When the Greenpeace environmental group lost a verdict of almost $ 670 million this month for its role in oil protests, a quarter of billion dollars of the damage were not granted not by the real demonstrations, but for defamed the owner of the pipeline.
The expensive verdict has lent alarm among the activist organizations, as well as some experts in the first amendment, who said that demand and damage awards could dissuade freedom of expression far beyond environmental movement.
The verdict “will send a chill for the backbone of any non -profit organization that wants to get involved in any political protest,” said David D. Cole, professor of Georgetown Law and former National Legal Director of the American Union of Civil Liberties. “If you are the Sierra Club, or the NAACP, or the NRA, or an anti -abortion group, you will be very worried.”
The demand, presented by Energy Transfer in 2019, accused Greenpeace of organizing an “illegal and violent scheme” to damage finance, employees and infrastructure of the company and block the construction of Dakota’s access pipe. Greenpeace replied that he had promoted a peaceful protest and had played only a minor role in the demonstrations, which were led by the Sioux de Standing Rock tribe for concerns about his ancestral terrain and water supply.
A key part of the Energy Transfer case was based on defamation claims. For example, the jury discovered that Greenpeace defamed the company saying that it had “damaged at least 380 sacred and cultural sites” during pipeline, the first of the nine statements found defamatory.
Greenpeace described Energy’s demand to transfer an attempt to make forest to the company’s critics. “This case should alarm everyone, regardless of their political inclinations,” said Sushma Raman, interim executive director of Greenpeace USA. “We should all worry about the future of the first amendment.”
Greenpeace has said that he will appeal to the Supreme Court in North Dakota, the state where the trial was held. It is widely expected that the problems of freedom of expression are prominently in that presentation.
But Greenpeace was not the only part that invoked the first amendment.
When leaving the courtroom, the main lawyer of the energy transfer, Trey Cox de Gibson, Dunn & Crutcher, described the verdict “a powerful statement” of the first amendment. “Pacific protest is an inherent American right,” he said. “However, violent and destructive protest is illegal and unacceptable.”
Vicki Granado, a spokeswoman for energy transfer, described the verdict as “a victory for all Americans respectful of the law who understand the difference between the right to freedom of expression and the violation of the law.”
Confrontation comments shed a light on a central tension in the debate: where do you draw the line between the peaceful protest and the illegal activity?
“If people are dedicated to non -expressive behavior, such as vandalism, such as preventing roads in such a way that cars and passersby cannot use those roads, the first amendment will not protect that,” said Jt Morris, a senior supervisor lawyer of the Foundation for individual rights and expression, a non -profit organization that defends free expression through the ideological spectrum. “But the peaceful protest, criticism of companies in matters of public concern, are all protected.”
The verdict landed in the midst of a greater debate on the limits of freedom of expression. President Trump accused the media to defame, and has been found responsible for the defamation himself. His administration has directed law firms that he perceives as enemies, as well as international students considered too critical with Israel or the foreign policy of the United States. Conservatives have accused social networks platforms of suppressing freedom of expression and have promised to stop what they call online censorship.
“There is nothing in this particular political climate that is shocking,” said Jack Weinberg, who in the 1960s was a prominent activist of freedom of expression and then worked for Greenpeace. (He is also known for the phrase “Do not trust anyone over 30 years”, although it is not exactly as he said). “But it’s wrong,” he said on the verdict, “and will have deep consequences.”
For a long time there has been a high bar for defamation demands in the United States.
The first amendment protects freedom of expression and the right to protest, and a historical decision of the 1964 Supreme Court, New York Times v. Sullivan, strengthened those protections. To prevail in a lawsuit for defamation, a public figure must demonstrate that the statement was false and was made with “real malice”, which means that knowledge was false or reckless contempt for its veracity.
Carl W. Tobias, professor at the Faculty of Law of the University of Richmond, said the ruling intentionally raised the bar to gain a demand for defamation. “It’s extreme,” he said. “It is intended to be.”
Eugene Volokh, main member of the Hoover Institute of Stanford University, told the story of that famous case. He referred to a 1960 announcement in the times described by police actions against civil rights protesters in Alabama as “an unprecedented wave of horror.”
A police officer demanded the newspaper and won. But the Supreme Court revoked the verdict. The court ruled that protecting said speech was necessary, even if it contained errors, to guarantee a robust public debate.
In an appeal of Greenpeace, said Mr. Volokh, the evidence that demonstrates whether Greenpeace’s statements were true or false would be crucial to evaluate the verdict, as well as the question of whether Greenpeace’s statements were constitutionally protected opinions of opinion.
Other issues that are coming: what was allowed to enter into evidence in the first place, and if the jury instructions were enough. Then, he said, if the statements are clearly false, is there enough evidence to show that Greenpeace is dedicated to “reckless falsehood, acts of real malice calls?”
Any prize for the freedom of expression of the defamation, Mr. Volokh added, either against Greenpeace or against the host of Infowars Alex Jones, who was considered responsible for more than $ 1 billion for his false statements about the murder of children in the shooting at the Sandy Hook school.
In the Greenpeace case, the nine statements found by the jury are defamatory referring to energy transfer and its subsidiary Dakota Access. A statement said that Dakota Access personnel had “deliberately desecrated cemeteries.” Another said that the protesters had found “extreme violence, such as the use of water cannons, pepper spray, brain shock grenades, Tasers, Lrads (long -range acoustic devices) and dogs, of the application of the local and national law, and energy transfer partners and their private safety.”
Other statements were more general: “For months, the Sioux standing rock has resisted the construction of a pipe through its tribal land and waters that would transport oil from the North Dakota fracking fields to Illinois.”
The protests developed for months, from mid -2016 to the beginning of 2017, attracting tens of thousands of people around the world, and were widely documented by news teams and social networks.
Janet Alkire, president of the Sioux Standing Rock tribe, argued that Greenpeace’s statements were true and non -defamatory. “The false and selfish narrative of the energy transfer that Greenpeace manipulated the rock to protest DAPL is condescending and disrespectful with our people,” he said in a statement, using an abbreviation for Dakota’s access pipe.
She said that “threatening guard dog scenes of tribal members” were publicly available “in the news and on the Internet.”
The videos of the incidents in question were not shown in the trial. Everett Jack Jr. of Davis, Wright Tremaine, Greenpeace’s main lawyer, refused to discuss why.
The 1,172 mile pipe, with a price of $ 3.7 billion when it is announced, has been operating since 2017. It has been crude oil from North Dakota to Illinois.
During the trial, some arguments depended on whether the pipe crossed the earth of standing rock, or how to define the tribal land. The pipe is on the outskirts of the edges of the reserve, but crosses what the tribe calls lands without cedir that had never accepted to surrender.
There was also debate on whether the tribal cemetery was damaged during construction. The experts who work for the tribe discovered that this was the case, but the experts brought by the transfer of energy did not.
Even if a statement was false, said Cole, a defendant cannot be considered responsible if he had a basis to believe it. He also predicted that the penalty would probably be reduced in the appeal if not revoked.
Martin Garbus, a veteran lawyer of the first amendment, directed a delegation of lawyers to North Dakota to observe the trial. The lawyers have said that the jury was partial against the defendants and that the trial should have been transferred to another county. He expressed concern that an appeal before the United States Supreme Court could be used to cancel the times v. Sullivan. He pointed out that Judge Clarence Thomas has asked the Supreme Court to reconsider that case.
But Mr. Cole, Mr. Tobias and other experts said they did not expect the court to reconsider the times v. Sullivan.
Greenpeace has previously said that the size of the damage could force the organization to close their US operations.
The lawsuit appointed three Greenpeace entities, but focused on the shares of Greenpeace Inc., based in Washington, which organizes campaigns and protests in the United States and was considered responsible for more than $ 400 million.
A second organization, Greenpeace Fund, a fundraising arm, was considered responsible for around $ 130 million. A third group, Greenpeace International, based in Amsterdam, was considered responsible for the same amount. That group said that their only participation was to sign a letter, along with several hundred signatories, asking banks to stop the loans for the pipe.
Earlier this year, Greenpeace International presented a contrademanda in the Netherlands against energy transfer. This demand was filed under a European Union directive designed to fight what is known as Slapp demands, or strategic demands against public participation, legal actions designed to quell critics. (The state law in North Dakota, where the energy transfer presented its case against Greenpeace, does not have anti-Slapp provisions).
The next hearing in the case of the Netherlands is in July.
