This article is excerpted from Chapter 4 of a new book by Australian environmentalist SHARON BEDER titled Global Spin: the corporate assault on environmentalism.
Every year, thousands of Americans are sued for speaking out against governments and corporations. Multi-million dollar law suits are being filed against individual citizens and groups for circulating petitions, writing to public officials, speaking at, or even just attending, public meetings, organising a boycott and engaging in peaceful demonstrations. Such activities are supposed to be protected by the First Amendment to the US Constitution, but this has not stopped powerful organisations who want to silence their opponents.
This trend is now spreading to other countries. In Canada the transnationals MacMillan Bloedel Ltd and Fletcher Challenge have between them sued over 100 individuals and four community and environmental organisations who opposed the logging of ancient rainforest on Vancouver Island. And in Britain, McDonald's, one of the largest companies in the world, sued two unemployed activists for distributing pamphlets critical of the company.
In Australia, business people attending the Third Annual Pollution Law Conference were presented with a paper entitled Legal Rights of Industry Against Conservationists, which advised them about legal action that could be taken against environmental activists.
In Missouri a high school teacher, in a letter to the editor of a local paper, urged her local community to attend hearings being held by the state environmental agency on a medical waste incinerator and to testify against approval being granted. The Canadian incinerator company sued her for $500,000 for libel.
Betty Jane Blake opposed a developer, Terra Homes Inc., that wanted to cut down some trees in her street. She put up signs saying "This neighbourhood will not be Terrarized" and tied red ribbons around the tree trunks. She was hit with a $6.6 million dollar law suit for defamation, interference in business and trespassing. The company also sued all the residents who attended a meeting at the Town Hall to discuss the development. The company eventually dropped the suit, but not before residents had one by one signed affidavits swearing that they had not taken part in putting up signs and ribbons, and dropped out of the campaign from fear.
These cases are indicative of a trend which began in the 1970s as a response to the increasing number of citizens who were speaking up about environmental and other social issues. The law suits have been labelled "Strategic Lawsuits Against Public Participation", or SLAPPs, by University of Denver academics Penelope Canan and George Pring.
Canan and Pring define a SLAPP as a civil court action which alleges that injury has been caused by the efforts of non-government individuals or organisations to influence government action on an issue of public interest or concern. They found that "SLAPPs are filed by one side of a public, political dispute to punish or prevent opposing points of view". People using SLAPPs in this way cannot directly sue people for exercising their democratic right to participate in the political process, so they have to find technical legal grounds on which to bring their cases. Such grounds include defamation, conspiracy, nuisance, invasion of privacy or interference with business or economic expectancy.
Most are dismissed by the courts, and 77% of those that are heard by the courts are won by the people being sued. Less than 10% of such cases in the USA result in a court victory for the filer of the action. But companies and organisations taking this legal action are not doing so in order to win compensation: their aim is to harass, intimidate and distract their opponents. They "win" the court cases when their victims "are no longer able to find the financial, emotional, or mental wherewithal to sustain their defence".
The cost to a developer is part of the cost of doing business, but a court case could well bankrupt an individual or environmental group. In this way the legal system best serves those who have large financial resources at their disposal, particularly corporations.
The chill effect
Not only does a SLAPP deter those involved from continuing to freely participate in political debate, but it also deters others from speaking freely and confidently about local public issues.
Dixie Sefchek says that when she and three other leaders of Supporters To Oppose Pollution (STOP) were SLAPPed it was "like a death threat to your organisation. People, organisations, and churches stopped giving money. Individuals resigned their memberships." The suit was later dropped and the landfill they opposed ordered to be closed a few years later because of contamination of the ground water.
One tactic sometimes used by developers is to include John Does and Jane Does and "unnamed persons" as defendants to "spread the chill". This is a way of claiming that there are additional "offending" citizens who could not be identified before the suit was filed and leaves the way open to sue other citizens later. It puts would-be activists on notice that they too could be added to the list of defendants.
SLAPPs often do not go to trial because the objective — to scare off potential opponents — can be achieved merely by the threat of the court case. Kim Goldberg points out that "company lawyers will usually go to great pains to warn activists of impending defamation suits. After all, why waste time and money filing legal papers to initiate a lawsuit if the mere threat of a suit will silence your critics?"
Another effect of the SLAPP is to distract the key antagonists from the main controversy and use up their money, time and energy in the courtroom, where the real issues are not discussed. SLAPPs "are an attempt to 'privatise' public debate — a unilateral effort by one side to transform a public, political dispute into a private, legal adjudication, shifting both forum and issues to the disadvantage of the other side."
SLAPPs can also shift the balance of power, giving the firm filing the SLAPP suit the upper hand when they are losing in the political arena. In the courts, the wealth of the disputants and their ability to hire the best lawyers can influence the outcome. Prolonged litigation can even achieve community compliance through delay and loss of sustained interest among the broader public.
SLAPPS outside the USA
SLAPPs are far less frequent outside the US. Nevertheless, the number of SLAPP cases outside of the US is increasing and taking its toll, especially because legal assistance is not readily available in cases such as libel. Mirabelle, one of the Canadian protesters being sued by Fletcher Challenge, points out that most of the defendants in her case are representing themselves because they can't afford lawyers and were unable to get legal aid. Six of them have already lost the case before trial for not following "proper procedure" because they didn't understand the legal process. This means that their assets can be seized and part of their wages forfeited for the next 20 years to pay the company. And because of a legal concept of 'joint and several liability', if anyone can't pay then the others must make up the difference.
A similar situation has arisen in Britain, where the Department of Transport (DOT) is using SLAPP tactics on demonstrators opposing a motorway at Twyford Down. When seven demonstrators were jailed for 28 days for breaking a court injunction banning them from protesting on the construction site of the motorway, they received favourable publicity and praise from the judge who stated that civil disobedience was an "honourable tradition". However the high court injunction is being used by the DOT to sue the protesters for damages and legal costs of £2 million.
Another tactic that has a similar effect to injunctions is used in both the UK and Australia. Protesters are arrested en masse and bail conditions are set that require protesters not to return to the site of protest. "For months and months you are banned from protesting, and then when it finally gets to court, the police do not even bother to turn up." In Britain this has been aided by the 1994 Criminal Justice and Public Order Act which makes various protest actions, such as trespass for the purposes of blocking development work, criminal offences.
While legal aid to low-income litigants is being cut back in Australia, companies receive a massive subsidy for their legal expenses through being able to claim them as tax deductions, no matter whether a case has any merit whatsoever nor how much they spend on lawyers.
Other legal mechanisms have also been used against protesters involved in civil disobedience in Australia. In one case, five protesters superglued and bolted themselves onto logging machinery in Badja State Forest in NSW. They were charged with "intimidating" the logger, who was 600 metres away at the time. Such protesters have often been charged with trespass, but charges are usually dismissed by the courts. However the criminal charge of "intimidation", which has been on the statute books for almost 100 years, carries with it the possibility of jail sentences. It was only recently discovered by local police, who say they will use it more often in future. In 1993 the protesters were found guilty and fined $4000 in the first conviction of this kind.
In other cases the Trade Practices Act has been used against environmental activists. The act contains secondary boycott provisions that were originally introduced to stop trade union actions, including strikes. It made it illegal for a group of people to interfere with the provision of services or products that one party has contracted to provide to another party.
The Trade Practices Act, while not used much in the courts, is often used as a way of intimidating protesters. The Forest Products Association threatened to use it against the North East Forest Alliance activists who were trying to prevent logging in the Chaelundi wilderness area. A separate court case, which declared logging in this area illegal, saved the activists at the last minute. It was also used by Australian Paper and Pulp Manufacturers (APPM) in 1993 to threaten the Wilderness Society in Tasmania, which was campaigning against the export of woodchips, and by the Federal Airport Corporation against fishing people who were interfering with the dredging of Botany Bay to construct a third runway for Sydney's Mascot airport. The Australian Consumers Association and the Australian Federation of Consumers Organisations have had legal advice that consumer boycotts against environmentally damaging products might also be illegal under the same act.
[Global Spin: the corporate assault on environmentalism is available in most book stores or from Scribe Publications, PO Box 287, Carlton North 3054 for $24.95.]