How SLAPPs undermine democracy: a case study of the USA

Open submission by Charlie Holt, Legal Counsel, Greenpeace International

It is turning into one of the most pressing questions of the 21st century: does corporate power undermine democracy?

Since the collapse of the Soviet Union the governing mentality of Western geopolitics has assumed the opposite: that corporate growth is conducive to democratic growth. Indeed, with few clear examples to point to of corporations actively dismantling democratic institutions, the rationale behind such a proposition can appear persuasive - that instability is never good for business, for example, or that only democrats tolerate the disruptive nature of economic innovation.

All too often, however, the erosion of these institutions can become unfortunate collateral damage in the pursuit of profit. As globalisation and technological advances fuel further corporate power, examples abound of corporations indirectly undermining democratic institutions - or at least diluting the principles upon which these institutions are built.

When corporations in the USA spend US$2.6bn a year on lobbying expenses, it is hardly surprising that corporate influence is able to distort and subvert the will of the people. When global investment treaties routinely include provisions for foreign investors to sue national governments, it is likewise no surprise to see transnational corporations usurp and override democratic policies.

But if by ‘democracy’ we mean more than simply ticking a box every four years - if instead we mean a composite of values and rights that preserve and promote political participation - then corporations can undermine democracy in a far more insidious manner. They can control and restrict the information that shapes our political preferences; they can propagate lies and flood local and national media with misinformation; they can mobilise private militarised security firms and forcibly suppress our assembly rights.

Or, failing all of that, they can turn to the courts and sue us.

The phenomenon of SLAPPs - Strategic Lawsuits Against Public Participation - is a less well-known threat to democracy, and that’s exactly how corporations like it. As the US 9th Circuit Court of Appeal has noted, SLAPPs “masquerade as ordinary lawsuits” and can therefore be very difficult to distinguish from legitimate civil litigation. Indeed, they are definable only by the motive of the SLAPP litigant: to silence criticism and block public participation.

As George Pring and Penelope Canan wrote in the book that coined the term, SLAPPs seek to “convert a matter of public interest into a technical private law dispute, robbing it of political framing and providing a legal one instead.” In so doing, SLAPP litigants are able to use the legal process to do what would be considered toxic to the political process - forcibly shut down dissenting viewpoints.

While this can be achieved most tangibly via the outcome of the lawsuit - not least through the use of injunctions - it is more commonly achieved via the process of litigation. Indeed, for most SLAPP victims the very prospect of lengthy and resource-intensive litigation is enough to yield a retraction and apology for the criticism in question.

By their very nature, the most effective SLAPPs are therefore the most inconspicuous SLAPPs. As Professor David Ardia has remarked, “what’s filed is just the tip of the iceberg. There are many more incidences of individuals and organizations self-censoring because of a fear of being sued - so the op-ed is never written or the report is never circulated.”

SLAPPs target every form of public watchdog: reporters who expose the sexual harassment scandals of TV personalities; authors who claim that a certain real estate TV star might not be as rich as he claims; tech bloggers who challenge the inflated puffery of Silicon Valley billionaires; lawyers who represent the victims of corporate human rights abuses or environmental destruction; small community campaign groups who fight the placement of a toxic coal landfill in their town. In short, anyone who works to challenge power dynamics and hold the powerful to account may be targeted.

It is easy to see, therefore, how SLAPPs might threaten democracy on a functional level. Anyone whose job it is to shape, inform and influence the public discourse that underpins a healthy democracy is threatened by this type of retaliatory lawsuit. As Thomas Jefferson is said to have remarked, information is the very currency of democracy; without this free flow of ideas, democracy becomes an impoverished skeleton of the political ideal it represents.

It’s important, however, that we go one step further than this. SLAPPs can only be considered an indirect threat to democracy if we stick rigidly to an increasingly outdated conception of democracy. A hundred years ago it might have made sense to conceptualise politics in terms of the relationship between governments and individuals. But we live in an age where ExxonMobil has its own state department; where Walmart has an annual turnover exceeding that of Austria and Turkey; and where, by one count, 69 of the top 100 economic entities in the world are corporations rather than states.

If the 20th century was defined by ideological conflict, the 21st century is shaping up to be defined by corporate hegemony. Corporations are able to operate in a way that makes them not only analogous to government, but free to escape its reach altogether. When Facebook became entangled in the Cambridge Analytica scandal, furious politicians on both sides of the Atlantic demanded accountability. By and large, however, their anger served only to highlight their impotence. Facebook was simply too powerful, too pervasive, too instrumental to the day-to-day interactions of its members.

Corporations like Facebook are increasingly responsive to only one thing: the opinion of their customers. Yet this opinion is shaped not only by user experience but also by public dialogue. By punishing and chilling the speech that fuels this dialogue, SLAPPs therefore work to shut down one of the few remaining checks on corporate power. It’s no surprise therefore that, as sure as night follows day, legal intimidation follows exposure of corporate abuse. How did Facebook first respond to the Cambridge Analytica scandal? You guessed it: with legal threats.

Should our conception of democracy be updated to accommodate this new paradigm of globalised corporate power, the threat posed by SLAPPs becomes more direct. Such a threat becomes even more pronounced when one puts SLAPPs in the broader context of corporate censorship. The use of SLAPPs, after all, is just one of a number of tactics corporations have available to them to suppress democratic rights - what Katie Redford of EarthRights International has labelled the ‘New Corporate Playbook’.

How corporations combine SLAPPs with other tools in the playbook is neatly captured by the case of Energy Transfer Partners (ETP), the company behind the Dakota Access Pipeline (DAPL). In August 2017, ETP filed a US$900m lawsuit against Greenpeace International, Greenpeace USA, BankTrack and EarthFirst, claiming the defendants were part of a “criminal enterprise” that had orchestrated and directed acts of “ecoterrorism” at the Standing Rock protests against DAPL.

Long before filing its lawsuit, however, ETP had attracted controversy for its approach to dissenting voices. In 2016 ETP hired a private mercenary firm, TigerSwan, in response to the indigenous-led movement. Together, TigerSwan and ETP rolled out many of the most popular tricks in the corporate playbook: sweeping and invasive surveillance of protesters, brutal tactics such as the use of dog handlers and, of course, retaliatory lawsuits - which, before the company shifted its narrative to claim they were puppets of civil society organisations, originally targeted indigenous leaders themselves.

With most SLAPPs it can be difficult to strip away the disguise and reveal the true and ugly nature of the attack. With ETP there was no such difficulty. ETP’s CEO, Kelcy Warren, is a brash media presence and within days of filing the lawsuit any pretence of legitimacy had fallen apart. In a rare transparent statement of SLAPP intent, Warren told Valley News Live that the “primary objective” of the lawsuit was not to recover damages but to “send a message” to the movement - and then told CNBC that he was “absolutely” using the lawsuit to cease funding for Greenpeace.

Fortunately, state legislatures in the USA are already proving responsive to this shift in power dynamics. Across the USA, anti-SLAPP laws have been introduced in recognition of the SLAPP trend. Most of these laws (19 out of 31, according to the Public Participation Project) still only protect governmental bodies from being petitioned. Increasingly, however, anti-SLAPP laws are being amended or introduced to protect any speech made on an issue of public interest or concern - whether that speech targets a public official, a corporation, or a disgruntled billionaire.

If we are to reimagine democracy in a way that meets the needs of the 21st century, this shift should be extended to other laws that protect speech. Indeed, it’s not just governments that need to become responsive to corporate attacks on democracy. It’s all of us. Human rights defenders, for example, need to recognise that a purely vertical application of human rights - one that sees free speech as being only enforceable against governments - is hopelessly ill-equipped to tackle the growing menace of corporate abuse. Unless we fight for a modern and all-encompassing notion of democracy, the protective capacity of such laws will be no match for the corrosive power of corporations.