SLAPP-ing down free speech: The law shouldn’t be used as a corporate a weapon
It would be ideal if all of society worked in concert for the good of everyone, but reality is much more complicated. The public arena can be more like a battlefield, where competing interests trade allegations or engage in litigious warfare. Many battles pit public-interest organizations against corporations that still believe their only obligation is to increase shareholder profits, regardless of harm to people and planet.
Corporations don't always fight fair. One tactic is to use their superior resources to file lawsuits alleging that a critic has defamed them. The idea is to intimidate, silence and exhaust the critic’s resources — even when the criticism qualifies as constitutionally protected free speech and protests are protected freedom of assembly. This tactic is common enough to have a name: "strategic lawsuits against public participation," or SLAPP suits.
Researchers at Duke University reported as long ago as 1993, "A pattern is emerging across the United States in which citizens and local community groups are being sued for what has long been considered 'ordinary' public participation. Persons who write editorials, participate in referendums, or speak at town meetings increasingly end up in court. Although suits against such individuals rarely prevail in court, their true goals of retaliation and intimidation are frequently accomplished." And an academic paper in 2001 explained, "Defamation suits against civic-minded citizens, groups, and publishers, corporations have drastically squelched citizen and news media involvement," not only with the cost of legal defense "but also through the disruption of families, physical illness and emotional upheaval."
It’s neither new nor unusual for companies to bully their critics. The environmental movement in the United States began in earnest with Rachel Carson's revelation that some large chemical companies were recklessly "poisoning the world" with products like DDT. The industry fought back by denigrating Carson and her book in a public relations campaign that cost the equivalent of $1.4 million today. One chemical manufacturer threatened to sue Carson's publisher and called her a "sinister influence" and a "tool of the communist menace."
Today, the fossil fuel industry is the Goliath armoring itself against slingshots. It continues producing and profiting from oil, gas and coal, the fuels primarily responsible for global warming. The industry has covered up and maligned climate science for the last 50 years, while global warming has caused hundreds of billions of dollars of damage to infrastructure, communities, and families, including a record $57.6 billion during this year's first eight months.
"The fossil fuel industry has responded to growing public concern about climate change by retaliating against those who challenge its practices," EarthRights senior policy adviser Kirk Herbertson has written. A case in point: The owner of a coal company sued John Oliver after the comedian and television host talked about an accident in which nine people died at one of the company's mines. The lawsuit went on for two years.
Another case: In 2016, thousands of protestors drew attention to a company trying to build a pipeline that could threaten drinking water in the Standing Rock Sioux reservation. The company sued Greenpeace and other protestors for $900 million. Companies have few disincentives against this abuse of the courts. They can even deduct their legal expenses from their taxes.
Like everyone else in the United States, corporations have a right to defend themselves against defamation in written or verbal speech that is malicious, untrue and damaging to their reputations. But powerful corporations “SLAPP” critics with lawsuits to inhibit free speech. Judges could discourage this by dismissing such suits out of hand — but not all are inclined to do so.
Bad actors — including governments — also use SLAPP tactics when they are defendants in a lawsuit. In Juliana v. United States, a group of children sued the Obama administration in 2015, alleging that government support for fossil fuel production violated their constitutional rights to life and property. Justice Department attorneys through three administrations have used legal tactics to keep the case from going to court. The case is still pending today.
In other cases, governments have criminalized protests. The Guardian reports, "Criminalization is being used to silence climate activists across the world … with mass arrests, the passing of draconian new laws, the imposing of severe sentences for non-violent protests and the labeling of activists as hooligans, saboteurs or eco-terrorists."
After demonstrations erupted in 2020 to protest George Floyd's death, Republican legislators in 34 states proposed 81 anti-protest bills. As The New York Times reported, "Some, like (Florida Gov. Ron DeSantis) are labeling them 'anti-riot' bills, conflating the right to peaceful protest with the rioting and looting that sometimes resulted from such protests." On the other hand, and to their credit, 33 states and the District of Columbia have enacted bipartisan anti-SLAPP laws. But this abuse of the courts is a national problem that undermines rights guaranteed by the national Constitution.
It's up to Congress to level the playing field by passing legislation modeled on the strictest state anti-SLAPP laws, and requiring companies that file these lawsuits to pay all attorney and legal costs.
William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to the just-published book, “Democracy in a Hotter Time.” He has served in several state and federal government roles, including executive assistant to the attorney general of Wisconsin. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.