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Whose First Amendment rights are these anyway?

Cook’s blog post last week draws much needed attention to the risks that brave human rights activists around the world take to ensure the rights of all human beings are respected in the face of corporate power. In the U.S., we are fortunate to have some of the strongest protections for free speech and expression in the world. Nonetheless, corporate efforts in the U.S. to silence human rights and environmental defenders are increasing.

Particularly since Citizens United, we’ve seen the corporate lobby make unprecedented and increasingly bold arguments against legal responsibility or accountability by using the First Amendment’s protection of free speech. At the same time, however, corporations have increasingly targeted human rights and environmental activists who exercise their free speech rights to call attention to corporate abuse and advocate on behalf of victims.

The Chevron/Ecuador saga provides a particularly illustrative example of this First Amendment hypocrisy. Rather than pay the $18 billion judgment against it for environmental devastation in Ecuador, the company decided to sue the lawyers who brought the case and their Ecuadorian clients. As part of this effort to avoid paying the judgment, Chevron has mercilessly hunted down any organization or individual who has dared to publicly speak out about the plight of the Ecuadorians affected by the company’s former operations and the tragic damage to the Amazon it left behind. The company has abused the discovery process to go after activists and advocacy organizations like Amazon Watch, lawyers, journalists, and even its own shareholders with subpoenas and harassing depositions that target the exercise of protected First Amendment activity, harass, and chill future speech it doesn’t care for. Chevron and its counsel have been sanctioned, admonished, and questioned for its tactics by a number of U.S. courts, but it hasn’t changed its practice.

Chevron has also made novel use of the RICO statute – a statute originally passed to pursue the Mafia - to bring in to its lawsuit not only the actual defendants, but also any vocal critics of the company by alleging that activists engaged in an unlawful “pressure campaign” to try to coerce Chevron into settling the case against it. Using RICO has the added benefit of allowing Chevron to label anyone who speaks out against the company a “co-conspirator” without having to demonstrate any actual wrongdoing – or face liability for slander or defamation. The company repeatedly trumpets this line in the press – despite the fact it hasn’t proved any of its allegations yet – and at the same time accuses the defendants and activists of illegal conduct when they publicly call on Chevron to clean up the pollution it caused.

But retaliation against human rights advocates and activists isn’t unique to Chevron. Corporate defendants facing lawsuits alleging human rights abuse have responded, for example, by filing SLAPP suits (Strategic Litigation Against Public Participation) against the attorneys that brought the case. SLAPP suits frequently allege defamation, conspiracy, and malicious prosecution, among other torts, and are often blatantly retaliatory. Winning doesn’t matter all that much: the suit itself is payback enough as it can cost an attorney enormous amounts of time and resources, which can be particularly crippling for a human rights practice. A number of states have taken important steps to prevent this sort of action by passing anti-SLAPP statutes that allow a court to dismiss cases or claims that meets the SLAPP criteria. Chevron brought a SLAPP suit against a lawyer in connection with the Ecuador case that was ultimately dismissed thanks to California’s anti-SLAPP Statute. Drummond recently filed a SLAPP suit in Alabama against a human rights attorney who has brought cases against the company for its alleged role in egregious human rights abuses in Colombia. Unfortunately, Alabama doesn’t have an anti-SLAPP statute. For other examples, see here and here.

Whether or not Chevron ultimately succeeds in its RICO lawsuit, its multifaceted crusade against environmental and human rights activists and lawyers provides a deeply problematic blueprint other companies may be tempted to mimic to strike back against critics and mitigate the PR damage that a human rights or environmental lawsuit can cause. At the same time, the corporate lobby continues to use the First Amendment to argue against accountability and legal responsibility and in favor of increased constitutional protections for corporations. If the First Amendment continues to be reinterpreted to protect and maximize corporate power, will there be anything left of it to protect the free speech rights of individuals and activists?