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Greenpeace Verdict Sparks Free Speech Concerns After Dakota Access Pipeline Protest Damages Award
A recent court decision against the environmental organization Greenpeace has ignited a debate regarding the boundaries of free speech and protest rights in the United States. Following demonstrations against the Dakota Access Pipeline, Greenpeace was ordered to pay nearly $670 million, with a significant portion – a quarter of a billion dollars – attributed to defamation of the pipeline’s owner, Energy Transfer, rather than direct protest actions. This substantial financial penalty has generated apprehension among activist groups and First Amendment advocates, who caution that the lawsuit and resulting damages could stifle dissent and limit freedom of expression beyond environmental activism.
Chilling Effect on Political Protest
David D. Cole, a Georgetown Law professor and former legal director of the American Civil Liberties Union, stated that the verdict “will instill fear in any nonprofit seeking to engage in political protest.” He emphasized the broad implications, suggesting that organizations across the political spectrum, “whether it’s the Sierra Club, the N.A.A.C.P., the N.R.A., or an anti-abortion group,” will likely be deeply concerned about the potential ramifications.
Energy Transfer initiated the lawsuit in 2019, alleging that Greenpeace orchestrated an “illegal and aggressive scheme” intended to harm the company’s finances, workforce, and infrastructure, as well as impede the construction of the Dakota Access Pipeline. Greenpeace refuted these accusations, asserting that their involvement was limited to promoting peaceful demonstration and playing a minor role in events primarily driven by the Standing Rock Sioux Tribe, who voiced worries about their ancestral lands and water resources.
Defamation at the Heart of the Case
Defamation claims were central to Energy Transfer’s legal arguments. The jury determined that Greenpeace had defamed the company through nine statements, the first of which falsely asserted that Energy Transfer had “damaged at least 380 sacred and cultural sites” during pipeline construction.
Greenpeace has characterized Energy Transfer’s lawsuit as an attempt to silence critics. Sushma Raman, interim executive director of Greenpeace USA, asserted, “This legal action should be alarming to everyone, regardless of their political affiliations. We should all be concerned about the future of the First Amendment.”
Greenpeace has declared its intention to appeal the verdict in North Dakota, where the trial took place, with free-speech issues expected to be a prominent element of their appeal.
However, the invocation of the First Amendment was not exclusive to Greenpeace.
Conflicting Views on First Amendment Application
Energy Transfer’s lead attorney, Trey Cox, from Gibson, Dunn & Crutcher, described the verdict as “a strong affirmation” of the First Amendment upon exiting the courtroom. He stated, “Peaceful protest is a fundamental American right. Conversely, violent and destructive protest is unlawful and unacceptable.”
Vicki Granado, a spokesperson for Energy Transfer, depicted the verdict as “a victory for all law-abiding Americans who recognize the distinction between the right to free speech and unlawful conduct.”
These contrasting remarks highlight a key point of contention: defining the line between legitimate protest and illegal activity.
JT Morris, a senior supervising attorney at the Foundation for Individual Rights and Expression, clarified, “If individuals engage in non-expressive actions, such as vandalism or obstructing roadways, preventing vehicle and pedestrian traffic, First Amendment protections do not apply.” He further noted, “However, peaceful protest and criticism of corporations on matters of public concern are protected.”
Free Speech Debate in a Polarized Climate
This verdict emerges amidst a broader national discussion about the boundaries of free speech. Accusations of defamation have become common in the current political climate, with examples ranging from political leaders targeting news organizations to debates over online censorship on social media platforms.
Jack Weinberg, a prominent free-speech activist from the 1960s and former Greenpeace employee, commented on the verdict: “Nothing in this particular political environment is surprising anymore. But it’s wrong, and it will have significant consequences.”
Historical Protections Against Defamation Lawsuits
Historically, the United States has maintained a high threshold for defamation lawsuits.
The First Amendment safeguards free speech and protest rights, significantly reinforced by the landmark 1964 Supreme Court decision, New York Times v. Sullivan. For a public figure to succeed in a defamation case, they must demonstrate that the contested statement was false and made with “actual malice”—meaning the speaker knew it was false or acted with reckless disregard for its truthfulness.
Carl W. Tobias, a law professor at the University of Richmond, explained that the ruling deliberately raised the bar for winning defamation cases. “It’s extreme by design, intended to be,” he stated.
Eugene Volokh, a senior fellow at the Hoover Institution at Stanford University, referenced the historical context of the New York Times v. Sullivan case. The case originated from a 1960 advertisement in The Times describing police actions against civil rights demonstrators in Alabama as “an unprecedented wave of terror.”
A police official successfully sued the newspaper, but the Supreme Court overturned the verdict, emphasizing the necessity of protecting even erroneous speech to ensure vibrant public discourse.
Greenpeace Appeal and Key Legal Questions
Regarding a potential Greenpeace appeal, Mr. Volokh suggested that the evidence concerning the truth or falsity of Greenpeace’s statements would be crucial in evaluating the verdict, along with whether those statements constituted constitutionally protected opinion.
Additional critical aspects include the admissibility of evidence during the trial and the adequacy of jury instructions. Furthermore, he questioned whether sufficient evidence existed to prove “reckless falsehood,” or “actual malice,” if the statements are deemed demonstrably false.
Mr. Volokh emphasized that any defamation award has a chilling effect on free speech, whether directed at Greenpeace or figures like Infowars host Alex Jones, who faced substantial penalties for false claims regarding the Sandy Hook school shooting.
In the Greenpeace case, the nine defamatory statements identified by the jury pertained to Energy Transfer and its subsidiary, Dakota Access. One statement alleged that Dakota Access personnel had “deliberately desecrated burial grounds.” Another claimed protesters faced “extreme violence, such as water cannons, pepper spray, concussion grenades, Tasers, LRADs (Long Range Acoustic Devices), and dogs, from local and national law enforcement, Energy Transfer partners, and their private security.”
Statements on Pipeline Opposition and Tribal Land
Other statements were broader, such as: “For months, the Standing Rock Sioux have resisted the construction of a pipeline through their tribal land and waters that would carry oil from North Dakota’s fracking fields to Illinois.”
The protests spanned from mid-2016 to early 2017, drawing tens of thousands of participants globally and garnering extensive media coverage and social media documentation.
Janet Alkire, chairwoman of the Standing Rock Sioux Tribe, maintained that Greenpeace’s statements were accurate and not defamatory. She issued a statement asserting, “Energy Transfer’s false and self-serving narrative that Greenpeace manipulated Standing Rock into protesting DAPL is patronizing and disrespectful to our people,” using the acronym for the Dakota Access Pipeline.
Evidence and Trial Proceedings
Ms. Alkire highlighted that “scenes of guard dogs menacing tribal members” were publicly accessible “on television news and online.”
Despite the availability of video evidence, footage of the specific incidents was not presented during the trial. Everett Jack Jr., the lead attorney for Greenpeace from Davis, Wright Tremaine, declined to comment on the reasons for this.
The 1,172-mile pipeline, initially valued at $3.7 billion, has been operational since 2017, transporting crude oil from North Dakota to Illinois.
Trial arguments addressed whether the pipeline crossed Standing Rock land and the definition of tribal territory. While the pipeline is situated just outside reservation boundaries, it traverses land the tribe considers unceded.
Debate also ensued regarding alleged harm to tribal burial grounds during construction. Tribal experts affirmed such damage, whereas Energy Transfer’s experts disputed these findings.
Mr. Cole suggested that even if statements were inaccurate, liability is not automatic if the defendant had grounds for believing them. He also anticipated a potential reduction in the penalty amount during appeal, if not a complete reversal.
Concerns Regarding Jury Bias and Potential Supreme Court Review
Veteran First Amendment lawyer Martin Garbus, who led a delegation of lawyers to observe the trial in North Dakota, voiced concerns about potential jury bias against the defendants and suggested the trial venue should have been changed. He also expressed apprehension that a Supreme Court appeal could be used to challenge Times v. Sullivan, noting Justice Clarence Thomas’s prior calls for reconsidering the precedent.
However, experts like Mr. Cole and Mr. Tobias believe the Supreme Court is unlikely to revisit Times v. Sullivan.
Greenpeace’s Future Operations
Greenpeace has previously indicated that the substantial damages could potentially force the closure of its U.S. operations.
While the lawsuit named three Greenpeace entities, it primarily focused on Greenpeace Inc., the Washington-based organization responsible for U.S. campaigns and protests. This entity was found liable for over $400 million.
Greenpeace Fund, a fundraising division, was deemed liable for approximately $130 million, as was Greenpeace International, based in Amsterdam. Greenpeace International stated its sole involvement was co-signing a letter with hundreds of others urging banks to cease financing the pipeline project.
Greenpeace Counter-Suit in Europe
Earlier this year, Greenpeace International initiated a counter-lawsuit against Energy Transfer in the Netherlands, invoking a European Union directive aimed at combating SLAPP suits—strategic lawsuits against public participation—intended to silence critics. North Dakota, where Energy Transfer originally filed suit, lacks anti-SLAPP protections.
The next hearing in the Netherlands case is scheduled for July.