New Federal Anti-SLAPP Legislation Would Protect Activists and Whistleblowers From Abusive Lawsuits

Federal legislation introduced last week would help human rights defenders, environmental activists and regular people fight meritless lawsuits designed to drain them of resources. Strategic Lawsuits Against Public Participation, or SLAPPs, are intended to silence the critics of companies or individuals by subjecting them to time-consuming and expensive litigation. The point is not to win, but to deter unflattering criticism.  

The SLAPP Protection Act of 2022, introduced last Thursday by Rep. Jamie Raskin (D-Md.), would create a pathway for a judge to quickly dismiss a lawsuit if they found that the allegations amounted to First Amendment protected speech. It would also empower judges to force those behind the SLAPP suits to reimburse the money their targets spent on lawyers. 

“This legislation is super powerful,” said Greenpeace General Counsel Deepa Padmanabha, who is confronting two multi-million dollar lawsuits filed by corporations against the environmental organization. “SLAPPs are a desperate attempt to silence resistance, to silence exposure, to silence public watchdogs from exposing the fossil fuel industry for what it is.” 

The new legislation comes as part of a renewed effort to advance anti-SLAPP laws after environmental organizations and individual land and water defenders faced massive federal lawsuits under the Racketeer Influenced and Corrupt Organizations (RICO) Act, a law designed to take down the mafia. In 2018, a coalition called Protect the Protest launched to push back against the RICO cases and anti-protest laws that were advancing in more than a dozen states. The coalition helped energize long-running efforts by groups like the Public Participation Project to advance state and federal anti-SLAPP laws. 

Moneyed polluters drive a significant portion of SLAPP-style suits. A report published last week by the nonprofit EarthRights International identified 93 lawsuits filed by fossil fuel industry actors over the last decade that exhibited the qualities of a SLAPP by, for example, targeting activity protected under the First Amendment, making disproportionate claims of damage or dragging out the case. They were aimed at industry critics ranging from international environmental organizations to fracking protesters to TV host John Oliver.

However, opponents of the oil and gas industry are not the only SLAPP targets. “With the MeToo movement you saw countless survivors (of sexual harrasment and assault) facing frivolous lawsuits for speaking out about their experiences,” said Evan Mascagni, policy director for the Public Participation Project. The suits he has reviewed involved Yelp commenters leaving negative reviews, community members criticizing developers at local town hall meetings and journalists writing unflattering reports about rich men. 

To Padmanabha, the stakes are high. “We have 10 years to act on the climate crisis—probably even less than that,” she said, noting that SLAPP suits draw time, money and dialogue away from more important issues. “While protecting our right to speak out, to organize, is critically important to the climate fight, that money can and should be put toward actually fighting the climate crisis before us.” 

The first state anti-SLAPP law was passed in Washington in the 1980s. Since then, 32 states and the District of Columbia put such laws on the books. However, they vary significantly in strength. In 2020 the Uniform Law Commission, a nonpartisan group made up of government-appointed representatives from every state, attempted to change that by introducing model anti-SLAPP legislation, which has since been adopted in three states.

Still, complainants can easily avoid regulations by filing suit in one of the 18 states lacking SLAPP protections or in federal court.

In 2016, the logging company Resolute Forest Products filed a $300 million RICO complaint against Greenpeace in federal court, alleging that Greenpeace and its allies amounted to a criminal enterprise and had disseminated defamatory information about Resolute. “Maximizing donations, not saving the environment, is Greenpeace’s true objective,” the suit claimed. 

A year later, a judge ruled that Resolute’s action was a SLAPP suit under California law and forced the company to reimburse Greenpeace $816,000 in legal fees associated with the state-level allegations. However, the suit’s federal claims went untouched by the ruling. Although the majority were ultimately dismissed, Greenpeace was unable to recover the costs of fighting those allegations. According to Padmanabha, the federal bill would likely have assured that Resolute covered the environmental organization’s costs for the federal claims, too. 

Something similar played out in 2017 when Energy Transfer, the company behind the controversial Dakota Access Pipeline, hired the same law firm as Resolute to sue Greenpeace for $900 million under RICO. The suit claimed that Greenpeace had conspired with others to dream up the Indigenous-led Standing Rock movement as a fundraising stunt. Ultimately, a judge dismissed the lawsuit, but, without a federal anti-SLAPP law, Greenpeace had no way to recover its legal fees.

A federal law wouldn’t have resolved everything. Six years later, Greenpeace is still fighting two of the logging company’s claims in court. As for Energy Transfer, the pipeline company quickly refiled a version of its lawsuit in North Dakota, where there is no anti-SLAPP law. Padmanabha said the Energy Transfer suits have cost the organization millions of dollars. 

The Business and Human Rights Resource Centre, an international NGO focused on promoting human rights in business, places SLAPP suits within a wider range of attacks used internationally by industry to silence opponents. The tactics include arbitrary detention, fabricated charges and abusive subpoenas that force human rights defenders to hand over personal information, according to a report by the organization. 

“In the U.S. we fortunately don’t see assassinations happen,” said Kirk Herbertson, a senior policy advisor for EarthRights International. “The weaponizing of the legal system is the tactic that appears to be the thing here.” The report released last week by EarthRights identified 152 instances of judicial harassment in the U.S. by the fossil industry over the past decade, including the 93 SLAPP suits.

Herbertson helped launch the Protect the Protest coalition in 2018 in response to the Greenpeace lawsuits. “For a number of organizations, this posed an existential threat to our work,” Herbertson said. “The idea was that if you come for one of us, you come for all of us.”

The group has submitted amicus briefs in SLAPP suits, collaborated on communications about the litigation and advanced policies to protect the targets of such lawsuits.

Protect the Protest has also pushed against a slew of so-called critical infrastructure bills advancing across the U.S. since 2017 that enhance charges for fossil fuel protesters who trespass on private property, and occasionally include penalties for organizations that “conspire” with trespassers.

The new federal bill is narrower than the strongest state anti-SLAPP laws, giving plaintiffs the opportunity to avoid paying the defendants’ legal fees by arguing they didn’t realize they were filing a frivolous suit. That’s in part due to federal rules that say the civil litigation process should favor neither plaintiffs nor defendants. 

It’s also a result of years of organizing after a 2015 federal anti-SLAPP bill failed to advance. At a hearing on SLAPPs at the time, a legal scholar testified that that version of the legislation would pose barriers to public interest litigation. Mascagni said that he and others worked hard since then to assure that the new bill could be widely supported.

Still, he argues that the bill’s exceptions could be more limited. “If you are a competent plaintiff’s attorney and you have a legitimate cause of action you do not have to be concerned about anti-SLAPP laws,” he said. 

ExxonMobil recently attempted to use Massachusetts’ anti-SLAPP law to convince a judge to dismiss the state attorney general’s lawsuit alleging that the company misled investors and consumers on the link between fossil fuels and the climate crisis. The judge rejected the request.

At a hearing before the House Oversight Subcommittee on Civil Rights and Civil Liberties last Wednesday, Daren Bakst, a senior research fellow for environmental policy and regulation at the Heritage Foundation, argued that it’s people who lean left politically that more often attempt to silence those who lean right on energy issues. Making arguments that align with industry talking points, he pointed to assertions by individuals that fossil fuel industry CEOs should go to jail and to the Biden administration encouraging social media companies to limit the spread of climate misinformation. He did not respond to requests for comment. 

Mascagni is hopeful that the bill will garner bipartisan support, as anti-SLAPP bills have in many states. He pointed out that even the American Legislative Exchange Council, an organization linked to the fossil fuel billionaire Koch brothers that is made up of lobbyists and right-wing legislators, has published a model anti-SLAPP bill, apparently after urging from Yelp. A 2020 op-ed by Bill Easley, a senior policy analyst at the Koch-linked political advocacy group Americans for Prosperity, went so far as to categorize Energy Transfer’s lawsuit against Greenpeace as a SLAPP suit and call for better protections. 

Without national protections, Padmanabha said deep-pocketed companies and individuals will be able to pay for censorship. “There has to be a mechanism in place to remove the price tag on free speech,” she said.