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View Diary: How Shell is trying to send a chill through activist groups across the country (175 comments)

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  •  There is no First Amendment Issue Here (5+ / 0-)

    Before spouting off about corporate interests being protected, totalitarianism, and all the rest of it, please read the 9th Circuit's opinion, which was linked in the original diary.  

    There is no 1st Amendment right to "protest" by engaging in trespass or damaging another's property.  Whatever you think of what Shell is doing, or what our government is doing with its submerged land leases ... the 1st Amendment right to free expression doesn't cover the activities that the "protesters" want to engage in and that Shell had a pretty good argument that, but for injunctive relief, they would engage in in connection with this particular drilling operation.  This isn't anything new or "totalitarian."  It's a respect for the rule of law, something that I hope our community would embrace.

    I'd also note that if GP's arguments here are so legally unsupported that they can't even win in the 9th Circuit with them.

    "There is nothing impossible to him who will try." -Alexander the Great

    by The Octopus on Tue Jun 18, 2013 at 08:48:55 AM PDT

    •  And the activities GP wants to engage in are (8+ / 0-)

      dangerous.  The opinion acknowledges that.  There is nothing safe about forcibly boarding vessels or drilling rigs in the middle of the ocean and putting your body in the middle of drilling activities so as to stop those.  Those activities are dangerous not just for the activists engaging in them, but for the workers on those vessels and those rigs.  

      If the opinion just enjoined "protests," I'd be all behind the diarist.  But I can't find fault with an injunction to prevent someone from forcibly boarding vessels and rigs in the middle of the ocean and putting their body in places so as to disrupt those activities.  That's a safety issue as much as anything else.  

      •  Here's specificallwhat GP was enjoined from doing: (5+ / 0-)

        a. Breaking into or trespassing on [specified] vessels;

        b. Tortiously or illegally interfering with the
        operation, movement or progress of [specified]
        vessels;

        c. Barricading, blocking, or preventing access to or
        egress from [specified] vessels;

        d. Tortiously or illegally endangering or threatening
        any employee, contractor or visitor of Shell or any
        of its affiliates who is present on, or as they enter
        or exit, [specified] vessels.

        I know there are some direct action protesters here at DK, and more who support such actions if not engaging in them personally.  But, the reality of this kind of stuff is that it's illegal.  That's the whole point of your action, right?  So it shouldn't come as a surprise that governments and people or companies who are on the receiving end of them would use the law (and law enforcement, since this stuff is illegal) to put an end to it.  There's nothing here new or controversial.  Call trespassing, breaking into someone's property, and blockading vessels "protesting" all you want ... but there's ZERO argument that any of that stuff is, or ever has been considered protected First Amendment activity.

        "There is nothing impossible to him who will try." -Alexander the Great

        by The Octopus on Tue Jun 18, 2013 at 09:09:22 AM PDT

        [ Parent ]

      •  Except that if you read the actual wording (1+ / 0-)
        Recommended by:
        Words In Action

        you will see that it can easily apply to much more than that.  Would not a protest near the docks of those ships, even if on public property, "interfere with the operation, movement or progress of [specified] vessels;" by slowing down traffic thus delaying the crew by a few minutes?  Also, all it would take is a single employee to claim they feel threatened by any kind of protest and that is that.  So yes, the injunction does block any kind of protest if you read it like a lawyer would.

        Remember, the intent of the injunction doesn't matter.  Only the actual wording (and how it can be twisted to apply as broadly as possible) does.

        You have watched Faux News, now lose 2d10 SAN.

        by Throw The Bums Out on Tue Jun 18, 2013 at 09:19:55 AM PDT

        [ Parent ]

        •  No, that's not correct (6+ / 0-)

          The "actual wording," as you point out, is what controls.  And the "actual wording" here requires that the acts enjoined in pars. b and d be either "tortious" or "illegal."  So, no, the broad reading that you're going those paragraphs isn't concerning.  

          Where, exactly, does the First Amendment protect the right to engage in tortious or criminal acts?  As an attorney who has obtained and defended plenty of injunctions over the years, I'd like to see the cases that suggest that this kind of stuff is protected expressive activity.

          And yes, blocking or restricting access to someone's place of business, even from a public place, is going to be tortious and likely illegal.  That's a point that most of us will be very familiar with in protecting abortion clinics from the Operation Rescue folks and their ilk.  The exact same principles apply here.  Tell me there's some difference, please, other than that we're supposed to "like" Greepeace and the environment, and that we're against OR and for a woman's right to choose?  

          It's the same laws, folks.  Exactly the same.

          "There is nothing impossible to him who will try." -Alexander the Great

          by The Octopus on Tue Jun 18, 2013 at 09:30:43 AM PDT

          [ Parent ]

          •  Great point (5+ / 0-)

            People need to remember the Golden Rule when protesting, and realize that anything they want to do to far-right interests, others can turn around and do to us.

          •  However, any protest is going to restrict (3+ / 0-)
            Recommended by:
            Dartagnan, 3goldens, Words In Action

            access to someone's place of business as at least some drivers will slow down to get a better look thus slowing down anyone going to their place of business.  Therefore all protests, including the Wisconsin overpass light one, are illegal by your thinking.  Remember, even a 30 second delay is still a restriction of access and a 3 minute one definitely is.

            You have watched Faux News, now lose 2d10 SAN.

            by Throw The Bums Out on Tue Jun 18, 2013 at 09:53:53 AM PDT

            [ Parent ]

            •  And any form of protest (2+ / 0-)

              can have the effect of intimidating or "threatening" depending on subjective interpretations.  The question becomes whether those interpretations are "reasonable," and that's a jury's decision. So it would seem any protester in order to evade the injunction would have to get inside the mind of whoever witnessed the protest and guide his actions accordingly.

            •  Only matters if it's illegal or tortious (5+ / 0-)

              Here's the deal with the legal fight that GP has picked here:

              Unless you're willing to defend with equal vigor the right of Operation Rescue "protesters" to delay and hinder women who are on their way into a Planned Parenthood clinic, to block acces to that clinic, and to chain themselves to the clinic doors, then there isn't much left of GP's arguments in this case.  And at least in the abortion clinic cases -- all of which were resolved 20 years ago -- those "protests" took place from a sidwalk, which is at least a quasi-public forum.  There's no argument that the middle of the ocean is a public forum of any sort for First Amendment purposes.  OR had a better legal argument that GreenPeace does here, and they lost -- as they should have.

              "There is nothing impossible to him who will try." -Alexander the Great

              by The Octopus on Tue Jun 18, 2013 at 10:12:50 AM PDT

              [ Parent ]

              •  I have not read every abortion clinic case (1+ / 0-)
                Recommended by:
                Words In Action

                how many were pre-emptive injunctions entered before protesters actually interferred with women, etc.>

                Pre-emptive restrictions on speech (and assumptions of illegal activity in the future) have not been favored in the law by and large.

                •  Injunctives are always pre-emptive ... (2+ / 0-)
                  Recommended by:
                  johnny wurster, samddobermann

                  ... and the enjoined activities are not protected expressive activities, whether they're done by abortion protesters or environmental rights activists.

                  "There is nothing impossible to him who will try." -Alexander the Great

                  by The Octopus on Tue Jun 18, 2013 at 10:37:45 AM PDT

                  [ Parent ]

                  •  no injunctions are not always pre-emptive (4+ / 0-)

                    generally there has to be something that has happened, note the discussion in the opinion itself as to whether there is really a case in controversy or if the actions are all speculative, can't even get jurisdiction without the controversy.

                    But they frequently interrupt at an early stage of a plan or series of actions to restore or maintain the status quo.  So frequently someone has already blocked the disputed shared drive, claimed possession of some tangible or intangible property, or gone beyond speech to actual take control of or block legal access to a place.  And the court did address whether Greenpeace planned illegal activities, ie, something more than speech alone that would be an act that could be stopped, because speech alone would not provide a basis.  It then reached out to activities not done by the party in the suit, Greenpeace USA, and said  all Greenpeaces are alike and will do the same things these other groups did, even though it entered a sworn statement that all acts would be peaceful and trespass is in violation of the peace, so it should rule out trespass.  The majority split some mighty fine hairs.  I repeat, the dissent was better grounded in the facts and law.

                    •  We'll have to agree to disagree (0+ / 0-)

                      The point of an injunction is to prevent the harm from occurring in the first place.  As a remedy, iit's always forward-looking, though whether you get it depends, of course, on events that have already occurred and -- among other things -- the likelihood of the harm occurring but for the injunction.  But what you're enjoining is future conduct.  

                      "There is nothing impossible to him who will try." -Alexander the Great

                      by The Octopus on Tue Jun 18, 2013 at 11:03:08 AM PDT

                      [ Parent ]

                      •  there is a differnce between (2+ / 0-)
                        Recommended by:
                        Words In Action, burlydee

                        enjoining future conduct and a pre-emptive act.

                        All a court can do with an injunction is enjoin future action. Even the least able jurists tend to recognize a court order can not enjoin an action already taken, one can't unring a bell.  The court says, stop ringing the bell for now until we have a hearing on the merits.

                        What courts usually don't do is say to someone, 'you've never actually been near a bell,  have not expressly stated you are going to ring the bell, but since you admired others that  have rung bells before, we are going to enjoin you from ringing the bell.'

                        •  Dude, read the opinion (0+ / 0-)

                          You're entitled to your own opinion about Shell and direct-action protesters and all the rest of it, but you're not entitled to your own facts.  That's just flat-out not true as far as what happened here.  GP USA got enjoined based on their own actions; no one else's.  The district court and the 9th Circuit made that totally clear.

                          And of course it's preemptive.  Injunctions are preemptive.  That's the whole point of it.  Read some of the cases cited by the 9th Circuit in its opinion.  They're the "usual suspects" on injunctive relief and they'll help you understand what an injunction is and what it is that the petitioner has to show to get one.

                          "There is nothing impossible to him who will try." -Alexander the Great

                          by The Octopus on Tue Jun 18, 2013 at 11:53:03 AM PDT

                          [ Parent ]

                          •  I did read the opinion and the dissent (1+ / 0-)
                            Recommended by:
                            Words In Action

                            and the acts attributed to the corporate person, were not its acts as standards of law in the past are applied.

                            I know what an injunction is, I've gotten them before.  

                            BLD:

                            A prohibitive writ issued by a cout of equity, at the suit of a party compalinant, directed to a party defendant n the action or to a party made defendant for that purpose, forbidding the latter to do some act, or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining him in the continuance thereof . . .

                            IE, after a threat to commit an act, the attempt to commit (ie actions taken) or continuance, ie, injunctions issue against all three fact scenarios, only one of which is prior to any act, and that still follows a threat to commit the act.  In this case, no threat to act existed at the time suit was brought, the court speculated and inferred based on what other corporate persons did and some isolated participation by members in the corporate person but without authorization took.  Again,  I stand by what I said.  Always means in every case.  Not always was all I said.

                            Pre-emptive in the law is narrow in one sense, a right to acquire land or goodsbefore anyone else, or more generally by common definition, to take a right in  advance.  It is not based on an act by another being stopped in advance, it is taking a right in advance.  Hence issues of pre-emption of the right of speech, or federal pre-emption of areas of law to be legislated upon by the state legislatures.

                            Injunctions are always prospective, but not always pre-emptive.  

                          •  Prohibited from acting is preempted (0+ / 0-)

                            I don't know how it could be more clear.

                            There's no body of "preemption" case law in TRO/injunction/emergency litigation practice.  If there is, please show me, 'cause somehow I managed to miss it after practicing in this are for 15 years.

                            "There is nothing impossible to him who will try." -Alexander the Great

                            by The Octopus on Tue Jun 18, 2013 at 12:17:04 PM PDT

                            [ Parent ]

                          •  so you have now insisted (1+ / 0-)
                            Recommended by:
                            Words In Action

                            over several posts that all injunctions are pre-emptive, then go back and demand I prove to you that there is a body of preemption case law because you've never seen it.  

                            So what is your real position on injunctions, are they pre-emptive or not?

                          •  You mentioned preemption doctrine, ... (0+ / 0-)

                            ... where is it?  Where is this doctrine discussed in the contect of emergency litigation?  It's not.  It's not a term of art that's recognized -- at least, I've never come across it -- in the context of obtaining or defending against emergency, equitable relief.  

                            It's preemptive in the sense that it -- the ripening of the petitioner's right to the injunction -- occurs before the conduct that one wants to enjoin.  You're the one talking about prior restraints on speech and preemption doctrine, above.  The speech issue in this case is just silly.  There isn't protected expressive activity taking place here.  Period.  Nor is there some doctrine of preemption that applies in the context of injunctive relief.  

                            I don't have to wait for my abuser to hit me in the face or rape me before I can go into court and get an order that says he can't do those things and that he needs to stay 100 yards away from me, my car, my home, and my place of business.  It's exactly the same damn deal here.  There isn't anything new or novel or unique in the injunction that Shell got in this case, from a legal perspetive.  What's relatively new about it is that companies have finally caught on that this is a very powerful tool.  You'll find plenty of folks who want to chain themselves to fence or sit down with their buddies in a sleeping dragon if all they're going to get is some obstruction/resisting-wthout and trespass charges.  You're not going to find too many people who are going to want to get hammered with a civil contempt deal.  That's all that's new here.

                            "There is nothing impossible to him who will try." -Alexander the Great

                            by The Octopus on Tue Jun 18, 2013 at 12:35:48 PM PDT

                            [ Parent ]

                          •  and I just quoted Blacks Law Dictionary (3+ / 0-)
                            Recommended by:
                            Words In Action, burlydee, KenBee

                            and I am pretty sure that definition comports with the variety of fact patterns, the pre-emption in the sense I used it and you are now using , ie, no action taken is only one potentional fact pattern.

                            I have repeatedly pointed out that there are other patterns in which actions have been taken, and then stopped by injunction. THis all started with a question  you never answered over whether any abortion clinic case was an injuntion entered before protesters had actually interfered with a woman approaching the building.    And again,  the actions for which an injunction can be entered, can't be purely speculative.  Even in a family violence tro, jargon may differ where you are, some showing has to be made of a threat to get the order.   Here they may be entered ex parte and a fairly small showing, but there has to be something.

                            I believe that the dissenting judge, who found the majority's reliance on acts by others,  no current threat, too tenuous to meet the standards for the injunction.

                            I kept my comments to the fact pattern, I have no desire to try to prove my credentials to someone who can't admit the obvious, that all injunctions do not occur before any acts are taken.  Or based on lack of a credible or plausible threat.  It is hard to get an injunction against someone who never threatened you, never punched you, never raped you, because some other person once did those things to you.

                            And I find the ease with which protest may be chilled through the use of speculative fact patterns to claim a threat, bootstrapping as it were to add more words to nit pik over, a problem and still continue to find the well reasoned, well supported dissent to have the better of the legal argument.

                  •  or even those guilty of it (2+ / 0-)
                    Recommended by:
                    jfromga, Words In Action

                    if the corp thinks it might happen, you're good with it

                    Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

                    by greenbastard on Tue Jun 18, 2013 at 10:51:03 AM PDT

                    [ Parent ]

              •  You aren't thinking like a lawyer. Just claim (2+ / 0-)
                Recommended by:
                3goldens, Words In Action

                that it is an illegal protest because it violates the order and that it violates the order because it is illegal.  In other words, a circular argument.

                And again, since any protest will cause a delay (even a 30 second delay due to slowed traffic is still a delay) that means all protests are illegal, PERIOD.

                You have watched Faux News, now lose 2d10 SAN.

                by Throw The Bums Out on Tue Jun 18, 2013 at 10:35:14 AM PDT

                [ Parent ]

                •  All protests are not illegal... (2+ / 0-)
                  Recommended by:
                  misslegalbeagle, CalGal47

                  GP USA and its lawyers damn-well know what "illegal" and "tortious" mean, even if folks responding to this diary don't, or pretend that they don't.

                  There's nothing circular here.  It's this simple: Shell convinced a judge that, based on GP USA's past actions, more likely than not GP USA would interfere with its drilling operation in such a way that the interference could not be remedied at law.  GP has about zero right to engage in criminal conduct and there was no good argument that they would be engaged protected First Amendment activity in the time and place where Shell would be conducting its drilling.  Balancing out the harm to Shell – significant safety concerns and economic losses -- against the harm to GP (what right do you have to break the law?), the Court enjoined GP in very narrow terms from interfering with their business.  The 9th Circuit found that this reasoning was within the discretion of the trial judge.  To a lawyer, this is all pretty obvious.  There's nothing interesting or controversial here.  The law on this stuff is very, very well-settled.

                  We're supposed to be a reality-based community, folks.  Part of that means that what's good for the direct action right-to-life goose is also good for the environmental activist gander.

                  "There is nothing impossible to him who will try." -Alexander the Great

                  by The Octopus on Tue Jun 18, 2013 at 11:20:28 AM PDT

                  [ Parent ]

                  •  We both know that a good lawyer can make "yes" (0+ / 0-)

                    mean "no".  Remember the whole "it depends on what your definition of "is" is" thing?

                    And can you seriously claim that a protest, any protest, will not slow down traffic even a little bit due to drivers slowing down to take a closer look at some of the signs?  And if an essential crew member is delayed by even 30 seconds to a minute would that not "interfere with the operation, movement or progress of [specified] vessels" by delaying the departure by a few minutes?  Or if you want to be really creative, claim that the protesters driving to the protest might have altered the weather patterns (you know, the so called "butterfly effect") enough to force the ship to change course to avoid a storm.

                    You have watched Faux News, now lose 2d10 SAN.

                    by Throw The Bums Out on Tue Jun 18, 2013 at 04:27:27 PM PDT

                    [ Parent ]

    •  You're missing the issue, what the corporation (4+ / 0-)

      accuses Greenpeace of is that others have trespassed, and so Greenpeace might do the same, so they should be held in certain free speech like zones.

      Read the whole thing.

      So they are losing their rights due to the actions of others? That's what you think is OK?

      Greenpeace is the boarding vessels types. They are the stand nearby and protest type.

      Growth for the sake of growth is the ideology of the cancer cell. --Edward Abbey

      by greenbastard on Tue Jun 18, 2013 at 09:13:02 AM PDT

      [ Parent ]

    •  read the dissent (2+ / 0-)
      Recommended by:
      Words In Action, burlydee

      which was better on the facts and the law.

    •  Stop letting reality interfere with the (3+ / 0-)
      Recommended by:
      johnny wurster, The Octopus, a2nite

      moral outrage!!!!

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