A striking verdict against Greenpeace, finding it liable for more than $600 million in damages for supporting the Standing Rock protests, will chill free expression and launch a new era for speech lawsuits, First Amendment lawyers say.
There’s “blood in the water,” said Thomas Julin, a First Amendment attorney for the firm Gunster, who has spent his career mostly defending companies’ speech rights.
One of the largest fossil fuel pipeline companies in the United States, Energy Transfer, won its lawsuit against Greenpeace yesterday, after accusing the organization of materially supporting the 2016 Standing Rock protests against the pipeline Energy Transfer was trying to build in North Dakota.
The pipeline company asked a state jury to decide that Greenpeace was liable for hundreds of millions of dollars in damages, both for the delay to the pipeline’s construction and for the reputational hit that Energy Transfer took during the protest movement, which captured celebrity and international attention. The jury largely ruled in the company’s favor. North Dakota doesn’t have protections against lawsuits designed to quell speech, or anti-SLAPP, laws.
Thirty-five states have anti-SLAPP laws. But the fact that Energy Transfer won a judgement of this size against a well-known advocacy organization is enough to have wide-reaching effects on speech and protest in general across the country regardless of the specifics of the Greenpeace case, six attorneys who span the wide range of corporate firms, academia, and nonprofit advocacy told NOTUS in the last 24 hours.
“What I am most concerned about is the leeway this gives others to say, ‘I can also enlist the courts to engage in censorship by lawsuit and try to silence my critics under the pain of the financial and emotional toll that litigation takes,’” said JT Morris, an attorney at the Foundation for Individual Rights and Expression, a nonprofit that defends freedom of expression. “It’s emboldening others to say, ‘Hey, if Energy Transfer can go into court and sue its critics and get a nine-figure jury verdict, I’m going to go out to sue my critics, too.”
Rights to free expression are facing increasingly aggressive attacks from high-profile lawyers that result in more victories, lawyers argue. This pattern, which President Donald Trump has embraced in his own defamation challenges to media companies and pollsters, will only escalate on the heels of this verdict, they said.
“This verdict clearly conveys that when this right to peacefully protest is abused in a lawless and exploitative manner, such actions will be held accountable,” the attorney for Energy Transfer, Trey Cox, said in a statement after the decision.
Both Greenpeace and Energy Transfer were represented by large law firms with exceptional reputations. Until the last few years, Julin said that it has been rare to see speech- and protest-related cases pursued by attorneys with excellent reputations. The cases were seen as too hard, too complicated and unlikely to result in high profits, he said.
That’s changing.
“Whenever you have a large verdict like that, lawyers take notice. And they think, ‘Wow, I should be doing that. I should be advertising myself as a plaintiff’s defamation lawyer, I want to invest in that because the returns apparently are so high,” Julin said. “It’s an aroma that goes out there. It’s a toxic stew.”
Representatives for Greenpeace have been warning for years that this case could set a chilling precedent for other activist and protest organizations. The more than $600 million in damages that Greenpeace would need to pay — if the organization loses its planned appeal — could inspire fear in other activist groups that don’t have the resources to defend themselves, said Sushma Raman, Greenpeace’s interim executive director.
Though Raman, in a conversation with NOTUS after the verdict, would not confirm that the size of the damages would bankrupt Greenpeace, the most recently reported revenue for the organization’s central U.S. arm was about $40 million in 2023.
By contrast, Energy Transfer reported more than $1 billion in net income in the last three months of 2023 alone.
“A plaintiff like Energy Transfer, its economic interests are not the recovery of the damages, but just establishing that these kinds of damages can be had against a critic,” Julin said.
“Already, I’m seeing posts on social media where people who work in the oil industry are celebrating this and saying, ‘This is a great tactic to silence environmental groups and other groups who are creating difficulty for our work,’” Raman said. “This is a blueprint, if you will, to really bring down organizations that are seeking corporate accountability in many, many forms.”
The American Civil Liberties Union is taking the same position. “If companies can sue critics, advocates and protesters into oblivion for their speech and the unlawful acts of third parties, then no one will feel safe protesting corporate malfeasance,” said Brian Hauss, a senior attorney for the organization.
But the possible effect extends far beyond the speech of just activist organizations, both Morris and Julin warned.
“The big concern here is, when people see these big verdicts, and they say, ‘Oh, well, guess what, I’m going to turn on my critics too. That has a domino effect on chilling speech,” Morris said.
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Anna Kramer is a reporter at NOTUS.