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Environmental Advocacy Is a First Amendment Right

by | Nov 12, 2017 | Advocacy, Law & Policy | 0 comments

Industrial polluters have gone to great lengths to stifle environmental advocacy, but their expansion of censorship laws has finally crossed a line for some federal judges.

Protesters against the Dakota Access Pipeline and Keystone XL Pipeline demonstrate outside the San Francisco Federal Building. By Pax Ahimsa Gethen (Own work) [CC BY-SA 4.0], via Wikimedia Commons

Editors Note: This article first appeared in the October 31 edition of onEarth, a digital publication of the Natural Resources Defense Council.  It is reprinted here in adherence with onEarth‘s republication policy. NRDC’s onEarth is committed to “telling powerful stories and offering fresh, surprising perspectives that illuminate the most critical challenges facing our world.”  Brian Palmer covers daily environmental news for NRDC. His science writing has appeared in Slate, The Washington Post, The New York Times, and many other publications. ~ JC

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In 1999, FBI director Louis Freeh called animal rights and environmental activists among “the most recognizable single-issue terrorists at the present time.” It seemed like off-the-cuff hyperbole back then—Freeh was putting environmental groups on par with Timothy McVeigh and Ramzi Yousef. But in hindsight, Freeh’s statement played into a narrative that was being peddled by some government agencies and agricultural lobbies waging a censorship campaign against their detractors. Those activists were a prime target of their efforts to quash public disclosure and debate.

For more than 20 years, Big Ag and its allies in government have written off public health and the core values of the First Amendment in pursuit of a healthier bottom line. Beginning in the early 1990s, their campaign has yielded a rash of “food disparagement” laws—statutes that give farmers and slaughterhouses special advantages in libel lawsuits. But just as the corporate-serving Trump administration has swept in to further pad its sponsors’ profits, the Constitution is striking back—and we’re all a part of it.

A Campaign of Suppression Begins

NRDC itself was an early target of the agriculture industry. A 1989 report, “Intolerable Risk,”had identified the pesticide Alar, which was commonly sprayed on apples, as dangerous to children’s health. Concerned parents stopped buying apples. Apple growers sued NRDC and the broadcaster CBS, which had covered the Alar findings, for defamation.

The farmers lost, and badly. Every lawyer knows that truth is an absolute defense to defamation, and the NRDC report represented the best science available. The U.S. Environmental Protection Agency eventually confirmed that Alar was unsafe for children.

Defamation lawsuits are historically difficult to win. We want it that way, because Americans favor a robust and unregulated marketplace of ideas. In the wake of the Alar case, however, some state legislatures tilted the law in favor of censorship when food is concerned. They intensified the responsibility of the whistleblower to prove his or her allegation and lessened the burden on the food producer to show the charge was false.

It is difficult to overstate the impact of these seemingly small changes. Many allegations, like those at issue in the Alar exposé, are based on a complicated thicket of scientific research. The prospect of having to educate and persuade a jury to accept the merits of such research intimidates and silences many would-be whistleblowers. And though there’s no way to measure chilled speech, the evidence suggests that the food disparagement laws are having the effect Big Ag had hoped for.

Professor Justin Marceau, who studies this issue at the University of Denver Sturm College of Law, says that many advocates have reached out to him for advice. “They say, ‘We want to challenge these laws, but we don’t think we can,’” he explains. “They’re stifled by the prospect of huge damages.”

As a result of these steep financial risks to whistleblowers—and because it can be difficult to challenge the constitutionality of the food disparagement laws without first having engaged in activities that might violate those laws—only a tiny number of such cases have gone to trial. In a recent example, Disney and ABC agreed to pay Beef Products, Inc. a reported $177 million after referring to the company’s product as “pink slime.” The news network and its journalist still maintain that the report was factually accurate, but the advantages that South Dakota’s laws conferred on Beef Products made the case very hard for Disney to win. If these laws intimidate one of the world’s richest corporations, imagine the effect they have on nonprofits and small actors who possess potentially damaging information about food producers.

Nipping the Truth in the Bud

Following the apparent success of the food disparagement laws in chilling speech, the agricultural industry pressed for laws prohibiting even the collection of damaging information about food production facilities—going a step further than the laws that purport to target false speech. A classic example is a law criminalizing the taking of video inside of a slaughterhouse without the owner’s permission. Some states make it illegal to even apply for a job at a slaughterhouse with the intent to videotape.

Courts are finally beginning to question the constitutionality of these laws. In early September, a federal judge declared unconstitutional Utah’s law barring videotaping inside slaughterhouses. The state declined to appeal. The same month, a federal appeals court in Wyoming struck down an even more expansive form of environmental censorship imposed by the state through its data trespass laws. Enacted in response to a damaging report about ranching’s effects on water quality, these statutes make it illegal for a person collecting environmental data on open land to cross any adjacent private land on the way to their research site, without the express consent of the private landowner.

There is an important distinction to be made between traditional trespass laws and the new Wyoming laws, which criminalize and impose heightened civil penalties for unauthorized entry on private property. Instead of equally punishing anybody who crosses private property without permission, the challenged provisions of the new laws selectively punish only those who subsequently collect environmental data on adjacent property. Significantly, those provisions punish persons even if they accidentally set foot on private property en route to collecting data elsewhere. Because it is often virtually impossible to distinguish the boundaries between public and private property in Wyoming, the threat of stiff criminal and civil penalties created by the data-censorship laws are effectively preventing on-the-ground research on environmental conditions in the state.

While the data-censorship laws do not directly address expression, courts have long recognized that speech is a process that incorporates elements of both creation and expression, and that the government cannot unduly burden any of the links in the chain of free speech. For example, the Supreme Court struck down a law that taxed newspaper inkand paper. Criminalizing the collection of information represents a similar act of censorship designed to stifle the advocacy of would-be watchdogs.

We need the judicial system to protect the freedom of information now more than ever. In today’s federal administration, climate change is known as the “double C-word” and public-interest organizations advocating for environmental protection are facing lawsuits just for doing their jobs. For example, NRDC has voiced its support for Greenpeace and in their efforts to fight a racketeering lawsuit filed by a firm headed by Marc Kasowitz (for decades one of Trump’s personal lawyers) representing Resolute Forest Products, which alleges that these groups waged “criminal activity and campaigns of misinformation” against the company.  

It’s a troubling trend, notes NRDC chief counsel Mitch Bernard. “There is a concerted attempt by some powerful corporations to undermine the rights of environmental dissidents to assemble, associate, and speak,” he says. “This should concern every citizen who cherishes the right of peaceful political expression, no matter where you are situated on the ideological spectrum.”

Fortunately, the 10th Circuit Court of Appeals threw its weight behind free speech on September 7, deeming the challenged provisions of the Wyoming laws subject to First Amendment protections and agreeing that the collection of information cannot be separated from speech itself. Citing an earlier case, the judges wrote, “If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by ‘simply proceed[ing] upstream and dam[ming] the source’ of speech.”

Nice use of riparian language in a water pollution case, your honors. May the waters of speech run fast and clear.