SLAPP suits misunderstand the nature of public protest

Alan Dutton, an organizer for Burnaby Residents Opposed to Kinder Morgan Expansion (BROKE), will not settle in the $5.6 million lawsuit brought against him by Kinder Morgan. The lawsuit targets five protesters for conspiring to intimidate the survey crews on Burnaby Mountain. While four of the defendants have settled, Dutton refuses to do so, on the basis that the lawsuit is meant to suppress the right to protest.

The BC Supreme Court has ruled that the suit is a justifiable exercise of Kinder Morgan’s legal rights (by suing ordinary people for $5.6 million). However, the consequences of the actions of Kinder Morgan and the Supreme Court are clear. Not only do they suppress the right to protest, but they also completely misunderstand the nature of civil disobedience.

This lawsuit is an archetypal example of what is commonly referred to as a SLAPP suit, or Strategic Lawsuit against Public Participation. This is when the threat of a lawsuit is used to intimidate those who wish to protest. SLAPPs abuse a supposedly egalitarian legal system. Corporations with deep pockets can launch malicious but legally acceptable suits against protesters and demand conditions for a settlement, which essentially silence these individuals.

These actions are coercive and exploitative because very few grassroots protest movements have the resources to effectively combat such lawsuits. Quebec and the majority of US states have legislation against SLAPPs. British Columbia once had such a law in the books, which was promptly removed by the Liberal government when they took power in 2001.

SLAPP suits water down our constitutionally enshrined freedoms of expression and assembly to very narrow interpretations. We are encouraged to protest only when it is convenient and comfortable for the entities we protest against; if Kinder Morgan begins to feel “threatened” or “unsafe,” it becomes the burden of protestors to tone it down and speak softer.

SLAPP suits water down our freedoms of expression and assembly to very narrow interpretations.

Moreover, such legal actions essentially reframe the narrative of the entire protest movement as one in which large corporations has the moral high ground. It becomes a matter of protesters encroaching on Kinder Morgan’s legal right to survey the land, whereas back on planet Earth, Kinder Morgan is in fact violating numerous city bylaws and moving forward with a project that local and First Nations communities are vehemently opposed to.

Kinder Morgan charges the defendants in this lawsuit with intimidation, but protest is by its very nature intimidating and challenging. When African-American civil rights activists marched from Selma to Montgomery in 1965, no doubt they were intimidating the majority white populations who stood to lose from African-Americans gaining political and civil liberties.

Seldom does non-violent civil disobedience originate from an uncontroversial movement. Protest should aim to challenge the status quo, and if it intimidates those in power or those who commit injustices then congratulations, we’re doing it right.

Such legal actions can have chilling effects across all spheres of public activity. SLAPPs can lead individuals to resist exercising their civil liberties. After all, the fear of having a multi-million dollar lawsuit launched against for carrying a picket sign is a serious deterrent against public protest.

Examples like the Kinder Morgan lawsuit demonstrate that SLAPP suits can only be justified under the shakiest of factual foundations, and it quickly becomes unclear whether any form of protest is truly within one’s “rights.” So long as the provincial government and court system remains complacent about SLAPPs and complicit in the suppression of civil liberties, silence in the face injustices may soon become the norm.