A libel verdict against Greenpeace may destroy the organization — and weaken the First Amendment

Earlier this week, a North Dakota jury delivered a verdict on behalf of a large energy company that may destroy the environmental organization Greenpeace — and that could inflict significant damage on the First Amendment as well.

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According to reporters Jeff Brady and Alejandra Borunda of NPR, the jury ruled in favor of Energy Transfer, which built the Dakota Access oil pipeline, and which accused Greenpeace in a civil suit of libel, trespassing and other offenses. The jury awarded Energy Transfer $660 million, which Greenpeace officials have said could force the organization to cease operations.

“I think Energy Transfer, and this is probably true of many big oil companies, is trying to send a message to other organizations that if you try and hold power to account, we will try to silence you. We will try to bankrupt you,” said Sushma Raman, interim executive director of Greenpeace USA. Greenpeace plans to appeal.

There are nuances to this. Energy Transfer claims that Greenpeace encouraged violence during protests at the site in 2016 and ’17, which Greenpeace denies. Energy Transfer co-founded Kelcy Warren has also claimed that Greenpeace engaged in disinformation by asserting that the company was on Native American property and that it had made no effort to talk with the Standing Rock Sioux, the tribe that was at the heart of the protests. Greenpeace denied those allegations as well.

Fundamentally, though, this is a case about speech. Greenpeace contends that this was a so-called SLAPP suit, an acronym that stands for “strategic lawsuit against public participation” — in other words, an attempt to misuse the legal system in order to shut down public objections to the pipeline. North Dakota is one of just 15 states that do not have an anti-SLAPP law on the books, according to NPR.

There were other considerations as well. In The Guardian, Rachel Leingang and Nina Lakhani report that Greenpeace was up against a jury that was sympathetic to the fossil-fuel industry and that regarded the protests as intended to delay a project that would have provided much-needed jobs.

“During jury selection, potential jurors appeared to largely dislike the protests, and many had ties to the fossil fuel industry,” Leingang and Lakhani write. “In the end, more than half the jurors selected to hear the case had ties to the fossil fuel industry, and most had negative views of anti-pipeline protests or groups that oppose the use of fossil fuels.”

The question now is where this goes from here. Martin Garbus, a well-known First Amendment lawyer who was among a group of lawyers monitoring the trial, was withering in his criticism of the outcome. The Guardian quoted him as saying:

In my six decades of legal practice, I have never witnessed a trial as unfair as the one against Greenpeace that just ended in the courts of North Dakota … Greenpeace has a very strong case on appeal. I believe there is a good chance it ultimately will win both in court and in the court of public opinion.

But though Greenpeace would appear to have a good chance of persuading an appeals court to overturn the verdict based on current First Amendment law, it’s landing at a time when some right-wing judges are itching to pare back libel protections.

In his new book, “Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful,” New York Times reporter David Enrich documents a decades-old project to intimidate those who would hold the powerful to account — principally the press, but in this case an activist organization — by filing libel suit after libel suit, draining them of resources until they no longer have the means to fight.

Enrich describes it as “a largely under-the-radar legal movement that is weaponizing the obscure field of libel law — a campaign whose growing momentum has closely tracked the country’s increasing flirtations with authoritarianism.”

The Supreme Court’s landmark 1964 libel decision, Times v. Sullivan, might figure into this as well. If Transfer Energy can persuade an appeals court that Greenpeace made false, defamatory statements, it would also have to show that Greenpeace knew they were false or acted recklessly. But two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have indicated that they’re prepared to lower that bar for public figures such as Transfer Energy— or, in Thomas’ case, eliminate it altogether. Donald Trump, too, has said he wants to “open up our libel laws.”

Thus, if this case winds up before the high court, it could shake freedom of speech and of the press to its core. New York Times reporter Karen Zraick quoted Deepa Padmanabha, a senior legal adviser to Greenpeace USA, on what’s at stake: “We should all be concerned about the attacks on our First Amendment, and lawsuits like this that really threaten our rights to peaceful protest and free speech.”