Lawsuits Have Become the Weapon of Choice Against Activists

Lawsuits Have Become the Weapon of Choice Against Activists

Lawsuits Have Become the Weapon of Choice Against Activists

Legal intimidation suits known as “SLAPPs” are becoming the norm for private corporations and governments trying to silence those who speak out on matters of public interest.

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On May 31, Atlanta SWAT teams with riot gear and battering rams broke down Marlon Kautz’s door. Police dragged Kautz and two colleagues to jail in their pajamas, charging them with money laundering and charity fraud.

Kautz, Adele MacLean, and Savannah Patterson, are volunteer board members of the Network for Strong Communities Inc., which was incorporated in 2020. Through it, they are able to raise funds for the Atlanta Solidarity Fund (ASF). Since 2016, the fund has bailed out people arrested in Georgia while exercising their First Amendment right to protest and helped them find legal help.

Recently, the ASF has supported Atlanta activists who have been protesting a new $90 million police training center known as “Cop City,” arguing that it will rob Atlanta of a vital green lung and increase inequality in surrounding neighborhoods. The state of Georgia, on the other hand, has charged dozens with “domestic terrorism” for participating in largely peaceful protests.

Georgia authorities claim that the money laundering charge is based on evidence of a fund transfer to another organization, but they haven’t shared any other details about their allegations. Magistrate Judge Altman, who presided over the bail hearing, described the state’s evidence as “unimpressive,” reinforcing the defendants’ claims that the arrests are politically, not legally, motivated.

Shortly after the arrest, Governor Brian Kemp announced that the state would go after everyone involved, and Attorney General Chris Carr tweeted that the funders of the bail and legal defense fund were next. As an executive director at a climate philanthropy who made charitable donations to the ASF for legal defense, I had to wonder: Was my door going to be battered down next?

Some of the accused may have trespassed or destroyed property, but to charge protesters with “domestic terrorism” and a legal defense fund with money laundering is a cynical political act that bears no relation to the misdemeanors alleged. Any American committed to democracy should be interested in making sure these charges lose in both the court of law and the court of public opinion.

These charges seek to silence and stop opposition to an unpopular development project. They also telegraph a message to others in the state and nationwide: We will not tolerate lawful protest in Georgia. This strategy is known as strategic litigation against public participation (SLAPP), which is an intimidation lawsuit, typically used by private corporations against those who speak out on matters of public interest. Various state governments are increasingly deploying this tactic, too.

SLAPPs don’t usually win in court, but that’s not what they’re intended to do. Instead, they set out to threaten activists and drain the financial resources of social movements. They often unfold as years-long wars of attrition, where corporations and governments with disproportionately large resources grind down the financial, emotional, and legal capacities of activists. The threat of such a suit—typically brought against individuals or groups that confront powerful people or institutions—discourages free speech and association, chilling democracy itself.

As a lawyer on the front lines of climate justice activism, I witnessed firsthand how a SLAPP was used to weaponize the law against free speech and association. During the mass protests by Indigenous water protectors and environmentalists campaigning against the construction of the Dakota Access Pipeline, SLAPPs were used widely.

As Standing Rock became a global cause célèbre, the pipeline’s owners brought a $900 million racketeering case against individuals and NGOs like BankTrack and Greenpeace, alleging a vast global conspiracy to damage the company’s reputation and bottom line through fraud and defamation.

A federal court ultimately dismissed the lawsuit. But despite its eventual failure in court, the SLAPP tactic served its intended purpose: intimidation. Krystal Two Bulls, one of the Standing Rock organizers that my organization represented, said that being sued tangled her up, practically and emotionally, in a legal battle that diverted her attention, taking her away from her work on the climate crisis and Indigenous land rights.

She began to censor herself; she withdrew from her community and the movement, fearing that conspiracy allegations might extend to anyone she touched. And that, of course, is the point of these suits: to send out the message to either shut up or suffer the consequences.

The case against Kautz in Atlanta similarly seeks to spark fear in activists and donors against supporting First Amendment rights and legal defense. There is reason to believe that prosecutors may also be preparing RICO charges against anti–Cop City activists, another dangerous use of the legal system to quell grassroots movements.

Since Standing Rock, over 20 states have passed “critical infrastructure” laws, which dramatically increase civil and criminal penalties related to protests at or near fossil fuel projects. Domestic terrorism laws like that in Georgia have a similar intention: to weaponize the legal system against critics and stifle dissenting voices.

I have no doubt that the majority of the domestic terrorism charges around Cop City will fail. But in the process, a political point will have been made, at the expense of the constitutional right to free speech. People protesting to protect the environment and climate will have been publicly accused of being harmful to America’s security, and they will have been forced to defend themselves—likely at exorbitant cost—against a 30-year jail sentence. Other potential activists will surely remember these charges when they consider whether it’s worth it to attend a concert, sit-in, or protest.

The best strategy for stopping SLAPP suits in their tracks, whether they emanate from the private sector or are used by the state, is to keep speaking out, to support defamed activists, and to make the litigants pay a price. About 30 states have introduced legislation that protects against SLAPPs. And last year, Jamie Raskin introduced the SLAPP Protection Act of 2022 to Congress. It must be reintroduced.

My organization, Equation Campaign, created a fund to provide lawyers and legal support for people who face this kind of legal retaliation for their environmental and climate work. I’m astonished at the wide range of people who need our help: from farmers and ranchers to journalists and Indigenous activists. All of them are on the receiving end of David vs. Goliath legal tactics that have long served powerful interests with near-endless resources.

Absent federal protections, we all must be vigilant in the face of the egregious proliferation of anti-protest laws and lawsuits.

Democracy and the future of this planet require people to speak up. The law should serve—not silence—those of us who do.

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