Protest against the Dakota Access Pipeline, Nov 15, 2016. San Francisco. The protests are now the subject of a lawsuit by the pipeline company against Greenpeace. Photo by Pax Ahimsa Gethen, Creative Commons.
The right to protest is clearly embedded in the First Amendment to the US Constitution, which says in part: “Congress shall make no law … respecting the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This right to assemble and protest has been strongly reinforced by US courts during many struggles over human rights in the United States, including for example the labor movement, the civil rights movement, the women’s movement, and protests over the Vietnam war. The environmental movement is no exception, and a list of cases is found below.
The right to protest was on the line Feb, 24, 2025, when a North Dakota state court began hearing a lawsuit involving protests over the Dakota Access Pipeline — Energy Transfer Plaintiffs v Greenpeace.
The Texas pipeline company’s lawsuit accuses Greenpeace of libel, trespassing and vandalism, saying that the lawsuit isn’t about free speech but about criminal behavior. Even so, defamation is, in fact, the key issue in the lawsuit.
Greenpeace responded that the lawsuit “… seeks to create new legal precedents that would quell the climate justice movement’s ability to organize, protest, and express dissent.”
The suit followed protests in 2016 and 2017 over the oil pipeline’s Missouri River crossing, upstream from the Standing Rock Sioux Tribe’s reservation, according to the Associated Press. The tribe argued that the pipeline threatened its water supply. Thousands of people protested the project and hundreds were arrested. Much of the violence in the protests was initiated by pipeline company security contractors who employed guard dogs against protesters in 2016.
Nevertheless, the lawsuit, filed by ETP in what is likely to be a sympathetic state court, says that they “exercised restraint, and proportionately responded to extreme violence and intentional sabotage.” The real brutality, they say, was committed by violent protesters who use[d] improvised explosive devices to attack police, use[d] hacked information to threaten officers and their families, and use[d] weapons to kill livestock, harming farmers and ranchers.”
News coverage of the protests Nov.21, 2016 shows burned vehicles and tires forming part of a barricade that had been in place for several months. The police response that evening was to spray stationary protesters with water hoses in below-freezing temperatures and to fire tear gas, rubber bullets, and bean bags into a non-violent crowd. Three hundred protesters were injured and twenty six were hospitalized, according to the Standing Rock Sioux Tribe. No police were hospitalized, although one may have been hit by a rock, officials said. No dead livestock or threats were reported in the media, but this may come out during the trial.
At the time, human rights complaints were the major issue, especially those that were made to a United Nations Permanent Forum on Indigenous Issues, which responded with an investigation and a statement of “deep concerns” about the project and the destruction of over 380 cultural and sacred sites along the pipeline route have been destroyed by work associated with the clearing for the pipeline.
Greenpeace said that ETP “commit[ted] grievous human rights violations” against “peaceful” and “non-violent” anti-DAPL protestors.
Greenpeace also said:
For more than 50 years, Greenpeace has exercised our right to peacefully protest and expose environmental harm — even when that means exposing powerful people and companies. That is the soul of Greenpeace. With this $300 million lawsuit, Energy Transfer has weaponized the U.S. legal system in an attempt to silence us at a time when our voices are needed most.
The lawsuit is complicated, somewhat, by allegations of violence and threats of violence against the police, although it remains to be seen if the weight of evidence here doesn’t work more in favor of Greenpeace and the Standing Rock Sioux Tribe.
In any event, the courts have taken pains to separate expression and action in many similar cases, such as RAV v City of St. Paul (1992), noting that laws against vandalism (action) were adequate, and there was no need for additional content-specific laws against hate speech such as painting swastikas on gravestones. Since more than 400 people were already arrested in the protests, the response to the action has already taken place.
Libel ought to be fairly straightforward. In order to recover the $300 million in damages that Energy Transfer Partners claims, the company would have to show that Greenpeace and associated organizations acted with malice, either by knowingly publishing falsehoods or publishing information that was in reckless disregard for the truth. It is a high burden of proof under the New York Times v Sullivan standard, in which the U.S. Supreme Court unanimously held that:
Debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on public officials.
It would be unusual for any state court to find for plaintiffs in what may, after all, be a standard SLAPP case against protestors.
Other environmental libel cases include:
Edwards v. National Audubon Society, 1977 — The New York Times reported both sides of a heated dispute over pesticide science, and noted that the Audubon society said scientists consulting for industry were “paid to lie.” The scientists sued the New York Times, which successfully defended itself with the“neutral reportage” defense.
Green Group Holdings v Schaeffer, 2016 — A toxic waste handling company filed a $30 million defamation suit against a group of citizens who complained about the way coal ash disposal has affected their town. The ACLU forced the company to drop the lawsuit. (See “What happens when a waste company sues critics,” this site)
Michael Mann v Steyn and National Review, 2024 —A scientist at the University of Pennsylvania sued National Review for libel for calling his work fraudulent. Mann is “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.” The suit survived recent motions to dismiss. Among articles about it are Ethan Elkind’s defense of the suit; and a pro-Steyn article here. Mann won his lawsuit in February, 2024.
Uniroyal v CBS, 1989 – This is the Alar (daminozide) case. Alar is a plant growth regulator widely used on apples to cause stem thickening, maintain commercial quality of apple, uniform ripening. Concern started growing in the 1980s. EPA concluded it was a probable human carcinogen, negotiated with Uniroyal, no action. NRDC began a campaign, some supermarkets didn’t sell apples w/ Alar. Then, in 1989, CBS ran a story about Alar and most other media picked it up. One was called: “Don’t look now but we’re poisoning our kids.” Apple product sales dropped 30% in month, $250 million in losses. Uniroyal tried to prove that CBS aired knowingly false information, made with the intent to damage the company, but they had the burden of proof, and in 1994, the courts said Uniroyal hadn’t met its burden of proof.
Auvil v. CBS 60 Minutes, 1995 — A federal court dismissed a suit by makers of Alar, a chemical used on apples to improve their appearance, saying that Auvil had to prove the CBS report detailing concerns over cancer causing pesticides was false.
