Latest news with #Slapp
Irish Examiner
21-04-2025
- Business
- Irish Examiner
Long-awaited defamation legislation could be passed by summer
The long-awaited change to Ireland's defamation laws could be passed before the summer recess. The bill had been advanced in the previous Dáil, but lapsed upon the general election, with the media industry keen to see it passed quickly. Government sources said the bill was envisaged to reach committee stage on April 30 and could be passed as soon as July, with justice minister Jim O'Callaghan set to see changes to the defamation system finally passed. Passing the bill is included in the programme for government, though a 90-day deadline to do so has passed. The new bill, published last year, is an update to the initial 2009 legislation, which is widely seen as no longer being fit for purpose. It will see the introduction of protections against so-called frivolous Slapp (strategic lawsuit against public participation) proceedings — actions perceived as allowing the wealthy to avoid scrutiny by the lodgement of punitive court actions. The legislation includes a statutory power for the circuit court to issue a 'Norwich Pharmacal' order, directing a digital services provider to identify an anonymous poster of defamatory online material. The Government hopes this will significantly reduce the legal costs for a person subjected to such comments. Speaking to RTÉ's Clare Byrne Show last week, media minister Patrick O'Donovan said he had met with Mr O'Callaghan recently and the justice minister was "committed" to the legislation. In a parliamentary response in recent weeks, Mr O'Callaghan said the bill included measures required as part of the EU Anti-Slapp Directive, such as early dismissal of Slapp proceedings and the availability of security for costs, which are already available under Irish law. "However, the bill provides, in line with the requirements of the directive, that these applications should be dealt with as expeditiously as possible in the context of Slapp proceedings. Targets of strategic lawsuits against public participation will also be able to seek a declaration from the court that proceedings taken against them are abusive court proceedings against public participation. "The bill also provides for the awarding of costs on a legal practitioner and client basis, or a legal practitioner and own client basis. These are both more advantageous to the defendant than the usual party-to-party basis on which costs are awarded," he added. At a Leinster House briefing for TDs and senators last week, chair of the newspaper representative body Newsbrands Ireland Sammi Bourke said while the 90-day deadline for passing the bill had lapsed, the industry was keen to see something done. "Our current laws can hinder the press's ability to investigate and expose matters of public interest, due to the overwhelming risks and costs they impose on publishers," she said. We fully support the provision in the Defamation Bill to abolish juries in defamation cases, as their involvement in trials significantly extends proceedings, drives up legal costs, and leads to unpredictable verdicts. "The programme for government committed to passing this bill within 90 days, but that deadline has now passed and we urge its immediate enactment." Ms Bourke also warned "one of the most pressing issues" the media faces today is "the appropriation of our content by big tech and ineffective copyright legislation" and called for more effective protections from the harvesting of this content for AI models and search algorithms. Read More Short-Term Lettings Bill comes to cabinet after delays last week
The Guardian
21-03-2025
- Business
- The Guardian
Greenpeace loss will embolden big oil and gas to pursue protesters: ‘No one will feel safe'
A pipeline company's victory in court over Greenpeace, and the huge damages it now faces, will encourage other oil and gas companies to legally pursue environmental protesters at a time when Donald Trump's energy agenda is in ascendancy, experts have warned. On Wednesday a North Dakota jury ruled that three Greenpeace entities collectively must pay Energy Transfer, which was co-founded by a prominent Trump donor, more than $660m, deciding that the organizations were liable for defamation and other claims after a five-week trial in Mandan, near where the Dakota Access pipeline protests occurred in 2016 and 2017. 'This verdict will embolden other energy companies to take legal action against protesters who physically block their projects,' said Michael Gerrard, the founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School. 'It will chill those kinds of protests; whether the chilling goes beyond that remains to be seen. It won't inhibit litigation against fossil fuel projects; we will surely see more of those as the Trump administration advances its 'drill, baby, drill' agenda.' Kevin Cramer, the US senator from North Dakota, cheered Wednesday's massive judgement against Greenpeace over the pipeline protests in his state, congratulating the energy company who sued the environmental group for its big win. Justice was served, he said. 'They can think twice now about doing it again,' he said of Greenpeace and other environmental groups who protested the Dakota Access pipeline. Brian Hauss, a senior staff attorney with the ACLU's Speech, Privacy, and Technology Project, said that the lawsuit serves as a 'tax on speech,' one that makes it too expensive to go against 'litigious, deep-pocketed corporations'. 'If companies can sue critics, advocates and protesters into oblivion for their speech and the unlawful acts of third parties, then no one will feel safe protesting corporate malfeasance,' Hauss said. In the days since the ruling was issued, environmental groups and protest movements have reacted with shock and dismay, warning that its impact stretches far beyond any individual organization. Some legal experts were surprised the case even made it before a jury. Similar claims often get tossed out over First Amendment concerns or because many states prevent so-called Slapp suits (strategic lawsuits against public participation). North Dakota doesn't have an anti-Slapp law. Greenpeace's goals – such as protecting the climate and preserving oceans – won't change, said Sushma Raman, the interim executive director of Greenpeace USA. But 'it's really going to be a question of capacity and prioritization, which happens in any organization that is facing an existential threat of this kind,' Raman said. 'Ultimately, this isn't about the money for them,' Raman said of Energy Transfer. 'It's really about sending a message, and it's trying to silence an organization that they feel is a thorn in their side.' Energy Transfer's CEO, Kelcy Warren, has donated millions to pro-Trump groups and given directly to the president's campaigns over the years. He has made a mission of going after pipeline opponents, including Greenpeace, filing several lawsuits to that end. Some conservatives have celebrated his approach. Charlie Kirk, the founder of Turning Point USA, said it was 'great news!' that the verdict could bankrupt Greenpeace. Erick Erickson, a conservative talkshow host, said Warren was his hero. 'I'm a longtime shareholder of Energy Transfer and his campaign to destroy Greenpeace has been awesome to behold. God bless him,' Erickson wrote on X. Shayana 'Shane' Kadidal, a senior managing attorney at the Center for Constitutional Rights, called to mind economic boycotts during the US civil rights movement that inflicted damage on white-owned businesses, and how those businesses retaliated with civil lawsuits against groups such as the NAACP, trying to frame their activism as a conspiracy. 'Billionaire oligarchs like Elon Musk and Energy Transfer's Kelcy Warren now pose one of the most significant risks to free speech globally,' Kadidal said. Greenpeace began in the 1970s with a campaign led by Canadian activists to block nuclear weapons testing on an Alaskan island, its roots based in direct action. US offshoots grew throughout that decade. It is headquartered in the Netherlands, where it has filed an anti-Slapp lawsuit against Energy Transfer. It has said it got involved in the Dakota Access protests because the tribe, the Standing Rock Sioux, asked for its help. The organization has a policy of only getting involved in Indigenous-led movements if specifically asked, the New York Times reported. Waniya Locke, of Standing Rock Grassroots, said the verdict 'attempts to erase Indigenous leadership from Standing Rock's history' and part of a 'coordinated attack on communities organizing to protect their water and futures from big oil'. The Greenpeace case isn't the only recent example of a heightened legal attack on free speech. Protesters on US college campuses have been met with disciplinary actions for supporting Palestinian human rights, the most extreme example involving the push to deport a former Columbia student, Mahmoud Khalil. Elon Musk, the world's richest man, has sued his critics. The International Center for Not-for-Profit Law has tracked a rise in anti-protest bills since 2017, corresponding with major protest movements including actions against pipelines, on college campuses, for teachers and for racial justice. These proposals include 'extreme' penalties for protest-related offenses like trespassing near a pipeline, the center notes in its analysis. They also call for expanded liability for organizations or individuals that aren't directly involved in protests. 'Nonprofits, religious groups, and others will be much more reluctant to support or organize protected protests if they face possible penalties for the unlawful actions of others,' the center said in its analysis. The verdict is not the end for this case – Greenpeace has said it will appeal to the North Dakota supreme court. Legal experts believe the organization has a better shot on appeal, citing the jury's ties to the oil and gas industry and the broad disapproval of the protest among local residents. In the defeat, there has also been resolve. 'You can't sue or bankrupt a movement,' Raman said.
Telegraph
14-03-2025
- Business
- Telegraph
Former Chanel employee ordered to take ‘whistleblowing' video down in court battle
A former Chanel employee has been ordered to take down a TikTok video in which she makes damaging allegations against senior executives at the company. Charlotte Skeens, who worked at the fashion brand's office in Mayfair, central London, told the High Court she believed it was in the public interest for her claims to be heard and that they amounted to whistleblowing. Lawyers for Chanel argued the 31-year-old posted the video for financial reasons and that she did not really believe the claims she was making were true. The court heard she was compared to Lauren Weisberger, who wrote the bestselling novel The Devil Wears Prada, partly based on her experiences at Vogue magazine. The judge, Mr Justice Sweeting, ruled that whether or not the allegations she made in the video were in the public interest would have to be tested at a trial in April. Until then, he ordered that the footage, which he said could harm the company's reputation, must be removed from TikTok as it contained 'derogatory' information about the company. The court heard that Ms Skeens, who worked at the company from 2019 to 2022, posted a clip on the social media site last week. The video, which makes several allegations against senior executives at Chanel, has now been seen at least 146,000 times. The specific claims that Ms Skeens made against the senior executives were only referred to in court as X and Y. The court heard that Ms Skeens had previously made a settlement with her former employees in 2022 which prevented her from publishing confidential information. In summer 2024, she made posts online about issues at the company, of which Chanel subsequently became aware. The case was due to go to trial in March but on the eve of the hearing Ms Skeens made another agreement with the company in which she said she would not post confidential information or make derogatory statements. 'Must be for personal gain' Niran de Silva KC for Mishcon de Reya, representing Chanel, claimed that Ms Skeens had been seeking to gain financially by posting the clips online. He said that in July 2024 she spoke to a 'promoter' and discussed allegations that she was planning to disclose via social media, a podcast and also talked about even a book or a film. He said: 'She has done the same again now and we say it must be for personal gain in some way. 'She obviously denies that, but it is apparent.' Mr de Silva said Ms Skeens claimed the allegations were part of a wider 'cultural' issue across the company. Ms Skeens claimed she viewed the comments she made in the video as being 'whistleblowing' and she wanted to speak 'openly and freely' about them. She said the legal action against her was essentially a Strategic Lawsuit against Public Participation (Slapp). Slapps are defined by the Solicitors Regulation Authority as 'a misuse of the legal system through bringing or threatening claims that are unmeritorious or characterised by abusive tactics, in order to stifle lawful scrutiny and publication'. In February, Sir Keir Starmer refused to ban lawyers from using the tactic despite pledging to clamp down on 'intolerable' intimidation. The Government said it did not intend to introduce new legislation to target 'Slapps', despite being urged to do so by peers in the House of Lords. Ms Skeens said the video had been shared by others widely and since she had published at least 30 people had contacted her about their own experiences. She argued that if she was forced to take down the video, people would assume it was the result of legal action. She said: 'The message that sends about the company might discourage other witnesses from coming forward because they feel it will happen to them and even if you do speak up it will be detrimental to their behaviour.' Mr Justice Sweeting said the interim injunction would remain in place until the next hearing on April 30.
Telegraph
05-03-2025
- Politics
- Telegraph
How a $300m court case could kill off Greenpeace
The sleepy town of Mandan, North Dakota, with a population of just 25,000, might seem an unlikely backdrop for a titanic legal battle. Yet, within its unprepossessing courthouse, a zealous oil billionaire is taking on Greenpeace. It's Trump-supporting Goliath versus tree-loving David, in a case that could have far-reaching implications for both climate activism and free speech worldwide. A Texas-based pipeline company, Energy Transfer, is suing arguably the world's most famous environmental group for $300m (£235m). Greenpeace says an unfavourable ruling in the case – expected to run for several weeks yet – could bankrupt its United States branch, ending more than five decades of campaigning. The trial is the culmination of a bitter dispute over Energy Transfer's Dakota Access Pipeline, a 1,172-mile oil pipeline which was the subject of furious protests during its construction in 2016-2017. Energy Transfer claims that Greenpeace masterminded the disruption. Greenpeace denies this – arguing that this is a classic strategic lawsuit against public participation (Slapp) case, in which a well-resourced opponent litigates in a bid to shut down dissent – and warns they are unlikely to get a fair hearing in North Dakota, where almost everyone is connected to the oil industry. At a time when American and European leaders are furiously debating free speech and protest, many will be watching for the outcome, aware that it might set a precedent for environmental cases worldwide. 'I think this is one of the most important First Amendment cases in United States history,' says Marty Garbus, the celebrated US civil rights lawyer, who is leading an independent team of lawyers and activists monitoring the trial. 'It defines what peaceful protest is and what is not peaceful protest. It defines how much you can do in opposition to environmental groups. 'Defining who's at fault if a demonstration goes bad or is effective is extraordinarily complex,' adds Garbus, who has represented Nelson Mandela, Salman Rushdie and Pentagon Papers whistleblower Daniel Ellsberg in the past. 'Greenpeace is being faced with this extraordinary damage suit. [Energy Transfer] are asking for $300m, so they're being punitive; they're trying to break [Greenpeace] down. If they get this kind of verdict they'll cripple Greenpeace in the US.' 'Day of reckoning' for climate activists The Dakota Access Pipeline carries oil underground from the shale fields of North Dakota to a terminal in Illinois, transporting 750,000 barrels every day. Controversial since it was first proposed, the project has been a vital part of the boom that has seen the US become the world's largest oil producer. Energy Transfer says the demonstrations against the pipeline, which began during Donald Trump's first term, resulted in hundreds of millions of dollars in damages and lost revenue, all of which they attribute to Greenpeace. The lawsuit targets Greenpeace International, based in the Netherlands, Greenpeace Fund Inc, and Greenpeace US, though only Greenpeace US is likely to face any consequences from the outcome. The case appears to be a passion project for Energy Transfer's CEO, Kelcy Warren, an outspoken billionaire who donated $5 million to Trump's election campaign last year and once argued that a protester ought to be 'removed from the gene pool' for damaging the pipeline. For him, the pipeline is one of the most important new infrastructure projects in America. In interviews, Warren has made it clear that he sees the lawsuit as an opportunity to strike back against environmental protests, which continue to make headlines around the world: think of Extinction Rebellion or Just Stop Oil demonstrations in the UK. 'Everybody is afraid of these environmental groups and the fear that it may look wrong if you fight back with these people,' Warren told CNBC in 2017. 'But what they did to us is wrong, and they're going to pay for it.' Warren's colleagues say his dogged pursuit of Greenpeace is firmly in character. 'He enjoys business so very much because he sees it as a game,' said Charlie Waters, a former Dallas Cowboys NFL player who worked at Warren's company. 'He's so damn competitive.' A spokesperson from Energy Transfer told The Telegraph: 'Our lawsuit is not about free speech. It is about recovering damages for the harm Greenpeace caused our company by organising, funding, and encouraging the unlawful destruction of property and the dissemination of misinformation. That type of unlawful conduct goes well beyond the exercise of free speech. We look forward to proving our case and we trust the North Dakota legal system to do that.' In his opening statements last week, Trey Cox, a lawyer representing Energy Transfer, said: '[Greenpeace] didn't think that there would ever be a day of reckoning, but that day of reckoning starts today.' Greenpeace, for its part, argues that it played only a minor role in the protests, helping provide 'non-violent, direct-action training' to those involved. It claims Energy Transfer's case is aimed at suppressing activists and could discourage protests around the world. More than 330,000 people, and over 430 organisations, including Amnesty International, have signed an open letter denouncing the lawsuit as meritless. 'Beyond the impact that this lawsuit could have on the Greenpeace entities, one of the most worrisome things about the case is that it could establish dangerous new legal precedents that could hold any participant at protests responsible for the actions of others at those protests,' said Deepa Padmanabha, senior legal advisor at Greenpeace US. 'And you can imagine that this would have a serious chilling effect on anybody who wants to engage in protest.' 'The community wants to see pipelines' The first week of the trial, held about 45 minutes north of the protest site, did not bode well for Greenpeace. On Feb 27, the organisation filed a petition to have the case moved out of Morton County, where Mandan is located. They argued that a jury drawn from a small town with deep ties to the oil industry would be unlikely to be impartial. In response, all of Morton County's judges recused themselves, stating that they were 'acquainted with the plaintiff/defendant, and feel that in the best interest of justice, [they] should disqualify themselves.' The case is being heard by James D. Gion, a judge from a neighbouring county, but critics have raised concerns about his handling of the case, too. 'There's no way I can think of that any judge would permit this jury to go ahead with this case,' says Garbus. 'The mere fact the judge is permitting the case to go ahead is legally wrong, and may be a reason for setting aside any verdict that comes down. You can't ask people to vote against their sources of income. North Dakota is fundamentally [based on] the oil and gas industry, and something like the pipeline drew an enormous amount of money into that area. The community wants to see pipelines.' North Dakota voted strongly for Trump in November's presidential election, as it did in 2020 and 2016. Trump has appointed the state's former governor, Doug Burgum, as his secretary of the interior, as well as the chair of the National Energy Council. During his first term in office, he ordered an expedited review of the pipeline project after Barack Obama's administration put obstacles in its way. 'Trump's voting group is sympathetic to the pipeline,' Garbus says. 'They're not sympathetic to Greenpeace. If you care about your children, you don't want the piping business being thrown out of the state.' On Monday, during jury selection, many members of the jury pool admitted to having negative memories of the pipeline protests, while some also said they worked in the energy industry. In this part of North Dakota, even those not directly involved in the oil industry are touched by its largesse. In 2019, Energy Transfer donated $3 million to Mandan to pay for improvements to the plaza and public library. 'Everybody is afraid of environmental groups' The ongoing case is the culmination of nearly a decade of bad blood. The Dakota Access Pipeline was proposed in June 2014, at a cost of nearly $4 billion, to help cope with the fracking boom in the Bakken Formation, the vast oil and gas reserve beneath North Dakota and Montana as well as the Canadian provinces of Saskatchewan and Manitoba. The strain this surging production put on existing infrastructure was brought home by the Megantic rail disaster in July 2013, when a train full of oil derailed and exploded in the Quebec town of Lac-Megantic, killing 47 people. Construction began in June 2016 and was finished the following April, with the pipeline coming into operation in May 2017. Organised protests began in April 2016, led by young people from the Standing Rock Indian Reservation, who argued that the pipeline threatened local water supplies and crossed sacred land. The majority of the controversy centres on a small section of the route where protesters claim the pipeline could contaminate the Missouri River. Tensions have escalated over the years. At the protests' peak, more than 10,000 protesters were on site, including members of more than 200 Native American tribes, as well as actors, military veterans and political leaders, including Robert F. Kennedy Jr, Trump's current health secretary. The protests boiled over in Nov 2016, when police clashed with protesters, deploying water cannon, rubber bullets and tear gas in below-freezing weather. Three-hundred people were injured and 26 were hospitalised. The demonstrators were eventually cleared in Feb 2017, just before the pipeline was finished. Energy Transfer filed a federal lawsuit against Greenpeace and other environmental groups months after the pipeline came online. Their first case was a Racketeer Influenced and Corrupt Organizations (Rico) suit, which alleged that the environmental groups had disseminated 'materially false and misleading information ' about the pipeline's environmental impact and even ' incited, funded, and facilitated crimes and acts of terrorism.' In his interview with CNBC in 2017, Warren explained why he was pursuing the case so zealously.'What happened to us was tragic,' he said. '[The protesters] knew that the things that they were saying about us were inaccurate – things like we were on Indian property, that we didn't communicate with the Standing Rock Sioux … I mean, it was just crazy stuff that they were saying, and we were greatly harmed by that.' As judges threw out cases against other advocacy groups, including Earth First! and BankTrack, Energy Transfer focussed on Greenpeace. In Feb 2019, the federal case was dismissed. The evidence presented was judged to have fallen far short of racketeering charges. Greenpeace celebrated the victory, saying it hit back against 'corporate overreach.' Undeterred, Energy Transfer filed a case at the state level just a week later. Tort laws have a lower burden of evidence than a federal Rico case, which requires a 'pattern' of behaviour to be demonstrated. Greenpeace sought to have it dismissed again, but Judge Gion said it could be heard. Many commentators had expected the case to be thrown out on First Amendment grounds, which protect free speech, but unlike many other US states, North Dakota has no anti-Slapp laws. A free speech battle Judge Gion has said the case warrants a jury trial. But the gap between the federal view and the approach being taken at the state level has raised concerns. 'This case obviously should be dismissed outright, but Judge Gion has shown his pro-corporate hand by refusing to do so,' said Steven Donziger, the lawyer working with Garbus. Donziger was previously given a prison sentence for contempt of court over his actions in a landmark pollution case involving the oil company Chevron and Amazonian communities in Ecuador. Prof Chris Hilson, an environmental lawyer at the University of Reading, says the current trial's low-key setting is no coincidence. 'Greenpeace and the protesters wanted to politicise the pipeline,' he says. 'By bringing a Slapp suit around the speech and process around that, [Energy Transfer] wants to depoliticise it. They want to take the political heat out of it and put it back into a technical space in the courtroom, where they can say 'Look, we're not criticising your right to protest, but you've broken the law.'' Last month, Greenpeace International filed an anti-intimidation suit in the District Court of Amsterdam against Energy Transfer. They argue the company has acted wrongfully and should pay costs and damages incurred by Greenpeace from its 'meritless', repeat litigation. It is an early test of new European laws against Slapp suits, introduced last year. Attempts to introduce bipartisan federal anti-Slapp legislation in the US have been unsuccessful. 'The Greenpeace claim relying on the new EU anti-Slapps legislation re-globalises the debate,' says Hilson. 'It provides a reinvigorated political window. It's not just a matter of a pipeline, but EU visions of free speech versus current American ones, particularly in relation to climate change.' In North Dakota, meanwhile, Greenpeace has pushed for greater access to the court. Gion turned down a request for the hearing to be publicly livestreamed, and a separate request for expanded media coverage was also turned down. Garbus fears that the signs are ominous. 'I would like to think that they will send the case to another jurisdiction for trial. But I doubt it. I think unless something is done there will be a substantial verdict in favour of the pipeline company.' Groups around the world will be watching closely. Fossil fuel companies will be looking for a manual on how to contest these kinds of disputes. Environmental groups, on the other hand, will be anxious that any finding against Greenpeace could unleash a wave of copycat cases, where there is a US precedent for Goliath beating David. Areeba Hamid, the joint executive director of Greenpeace UK, says the case in North Dakota is part of a broader pattern of energy companies taking aggressive legal action against campaigners. 'There is a trend when it comes to Big Oil coming after campaigning organisations,' she says. 'They're trying to cripple organisations like Greenpeace. It's a death by 1000 cuts. We don't have a tenth of the resources or legal departments these companies have.' 'It used to be quite hard for politicians to say they were on the side of the fossil fuel companies,' she adds. 'But now you have a head of state like Trump saying he is for fossil fuel companies. It feels almost surreal. You expect the government to serve the citizens' interests. It's interesting what's happening in the US in particular, that it's so out in the open that [politicians] are there to serve the interests of the corporations.' For Kelcy Warren and Energy Transfer, the Mandan case is a stand for the interests of business, energy and economic development against a minority of aggrieved protesters. For others watching on, however, it looks like an enormous business doing whatever it can to prosecute a famous campaigning group. The trial is expected to conclude at the end of March. So far, Greenpeace's efforts to have it heard in a different jurisdiction or with greater public scrutiny have been thwarted. The 12 men and women sworn in under oath may find the result of their deliberations is felt far beyond Mandan.
The Guardian
20-02-2025
- Politics
- The Guardian
Fossil fuel firm's $300m trial against Greenpeace to begin: ‘Weaponizing the judicial system'
A fossil fuel company's $300m lawsuit against Greenpeace opens in rural North Dakota on Monday, in a case that has been widely condemned by constitutional rights experts as baseless, bad faith litigation that threatens free speech. Energy Transfer Partners, a Dallas-based oil and gas company worth almost $70bn, accuses Greenpeace of defamation and orchestrating criminal behavior by protesters at the Dakota Access pipeline (Dapl). The anti-pipeline protests in 2016 and 2017 were organised by Standing Rock and other Sioux tribes and supported by more than 300 sovereign tribal nations, inspiring an international solidarity movement after Energy Transfer's private security unleashed attack dogs and pepper spray against nonviolent protesters. Tens of thousands of people from across the country and world participated in the Dapl protests, and Greenpeace was among scores of non-profit groups that supported the Standing Rock tribe's opposition to the pipeline. But Energy Transfer alleges in court filings that thousands of protestors were 'incited' to come to North Dakota thanks to a 'misinformation campaign' by Greenpeace. The lawsuit has been widely denounced as a classic strategic lawsuit against public participation (Slapp) – a form of civil litigation increasingly deployed by corporations, politicians and wealthy individuals to deliberately wear down and silence critics including journalists, activists and watchdog groups. The case threatens to bankrupt Greenpeace US, but the biggest impact could be a chilling effect on free speech and activism more broadly, according to environmental and civil liberty experts consulted by the Guardian. The five-week jury trial is scheduled to start on 24 February in Mandan, Morton county. 'This case is an emblematic example of a Slapp lawsuit – a way of weaponizing the legal system by wealthy and powerful people to silence their critics by dragging them through long, stressful, expensive litigation where winning is almost irrelevant,' said Kirk Herbertson, a New York based attorney and the US director for advocacy and campaigns for EarthRights International. 'This was not a Greenpeace event. They were not controlling what the people coming in were doing … there is nothing in the court filings that show Energy Transfer suffered actual harm due to actions by Greenpeace,' added Herbertson. 'This case feels more like a trophy hunt and an attempt to shut down free speech rather than an actual good faith attempt to seek remedies for harm.' Energy Transfer first filed a Rico lawsuit in 2017 alleging federal racketeering and state tort claims. At the time Kelcy Warren, the company's billionaire founder and a major donor to Donald Trump, told CNBC that the company was 'greatly harmed' by Greenpeace. 'Everybody's afraid of these environmental groups and the fear that if you fight back it may look wrong … but what they did to us is wrong and they're going to pay for it,' said Warren. Warren has previously said environmental activists should be 'removed from the gene pool' and a Wall Street Journal profile of him detailed his relentless pursuit against green groups. The federal racketeering case was dismissed on 14 February 2019, but seven days later Energy Transfer re-filed a virtually identical suit in North Dakota state court. Energy Transfer is suing three Greenpeace entities, claiming that they are a single organization rather than independent members of the Greenpeace network. After six years and thousands of filings, this will be the first case under the new Trump administration to test what the first amendment will look like. The lawsuit centres around nine statements made by Greenpeace during the Indigenous-led protests – none of which were original to the group, while three were taken from two letters written by another organization, including one with more than 500 signatories. Greenpeace argues that the statements are legitimate expressions of the first amendment protected right to speech. Energy Transfer is also seeking to hold Greenpeace liable for actions taken by protesters that have no proven connection to the group. 'Greenpeace is a great big target. If you're trying to send a message to the world, go after Greenpeace,' said James Wheaton, a longtime journalism law professor at Stanford and UC Berkeley who founded the First Amendment Project. 'The pipeline lawsuit is a classic Slapp suit. More than 330,000 individuals and 430+ organizations including Amnesty International, the American Federation of Teachers and Indigenous Environmental Network have signed an open letter denouncing the lawsuit as meritless – and an attempt to rewrite history by claiming that Greenpeace orchestrated what was an Indigenous-led movement. The Standing Rock tribe has always asserted that the pipeline is a violation of its sovereignty as it crosses unceded historical and sacred Sioux territorial lands. The tribe wants a federal court to shut down the pipeline, and in October filed a lawsuit accusing the army corps of engineers of unlawfully allowing it to operate without an easement, a complete environmental assessment or sufficient emergency spill response plans. 'The tribe was 100% responsible and autonomous in their decision making and how they protested … this Energy Transfer lawsuit is aimed at creating a mortal blow through the legal system to a legacy non-profit that has done some of the most important environmental protection advocacy in US history,' said Scott Wilson Badenoch, a former chair of the American Bar Association's Environmental Justice Committee and veteran international trial monitor. He added: 'It is utterly clear that Slapp suits are bad faith to their very core … the venue choice in this case is obviously part of what makes it a Slapp. The jury pool seems to be impossibly tainted … We've been involved with trial monitoring in places like Cambodia and Ecuador that were easier to monitor than this case in the United States of America.' Badenoch is among a team of independent prominent civil rights attorneys and advocates who will monitor the trial amid growing concerns about judicial bias and violations of due process – and the threat posed by the case to free speech and the right to protest. Judge James Gion was assigned to the case from another North Dakota jurisdiction after every single judge in Morton county recused themselves due to conflicts. Yet the judge has denied requests from Greenpeace's legal team to move the case to a different court due to concerns about potential jury bias. In 2024, 75% of voters in Morton county backed Trump. During his first term, Trump ordered an expedited review of the Dapl project after it was hit with obstacles by the Obama administration. Another concern for the independent committee of observers is the size of the courtroom, which has very limited seating. Gion denied a motion from Greenpeace to livestream proceedings, ruling that this would interfere with Energy Transfer's 'right to a fair trial'. A key pretrial hearing on 4 February was held online without public access. Yet the court in Morton county has previously permitted Court TV to livestream homicide trials. A request by the trial monitoring committee for live streaming was also denied. In recent weeks, mysterious rightwing mailers have arrived at the homes of local residents that Greenpeace alleges could further taint the jury pool. The mailers, made to look like a newspaper and dubbed 'Central ND News,' contain articles slanted against the pipeline protest or in favor of Energy Transfer, among stories about immigration and community news. None of the articles have named bylines. A publisher's note in a January edition similarly is not signed with a name but instead by 'Central ND Times Publishers.' The stories within the mailer slant in favor of fossil fuels. One article in the January edition, next to a chart of gas prices around the state, is an interview of a former protestor who now says she believes the protestors created 'a local ecological disaster' and approves of the pipeline. A February edition features a business leader who claims the protests primarily caused 'division'. Greenpeace sought to investigate whether the mailers were paid for, directly or indirectly, by Energy Transfer, but the judge denied its request for discovery on the issue. Warren, the Energy Transfer CEO, made a donation to a political action committee that then paid a publishing company affiliated with the group behind the mailer, ExxonKnews reported in December. The judge has also allowed Energy Transfer to seal thousands of pages of evidence that appear to include details of the pipeline's safety history. The Standing Rock tribe's opposition to the pipeline is in part due to the risk posed by leaks in Lake Oahe, the primary source of water for the community. The company, which operates in 44 states, has a chequered environmental health and safety record, and was responsible for the worst pipeline fuel leaks in 2024. On Tuesday, the judge denied all the motions for summary judgments filed by Greenpeace's attorneys in April 2024, and argued last June. Greenpeace is represented by Davis Wright Tremaine, a firm known for representing first amendment cases. An Energy Transfer spokesperson said: 'Our lawsuit against Greenpeace is not about free speech as they are trying to claim. It is about them not following the law. We support the rights of all Americans to express their opinions and lawfully protest. However, when it is not done in accordance with our laws, we have a legal system to deal with that. Beyond that we will let our case speak for itself.' Energy Transfer is represented by Gibson Dunn & Crutcher – the firm that represented Chevron against Steven Donziger, the environmental advocate sued by the firm after helping Amazonian communities in Ecuador win a landmark pollution case. 'This appears to be part of a broader strategy by the fossil fuel industry to weaponize the courts against activists and weaken organizations like Greenpeace in retaliation for their advocacy,' said Donziger, a member of the trial monitoring committee. The monitoring team also includes Marty Garbus, who has represented numerous high-profile figures such as Leonard Peltier and Nelson Mandela; Indigenous rights lawyer Natali Segovia of the Water Protector Legal Collective; and Jeanne Mirer, president of the International Association of Democratic Lawyers. Slapps and related legal tactics are being increasingly used globally to silence environmental and social justice activists, especially by fossil fuel corporations and the ultra-wealthy. Warren previously issued a Slapp lawsuit against Texas lawmaker Beto O'Rourke after he critiqued Warren's massive profits during the 2021 Texas winter storm. (The case was dismissed.) Trump has filed almost 4,100 lawsuits over the past three decades, including seven defamation suits as a private citizen. 'We are generally used to seeing government as the biggest threat to free speech. But in an era of massive, massive wealth inequality, it's not that surprising to see a trend of using money to suppress speech and kind of control democratic processes,' said Shayana 'Shane' Kadidal, senior managing attorney at the Center for Constitutional Rights. Earlier this month Greenpeace International filed a lawsuit in a Dutch court to recover 'all damages and costs it has suffered as a result of ET's back-to-back, meritless lawsuits'. This is the first test of a new European law aimed at curbing malicious lawsuits intended to silence journalists, rights activists and public watchdogs. In the US, two bipartisan efforts to pass federal anti-Slapp legislation have not gone anywhere. 'This lawsuit is an attempt to divide the movement, but it has not been successful,' said Deepa Padmanabha, Greenpeace's senior legal advisor. 'Energy Transfer and the fossil fuel industry do not understand the difference between entities and movements. You can't bankrupt the movement. You can't silence the movement. There will be a backlash and a price to pay when you pursue these kinds of tactics. People power is more powerful.'
