The law firm helping Big Oil weaponize the First Amendment

by Emily Sanders | Jan 5, 2024

The following piece was co-published by DeSmog and ExxonKnews.

For years, the fossil fuel industry has maintained that the First Amendment protects its right to mislead the public about the climate crisis, but that criticism and protest of its operations violates the law. Now, one of the industry’s preferred law firms — which has long been recognized for its defense of the First Amendment — is arguing both sides of this issue in court.

Gibson, Dunn & Crutcher represents oil giant Chevron in lawsuits brought by dozens of state and local governments to hold the company accountable for deceiving consumers and the public about its products’ central role in climate change. (You may also recognize Gibson Dunn as the firm that accused U.S. attorney Steven Donziger and his Ecuadorian plaintiffs of racketeering after they defeated Chevron in Ecuador’s courts.) As the evidence of Big Oil’s long-standing campaigns of climate denial piles up, and the cases inch closer to trial, the firm is deploying a defense that seeks to protect its clients’ ability to mislead the public.

Chevron and other oil companies’ statements about climate change, Gibson Dunn has argued, constitute First Amendment protected “political speech” — or speech concerning public opinion and policy. “The First Amendment bars tort liability based on speech attempting to influence public support for climate policies,” reads one motion, authored by Gibson Dunn and local counsel in October 2023, to dismiss a case that the state of New Jersey brought against Chevron and other oil majors.

“Under that logic, companies could lie to us about anything, and just say ‘because we think it’s political, because we think it’s important to policy, then we get to lie about it,’” said Amanda Shanor, an assistant professor and First Amendment scholar at the Wharton School of the University of Pennsylvania. “We would live in a very different and far more dangerous and less prosperous society [if that were the case], which is why in general the courts have been underwhelmed by these types of arguments.”

Gibson Dunn is a favorite firm of fossil fuel companies — aside from Chevron, it has represented a veritable “who’s who” of the industry, including the American Petroleum Institute, Energy Transfer, Enbridge, ConocoPhillips, Occidental, and many more. But the firm is perhaps even better known for its First Amendment record. Ted Boutrous, the lead lawyer representing Chevron in its defense against climate liability cases, famously represented CNN reporter Jim Acosta when he was thrown out of the White House press room by former President Donald Trump. And his colleague Ted Olson argued and won the most seminal corporate free speech case of the last 20 years, Citizens United v. Federal Election Commission, which opened the floodgates to dark money in U.S. politics.

The firm is not historically known for arguing against free speech rights. But that’s exactly what it’s now doing on behalf of pipeline company Energy Transfer, in a landmark lawsuit intended to silence the fossil fuel industry’s critics.

In July 2023, Gibson Dunn began representing Energy Transfer in a case filed in North Dakota against Greenpeace US and individuals who protested against the Dakota Access Pipeline on the Standing Rock Sioux Indian Reservation. The firm had already helped Energy Transfer’s subsidiary, Dakota Access LLC, defend the pipeline’s continued construction against separate legal challenges brought by local tribal leadership in 2016. But Energy Transfer’s suit, initially filed by law firm Kasowitz, Benson & Torres in 2017, took its defense of the pipeline much further, charging pipeline resistors with violating state and federal Racketeer Influenced and Corrupt Organization (RICO) laws that could have made them liable for nearly $1 billion in damages.

By the time Gibson Dunn took it over in July 2023, Energy Transfer’s case had already faced major setbacks. In February 2019, a federal judge threw out the company’s original lawsuit. A week later, Energy Transfer’s lawyers from Kasowitz, Benson & Torres filed a new case under state defamation law in North Dakota, which has no anti-SLAPP legislation that defendants can invoke to get suits like these dismissed. Defendants’ protests and statements against the pipeline, the new complaint argued, amounted to an “unlawful, malicious, and coordinated attack” that was “designed to inflict damage, cause delay, defame Energy Transfer and Dakota Access, and disrupt Energy Transfer as much as possible.”

Advocates and experts say the case, which campaigners have been fighting for seven long years, is a strategic lawsuit against public participation, or SLAPP — a tactic oil and gas companies are increasingly using to suppress dissent through lengthy legal processes intended to intimidate critics and diminish their resources.

“This isn’t just Greenpeace on trial — it’s the movement on trial,” Deepa Padmanabha, legal counsel for Greenpeace US, said. “The thought is that if they can successfully silence an organization like Greenpeace US, that will have a ripple effect and smaller groups and individuals won’t dare speak out. The precedent that the fossil fuel industry is trying to set around protest and protest liability is so dangerous that, if successful, it is difficult to envision how this won’t have a chilling effect,” she said.

Gibson Dunn did not respond to requests for comment.

“The Movement on Trial”

In November 2023, Energy Transfer targeted Indigenous and environmental justice activists with third-party subpoenas, requesting documents and appearances at depositions, Padmanabha said. Those subpoenas haven’t yet been made public.

Greenpeace has become a favorite target of the fossil fuel industry as it fights back against increasing climate protests all over the world; the group has been specifically cited in industry-backed efforts to criminalize protest in Australia, Canada, and the United States. And Gibson Dunn increasingly seems to be the law firm the industry is looking to for help in these efforts. As Gibson Dunn partner Randy Mastro told the American Lawyer more than a decade ago, “[w]e are the firm that clients in distress have turned to when they are facing their worst problems, or when they have in fact faced defeat.”

Gibson Dunn has long honed the skill of muzzling its opponents. In the early 2000s, the firm defended Dole in a lawsuit brought by Nicaraguan banana workers who’d been exposed to a toxic pesticide, DBCP, that rendered them sterile. Gibson Dunn lawyers — including Boutrous, who now represents Chevron — worked with Dole to develop a strategy Dole’s general counsel called the “kill step”: reportedly enticing witnesses to accuse their legal opponents of fraud.

Gibson Dunn revived that strategy for Chevron in 2011, filing a civil RICO lawsuit targeting human rights attorney Steven Donziger and his Ecuadorian plaintiffs after they won a major judgment against the company for its toxic pollution in the Amazon. Relying heavily on the testimony of a witness whom Chevron paid an annual salary, Gibson Dunn argued that Donziger had won his case by committing fraud. While that witness later recanted much of his testimony, Donziger lost the RICO case, was ordered to pay Chevron hundreds of thousands of dollars in legal fees, had a lien put on his house to cover those fees, and was ultimately disbarred and spent more than two years on house arrest and 45 days in prison. Gibson Dunn also helped Chevron file an investor-state dispute against the government of Ecuador, arguing that Ecuador “engaged in a pattern of improper and fundamentally unfair conduct” by providing support for the Ecuadorian plaintiffs. As a result, the government of Ecuador currently owes Chevron $2 billion. The Ecuadorian plaintiffs — a group of Indigenous people and small farmers from the affected area — still don’t have clean drinking water, have not been compensated, and are barred from collecting the settlement owed to them in the United States, where Chevron is headquartered and where the bulk of its assets are located.

“I think that while everybody deserves a lawyer, Gibson Dunn has a reputation of using strategies that many perceive as abusing the legal system to defend the wealthy at the expense of disempowered people and communities,” said attorney Lauren Regan, who has defended her clients against a number of lawsuits by the fossil fuel industry — including terrorism charges that Energy Transfer filed against two women for damaging pipeline equipment along the Dakota Access Pipeline in Iowa.

The Fight for Corporate “Free Speech”

Today, Gibson Dunn is using anti-SLAPP statutes — intended to protect advocates and whistleblowers from cases like Energy Transfer’s — to try to get climate cases filed against fossil fuel clients dismissed. The firm has filed anti-SLAPP motions to dismiss lawsuits brought by the states of New Jersey and Delaware, and municipalities including Annapolis, Maryland; Hoboken, New Jersey; and Honolulu, Hawai‘i. A state court in Hawai‘i rejected the anti-SLAPP motion in the Honolulu suit, and it is now pending before the Hawai‘i Intermediate Court of Appeals. It’s now the last motion to dismiss arguments that the city and county must contend with before the case can move toward trial.

In most of these motions, Gibson Dunn lawyers invoke an anti-SLAPP law in California, where Chevron is headquartered. “California’s ‘anti-SLAPP’ immunity protects Chevron from suits — like Plaintiff’s — that are based on speech on issues of public concern,” Gibson Dunn argues in a motion to dismiss Delaware’s case.

It’s the latest chapter in a decades-long effort to expand free speech rights for corporations while restricting them for people — a project of which Gibson Dunn is a key architect. While the idea to create “corporate personas” that could contribute to public debate — and to advocate for free speech protections for them — was first sketched out by Mobil Oil executives in the early 1970s, Gibson Dunn has played a major role in solidifying it, particularly with the pivotal and notorious 2010 Supreme Court decision in Citizens United.

The Citizens United ruling asserted a First Amendment right for corporations to express their “political speech” through unlimited spending on communications about elections or political candidates. The ruling laid the groundwork for corporations to be on at least equal footing with citizens when it came to First Amendment rights in what Gibson Dunn lawyer Ted Olsen called “a victory for the First Amendment and the right of all Americans to participate in the political process.”

Shanor, the First Amendment scholar, said that Gibson Dunn “has been at the vanguard of developing aggressive First Amendment arguments to protect companies, trying to turn the First Amendment, constitutional law, and free speech principles — including things like anti-SLAPP — into corporate protective principles. So in many ways, it’s not surprising that they’re playing both sides of the coin to shield the fossil fuel companies from liability.”

“They’re Playing Both Sides”

Even Boutrous, the lead lawyer representing Chevron in its First Amendment defense, seems to innately understand the fallacy of his own arguments. “Freedom of speech does not mean making knowingly obviously dangerously false statements of fact,” the attorney posted to X last year.

Boutrous gained a reputation among some as a “fierce advocate for press freedom” after litigating against and publicly criticizing former President Trump for his efforts to silence public debate. In 2016, Boutrous promised to “represent pro bono anyone Trump sues for exercising their free speech rights.” Aside from representing Acosta, he also successfully represented Trump’s niece Mary against her uncle’s efforts to block her memoir. Today, Boutrous sits on the advisory boards of the International Women’s Media Foundation and investigative reporting outlets like Reveal, and he has consulted on First Amendment disputes for both CNN and the New York Times.

Haley Czarnek, national director of programs and operations at Law Students for Climate Accountability (LSCA), said Boutrous’s status and pro bono work has helped Gibson Dunn develop “a sheen of progressiveness that doesn’t exist with their work in practice.” Several years ago, LSCA urged law school graduates to boycott the firm, citing its defense of fossil fuel companies and its role in the case against Steven Donziger, whose imprisonment, the group said, “is a direct result of Gibson Dunn’s unethical and bullying litigation strategies.”

In 2020, the Reporters Committee for Freedom of the Press (RCFP) elected Boutrous to its steering committee. Soon after, at a star-studded virtual ceremony also honoring “Dark Money” author Jane Mayer, the organization handed Boutrous a Freedom of the Press Award, declaring that the lawyer “understands the importance of the First Amendment every bit as much as a journalist does.” Chevron was a “Legacy Champion” sponsor of that awards ceremony, meaning it donated at least $50,000 to the RCFP.

When asked about Boutrous’s position at RCFP, Donziger replied that members of its steering committee “basically are in bed with a man who makes his living violating the core tenants of the organization.”

The same year that RCFP handed out those awards, the group also condemned Energy Transfer’s effort to subpoena the work of journalists covering protests against its operations at Standing Rock. It described the subpoenas, which could provide evidence for the case helmed by Gibson Dunn, as “an attempt to intimidate journalists and silence their sources.” In November 2023, RCFP and local news outlets filed an amicus brief asking the Minnesota Supreme Court to deny Energy Transfer’s attempts to subpoena those journalists and to reverse a lower court’s order forcing them to produce a “privilege log” listing unpublished newsgathering materials.

Boutrous and RCFP did not respond to separate requests for comment.

A five-week trial in Energy Transfer’s case against the Standing Rock protestors and Greenpeace is scheduled for July 2024.

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