Don't be gagged

What can whistleblowers learn from legal actions against activists?

Imagine that you are a protester. You write letters to the newspaper criticising a property development. Or you attend meetings of concerned citizens on an environmental campaign. Or you join protest marches and rallies. Or, more dramatically, you take direct action by entering private property to block earth-moving equipment - a form of civil disobedience.

Thousands, indeed hundreds of thousands, of Australians join in such activities every year. Nonviolent activists who are arrested usually know exactly what they are doing and the likely consequences - usually not too severe. However, a few protesters, very unlucky ones, are unexpectedly sued by companies and spend years with court cases hanging over their heads.

In the early 1990s, many people in Adelaide joined protests against the building of a bridge to Hindmarsh Island. There were environmental concerns and, more importantly, the bridge was opposed by local Aboriginal women. The owners of a marina on the island, the Chapmans, started suing opponents of the bridge for defamation. They initiated dozens of legal actions, suing individuals, environment groups and media organisations.

What do you do if you've been sued for speaking out on a social or environmental issue? You might make an apology and pay up, but that's expensive and it means that you've left other campaigners in the lurch. In fact, if everyone folds up, protest is hardly possible: it will be inhibited by fear of lawsuits.

Another option is to fight the case. That's also expensive. You might end up paying tens of thousands of dollars, with no guarantee of success. If you lose, you might have to pay the opponent's legal costs too. And it's a slow process, lasting months or years. Meanwhile, the protest campaign is bogged down, with more concern about defending court cases than addressing the issues.

A more creative option is to use the court cases as a way of attracting greater attention to the issue. That's what happened when MacDonald's sued Helen Steel and Dave Morris for producing a leaflet titled "What's wrong with MacDonald's?" that discussed health shortcomings of MacDonald's food, poor pay for workers and the environmental impacts of beef production. The ensuing court case was the longest in British history and helped stimulate a massive campaign that was a public relations disaster for MacDonald's. It sounds great, but it meant Steel and Morris put their lives on hold for a decade.

In Australia, if you are a protester and you are sued, who do you call? Greg Ogle. He was heavily involved in the Hindmarsh Island legal actions. He's not a lawyer, but he's learned an incredible amount about the legal system - he calls himself a bush lawyer. He's an experienced activist. And he's highly experienced in dealing with legal actions against activists.

The Hindmarsh Island legal dramas went on for years. After that, Ogle became involved in advising members of Animal Liberation in South Australia. Some of them had entered a farmer's property, taken photos of his battery chicken operation and used the event to publicise potential violations of animal welfare laws. Animal Liberation believed that what the farmer was doing was illegal, but he never would have been prosecuted except for the activist raid. But entering the property was illegal - the farmer sued. Ogle wasn't in on the raid, but he became involved in the subsequent legal manoeuvres and campaigning.

Then there was the Gunns case. Gunns, a huge forestry company in Tasmania, sued 20 individuals and groups - forest activists and critics - for damaging its business. This was a frontal attack on the right to protest. Some of the activists had taken direct action, but others had only done the usual things taken for granted in a liberal democracy such as writing letters and making submissions. They were also charged with conspiracy, so that those who had only done apparently legal things were held responsible for the illegal activities of some activists. But those illegal activities were fairly standard, such as squatting in trees to prevent logging operations. All of a sudden, conventional protest methods were being met by a legal action with a claim for millions of dollars and the potential to bankrupt individuals.

One of the organisations sued by Gunns was The Wilderness Society (TWS), one of Australia's largest and most active environmental groups. TWS called on Ogle to be the legal coordinator for the Gunns case. As a result, he has an unequalled understanding of the legal and public dimensions of lawsuits against protesters.

Unfortunately, Ogle was completely exhausted by these cases, at times working himself to a frazzle physically and emotionally. So he might not be keen to tackle yet another case. But you can learn much of what he has to offer through his book Gagged. He goes systematically through the Hindmarsh Island, Animal Liberation and Gunns cases, giving the background politics, telling about the cases themselves, highlighting the opportunities for using the cases for campaigning advantage and pointing to problems.

The Animal Liberation case worked out best for the activists, who were able to use stunts to turn the legal steps into media events or just having fun. For example, a protester in a chicken suit served a counterclaim on one of the farmer's lawyers.

Ralph Hahnheuser, the campaigner behind the original raid, prepared T-shirts with provocative messages, triggering a separate set of legal activities that aided the protesters - and he wore one of the T-shirts into the courtroom. The case was exhausting but it wasn't all that much of a diversion from Animal Liberation's goals: the creative protesters were often able to make the legal terrain serve as a campaigning opportunity.

There were fewer bright sides to the Hindmarsh Island saga. The defamation actions came so thick and fast that most protesters were frightened and intimidated. One difference was that protest against the Hindmarsh Island bridge was more broad-based; many who were involved were better described as concerned citizens than experienced activists, and they potentially had a lot to lose without the same level of prior commitment. The defamation actions were devastating for the campaign. It was only through the combined efforts of the defendants, Ogle and a number of supportive lawyers that the SA environmental movement survived as well as it did.

In the Gunns case, TWS was most happy to campaign, using the legal actions as an opportunity to raise concern about Gunns generally. This worked best internationally: the Gunns suit was seen as outrageous and led to a great increase in attention and activism against Gunns in several other countries. Within Australia, the outcome was more mixed, because the campaigning had to be offset by the fatiguing effort to address the legal dimensions.

Ogle was frustrated by the interaction with some of the many lawyers supporting the Gunns 20 defendants. The lawyers favoured a legally oriented strategy, often at odds with an activist preference for using the case as a base for campaigning.

Back in the 1980s, US scholars Penelope Canan and George Pring studied hundreds of legal cases in which businesses or other bodies sued citizens who had protested against abuses, developments and the like. They called these cases SLAPPs: Strategic Lawsuits Against Public Participation. The acronym SLAPP caught on and has been a useful conceptual tool for opposing this sort of anti-democratic legal tactic. In the US, most of the activity threatened by SLAPPs is protected by the first amendment to the constitution, not via its guarantee of free speech but by a lesser-known part of the first amendment, the right to petition the government. However, in Australia there is no equivalent to the first amendment, which means legal challenges to SLAPPs are more difficult.

Ogle hasn't given the full story of the legal cases in which he was involved, but instead a simplified version, leaving out many of the tortuous legal arguments, motions, delays, debates and deceptions. Even so, the story he tells will be more than complex enough for most readers, thus giving a good sense of the labyrinthine pathways of the legal system - something that most people, if they knew what was involved, would prefer to avoid if at all possible. It is all the more impressive that Ogle has shown how to enter this hall of mirrors while still keeping the political core of the issue in view.

What is the solution? Are legal actions a guaranteed way to destroy the morale of activists? Ogle has shown one way of countering SLAPPs: design a legal-political response that highlights the original issue - the Hindmarsh Island bridge, battery farming or the destruction of old-growth forest - and use the legal actions to generate greater concern.

Within this overall strategy, Ogle has several general recommendations. One is to speak out and not succumb to lawyers' pressure to keep the case solely in the legal arena. Many defendants are worried that commenting on the issues might jeopardise the case or transgress some legal rule like sub judice (often invoked by politicians to avoid commenting on an issue). Ogle insists on keeping the political or social objective foremost; this usually dictates speaking out rather than keeping quiet.

Ogle recommends countersuing. Activists often like to maintain the moral high ground by being only the targets of legal actions, not the initiators. I have long had this view. Ogle has convinced me to reconsider: once in court, he argues, the moral high ground isn't worth much. He thinks it's powerful to countersue; it puts the other side on the defensive. This issue deserves more debate.

Gagged is testimony to the incredible emotional and personal cost in defending against SLAPPs, not to mention cost in time and money. Gunns ended up with a serious loss of reputation internationally, but the toll on the defendants was enormous. Is there any way around this? Ogle argues for law reform, in particular for anti-SLAPP legislation. This would be nice, undoubtedly, but where is the political will to implement it? Given that decades of law reform efforts on behalf of free speech have yielded very little in actual changes in the law, the prospect of anti-SLAPP legislation becoming a priority seems remote. Ogle notes that the one example of such Australian legislation, the ACT's Protection of Public Participation Act 2008, doesn't do much for defendants: it is mainly symbolic.

Greg Ogle's website, http://users.senet.com.au/~gregogle/, is titled "The bush lawyer's guide to avoiding and surviving litigation against public participation." It states "This website is authorised by Greg Ogle on behalf of Bush Lawyers Ink, a not for profit legal service brought to you by the legal system's inability to protect the community's right and ability to participate in public debate and protest."

What to do?

Ogle is so close to the issues that it is quite an achievement that he has been able to make sense of the incredibly complex legal dramas. Even so, whistleblowers may not see his take-home messages all that clearly, aside from pushing for law reform. Therefore let me suggest some implications.

When you are sued for speaking out, what usually happens is that the focus and forum change. You intend, in speaking out, to draw attention to a problem: corruption, abuse, environmental damage or whatever. Your focus is the problem and your forum is discussion, either inside an organisation or among the wider public. When you are sued, the focus changes to the alleged illegality of what you said or did and the forum changes to the legal system.

The challenge for anyone who speaks out is to maintain the focus. Rather than getting sucked into an exclusively legal defence, as lawyers often recommend, Ogle shows how it is possible to continue campaigning, including by using steps in the legal process as campaigning tools.

Ogle's recommendation to countersue is one way to keep the focus on the original problem, typically the activities of whoever is suing. In other words, choose legal manoeuvres according to campaigning goals.

In campaigning, a key task is to maintain unity of those involved. When under legal attack, maintaining unity becomes more difficult due to increased fear and risks. Therefore, extra effort needs to be made to cement connections with allies and supporters. For whistleblowers, that means trying to find others who will speak out and spending time with and giving consideration for family, friends, co-workers and other supporters.

Ogle shows that it is possible to become an effective legal advocate without formal legal training. But it's not easy. The knowledge of how to survive and use the legal system needs to be explained for non-experts, with plenty of examples. And we need many more Ogles to help out when the going gets tough.

Greg Ogle, Gagged: the Gunns 20 and other law suits (Sydney: Envirobook, 2009).

Brian Martin is editor of The Whistle.

Thanks to Narelle Campbell, Peter Gibson, Ian Miles, Frances Steel and Andrew Whelan for helpful comments on a draft of this review.