OPINION:
Across college campuses and American cities, extremist activists have spent years inciting violence and destroying property while arguing it is constitutionally protected free speech. Fortunately, a North Dakota jury may have put a stop to this madness.
The jury found Greenpeace liable for $667 million in damages resulting from a violent pipeline protest the group organized in 2016 and 2017. While the pipeline was eventually completed, the protests cost Energy Transfer, the company constructing the pipeline, hundreds of millions of dollars due to lost financing, public relations costs and a five-month construction delay.
During and after the trial, Greenpeace and its supporters tried to defend themselves in a few different ways. They have called the lawsuit a SLAPP suit, an acronym for Strategic Lawsuit Against Public Participation. This is often a claim made by activist groups who are being sued, and it alleges that they are being targeted solely for speaking out about an issue. But Energy Transfer’s lawsuit against Greenpeace is different from the typical lawsuits labeled SLAPP suits.
To begin with, the American Civil Liberties Union says SLAPP suits are “not necessarily designed to achieve a favorable verdict” but rather to tie up individuals or groups in long and expensive litigation fights. The theory is that targeted groups will still pay a steep cost in legal fees even if the lawsuit against them is without merit. But the fact that a jury unanimously ruled against Greenpeace on this issue demonstrates that the lawsuit was indeed a valid legal challenge.
Greenpeace has also tried to argue that it was only marginally involved in the protests and did not support any of the violence or property damage that occurred. Yet during the trial, it was exposed that Greenpeace paid for “lock boxes,” equipment the protesters used to attach themselves to construction equipment and create costly project delays for Energy Transfer.
Attorneys for Energy Transfer also demonstrated that Greenpeace was secretly paying for the protesters. “[Greenpeace] paid indigenous professional protesters from California and from Canada and from other locations to come. They flew them there. They paid them. They gave them a stipend to organize and train and teach people how to cause more problems and create more delay for the pipeline,” said Trey Cox, an attorney for Energy Transfer.
While Greenpeace is now trying to downplay its role in the violence, that was not the case when the protests were happening. In fact, Greenpeace’s then-executive director sent an e-mail to the group’s board saying the organization had played a “massive role” in the protests “since day one.”
So Greenpeace has tried arguing the lawsuit was frivolous. It wasn’t. It has tried arguing that it wasn’t really involved in the protest. It was. With these arguments having failed, the group and its supporters are now trying to make this a case about free speech. Climate Defiance, a group that earlier this year organized an illegal blockade of the Energy Department, called the verdict a “blatant attack” on First Amendment rights.
But this argument also doesn’t hold water because Greenpeace isn’t being held liable for what it said; it’s being held liable for what it did. As one constitutional attorney told The New York Times, “If people are engaged in non-expressive conduct, like vandalism, like impeding roadways such that cars and passers-by can’t use those roadways, the First Amendment is not going to protect that.”
In addition, Greenpeace has continued to publicly attack Energy Transfer throughout the legal proceedings, demonstrating that the group certainly doesn’t behave as if its free speech is being suppressed in any way.
The jury’s decision in North Dakota is justifiably concerning to Greenpeace and other extremist groups, but no one should be fooled into believing that these groups have lost their rights to free speech. They’ve merely lost their ability to hide behind the First Amendment as an excuse to perform clearly illegal acts.
• Jeffrey L. Skaare is a North Dakota energy attorney and investor.
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