If you want to experience 2017 in a nutshell, check out the billion-dollar lawsuit filed by an oil and gas company against Greenpeace and other environmental groups for their roles in the Standing Rock protests.
In a 231-page , Energy Transfer Partners, the company behind the Dakota Access Pipeline, claims that Greenpeace and its partners are engaged in a criminal network of fraud and misinformation. The paranoiac complaint, which includes references to “wolfpacks of corrupt” environmental nongovernmental organizations and describes Greenpeace as a “putative Dutch not-for-profit foundation,” would be amusing if it weren’t so dangerous.
It leverages the , a statute that was meant for mob prosecutions, and defamation law to wage a scorched-earth campaign against nonprofits that spoke out against the pipeline’s construction near the Standing Rock Sioux Reservation in North Dakota. Fortunately, as we argue in a friend-of-the-court brief filed yesterday with a coalition of public interest groups, the First Amendment prohibits companies from suing their critics out of existence.
ETP’s lawsuit rests on two theories, neither of which holds water.
First, it argues that Greenpeace and the other defendants are engaged in a broad-based conspiracy to defraud the public by defaming the company. But many of the statements ETP alleges as false or defamatory — such as website posts stating that the tribal consultation and environmental review were rushed and lacked proper consultation — are clearly protected opinions on matters of vital public concern. Other offending statements, such as a post by the Sierra Club’s Executive Director stating “it has never been a question of whether a pipeline will spill but only of when the next disaster will happen,” don’t seem very unreasonable, given at the Keystone pipeline in South Dakota. ETP can’t demand punishment for this kind of core political speech just because it doesn’t like the message.
ETP’s second legal argument fares no better. It argues that, because Greenpeace and the other defendants are allegedly engaged in a vast “illegal Enterprise” to persecute ETP, they should be held liable for the allegedly unlawful actions of totally unrelated groups that also happen to oppose the Dakota Access Pipeline. For example, ETP alleges that the hacktivist group Anonymous is a “front” for Greenpeace and the other defendants, but this wild accusation is based on nothing more than the observation that Anonymous targeted the same entities being protested by the defendants.
If accepted, ETP’s theories would make any advocacy group liable for the actions of every fellow traveler, no matter how disconnected. For example, if the ACLU filed a lawsuit challenging a government surveillance program, ETP’s theory of liability could make us civilly, and perhaps even criminally, liable for the actions of any hacker that attempted to take down the program.
If the courts have any sense, this case won’t get to trial. But ETP doesn’t need to win in court to do major damage. Defending major lawsuits like these against deep-pocketed corporations is extremely expensive, time consuming, and stressful, particularly for cash strapped nonprofits. Even if they survive, advocacy groups have to divert serious resources away from their missions to litigate these issues. That’s why it’s important for courts to dismiss these cases early, before things get really expensive.
Protesters and advocacy groups should never have to fear the weight of groups like ETP as a condition for expressing their First Amendment rights. The court should see this lawsuit for what it is and toss it.
Learn More About the Issues on This Page
-
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.