone to new lengths to suppress and criminalize this brand of activism.
With President Trump’s of the Keystone XL pipeline, the FBI, along with local law enforcement agencies, could ramp up its attacks and surveillance of environmentalists in the near future. So far, the government methods have been downright chilling: from media drones in the airspace above protests to that equate common protest tactics with domestic terrorism. Here are some of the creepiest ways the government has gone after environmental protesters in recent years:
1. Law enforcement authorities have partnered with private security companies to surveil activists and control protests.
Evidence of this collaboration was during last year’s protests of the Dakota Access Pipeline (DAPL) at the Standing Rock Indian Reservation. Specifically, email communications during a on protesters were leaked showing an alliance between the pipeline’s private security firm, the FBI, the Bureau of Indian Affairs, North Dakota’s U.S. attorney’s office, and local law enforcement agencies. Having various government agencies emailing private pipeline security as police attack nonviolent protesters raises major concerns that local law enforcement will only protect corporate financial interests, not the constitutional rights of protesters.
With the upcoming construction of the Keystone XL pipeline, and have clearly stated they will fight construction. Environmental protests against the pipeline are likely to engender the same type of surveillance we saw at Standing Rock — in fact, several local law enforcement authorities have already indicated their plans to prevent a repeat of the Standing Rock protests. We know of at least one meeting in the region between county law enforcement and a private petroleum company, where officials discussed plans to collaborate with federal agencies in monitoring protesters. Given our concerns about another wave of cooperation between our government and private security contractors, last week we submitted a FOIA request asking the government to tell us how they are working with such contractors in anticipation of Keystone XL protests.
2. Known FBI informants have infiltrated activist spaces and camps.
One FBI informant even pursued a romantic relationship with an indigenous activist. Oglala Lakota activist Red Fawn Fallis was in 2016 during the violent eviction of a main camp at Standing Rock. She was accused of shooting at deputies while she was pinned to the ground by police officers — with a gun that belonged to the FBI informant, Heath Harmon.
There are other instances of law enforcement infiltration of activist groups. After one violent against nonviolent “NoDAPL” protesters, police referenced an FBI informant’s of a serious injury against a protester, claiming it was .
3. The federal government has implemented “no-fly zones” to black out media coverage during heightened police crackdowns.
For the past several years, the Federal Aviation Administration — an agency tasked with allocating and regulating U.S. airspace — has been misusing its power to institute no-fly zones (also known as “temporary flight restrictions”) over mass protests. We first saw this after the 2014 killing of Michael Brown in Ferguson. The FAA responded to requests from the police by implementing a 37-square-mile no-fly zone over the protest areas, blocking aerial media coverage for 12 days.
In 2016 at Standing Rock, the FAA instituted no-fly zones during some of the most violent police crackdowns. The bans extended for miles surrounding the protests, blacking out aerial coverage of the protests. These attempts to prevent reporting about protests and policing violate the First Amendment. We told the FAA in both Ferguson and Standing Rock that they should never collaborate with police to silence the media, and they must consult with tribal leaders before instituting no-fly zones on tribal land. They responded to our demands in a letter in 2017, assuring us that our feedback would inform future TFRs.
4. Both lawmakers and law enforcement agencies are working to characterize indigenous-led nonviolent movements as domestic terrorism.
Specifically, lawmakers are working to enshrine laws that charge environmental activists with “economic terrorism.” Last legislative session, lawmakers in and considered such bills.
The government has associated protest activity with terrorism in other spheres as well. A law enforcement investigation led one of the FBI Joint Terrorism Task Forces to of at least three Standing Rock activists to request interviews without a warrant or subpoena. Law enforcement might be taking cues from its private partners: of the DAPL security firm, which were often shared with police, revealed internal depictions of the NoDAPL movement as a terrorist group, saying they “followed a jihadist insurgency model” and were “an ideologically driven insurgency with a strong religious component.”
5. States are passing “ag-gag” bills to criminalize First Amendment-protected undercover investigations of agricultural facilities.
These bills do a range of things to impede investigations. They make it illegal to record conditions at factory farms; to submit photo or video evidence of animal abuse to law enforcement more than after acquiring it (thereby hampering long-term research); and to conceal one’s identity in order to secure entry to an agricultural animal facility.
These bills are designed to intimidate journalists and whistleblowers from investigating conditions that threaten food safety or abuse animals. The ACLU has been challenging these laws in the courts — with some success. The ACLU of Idaho won a in the Ninth Circuit last month, where the court found the state’s attempt to criminalize concealing one’s identity to enter such a facility to be unconstitutional. We hope to see similar results in Iowa, where the ACLU filed suit against an ag-gag law this past October.
6. The government has sought constitutionally protected Facebook activity.
In a case from March 2017, a county prosecutor sought a search warrant for a NoDAPL Facebook group page. We intervened to quash the search warrant, arguing that it violated the First and Fourth Amendments, and Facebook agreed. After withdrawing their first two warrants, the county prosecutor eventually who helped the prosecutor gain access to the Facebook page.
Law enforcement organizations and some elected officials no doubt think they can chill speech and suppress dissent through these scare tactics. The Constitution, however, is on the side of the protesters.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.