This article is co-authored by Ben Jealous
One of our most important rights as Americans is the freedom to express ourselves. This takes the form of voting, it takes the form of activism, and it takes the form of our First Amendment right to free speech.
This summer, the 9th Circuit Court in California is weighing the question of whether companies have the right to take preemptive legal action against peaceful protesters for hypothetical future protests. This will be an extraordinary decision that could have a significant impact on every American’s First Amendment rights.
The case, Shell Offshore Inc. vs. Greenpeace, was filed by Shell Oil Company. Last summer, Shell assumed –based on conjecture — that Greenpeace USA would protest the company’s drilling in the Alaskan Arctic. Shell asked the 9th Circuit court for a preemptive injunction and restraining order against Greenpeace USA [Full disclosure: Philip Radford is the executive director of Greenpeace USA].
Despite Greenpeace’s appeal, the court granted the injunction for the entire duration of the drilling period, a decision which effectively gave a federal blessing to the company’s wish to do its controversial work in secret.
Greenpeace has asked the court for a full review, and this summer, the court will decide the ultimate fate of the case.
If the court rules in Shell’s favor, it would have a profound chilling effect on First Amendment rights across the country. Nothing would stop other corporations from taking similar preemptive legal action against anyone they deem to be likely protesters. That could be an environmental group, it could be a civil rights group, or it could be a Tea Party group — or anyone in between.
Even if the most frivolous of these suits were eventually overturned on appeal, it would still set a dangerous precedent. Anyone who wants to silence a protest outside a convention, a disaster site, or any political space would have legal precedent to do so for as long as their lawyers could keep the case in court.
This case isn’t just about the fate of the Arctic. It is about the state of our democracy.
Entrenched power, whether corporate or governmental, wants to keep things just the way they are. For generations, ordinary people of social conscience who see injustice in the status quo have exercised their First Amendment rights in order to make the changes necessary for progress.
It isn’t always easy.
In 1965, after years of dedication to the Civil Rights Movement, Julian Bond was one of the first African-Americans since Reconstruction elected to the Georgia House of Representatives. Even though Bond won his election fairly and took a legally binding oath of office, his colleagues voted to deny him his right to speak in the Assembly. Despite the clear racial motivations, Bond was undaunted. He filed a federal lawsuit claiming that the Georgia House had violated his First Amendment rights, and the case eventually made its way to the Supreme Court. Bond’s right to speak was ultimately upheld.
In his decision, Chief Justice Earl Warren wrote that the case was central to the function of the First Amendment. Warren wrote:
Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected.
As Bond and Chief Justice Warren recognized, the right to protest is a foundational American right. In fact, this tradition, forged by Henry David Thoreau, Martin Luther King Jr., Rosa Parks, and countless others, is the only thing that puts the power of the people on any kind of scale relative to the power of multibillion dollar corporations or entrenched government power.
Our power as citizens lies in our ability and willingness to protest. Without the right to speak and protest, the civil rights, environmental, and other movements would never have accomplished the great things we have. Right now Shell is trying to set a precedent to restrict Americans’ First Amendment rights. If they succeed, it will have a devastating and chilling effect on our democracy.