[News] Pipeline Company Issues Broad Subpoena to News Site That Covered Protests Against It

[Anti-Imperialist News]

https://theintercept.com/2021/04/03/unicorn-riot-dakota-pipeline-energy-transfer-subpoena/
Pipeline
Company Issues Broad Subpoena to News Site That Covered Protests Against It
Alleen Brown - April 3, 2021
------------------------------

*Last week,* members of the nonprofit news organization Unicorn Riot
received a subpoena
<https://www.documentcloud.org/documents/20521079-subpoena_energytransfer_unicornriot_redacted>
from the pipeline giant Energy Transfer seeking a wide range of documents,
including newsgathering materials that would identify sources. The subpoena
is part of an aggressive, yearslong legal effort launched by Energy
Transfer in the wake of the Standing Rock movement, when thousands of
opponents of the corporation’s Dakota Access pipeline came to camps at the
border of the Standing Rock Sioux reservation in an attempt to stop
pipeline construction and protect the tribe’s drinking water from
contamination.

Through a series of expensive conspiracy lawsuits against a disparate range
of actors, the pipeline company has sought to paint the Standing Rock
movement as the product of a vast misinformation-driven conspiracy to
damage Energy Transfer.

Now, as part of that effort, Energy Transfer is demanding Unicorn Riot turn
over virtually any documents, video footage, audio, article drafts, and
communications related to the firm and its pipeline. The subpoena also
sought information about the nonprofit’s organizational structure, social
media accounts, and names of employees, volunteers, and supporters. Niko
Georgiades, who was among the Unicorn Riot reporters covering Standing
Rock, was separately subpoenaed
<https://www.documentcloud.org/documents/20521080-subpoena_energytransfer_ng_redacted>
.

“This subpoena is outrageous and strikes at the heart of the First
Amendment. It should be thrown out immediately.”

“This subpoena is outrageous and strikes at the heart of the First
Amendment,” said Trevor Timm, executive director of the Freedom of the
Press Foundation. “The breadth of the subpoena is striking: not only
encompassing things like story drafts and internal communications, but also
the personal information of Unicorn Riot’s donors. The judge should see
this for what it is: a menacing attempt to intimidate a news outlet whose
only ‘crime’ is being critical of the company. It should be thrown out
immediately.”

Unicorn Riot signaled it would contest the subpoena. “We intend to
vigorously defend our sources and our First Amendment protected activity,”
Unicorn Riot told The Intercept in a statement. (Energy Transfer did not
respond to a request for comment.)

Over the course of months of protests at Standing Rock, Unicorn Riot
developed a reputation for its immersive livestreams, video news reports,
and public information requests, which provided powerful evidence of the
aggressive tactics used by law enforcement agencies and Energy Transfer.
The organization’s work leans to the left politically and tends to be
critical of law enforcement agencies, with journalists often reporting from
within movement spaces. At Standing Rock, law enforcement officials at times
viewed
<https://theintercept.com/2016/11/27/arrests-of-journalists-at-standing-rock-test-the-boundaries-of-the-first-amendment/>
the group’s journalists as members of the movement, subjecting them to
repeated arrests as well as “less than lethal” weapons.

Unicorn Riot has fewer than a dozen members and is entirely supported by
private donations from individuals who seek out their coverage of social
movements and protests. (Disclosure: Sam Richards, one of the authors of
this story, has written for Unicorn Riot as a freelance journalist on
matters unrelated to pipeline protests.) Energy Transfer, meanwhile,
reported nearly $5 billion in revenue in 2019 and has somewhere in the
neighborhood of 13,000 employees.

Fighting back will be an immense financial burden for a tiny organization
like Unicorn Riot. The group has launched a fundraiser
<https://donorbox.org/unicorn-riot-nodapl-legal-defense> to pay for a First
Amendment lawyer.
Attempt to “Chill” Speech

Critics say the toll exacted by fighting legal attacks is exactly the point
of what Energy Transfer is doing.

The Unicorn Riot notice was just one of a slew of subpoenas related
to Energy Transfer’s case over the last month to a wide range of
individuals and groups who were involved in the Standing Rock movement.
Among them were legal collectives, groups that provide nonviolent
direct-action trainings, and Standing Rock tribal officials.

The Water Protector Legal Collective, which also received an Energy
Transfer subpoena, described
<https://waterprotectorlegal.org/water-protector-legal-collective-challenges-energy-transfer-partners-dakota-access-pipelines-slapp-subpoena/>
the subpoenas as part of a set of tactics “designed to bury organizations
in litigation and force organizations to spend precious resources, time,
and energy defending against corporations.”

Energy Transfer “is on a fishing expedition for information that could lend
credence to their ill-founded notion that nonprofit organizations and Water
Protectors seeking to protect human rights and the earth for future
generations were allegedly engaged in illicit activity,” said staff
attorney Natali Segovia in a statement
<https://waterprotectorlegal.org/water-protector-legal-collective-challenges-energy-transfer-partners-dakota-access-pipelines-slapp-subpoena/>.
“In reality, it is ETP and large corporations that break the law with
impunity.”

[image: An onlooker takes photographs of Greenpeace activists hanging from
a construction crane with a banner that reads "Resist" in Washington, D.C.,
U.S., on Wednesday, Jan. 25, 2017. The protest comes one day after the
Trump administration invited TransCanada Corp. to reapply for its Keystone
XL project and issued a memorandum supporting completion of the Energy
Transfer Partners LPs Dakota Access Pipeline. Photographer: Andrew
Harrer/Bloomberg via Getty Images]

Greenpeace activists, protesting ongoing pipeline construction, hang from a
construction crane with a banner that reads “Resist” in Washington, D.C.,
on Jan. 25, 2017. The protest comes one day after the Trump administration
invited TransCanada Corp. to reapply for its Keystone XL project and issued
a memorandum supporting completion of Energy Transfer’s Dakota Access
pipeline.

Photo: Andrew Harrer/Bloomberg via Getty Images

The subpoenas are part of a follow-up effort to a sprawling federal
racketeering lawsuit Energy Transfer filed in 2017 against a range of
defendants, including the environmental group Greenpeace; BankTrack, which
is a nonprofit that pressures banks to stop financing harmful activity; and
several individual pipeline opponents.

The federal complaint alleged that thousands of people came to camps at the
border of the Standing Rock reservation because of a Greenpeace
misinformation campaign. Widespread evidence, including a robust public
record, show that water protectors instead were galvanized by calls for
help made by tribal members and the publication of shocking footage showing
Dakota Access pipeline security contractors siccing dogs on pipeline
opponents.

Energy Transfer claimed it sustained $300 million in damages, a total that
could translate into triple the penalties — nearly $1 billion — under the
federal law called the Racketeer Influenced and Corrupt Organizations Act,
known as RICO.

“The suit was brought to chill Greenpeace’s speech, drain our resources,
and intimidate anyone who speaks out against pipeline projects.”

The legal effort has been labeled a SLAPP suit
<https://protecttheprotest.org/category/resource-categories/what-is-slapp/>
by Greenpeace, short for “strategic lawsuits against public participation.”
The SLAPP designation refers to efforts designed to silence a powerful
plaintiff’s critics by using the legal system to drain them of resources.
The goal is not solely to win the lawsuit but to force a corporation’s
political adversaries to hemorrhage money, time, and morale through
relentless legal filings. In response to repeated SLAPP suits targeting
Greenpeace and others, a task force called Protect the Protest
<https://protecttheprotest.org/about/> launched in 2018.

In February 2019, a judge summarily dismissed
<https://www.greenpeace.org/usa/wp-content/uploads/2019/02/ETP.pdf> Energy
Transfer’s initial federal RICO case. “Donating to people whose cause you
support does not create a RICO enterprise,” he said. “Posting articles
written by people with similar beliefs does not create a RICO enterprise.”

Exactly a week after the dismissal, Energy Transfer filed a new complaint
against Greenpeace in a local North Dakota district court. The new case
basically repackages the old complaint without the federal RICO claims,
adding instead allegations of trespassing and other property-based claims.
Named alongside Greenpeace is the Red Warrior Society, which occupied an
encampment of pipeline opponents that supported obstructive direct-action
protests, Greenpeace organizer Charles Brown, and water protectors Cody
Hall and Krystal Two Bulls.

“The suit was brought to chill Greenpeace’s speech, drain our resources,
and intimidate anyone who speaks out against pipeline projects,” said
Greenpeace deputy general counsel Deepa Padmanabha. “We’ve been fighting
this SLAPP suit for many years, and we’ll continue to fight this battle
because it’s important for all individuals and groups engaged in advocacy
work.”
Widening Net

In the latest iteration of Energy Transfer’s legal attack, the corporation
issued several subpoenas in recent weeks to individuals who are not
defendants in the case. Among those subpoenaed are groups that provided
legal services to people facing criminal charges during Standing Rock,
including the Water Protector Legal Collective and the Freshet Collective.
The Ruckus Society and Indigenous Peoples Power Project, which both promote
nonviolent direct action, were also subpoenaed. And so were officials
involved in inspecting the pipeline route on behalf of the Standing Rock
Sioux Tribe, including Dr. Kelly Morgan, an archeologist for the tribe, and
Tim Mentz, the tribe’s former tribal historic preservation officer, who
submitted key testimony
<https://earthjustice.org/sites/default/files/press/2016/Decl-of-T-Mentz-Sr.pdf>
in a case arguing that the pipeline would harm culturally significant sites.

In an objection
<https://drive.google.com/file/d/1A-E9IZLSddZ4l30lDAFRoExFgYJ6PpcY/view> to
its subpoena, the Water Protector Legal Collective noted that it has
provided legal support in more than 800 criminal cases and argued that the
subpoena is “seeking the records of a legal organization akin to a law
office, including communications by, between and among WPLC-associated
attorneys, WPLC staff and its clients.” The group said the subpoena was “an
assault by Energy Transfer and Dakota Access upon the attorney
client-privilege itself” and “a fishing expedition.”

The Water Protector Legal Collective subpoena even requested communications
with members of the press. “This is a clear attempt to inhibit
communications by an advocacy organization with the press in violation of
WPLC’s first amendment rights under the U.S. Constitution,” the collective
said in its objection.

Mentz and Morgan, for their part, have objected to the subpoena on the
grounds that the documents Energy Transfer is demanding are the property of
the Standing Rock Sioux tribe, which is protected from such third-party
subpoenas by sovereign immunity.

Unicorn Riot has been forced to dedicate a sizable portion of its limited
resources to deciding how to handle the sweeping subpoena, even as the
group maintains round-the-clock coverage of the murder trial of former
Minneapolis police officer Derek Chauvin, who killed George Floyd last
summer and sparked a nationwide protest movement. “We are committed to
bringing you hard hitting journalism and will not bow to attempts to
intimidate or interfere with our reporting,” the organization stated on its
new legal defense fund page.
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