A district court in northern California is hearing a motion to dismiss for a lawsuit with far-reaching implications for the freedom to speak out against harmful corporate practices. In 2016, Resolute Forest Products (Resolute), a logging company known for trying to stifle criticism through litigation, sued Greenpeace and Stand.earth, two environmental nonprofit organizations, for drawing attention to Resolute’s controversial logging practices in Canada’s boreal forest. Since then, Resolute has faced significant pressure from both First Amendment and environmental groups to end its bullying tactics and drop the lawsuit. In May 2017, Greenpeace and Stand.earth won their first victory when a district court in Georgia transferred the case to the Northern District of California. Today, the district court will consider Greenpeace’s motion to dismiss Resolute’s lawsuit and ultimately render a decision that could significantly affect the future of public discourse in the U.S. and the ability of environmental organizations to protect treasured ecosystems like Canada’s boreal forest.
Resolute, a Montreal-based logging company that sells primarily pulp and paper products, has an extensive presence in the boreal forest, holding rights to log on more than tens of millions of acres in Ontario and Quebec. Resolute’s logging practices in Canada’s boreal forest have become the object of intense criticism, particularly given its recent criticism of and lack of commitment to the Forest Stewardship Council (FSC), the world’s only independent sustainable forestry system. In response, rather than addressing the concerns of the conservation community, Resolute has developed a reputation for using the legal system to muzzle critics, suing governments, auditors of its forestry practices, and environmental organizations.
Resolute based its lawsuit against Greenpeace and Stand.earth on the Racketeer Influenced and Corrupt Organizations Act (RICO), a law originally intended to target the mafia. The lawsuit, for $300 million (CAD) in damages, asks for Greenpeace and Stand.earth to be labeled “criminal enterprises” for their criticism of Resolute. Resolute also brought a defamation suit against Greenpeace in Ontario in 2013 after Greenpeace launched a campaign that scrutinized Resolute’s logging practices. While that case is ongoing, in September 2016 the Ontario Superior Court rejected Resolute’s attempts to expand the scope of the litigation, striking a number of Resolute’s assertions as improper and irrelevant and calling one claim “so devoid of particularity as to be scandalous and vexatious.”
The implications of Resolute’s legal action for free speech are significant. The RICO lawsuit is an example of a strategic lawsuit against public participation, or “SLAPP suit.” The point of Resolute’s legal action is not necessarily to win. It’s to silence Greenpeace, Stand.earth, and other environmental organizations that may be considering speaking out against them. Resolute, as a large, for-profit corporation, is far more capable of affording a legal battle than a nonprofit organization. Fear of an expensive lawsuit may be enough to prevent environmental organizations from speaking out in the future, giving Resolute’s logging practices a free pass. Greenpeace and Stand.earth are fighting to make sure this does not happen and that the environmental community remains fully able to hold corporations accountable for their actions.
Despite Resolute’s deep coffers, its lawsuit has faced growing opposition from a number of fronts.
In May, the U.S. Court for the Southern District of Georgia granted Greenpeace and Stand.earth’s request to transfer the case to the Northern District of California. The court agreed that Resolute failed to establish how Greenpeace’s outreach to Resolute shareholders at meeting in Georgia constituted fraud or extortion. The court also rejected Resolute’s argument that its business operations in Georgia warranted the court hearing the case since these take place in another Georgia district. Giving a hint of the weakness of Resolute’s overall claim, the court held, “Plaintiffs do not…provide any information about what…‘falsehoods’ Defendants communicated. Nor do they provide a factual basis from which to infer that defendants committed fraud or extortion….”
Both media and environmental organizations have also weighed in to condemn Resolute’s lawsuit. In a friend of the court brief in support of Greenpeace and Stand.earth, the Reporters Committee for Freedom of the Press and eleven media companies wrote, “Preserving robust protections for opinion, whether from an advocacy organization or a journalist, is important to give speakers the security they need to contribute to public discourse without fear of liability.” Sierra Club and eight other organizations have also submitted a friend of the court brief opposing Resolute’s “use of RICO as a club to silence Greenpeace from using non-violent means to mobilize the public, raise awareness alongside the necessary funds to operate, and seek to bring about change in respect of environmental practices.”
In November 2016, NRDC joined these voices against the lawsuit, calling on the U.S. marketplace to urge Resolute to drop its litigation. NRDC also joined with eighty public interest organizations in the United States and Canada in a New York Times advertisement publically condemning Resolute’s bullying behavior. NRDC joined 90 media and environmental organizations in June, including Amnesty International Canada and the Center for Constitutional Rights, in an advertisement denouncing the lawsuit as an “attack on public discourse, free speech and the very heart of our democratic society.”
Resolute is also feeling pressure from the literary world. Globally-renowned authors have joined in supporting Greenpeace and Stand.earth. In May, over 100 authors, including Margaret Atwood, Yann Martel, and Stephen Fry, signed a pledge with Greenpeace to defend free speech, the right to public participation, and “those who peacefully protect the world’s forests.” More than 400,000 people also signed a Greenpeace petition asking book publishers that buy paper from Resolute, including Penguin Random House and HarperCollins, to “urge Resolute to stop attacking free speech and embrace sustainable solutions for the forest.”
As the district court in Northern California considers the case, irresponsible logging, mining, and other industrial development continue to degrade Canada’s critical boreal forest. Intact forests are disappearing at an alarming rate, with severe implications for Indigenous Peoples and treasured species like the boreal caribou. Resolute should not be allowed to single-handedly suppress campaigns to protect the boreal forest. Now, more than ever, we need environmental organizations to have the freedom to speak out against those primarily responsible for the loss of this fragile, globally-important ecosystem.