SLAPP Suits are Back!

Little Rock   SLAPP suits used to be so common that we had to routinely include discussion of their likelihood in campaign training sessions. SLAP stood for Strategic Lawsuit Against Public Participation. They were a huge pain in the pocketbook!

Of course such suits never went away as a tool of corporations and conservatives to achieve exactly what the words say, an effort to stifle citizen action, protest, and participation. The premise was less on the law or its merits than the courtroom equivalent of schoolyard bullying since almost by definition big companies have canyon deep pockets while most nonprofits are scrapping by from month to month, paycheck to paycheck. SLAPP suits are hard for companies to actually win, but they can drain the coffers of the activist or nonprofit organization, and, perhaps more importantly for the initiator, they can intimidate others from jumping into the fray or doing something similar. Freedom of speech and libel laws being what they are in the United States, they provide some real firewalls, but the pain inflected can be brutal and lethal.

I mention all of this because of a small piece in the Wall Street Journal noting that the pipeline company, Energy Transfer Partners, that is behind the Dakota Access Pipeline that galvanized the country last fall and triggered the Standing Rock Sioux and their supporters in a long encampment and protest, has filed a SLAPP suit against Greenpeace and other environmental groups centering on those events. They are claiming $300 million in damages based on delays in the final approval of the pipeline and other actions. As disturbingly, they filed under the Racketeering and Corrupt Organizations Act, or RICO as it is known, that also allows for a tripling of damages if they are successful, making all of this almost a billion dollar headache for Greenpeace and its allies.

This is grist for the mill in this work, but in another note the Journal reporter followed the cookie trail back to Kasowitz, Benson Torres, the law firm that filed this suit and an earlier suit last year against Greenpeace as well on behalf of multinational forestry company Resolute Forest Products. Chillingly, they note: “One of the law firm’s founders, Marc Kasowitz, served as Trump’s personal lawyer.” I was schooled years ago that organizers always needed to look for the “fine hand” behind the story, making it uncomfortable to believe that there is now a green light that has flashed on once again beckoning perhaps from the ever litigious President in the White House.

In recent years more of the efforts to scuttle citizen action and protests has been devious reputational attacks meant to damage organizations and frighten supporters and donors, but the word is obviously being passed around the dark hallways of corporations and their law firms that these costly, frivolous SLAP suits are worth bringing to the forefront again.


Support Increasing for Banning Guns at Public Demonstrations

New Orleans  There are practical steps that can be taken to prevent another Charlottesville, especially the armed and dangerous intimidation waiting to pull a trigger in the future.

Anthony Romero, the head of the ACLU, announced that they will not defend groups on free speech grounds who are seeking to march with guns in armed protests. Hear, hear!

An op ed in the Times by John Feinblatt who is the president of Everytown for Gun Safety makes a good case, much of which I will share now:

When militia members and white supremacists descended on Charlottesville, Va., last Saturday with Nazi flags and racist placards, many of them alsocarried firearmsopenly, including semiautomatic weapons. They came to intimidate and terrify protesters and the police. If you read reports of the physical attacks they abetted, apparently their plan worked.

Those who came to Charlottesville openly carrying firearms were neither conveying a nonviolent political message, nor engaged in self-defense nor protecting hearth and home.

Plain and simple, public terror is not protected under the Constitution. That has been the case throughout history.

Under English common law, a group of armed protesters constituted a riot, and some American colonies prohibited public carry specifically because it caused public terror. During Reconstruction, the military governments overseeing much of the South responded to racially motivated terror (including the murder of dozens of freedmen and Republicans at the 1866 Louisiana Constitutional Convention) by prohibiting public carry either generally or at political gatherings and polling places. Later, in 1886, a Supreme Court decision, Presser v. Illinois, upheld a law forbidding groups of men to “parade with arms in cities and towns unless authorized.” For states, such a law was “necessary to the public peace, safety and good order.”

In other words, our political forebears would not have tolerated open carry as racially motivated terrorists practiced it in Charlottesville. They did not view open carry as protected speech. According to the framers, the First Amendment protected the right to “peaceably” — not violently or threateningly — assemble. The Second Amendment did not protect private paramilitary organizations or an individual menacingly carrying a loaded weapon. Open carry was antithetical to “the public peace.” Lawmakers were not about to let people take the law into their own hands, so they proactively and explicitly prohibited it.

Today, the law in most states is silent on open carry — and because most states do not explicitly prohibit it, it becomes de facto legal. All of this explains why some states sensibly and constitutionally reject the open-carry absolutists and prohibit open carry or regulate the carrying of guns at public demonstrations, or both. For instance, Alabama prohibits bringing a firearm to a public demonstration, and Maryland has a law prohibiting guns at demonstrations and similar public gatherings, after a warning.

Taking to town squares to yell past your political opponents is a rich American custom. Those public spaces and our rights to peaceable assembly and free speech make democratic self-government possible.

Open carry is not part of that tradition, and its history is that of a tool used for specifically racist ends. It corrodes our public spaces and infringes on our rights. It introduces terror and intimidation, where dialogue and debate should prevail.

Rejecting open carry is not about guns. Rejecting open carry is about rejecting terror and honoring fundamental American traditions. In Charlottesville, we saw the dystopian alternative — the most un-American racist and extremist hatred, turning our First and Second Amendment rights on their heads and trying to intimidate the rest of us into silence.

Some are showing the way. This has to stop.