How SLAPP is letting corporations steal the truth | Environment/Nature |Axisoflogic.com

Photo: From Occupy.com

All his life, Pete Kolbenschlag has been fighting for the Commons against wealthy people and corporations who want to own and destructively exploit nature. “Change happens all the time,” he told me, “and will long after you have shed the mortal coil. Shape what you can now in a positive direction.”

Pete was my best friend’s housemate when I first met him 20-ish years ago in Salt Lake City. He was already a troublemaker, heading up major environmental actions in Utah and networking with activists and organizations around the West. He lives in Colorado now, and runs Mountain West Strategies, providing support to groups struggling to protect land and natural resources in Rocky Mountain states. He’s still a troublemaker.

But a couple of year ago, Pete learned the hard way that nature isn’t the only part of the Commons that the elites want to buy off and put fences around. He’d read a news story in the Post Independent, a local paper, about oil and gas drilling on federal lands in western Colorado. The Obama administration had cancelled oil and gas leases on a portion of that land. A company called SGI planned legal action against the administration. SGI argued that the administration’s decision had been “political,” and that Obama was “taking orders from environmental groups.”

On the Facebook comments below the article, Pete wrote that SGI had been fined for colluding with another company to rig bid prices. He concluded his comment by saying that those companies were padding their portfolios at the expense of American taxpayers.

SGI sued Kolbenschlag for libel due to that Facebook comment.

Called “SLAPP” suits, for “strategic lawsuits against public participation,” libel suits against activists can both destroy and discourage public interest work. George W. Pring and Penelope Canan drew the legal community’s attention to SLAPP suits nearly 30 years ago in an article in Pace Environmental Law Review. Companies can sue you for circulating petitions, speaking out at school board meetings, testifying in zoning hearings against real estate development, writing to newspapers or public officials, filing complaints, reporting restaurants for health code violations, and more. Pring and Canan write that you can get sued just for “going to a public meeting and signing the attendance sheet.”

Successfully executed SLAPP lawsuits allow corporations to buy the truth. Even unsuccessfully executed SLAPP lawsuits allow those corporations to exact a heavy price on activism – potentially discouraging it altogether by stripping advocacy groups and individual activists of their already meager assets.

Over the years, some states have fought back with anti-SLAPP laws designed to protect defendants’ free speech rights. Colorado has no such laws protecting the First Amendment rights of activists from frivolous lawsuits. Pete had to get a lawyer and start asking supporters and friends for money to pay his legal fees. He was determined to prevail, but it was scaring the hell out of him. “It’s not fun,” he said. “The mind can wander sometimes toward dark what-ifs.”

Throughout the ordeal (spoiler alert: it isn’t over), Pete has spent a lot of time thinking about the prices you pay for devoting your life to these causes. I asked him what he would tell younger activists – people just starting out. “Be aware that if you are effective,” he replied, “you are probably pissing off powerful people. Second, be grounded in your strengths, the truth of what you said, the support you have from your community.”

This summer, a Colorado judge ruled that Pete hadn’t committed libel, that his Facebook comment had been “substantially true,” and that holding people to a standard where companies could turn technical disagreements into libel claims would chill free speech. The judge observed that what the two companies had done to incur the fines in the first place were more damaging to their reputation than anything Pete had said.

“Get a lawyer,” Pete told me, “or talk to a friend that is an attorney. Avoid getting sued, but if you get sued, take it seriously. As far as an opportunity, consider it a mark of effectiveness, and use it as a teachable moment if you can.”

Pete was relieved by the judge’s ruling. He didn’t see how SGI could appeal; the conclusions seemed sound. But SGI did appeal. The company says it wants to move into the discovery phase, so they can seek evidence from Pete himself. “I’m still confident the complaint is bogus and that the action against me is groundless, frivolous, and vexatious. I hope the court awards my attorney fees, but I’m not backing down.”

So long as the economic foundation of our society is the profit-seeking, private or shareholder-based firm, corporations will constantly try to buy the legal and political process, and they will frequently succeed. Each individual fight against those corporations is vital. Each fight buys us time and demonstrates – especially to ourselves – that we can fight back and build a better world. But each fight also exacts a real toll on the fighters.

“It’s getting expensive,” Pete says.

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