Ruling poses serious threat to free speech and democracy
15 July 2014 - FOR IMMEDIATE RELEASE
Contact: Karen Hinton at +1.703.798.3109
Oakland, CA – Chevron and U.S. Judge Lewis A. Kaplan have acted to trample the First Amendment rights of U.S. citizens who dare to speak out against human rights abuses, environmental destruction and corporate misdeeds, according to human rights and environmental organizations Amnesty International, Amazon Watch, Friends of the Earth and the Rainforest Action Network, among others.
Chevron is liable for a $9.5 billion judgment for dumping billions of gallons of toxic waste into Ecuador's rainforest. Chevron operated in Ecuador under the Texaco brand from 1964 to 1992, and much of its pollution still exists and continues to contaminate groundwater and rivers, according to the Ecuadorian court. Despite the fact that the verdict has been upheld three times, including by Ecuador's highest court, Chevron has refused to honor the ruling and instead turned to attack its victims, their supporters, and the government of Ecuador itself.
A brief was filed before the New York Second Circuit Court of Appeals on July 9th, seeking to overturn the controversial ruling by Judge Lewis Kaplan in Chevron's retaliatory RICO action against the affected communities who successfully sued them in Ecuador.
The brief filed by 17 civil society groups asks the Court of Appeals to reverse Judge Kaplan's unlawful use of the RICO statute, which enabled violation of the First Amendment rights of advocates. As part of his ruling, Judge Kaplan found that organizing protests and distributing press releases by civil society groups in loose coordination with the villagers was part of an illegal "extortion" attempt against Chevron. The submission of the civil society brief follows the release of an open letter signed by 43 environmental and human rights groups, including the Sierra Club and Greenpeace USA, that blasts the company for trying to use the RICO statute to intimidate and silence its critics.
According to the brief: "In essence, this case is an effort by Chevron to retaliate against Ecuadorian villagers, their lawyers, and their supporters for suing, bringing public pressure, and petitioning government agencies to hold Chevron accountable for violations of human rights. The district court's decision below, if allowed to stand, poses a severe threat to the rights to expression, association, political participation, and access to courts guaranteed by the First Amendment. If the vaguely defined scope and heavy penalties of RICO – enacted to support law enforcement efforts against organized crime syndicates – may be wielded by private parties against public interest groups and activists who engage in First Amendment-protected activities to seek to hold those private parties accountable, democracy itself is threatened."
"From the beginning, Chevron's scorched-earth legal tactics have been designed to attack its critics rather than seek any legal remedy related to their actions in Ecuador. Naming environmental and human rights groups as "co-conspirators" in the RICO suit against their Ecuadorian victims is nothing more than an attempt to silence those critical of Chevron and damage the image and support for those organizations," said Kevin Koenig, Ecuador Program Coordinator for Amazon Watch.
Along with is many glaring legal and factual flaws, Judge Kaplan's decision also exposes his clear bias for Chevron and disregard for the First Amendment. When Amazon Watch was forced to defend against Chevron's wide-sweeping subpoenas in the Northern District of California, the court noted "the absence of a finding by Judge Kaplan that Chevron has established probable cause to believe that Amazon Watch's conduct falls outside the scope of the First Amendment because it is inciting unlawful activity or is fraudulent speech, and ... all evidence before this Court suggests otherwise."
"Because of the potential chilling effect on the essential right and freedom of NGOs and activists to pursue and shed light on injustices in the world, Judge Kaplan's opinion must be reversed," said Bill Twist, Co-Founder and CEO of The Pachamama Alliance, a co-signer of the brief.
"Advocacy organizations across the country and around the world have played a vital role promoting democracy, protecting citizens and safeguarding our environment," stated Food & Water Watch Executive Director Wenonah Hauter. "At a time when courts are increasingly granting almost unlimited rights to powerful corporations like Chevron, it's particularly troubling that the lower court in this case would attempt to deny nonprofit groups like Food & Water Watch basic First Amendment rights of expression."
It is ironic that as the nation was preparing to celebrate the sixtieth anniversary of the Supreme Court's historic decision in Brown v. Board of Education, Judge Kaplan should propound a legal standard that would likely have subjected the NAACP to racketeering liability for decades of organizing that ultimately made its successful lawsuit possible.
"The First Amendment protections of those in the press and general public who work to hold others accountable for their actions is a sacred element to our democracy. In the face of growing corporate power in America the likes of which we have never seen, it is more crucial than ever that we protect the individual's right to speak out and be protected under the law for doing so," said Paul Paz y Miño of Amazon Watch. "Chevron has deliberately sought to crush the rights of those who would speak out against corporate crimes. How many groups and individuals would be able to defend themselves from the massive legal machine brought by Chevron and other corporate powers if they are subject to RICO attacks simply for sending press releases, holding demonstrations and even appealing to government agencies for action?"
"This is a critical case for advocates of all kinds. If corporations such as Chevron succeed in branding First Amendment activities of advocacy organizations as a conspiracy, then corporations will have secured another powerful cudgel with which to threaten and intimidate those who organize to seek redress for corporate abuses of human rights," writes Simon Billenness, a socially responsible shareholder advocate targeted by Chevron for advocating on behalf of resolutions urging reform and respect for human rights.
Several other briefs from noted scholars and legal professionals have also been filed in support of the appeal, including one from law scholars from eleven countries claiming Judge Kaplan's decision violates international law. Additionally, hundreds of thousands of individuals have petitioned members of the U.S. Senate to investigate and put a stop to Chevron's attacks.