Without public protest, democracy is dead. Every successful challenge to excessive power begins outside the political chamber. When protest stops, politics sclerotises: it becomes a conversation between different factions of the elite.
But protest is of no democratic value unless it is effective. It must disturb and challenge those at whom it is aimed. It must arouse and motivate those who watch. The climate change campaigners trying to prevent a new dash for gas wrote to their MPs, emailed the power companies, marched and lobbied. They were ignored. So last year 17 of them climbed the chimney of the West Burton power station and occupied it for a week(1). Theirs was a demonstration in two senses of the word: they presented an issue to the public which should be at the front of our minds. Prompted to act by altruism and empathy, one day they will be remembered as we remember suffragettes and anti-slavery campaigners.
Last week the operator of the power station – EDF, which is largely owned by the French government – announced that it is suing these people, and four others, for £5m(2). It must know that, if it wins, they have no hope of paying. It must know that they would lose everything they own, now and for the rest of their lives. For these and other reasons, EDF’s action looks to me like a Strategic Lawsuit Against Public Participation: a SLAPP around the ear of democracy.
SLAPPs are attempts to bully people into political submission through inordinate demands(3). Their purpose is to terrify and enmesh. Even if they stand no chance of success, they ensure that campaigners who might otherwise have been trying to protect the environment or to defend workers’ rights are instead snarled up in the courts. Often, whatever the merits of the case, people will agree to leave the company alone if it drops the suit.
Those who might have joined the campaign are frightened off. Those who might have become active in other campaigns avoid politics altogether for fear of the consequences. Their absence impoverishes democracy.
SLAPPs are used all over the world. Three people are currently being sued – each for over a million dollars – for protesting against an amusement park in Niagara Falls in Canada called Marineland(4,5). Two of them are former trainers from the park, who have alleged that the animals are being neglected and ill-treated. They claim that seals have gone blind as a result of dirty water, and dolphins’ skin has been falling off in chunks(6). The company denies their allegations.
After they attended a peaceful demonstration, Marineland served them with writs containing a number of exotic claims. One former trainer, Phil Demers, was accused of plotting to steal the park’s half-tonne walrus. He says he doubts his “second floor apartment would hold a walrus. My hands are full enough with my cats.”(7) Daft as the suits appear, they have succeeded in tying the campaigners in legal knots.
Dale Askey, formerly a librarian at Kansas State University, is being sued for $4.5m (alongside his current employer) by an academic publisher called Edwin Mellen Press(8,9). His offence was to challenge the quality and cost of the books the press produced: something librarians see as part of their job(10).
In Canto 21 of the Inferno, Dante watches lawyers who made a habit of bringing frivolous or oppressive suits being perpetually submerged in a lake of boiling tar by demons with boathooks. They get off quite lightly, in other words. But perhaps hell of a different kind awaits on earth. It’s called the Streisand Effect. In 2003 Barbra Streisand’s lawyers launched an action to have an aerial photograph of her home in Malibu removed from a collection of 12,000 such shots, whose purpose was to document coastal erosion(11). They demanded $50m in damages. Before they became involved, the photo was downloaded four times. In the month after they launched their stupid suit, it was downloaded 420,000 times(12). The Streisand Effect, in other words, is blowback: disastrous unintended consequences of an attempt at censorship.
The best-known example is Britain’s famous McLibel case, in which McDonalds tried to sue two penniless activists(13). By 1997, when the longest civil case in British history concluded, McDonalds had suffered a devastating defeat in the court of public opinion.
In 2004, Gunns, a company turning ancient rainforests in Tasmania into pulp, sued 20 people who had been protesting against its plans to fell a forest containing some of the tallest trees on earth. It sought $6.4m from them for attempting to disrupt its operations. The result was a global campaign against the company. Its customers fled, its share price collapsed and its chief executive was forced out. Gunns found itself obliged to settle the case by making massive payouts to the people it had sued(14).
EDF might find itself in similar trouble. The backlash against this arm of the French state, seeking to alter the course of British politics by ruining those who participate, is building rapidly. A petition launched on Friday, asking the company to drop its suit, has already gathered 12,000 signatures(15). EDF may now find itself forever linked in the public mind with oppressive power, the stifling of dissent and climate breakdown.
While eternal submersion in a lake of boiling tar invokes, for a fossil fuel company, a certain symmetry, this self-inflicted public relations disaster may turn out to be almost as excruciating.
11. Here’s the photo she found so offensive. It’s not easy to see what the problem is. http://www.californiacoastline.org/cgi-bin/image.cgi?image=3850&mode=sequential&flags=0