How litigation throttles civic advocacy

Silencing criticism takes many forms. It can be a government cutting off domestic internet access or stopping a satirical news show. It can be as blatant as imprisoning a journalist, or as subtle as being forced out of a career. It can play out in orders from a podium, or in the dust of a firing range.

Or, as is more and more often the case, it can play out in court.

It’s no easy thing to shut down critics in a democracy. If someone doesn’t like what you have to say about them, they’ll find it difficult to get away with hiring goons to break down your doors to intimidate you. No, an increasingly used way to shut someone up – an advocacy group, or a lone dissenter – is to take them to court and sue them into a state of paralysis.

In many ways, hiring goons is a lot easier and lot less complicated, because bringing to bear the massive financial and legal resources necessary to silence a critic is costly, complex and time-consuming. And this is exactly the idea behind SLAPP suits (Strategic Lawsuits Against Public Participation); they tie up the defendant as much as the plaintiff so that the defendant is no longer able to perform their civic duty as a watchdog.

With the ever-growing power of industry over advocacy groups, SLAPP suits effectively tip the balance firmly in favour of those companies who are willing to smother human rights and harm the environment to make a profit.

Silencing criticism has far-reaching impacts beyond the courtroom where a case is being heard. SLAPPs are becoming a popular scheme for anyone, anywhere who wants to throttle free speech. Anyone, that is, who has the time, money and resources.

Right now, Resolute Forests Products is pursuing just this kind of suit. For speaking out against its destruction of our pristine forests, the giant logging company (using Donald Trump’s legal team) is attempting to sue Greenpeace into silence using an anti-mafia law called “RICO” (Racketeer Influenced and Corrupt Organisations). Under RICO, Resolute is attempting to label every day advocacy, like protest and raising awareness to environmental threats, as “criminal”. Resolute’s claims ride on ridiculous and baseless accusations, but that’s not the point, because it is not a case that Resolute is necessarily trying to win.

Victory in a SLAPP comes far before the final verdict – success is in the execution of the SLAPP itself. Has your critic been rendered immobile within the expensive, resource-draining rigmarole of the legal proceedings? Yes? Then you’ve done your job.

But, this is not just about Greenpeace, because no SLAPP suit happens in isolation. This is about any protestor, advocacy group or public watchdog anywhere. This is about the tribal elders of Standing Rock, a few courageous people in Alabama or a journalist reporting on Donald Trump and their right to free speech for the public good.

This kind of throttling of free speech is not only contained within national borders. This is about using US courts to hamstring the rights of international civic institutions.

This is also about one corporation taking its cues from the tricks used by others in court. Bullying tactics – like exhausting activists’ resources, targeting individual campaigners (as well as the organisation itself) and using the cloak of legal privilege to hammer a defendant with a barrage of contrived defamatory allegations – get used or refined for attacking free speech in another courtroom. A tactic is developed in one place and the blow lands somewhere else entirely.

Allowing SLAPPs to evolve creates a growing and malignant cancer which eats away at public interest advocacy and keeps civil society organizations and journalists from doing their job. Imagine a world where corporations and industries everywhere were able to operate unchecked – clear-cutting our forests while at the same time bulldozing free speech.

Silencing criticism can take many forms, and SLAPPs are something we can resist together by declaring it to the world when it happens. When we expose this kind of litigation we are taking a stand for all our rights everywhere. Together we must send a strong, unequivocal message that drowning your critics in bogus legal proceedings is not just cowardice, it does not work.

We will not be silenced.

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