Betsy Apple Appears on Drilled Podcast on Free Speech

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There's a lot of discourse happening about free speech in the context of "cancel culture" these days, but precious little coverage of the push all over the world to criminalize protest...particularly environmental and climate protest. We'll be digging into this trend in detail over the next several months, but first a look at what prompted extractive industries to start agitating for governments to crack down on protest, what tactics they use, and why they've been so effective.

Episode transcript:

[00:00:00] Kai Nagata: Now you might think of the Mounties as kind of like Dudley DoRight. They always get their man. They ride around in the musical ride with their red jackets. The Mounties, make no mistake, they are a vicious, colonial militia. They were formed in order to break the backs of the Indigenous resistance on the prairies to open up the land to railways and Western expansion by settlers.

And they are still doing that job here on the colonial frontier in northern BC, except these days, they have helicopters and attack dogs and all the rest of it.

[00:00:49] Fyneface Dumnamene: The response from the authorities like the police, whenever there is a protest against oil companies. It's always different from how they respond to other protests.

[00:00:59] david shoebridge: After about two hours of a standoff, they just lined up the riot squad and just marched them in. You know, I remember them forming together, they reminded me a bunch of sort of puffed up turkeys. They were going, and then went in and surrounded all these poor kids and started arresting them and moving them off.

[00:01:18] Disha Ravi: So technically the investigation is still on and I can't plan around it. I can't. And I don't know when it's going to end. So I don't know how long it will take.

[00:01:33] Marcos Orellana: When the former colonies acquired independence. In the advent of decolonization, largely after the Second World War and the advent of the United Nations, the former imperial powers needed a legal system to protect the economic interests of their corporations.

[00:01:53] Joanna Oltman Smith: When I went to surrender to the FBI, I thought it was going to be kind of a straightforward, more of a, like a clerical matter, but I ended up being put into shackles and taken into custody for a good part of the day without a lot of explanation of what was happening or why that was necessary.

[00:02:16] Amy Westervelt: That was Kai Nagata in Canada, Fyneface Dumnamene in Nigeria, David Shoebridge in Australia, Disha Ravi in Bangalore, Marcos Orellana in Chile, and Joanna Oltman Smith in the U. S. Across the globe, people advocating for climate action-- whether they're students showing up at protests, or lawyers arguing in court-- are being retaliated against by industries and politicians that feel threatened by that advocacy. I'm Amy Westervelt and over the next several months, we will be following this trend across borders, looking at everything from the history of environmental protest and the suppression of it, to the way think tanks help to push legislation that criminalizes protest to tactics used by both corporations and law enforcement, from infiltrating movements to stripping environmental organizations of their nonprofit status and labeling protesters domestic terrorists.

For land and water defenders around the world, being labeled a criminal can have severe personal consequences from social isolation to post traumatic stress to years of incarceration and, at the extreme end, assassination. The most serious repercussions fall on populations that are already routinely criminalized, particularly people of color and indigenous people, especially in places that have experienced colonialism in its most brutal forms.

Criminalization also impacts the broader climate and environmental movements, draining them of vital resources and key organizers. Ultimately, our ability to avoid the worst outcomes of the climate crisis depends on the success of people organizing to protect the land and water.

To edit this series, we've brought on a reporter who's been covering this issue longer than most, Alleen Brown. You might recognize her name from her last gig at The Intercept. Now Alleen is an independent investigative reporter contributing to lots of different publications. and publishing her own newsletter, too, called Eco Files. Working with Alleen, and with reporters on almost every continent, we'll be bringing you stories that help to trace the roots of this trend.

We're going to highlight successful fights against it as well, and humanize activists that the media has helped to vilify and dehumanize for far too long. You might remember us talking about how this trend has unfolded in the U. S. in previous episodes, where we've covered the rollout of so called critical infrastructure laws that increase both the fines and jail time associated with trespassing near anything deemed critical infrastructure, which can include anything from a pipeline to a road.

Environmental defenders sometimes use tactics like non violent direct action or civil disobedience to prevent the construction and operation of polluting projects. That can involve physically standing in the way of construction equipment or trespassing on private property.

More rarely, some activists physically damage equipment. These acts cost companies money, and sometimes they lead to arrests under existing trespass or vandalism laws. But in recent years, corporations have been pushing for new laws specifically designed to punish and prevent disruptive environmental protests.

These laws add additional jail time and fines to those already existing trespass and vandalism laws. The first step towards passing those laws is defining so called critical infrastructure and making sure that the definition of critical infrastructure includes harmful projects like new fossil fuel developments.

Framing those projects as critical to the security of a community or to the country helps to underpin the efforts to frame opponents of dams, mines, oil pipelines, or coal plants as criminal threats worthy of harsh laws. Independent researcher Connor Gibson has been following that trend for more than five years.

So last time we talked, it was, I want to say late 2021, early 2022. And it sounds like in 2022 and 2023. Some more of these fossil fuel backed anti protest bills have been making their way through state legislatures So I want to have you first start with a little bit of like a lay of the land with these new laws that have come into the mix

[00:07:01] Connor Gibson: Sure, I think coming out of 2020 I believe the count was 17 laws or 17 states with laws that upped the Penalties for nonviolent acts of protest usually extremely targeted at fossil fuel infrastructure protests and protests at fossil fuel construction sites.

And obviously we're talking about the protests over the Keystone XL pipeline, the Dakota Access pipeline, and Bayou Bridge. and the Enbridge Line 3 pipeline. Those are the main things that the industry had in the crosshairs when they were devising this strategy to make non violent trespass a very serious felony charge rather than a less serious misdemeanor.

As well as a lot of bills that target organizations with conspiracy charges and fines if they're affiliated with these people in order to broaden that chilling effect. In 2022, there was one state that joined the trend, and that was Alabama. But in 2023, now the trend has had a resurgence and, uh, two new states already passed laws this year.

The first was Utah. And as of yesterday. A bill that was finalized in Georgia is now on the governor's desk, and I imagine that will not be vetoed in the state of Georgia. So if my count is correct, we now have 20 states with these kinds of anti protest laws on the books.

[00:08:38] Amy Westervelt: That was Gibson bringing me an update in April 2023. Four months later, another state joined their ranks, bringing the total to 21 states. Those laws began to proliferate in the wake of the Standing Rock protests, which began in 2016 and continued into 2017. Activists were protesting the Dakota Access Pipeline, which was being built to transport oil from the Bakken oilfields in North Dakota to southern Illinois.

It posed a threat to water resources because it was running beneath the Mississippi River and the Missouri River, near the Standing Rock Indian Reservation.

[00:09:20] Standing Rock archival: You're a criminal! Go get your money somewhere else!

[00:09:21] Amy Westervelt: In the wake of those protests, fossil fuel lobbyists helped to write new legislation targeted at criminalizing pipeline protests, and then spread it through the American Legislative Exchange Council, or ALEC. ALEC is a non profit group that connects state legislators to industry groups and helps to draft and distribute industry-friendly legislation.

[00:09:42] Derrick Morgan: The need for it is really because we have seen more and more dangerous tactics

[00:09:49] Amy Westervelt: This tape is not the greatest, but that's Derrick Morgan, who was the Senior VP of Public Affairs for the American Fuel and Petrochemical Manufacturers at the time, a trade group representing the interests of refinery and pipeline companies, speaking at a conference about the critical infrastructure legislation that his group helped to write.

Today, he is the Executive Vice President of the Heritage Foundation, a right wing think tank that has also helped to vilify environmental protesters and fight against climate action. Like others who support these sorts of laws, Morgan paints things like sabotaging engines and construction machinery as dangerous.

But anti protest legislation is only one way that governments or industries are trying to suppress environmental protest. We're going to be back with a global look at other tactics in just a minute after this quick break. I'm Amy Westervelt, and this is a new series from the teams behind Drilled and Damages, "The Real Free Speech Threat". Stay with us.

Labeling protesters as terrorists has proven to be an effective tactic for decades. It's a term that has the power to transform someone using nonviolent tactics to protect their ancestral homeland into a threat deserving the attention of a nation's highest law enforcement or even military officials.

It also comes with sentencing enhancements that can dramatically increase the jail time someone serves if convicted. The label often requires first redefining the term violence to cover harm to property. In the U. S., that was underway by the 80s. Among the initial targets were Earth First anti-logging activists because they deployed monkeywrenching tactics like sitting in trees to stop them from being cut down and sabotaging logging equipment.

Here's Jeremy Walker, a professor at the University of Technology, Sydney, who researches various things related to the obstruction of climate action.

[00:12:06] Jeremy Walker: One of the key activists in California was a woman called Judi Bari. Judi Bari was very successful in mobilizing, you know, protest. People to come and actually occupy logging operations and get in the way.

And the problem with Judi Bari was that she was very good at speaking to the logging company's employees and the unions. And the classic tactic that was used against the environmentalists, of course, was saying, Oh, they just want to take your jobs away. But she managed to win the forestry unions on side and work with them towards a kind of, you know, proposing a kind of forestry plan.

And then at some point, uh, Judi Bari with a partner got into their car. And a bomb exploded in their car. And, um, interestingly enough, the local police were quickly, uh, put off the case and someone came in from the F B I and they charged Judi Bari. They said they, they accused her of carrying a bomb to blow something up and that her own bomb had gone off and disabled her.

[00:13:12] Amy Westervelt: Bari spent the next few decades maintaining her innocence, asking the police to investigate what she and her fellow activist Gerald Cherney said was clearly an assassination attempt, and fighting to force the FBI to preserve the evidence that proved it. Barry died in 1997, so she wasn't alive to see the FBI and Oakland police eventually pay Earth First 4. 4 million dollars for violating their constitutional rights. But even when activists get justice, or when the charges don't stick in the first place, accusations of terrorism can keep people tied up in court for years and have a general chilling effect on activism.

Painting environmentalists as terrorists took off again in the U. S. with the Earth Liberation Front and Animal Liberation Front in the 1990s and early 2000s. Both groups used vandalism, and in some cases arson, to get their point across. Here's Earth Liberation Front activist Daniel McGowan explaining it in a 2011 Frontline documentary.

[00:14:19] Frontline Doc, Daniel McGowan: You saw the mills, or you go into the forest and you stumble upon a clear cut.

Like it just blew me away, just the arrogance of it. I was like, man, this is butchered. You know, it made me think like, why are we being so gentle? Why are we so gentle in our activism when this is what's happening, you know?

[00:14:43] Amy Westervelt: Other ELF activists would explain over the years that they realized that in some cases burning down a building or breaking machinery accomplished something that letter writing and other types of political activism had failed to do for years: shut down the activity they were trying to protest. By the time ELF was at its most active, industry groups had already spent years sharing information on environmental activists and the movement in general with the FBI ,and pressuring the agency to take stronger action against eco sabotage. But it wasn't until 9 11 and the launch of a global war on terrorism that the label of Eco terrorists really stuck.

It's a theme that has repeated itself in other places. When governments crack down on so called terrorists, environmental defenders are often netted in the process.

The FBI spent decades hunting down ELF activists. At one point, the Earth Liberation Front and the Animal Liberation Front were deemed the country's primary domestic terrorism concern. Activists from those groups were placed on the FBI's Most Wanted list right along with Osama bin Laden. Bin Laden, of course, was wanted in connection with the September 11th attacks that killed nearly 3, 000 people. By contrast, neither the Earth Liberation Front nor the Animal Liberation Front ever killed anyone.

But the FBI justified chasing after them by accusing them of a sort of economic terrorism that kept logging and mining and animal agriculture companies afraid that they might be the next target, that theirs might be the next building set ablaze.

[00:16:31] Charlotte Grubman: Jess's home was raided by the FBI. And then two years later, a federal grand jury indicted Jess on multiple charges and she was placed on house arrest. And in her sentencing hearing in 2021, she received an eight year prison sentence.

[00:16:48] Amy Westervelt: This is Charlotte Grubman, a researcher, abolitionist, and organizer for the Free Jess team.

Jess is Jessica Reznicek, who's been in jail for two years now, and was labeled as a domestic terrorist for using welding tools to pierce above ground valves along the Dakota Access Pipeline in Iowa. Many of the Oceti Sakowin water protectors that launched the fight to stop the Dakota Access Pipeline also faced harsh sentences and violent police tactics, and bore the trauma of watching their homeland transformed into a militarized zone, with armored personnel carriers, attack dogs, helicopters flying above, and an army of police, National Guard members, and ex military private security guards all working together to protect the pipeline. But Reznicek was one of the only pipeline opponents actually convicted for terrorism.

[00:17:42] Charlotte Grubman: And she was a domestic terrorism enhancement and was ordered to pay 3. 2 million dollars to Energy Transfer Partners, which owns the Dakota Access Pipeline, in restitution.

[00:17:54] Amy Westervelt: Another activist who joined Reznicek in the sabotage, Ruby Montoya. received a similar sentence. However, in the midst of the grueling prosecution, Montoya flipped her defense, arguing that she'd been coerced into these actions.

It's an often overlooked but common feature of criminalization. Under pressure from the state, movement members at times turn against their former collaborators and friends, causing painful and deeply personal divisions within the movement and particular communities.

The trend of labeling environmental defenders terrorists has only continued after Standing Rock.

This year, forest defenders protesting a police training facility being built in Atlanta, a facility that activists call Cop City, were charged as domestic terrorists under a Georgia law that was initially designed to respond to mass killings. They included nine people whose arrest warrants accused them of little more than trespassing in the woods where the facility is scheduled to be built and associating with a group called Defend the Atlanta Forest.

DeKalb County warrants claim that the Department of Homeland Security classified Defend the Atlanta Forest as a domestic violent extremist group. They used that supposed classification to justify the charges against the activists. However, DHS has claimed that they did not label Defend the Atlanta Forest as a violent extremist group.

This winter, the criminalization of the Atlanta activists took a tragic turn.

[00:19:33] NPR Archival: One activist was killed by police in January and now officials are accusing others of being quote domestic terrorists. The use of that charge is alarming civil liberties and human rights groups across the country.

[00:19:46] Amy Westervelt: Some have argued that framing the Forest Defenders as terrorists laid the groundwork for police to kill the Forest Defender, Manuel Paez Terán, known as Tortuguita.

An autopsy showed they were shot more than 50 times as part of a police raid on the Forest Defenders camp.

These sorts of things are not just happening in the U. S., of course.

[00:20:16] Betsy Apple: We get contacted by climate activists all over the world.

[00:20:21] Amy Westervelt: This is Betsy Apple, a longtime human rights lawyer and the executive director of a new non profit started solely to deal with this whole global backlash against environmental advocacy.

It's called the Climate Legal Defense Network.

[00:20:36] Betsy Apple: But right now we're working on providing support, legal support to people in Uganda and Tanzania, in the DRC, Democratic Republic of the Congo, in Liberia and a little bit Mozambique, in Canada, in Brazil. We just hired a new person to do this work in the Philippines. We've provided some advice in Vietnam. Fair amount of work in Europe as well, in the UK, in France, in Poland, a little bit in Germany, and it's an ever expanding list.

[00:21:15] Amy Westervelt: And they're not all people getting arrested at protests. Apple says both the tactics being used and the people they're targeting are expanding.

[00:21:24] Betsy Apple: The use of the word activist is perhaps ill advised because there are lots of people who are advocating on behalf of the climate and in support of climate justice and in support of a just transition to renewable and sustainable energy sources who don't even consider themselves to be activists. So these people range from lawyers to journalists to scientists to moms and dads to kids to sort of ordinary citizens all around the world who are afraid of what we've done to our planet and who feel like they need to take some sort of action to try to address climate change.

[00:22:12] Amy Westervelt: In fact, in some cases, labeling someone as an activist is another way to silence or blunt their speech, particularly when that label is applied to journalists, academics, or lawyers.

[00:22:24] Betsy Apple: There's the sort of obvious stuff, the easy stuff for people to understand when a protester is out in the streets. For example, this past May, there were the Total, which is a giant French oil company, which is involved in lots of bad fossil fuel projects, which contribute significantly to climate change.

Total had its annual general meeting in France in May, and Lots of people went into the streets to protest Total's actions all over the world, and some of those people are likely to be prosecuted for criminal activity, for protesting illegally. So that's a kind of clear and easy example of the ways in which people who are taking action to support the climate are the subject of legal process.

But then there are the less obvious experiences that people have of the law. For example, you have four, actually now five, people who were advocating for renewable energy policy in Vietnam. And were arrested for tax evasion and are in jail and have been criminally convicted for tax evasion, which seems like it has nothing to do with the climate.

But in fact, it's a way that the Vietnamese government has been able to weaponize the law against people whose activities they don't like in the context of the climate. And then I guess a third example would be, you have a, a youth activist in Western Canada and British Columbia, who is a citizen of a South Asian country, but he's been a student in Western Canada and he was a real climate leader in trying to stop the destruction of old growth forests and the expansion of fossil fuel infrastructure in Canada. He's been arrested multiple times and after his most recent arrest, the Canadian government decided that they were going to deport him back to his home country where he indeed may face legal peril there. So he's actually experiencing not only criminal process, but he's experiencing immigration problems as a result of his climate activism.

In Central America, human rights defenders have argued that repression of land and water defenders can start with defamation within a community, often on social media.

Sometimes that defamation is seeded by outside interests. Once it starts on social media, it can escalate to inflated criminal charges that force people to go into hiding. And in some cases, it culminates in an assassination made to look like an accident or everyday crime. In places where the justice system is plagued by corruption and impunity rules, the assassination may be shrugged off by the state.

Country by country, case by case, we've watched over the past few years as governments influenced by extractive industries crack down on protest against those industries. In some places, it's been the norm for decades.

[00:25:53] Bertha Zuniga Caceres: There were threats, you know, constant surveillance following people and in these struggles, many people were assassinated.

Many people were wounded, amongst them my mother, Berta Caceres, she was murdered in 2016.

[00:26:12] Amy Westervelt: Berta Caceres was fighting against dams and mining projects in Honduras when she was killed. Although Caceres' murder in 2016 was initially framed as just a robbery gone wrong, in 2022, several executives from the company that was building the dam Caceres was protesting against were convicted of organizing her murder and sentenced to 30 to 50 years in prison.

As in Bari's case and many others, justice was a long time coming for Caceres. What happens in a lot of environmental defenders cases is that irreparable damage is caused long before any kind of justice is served. And even when justice does come, damage to the movement in general, and the chilling effect that these sorts of actions have on protest and criticism and free speech in general, has set in.

In some countries, fossil fuel and mining interests are just such a big part of the economy and have been for so long that some politicians are more concerned about angering the companies leading those industries than whatever backlash they may face for stripping citizens of their rights.

This is Fyneface Dumnamene talking about how that plays out in Nigeria.

[00:27:28] Fyneface Dumnamene: When there is a protest against oil companies because they have the resources, they pay to the security operatives to go and dislodge the people that have come to carry out a protest against them. And as a result of that, you have them abusing the rights of the people in the process of that.

[00:27:47] Amy Westervelt: And here's former Australian Prime Minister Scott Morrison showing just how in the pocket of industry some politicians can be.

[00:27:55] Scott Morrison: A new breed of radical activism is on the march. Apocalyptic in tone. Brooke's no compromise, all or nothing, alternative views not permitted, a dogma that pits cities against regional Australia, one that cannot resist sneering at wealth creating and job creating industries.

[00:28:24] Amy Westervelt: In France, long thought of as a bastion of rebellion, a raised fist in solidarity with protest movements everywhere, industrial agriculture interests have been leaning on the government to deal with water protector protests.

[00:28:40] Capucine Blouet: It was at 12. 30 that we saw the gendarme coming to face the blue convoy and they were driving quads with a motorcycle helmets on it and weapons. And when they fully faced the convoy, the passengers of the quads got off to face the protesters.

[00:29:06] Amy Westervelt: As you'll hear in an upcoming episode, the centuries old standoff between colonizers and indigenous peoples adds another dimension to this fight in most countries.

[00:29:16] Tara Houska: There are certain moments that really stand out when you see like there's a sign behind that says protected wetland that has an ember symbol on it. There's a DNR officer standing in front of it and then there's just this like gaping scar that's been placed into the earth right next to it clearly destroying that wetland you know and there's the DNR right there and telling you to step back.

[00:29:40] Amy Westervelt: But while the context and particulars may vary from place to place, there are a lot of commonalities too. Suppression tactics that just keep popping up almost everywhere that protests are happening.

[00:29:53] Charlotte Grubman: An infiltrator.

[00:29:53] Bertha Zuniga Caceres: Surveillance.

[00:29:54] Katie Redford: Weaponized litigation and legal strategies.

[00:29:58] Fyneface Dumnamene: Security operatives.

[00:29:59] Betsy Apple: Tax evasion.

[00:30:00] Disha Ravi: We got charged with sedition because it was seen as a big conspiracy.

[00:30:04] Lindsay Ofrias: RICO

[00:30:05] Amy Westervelt: Hovering above all the tactics and strategies and details is a global face off. Governments are being asked to choose between protecting the public, fighting for the common good, or protecting capital. And so far, by and large, they're choosing to protect capital and arrest the citizens who threaten it.

Today we released the first two episodes of this series. Go listen to the other one. It's an interview with youth climate activist Disha Ravi in Bangalore about her experience becoming the face of "radical activism" in India and being charged with conspiring against the government at just 22 years old.

One key part of the effort to criminalize environmental activism is to dehumanize the activists themselves, to paint them as fringe radicals living on the edge of society, threatening us all from the shadows. It's important in that context to tell the real stories of the very relatable and often quite inspiring humans who are devoting their time and energy and in many cases putting their lives on the line to protect the future of the next generation. We've got a lot of stories for you in this series. Come back next week for more. The Real Free Speech Threat is a cross border reporting project from our newly expanded Drilled Global team.

Our senior editor for the series is Alleen Brown. Sarah Ventre is our senior producer and editor. Martin Zaltz Austwick is our sound designer. He also composed original music for this episode. Peter Duff is our audio engineer. Geoff Dembicki, Anna Pujol Mazzini, Lyndall Rowlands, and Marlowe Starling contributed reporting to this episode.

Our fact checker is Wudan Yan. Our first amendment attorney is James Wheaton. Matt Fleming created the series artwork. You can check out more reporting for this series and corresponding print stories at drilled. media. If you'd like to support our work, please leave us a rating or review. You can also sign up for our weekly newsletter and upgrade to a paid newsletter or a podcast subscription to fund more reporting and get access to ad free and early episodes as well as bonus content. Thanks for listening and we'll see you next week.