US: ARTICLE 19 and others file amicus brief in Dakota Access Pipeline case

ARTICLE 19 has joined seven other civil society organisations to file an amicus curiae brief in a case coming before the United States District Court of North Dakota, in which the company responsible for building the Dakota Access Pipeline, Energy Transfer Partners (ETP), is suing various civil society organisations for nearly one billion dollars in damages and fees. This frivolous lawsuit attacks the basic tenets of the First Amendment, in seeking to reframe legitimate political speech by civil society groups on matters of the utmost public importance such as, variously, racketeering, defamation, tortious interference with business and common-law conspiracy. The brief calls on the Court to protect the rights to freedom of expression and association, by dismissing the complaint at the earliest opportunity.

The case before the District Court, Energy Transfer Equity, L.P. and Energy Transfer Partners, L.P., v. Greenpeace international and others, concerns the advocacy and campaigning work of various environmental civil society organisations, including Greenpeace International, in protest at the planned construction of the Dakota Access Pipeline.

As the amicus brief sets out, the construction of this oil pipeline, which stood to cross tribal lands, was mired in controversy and the subject of intense public debate on matters of the utmost public concern, including indigenous rights, environmental protections, the use of fossil fuels and climate change, and law enforcement and private security forces’ confrontations with peaceful protesters. The defendants were exercising their protected rights to freedom of expression, assembly, and association to actively engage in that debate.

Referencing the RICO Act (a statute more usually employed to target powerful organised criminal groups) and defamation law, however, ETP alleges that the defendants were in fact engaged in a vast criminal conspiracy to defraud and misinform the public. They claim that many statements made by the defendant organisations in their campaigning were false, and defamatory. ETP further argue that since the defendants were involved in an alleged conspiracy, that they should be held liable for the allegedly unlawful actions of other organisations and individuals involved in protests against the pipeline, which their defamatory statements are alleged to have ‘incited’.

Whilst it is unlikely this obviously meritless case would have any meaningful chance of success if it came to trial, its potential chilling effect on the rights to freedom of expression, assembly, and association would nevertheless be severe.

The amicus brief outlines why the Court should dismiss the complaints made by the ETP at the pleading stage, as follows:

  • First, that the acts which the ETP allege to constitute criminal conspiracy are quintessential examples of political speech on issues of clear public concern, and are as such subject to the highest levels of protection. If the ETP’s claim was accepted, advocacy organisations that seek public donations and campaign against business interests could face substantial claims for damages, undermining their free expression rights.
  • Second, that ETP’s argument that advocacy organisations can be held liable for the unlawful acts of non-affiliated organisations and individuals, simply on the grounds that they shared a common cause in protesting the pipeline, if accepted, would undermine the rights to freedom of association and expression. Such a broad interpretation of liability would have a severe deterrent effect on the willingness of advocacy organisations to speak out on, engage in peaceful protests on, or organise other advocacy actions, on matters subject to intense public debate for fear of attracting liability for the actions of third parties.
  • Third, that the mere fact of facing a RICO lawsuit poses an existential threat to a civil society organisation, bringing with it severe reputational damage, a burden on staff time in mounting a defense, the possibility of being required to disclose sensitive organisational documents, and the risk of extensive financial losses. As such, claims of this sort should be subject to close scrutiny to ensure that advocacy organisations are not deterred from carrying out their work, for fear of facing a RICO suit.
  • Fourth, that the defamation claim should be dismissed, as it seeks to impose liability for clearly political speech, in violation of the First Amendment. The brief submits that the defendant organisations’ speech clearly constitute statements of opinion, rather than false assertion of fact, and is therefore entitled to protection.
  • Fifth, that ETP’s tortious interference and civil-conspiracy claims should also be thrown out, as these clearly take aim at the same protected speech as the RICO and defamation claims.

The brief concludes that if accepted, ETP’s theory of liability would erode fundamental free speech and association rights of charitable organisations that rely on donations to support their work, and urges the Court to dismiss the complaint in its entirety.

The amicus brief has been filed along with American Civil Liberties Union, American Civil Liberties Union of North Dakota, American Civil Liberties Union of South Dakota, Natural Resources Defense Council, Brennan Center for Justice, First Amendment Coalition, and Rockefeller Brothers Fund.


Read the amicus brief