At Subcommittee Hearing, Members Examine How the Fossil Fuel Industry Uses SLAPPs, Anti-Protest Laws to Stifle Free Speech
Washington, D.C. (September 14, 2022)—Today, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, held a hearing to examine how the fossil fuel industry is weaponizing the law to stifle First Amendment protected speech and stymie efforts to combat climate change by abusing Strategic Lawsuits Against Public Participation (SLAPPs) and anti-protest laws.
“Wealthy and powerful corporate entities are thus dragging citizens and public interest opponents through meritless but protracted and expensive litigation to expose anyone who dares stand up to them to financial and personal ruin,” said Chairman Raskin in his opening statement. “It is crucial that Congress protect the rights of American citizens and civic groups to engage in lawful political protest and organizing without being subjected to ruinously expensive and meritless retaliatory litigation.”
The Subcommittee heard testimony from Prof. Anita Ramasastry, Henry M. Jackson Professor of Law, University of Washington School of Law; Elly Page, Senior Legal Advisor, International Center for Not-for-Profit Law; Deepa Padmanabha, Deputy General Counsel, Greenpeace; Anne White Hat, Sicangu Lakota, L’eau Est La Vie Camp.
Members and witnesses examined how the fossil fuel industry uses SLAPPs to target environmental activists and non-profits to deter them from speaking out against proposed fossil fuel pipelines and other projects that contribute to climate change.
- Ms. Padmanabha testified: “[M]ore than six years from when the first SLAPP was filed against us, [we are] still forced to invest time and resources into these legal battles that otherwise would have been used to protect communities and the environment from toxic pollution and the existential threat of climate change. While our window to fight the climate crisis continues to shrink, we have to win because the voices of those who protect our planet and our communities cannot be silenced.”
- In response to a question from Rep. Pressley, Professor Ramasastry explained: “There’s a larger strategy here, which isn’t not only within the United States, but global . . . .We’ve seen the results are in these suits that the companies typically don’t prevail, but they prevail in terms of the duration of the suits, the cost of the suits, the inequality of resources that governments or civil society groups have, right?” She continued, “These suits really represent that inequality of resource and power.”
- In response to a question from Rep. Wasserman Schultz, Ms. Padmanabha said: “[SLAPPs] have a tremendous impact. Any of us can imagine one day waking up and having a 300-million-dollar lawsuit served on us. I mean what would that do? And the thing that is so problematic about SLAPPs is that it is the mere filing of the suit that creates the chilling effect and I think that’s what we really need to keep in mind.” She continued, “most SLAPPs are not filed against big organizations they are filed against individuals who are trying to protect their water, protect their land from developers, that is the history of the SLAPP suit and so those stories don’t get the attention because and the mere filing of the suit when they think about putting food on the table, it silences them. They need to think about the ability to survive.”
Witnesses discussed the wave of anti-protest laws passed in recent years and how they are selectively enacted and enforced to target environmental activists and protect corporate interests.
- In her opening statement, Ms. White Hat explained: “As a mother with children in high school, I never intended to get arrested. However, on September 18, 2018, I was arrested and charged with two felony counts under new amendments to Louisiana’s critical infrastructure law. I was told that I was being arrested for trespassing two weeks earlier on remote land being worked on by the pipeline company in the Atchafalaya Basin, despite my having the express permission of landowners to peacefully protest there. A Louisiana state court later ruled that it was, in fact, the pipeline company Energy Transfer that was trespassing and yet we were the ones arrested by uniformed sheriffs’ deputies working privately for the pipeline company.”
- In response to a question from Congresswoman Norton, Ms. Page explained: “So we know at least from express statements in a number of cases from the sponsors of this legislation, that they are introducing these laws because of protests they’ve seen either in their own states or elsewhere. So, the sponsor of the Oklahoma bill, for instance, that became the basis of the ALEC model law, said that protests like the one at Standing Rock was the quote-unquote, ‘main reason,’ behind his bill. In South Dakota, the governor Kristi Noem explicitly said that the bills she introduced were designed to cut off funding for pipeline protesters.”
Members and witnesses explored how the fossil fuel industry’s use of SLAPPs and anti-protest laws not only stifles free speech but also helps to enable disinformation about climate change.
- Ms. Page testified: “The U.S. has seen a rise in protests against the construction of gas and oil pipelines, driven by concerns about pipelines’ harm to the environment, indigenous land, and landowner rights. In response, fossil fuel interests have promoted new laws that can limit and chill the First Amendment rights of individuals who protest near pipelines and other infrastructure sites. States across the country have enacted the laws, which create vague criminal offenses and extreme penalties that can cover nonviolent protest activity.”
- In response to a question from Rep. Wasserman Schulz, Ms. White Hat explained, “Everyday wondering if they’re gonna come knocking on the door to take me to jail and having to make plans for my children, etc. But in terms of just being out there and going out, it really is a chilling effect on us as frontline organizers. Not just for us to be able to have and go do the work that we do. It also impacts other First Amendment rights like freedom of religion. One of the gentlemen involved in our lawsuit was denied the right to travel to go to practice his religious activities. So, it’s not just it quells our activism, but it also hurts other parts of our First Amendment rights as well.”
- Ms. Padmanabha explained: “The fossil fuel industry has been attempting to control the narrative not only through silencing dissent, but also trying to flip the switch on whose speech is being attacked. And so, when it comes to misleading consumers about the effects of climate change and everything that is coming out now about how long fossil fuel companies have been aware of how their business practices affect climate change, there is this attempt to flip the switch to regain the narrative to, for example, file an anti-SLAPP motion in Massachusetts and say, we’re the victims here.”
Witnesses expressed the need for federal anti-SLAPP laws to fill important gaps in the law to prevent First Amendment abuses and protect the ability of people and organizations to publicly participate in the democratic process.
- Professor Ramasastry testified: “Congress should address the trend [of SLAPP abuse] and restore balance and promote avenues for free expression and assembly. I believe a key solution is the adoption of anti-SLAPP laws that allow courts to review cases at an early stage in the proceedings to see whether they are indeed of public concern and whether the SLAPP suit itself is frivolous or has merit.”
- Ms. Padmanabha testified: “Now is a critical moment for Congress to act and introduce federal anti-SLAPP legislation. Thirty-two states and the District of Columbia have enacted common sense anti-SLAPP legislation, and all were introduced in a bipartisan or nonpartisan fashion. While federal legislation might not put an end to all SLAPPs, it would be a significant step towards becoming a nation of justice where our fundamental right to speak truth to power is protected.”