The U.S. litigation system is meant to resolve serious disputes. Unfortunately, the high cost of litigation can be weaponized as a means of harassment and censorship. That’s become all too common, and the last few decades have seen the rise of what’s known as a Strategic Lawsuit Against Public Participation, or SLAPP.
At EFF, as more speech of all types has moved online, we’ve seen SLAPPs proliferate over digital speech. SLAPPs get filed against protesters who oppose oil pipelines, and regular people doing everyday things like sending emails to local officials, or even posting an online review.
Five years ago, together with Greenpeace and other environmental nonprofits, EFF helped create the Protect the Protest coalition, or PTP. It’s a group of nonprofits that supports its members and others in their fights against SLAPP lawsuits.
One of the lawsuits that spurred the formation of PTP was Resolute Forestry Products v. Greenpeace. In this case, a logging company claimed that Greenpeace’s advocacy for Canadian forests amounted to a “global fraud” that should be punished under civil RICO laws—U.S. federal laws that were originally intended to go after organized crime.
Following a summary judgment hearing last week, the Resolute v. Greenpeace case has finally been put to rest, with a complete victory for Greenpeace. This baseless lawsuit, which lasted seven years, should never have been brought in the first place. We hope Greenpeace’s victory against Resolute sends a strong message to corporate SLAPP plaintiffs—you won’t win, and your targets won’t stay silent.
History of the Case
In 2010, Resolute and several nonprofits, including Greenpeace, struck a deal called the Canadian Boreal Forest Agreement, or CBFA. Under that agreement, Resolute promised to refrain from certain logging activity, and Greenpeace promised not to campaign against them. In 2012, Greenpeace ended its involvement in the agreement, believing that Resolute’s continued operations in the area posed a threat to the environment.
Resolute reacted harshly to Greenpeace’s decision to advocate against their forestry practices. In 2016, the logging company sued, making a slew of claims against Greenpeace, including RICO, defamation, and unfair competition claims.
The company’s amended complaint acknowledged they cut down trees in exactly the type of landscape Greenpeace sought to protect—but just a little. “Resolute only harvests a fraction of the remaining intact forest landscape below the Northern Boundary in Quebec and Ontario,” the company objected (p.57). They also objected to Greenpeace’s statement that Resolute was “destroying” critical caribou habitat. Resolute didn’t deny logging in caribou habitat. Rather, the company objected that Greenpeace didn’t go equally hard on “many other forest companies who are regularly harvesting in the same habitat.” It also asserted that “harvesting in these habitats is not destructive.”
Resolute’s amended complaint also goes on (p. 79) about the industry awards it has received for sustainability—mostly from other business groups—calling Greenpeace’s failure to include its corporate press releases in its “Clearcutting Free Speech” report a false claim. Resolute sued over hundreds of Greenpeace statements, arguing “each constitut[es] a separate mail or wire communication in furtherance of the fraudulent scheme” under RICO (p. 151)
These claims collapsed almost completely upon serious analysis. A federal judge threw out nearly all of the claims against Greenpeace, including all RICO claims, in 2019. The judge did allow Resolute to move forward on certain supposedly defamatory statements that Greenpeace made about the logging company’s activity around the Montagnes Blanches, or White Mountains, an area in northern Quebec.
No “Actual Malice” In Montagnes Blanches Statements
Resolute was able to drag out its remaining weak defamation and unfair competition claims into a four-year-long word game about exactly what and where the “Montagnes Blanches” are. In its motion for summary judgment, Greenpeace pointed out that the name does not have a fixed meaning. As in many scientific and geographic debates, the definition of Montagnes Blanches has changed over time and the name has been used in different ways.
By last week, before the summary judgment hearing, all that was at issue in the case were two statements. The first was that “in the Montagnes Blanches Forest in Quebec, there are three caribou herds, and in the Caribou Forest in Ontario there is an additional herd where habitat disturbance, including some from Resolute’s operations, is jeopardizing their survival.” The second was that Resolute “acquired three harvest blocks through auction sales inside the Montagnes Blanches… All three sites have been logged.”
In his order last week, U.S. District Judge Jon Tigar found that Resolute hadn’t shown it could prove that Greenpeace had acted with “actual malice,” a key element in a defamation claim. It’s a high standard that requires that a defendant knew it was making false statements, or had “reckless disregard” for the truth. “The term ‘Montagnes Blanches’ has acquired more than one meaning and does not universally refer to one fixed geographic area,” the judge wrote. The evidence did not show that “Montagnes Blanches” had the one particular meaning that Resolute said it should have.
Because Resolute failed to prove actual malice on the part of Greenpeace (and the unfair competition claim was based on the defamation claim), the judge granted Greenpeace’s motion for summary judgment.
“How We Work for a Better World”
At a rally before the hearing last week, Greenpeace leaders spoke about the history of protest and corporations and the danger of SLAPPs.
“The point of SLAPPs is to silence, intimidate, distract, bankrupt, and ultimately squash public participation,” said Greenpeace former executive director Annie Leonard. “But public participation is how we work for a better world. It’s the democratic tools that we use to promote peaceful change. It’s free speech, it’s science-based advocacy, it’s campaigning, it’s public education, it’s peaceful protest, it’s solidarity. Public participation is activism, and these SLAPP suits are designed to stop activism.”
Amy Moas, a Greenpeace senior forest campaigner and one of the named defendants in the lawsuit, talked about how the invasive discovery process that took place over what boiled down to two statements by Greenpeace disrupted her life and work.
“They took this phone, and the one before it, to scour all my text messages,” she said. “[Resolute lawyers] posed really outrageous questions, for more than 16 hours, trying to twist my words. I am proud I told everybody that would listen, all around the world, what Resolute Forest Products was doing to the forests. And I’m proud that we’re still here today, speaking truth to power.”
EFF is proud to stand with Greenpeace and other organizations fighting harassing lawsuits that infringe on their First Amendment rights. Disagreements about environmental protection should be handled in the public sphere, and lawsuits should not be used to bury opponents in time-consuming and expensive litigation as a way to bypass the democratic process.
We need strong anti-SLAPP laws so that everyone can get the level of protection that Greenpeace had in this case, if not more. Greenpeace was able to invoke the California anti-SLAPP statute to get certain claims dismissed in 2019. These types of laws can stop harassing lawsuits from moving beyond initial phases. EFF will continue to advocate for strong anti-SLAPP laws at the state and federal level.
Documents from this case:
- Resolute Amended Complaint (2017)
- Order Granting in Part Motion to Dismiss (2019)
- Greenpeace Motion for Summary Judgment (December 2022)
- Order Granting Summary Judgment (April 21, 2023)