[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]


                  FREE SPEECH UNDER ATTACK (PART III):
                  THE LEGAL ASSAULT ON ENVIRONMENTAL
                   ACTIVISTS AND THE FIRST AMENDMENT

=======================================================================

                                HEARING

                               BEFORE THE

            SUBCOMMITTEE ON CIVIL RIGHTS AND CIVIL LIBERTIES

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                               AND REFORM

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 14, 2022

                               __________

                           Serial No. 117-101

                               __________

      Printed for the use of the Committee on Oversight and Reform
      
 [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]     


                       Available on: govinfo.gov
                         oversight.house.gov or
                             docs.house.gov
                             
                               __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
48-611 PDF                  WASHINGTON : 2024                    
          
-----------------------------------------------------------------------------------                                 
 
                   COMMITTEE ON OVERSIGHT AND REFORM

                CAROLYN B. MALONEY, New York, Chairwoman

Eleanor Holmes Norton, District of   James Comer, Kentucky, Ranking 
    Columbia                             Minority Member
Stephen F. Lynch, Massachusetts      Jim Jordan, Ohio
Jim Cooper, Tennessee                Virginia Foxx, North Carolina
Gerald E. Connolly, Virginia         Jody B. Hice, Georgia
Raja Krishnamoorthi, Illinois        Glenn Grothman, Wisconsin
Jamie Raskin, Maryland               Michael Cloud, Texas
Ro Khanna, California                Bob Gibbs, Ohio
Kweisi Mfume, Maryland               Clay Higgins, Louisiana
Alexandria Ocasio-Cortez, New York   Ralph Norman, South Carolina
Rashida Tlaib, Michigan              Pete Sessions, Texas
Katie Porter, California             Fred Keller, Pennsylvania
Cori Bush, Missouri                  Andy Biggs, Arizona
Shontel M. Brown, Ohio               Andrew Clyde, Georgia
Danny K. Davis, Illinois             Nancy Mace, South Carolina
Debbie Wasserman Schultz, Florida    Scott Franklin, Florida
Peter Welch, Vermont                 Jake LaTurner, Kansas
Henry C. ``Hank'' Johnson, Jr.,      Pat Fallon, Texas
    Georgia                          Yvette Herrell, New Mexico
John P. Sarbanes, Maryland           Byron Donalds, Florida
Jackie Speier, California            Mike Flood, Nebraska
Robin L. Kelly, Illinois
Brenda L. Lawrence, Michigan
Mark DeSaulnier, California
Jimmy Gomez, California
Ayanna Pressley, Massachusetts

                      Russ Anello, Staff Director
               Devon Ombres, Subcommittee Staff Director
                    Amy Stratton, Deputy Chief Clerk

                      Contact Number: 202-225-5051

                  Mark Marin, Minority Staff Director
                                 ------                                

            Subcommittee on Civil Rights and Civil Liberties

                    Jamie Raskin, Maryland, Chairman
Kweisi Mfume, Maryland               Nancy Mace, South Carolina, 
Debbie Wasserman Schultz, Florida        Ranking Minority Member
Robin Kelly, Illinois                Jim Jordan, Ohio
Ayanna Pressley, Massachusetts       Andy Biggs, Arizona
Eleanor Holmes Norton, District of   Scott Franklin, Florida
    Columbia                         Byron Donalds, Florida
Alexandria Ocasio-Cortez, New York   Clay Higgins, Louisiana
Rashida Tlaib, Michigan
Danny K. Davis, Illinois
                         
                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page
Hearing held on September 14, 2022...............................     1

                               Witnesses

Prof. Anita Ramasastry, Henry M. Jackson Professor of Law, 
  University of Washington School of Law
Oral Statement...................................................     6
Deepa Padmanabha, Deputy General Counsel, Greenpeace USA
Oral Statement...................................................     8
Daren Bakst (Minority Witness), Senior Research Fellow, 
  Environmental Policy and Regulation, The Heritage Foundation
Oral Statement...................................................    10
Elly Page, Senior Legal Advisor, International Center for Not-
  for-Profit Law
Oral Statement...................................................    11
Anne White Hat, Sicangu Lakota, L'eau Est La Vie Camp
Oral Statement...................................................    13

Written opening statements and statements for the witnesses are 
  available on the U.S. House of Representatives Document 
  Repository at: docs.house.gov.

                           Index of Documents

                              ----------                              

  * Axios article; submitted by Rep. Mace.

  * Washington Post article; submitted by Rep. Mace.

  * CNN article; submitted by Rep. Mace.

  * Desert News article; submitted by Rep. Mace.
  * University of Pennsylvania Study; submitted by Rep. Kelly.

  * Business Insider article; submitted by Rep. Raskin.

  * Article on California Renewable Energy; submitted by Rep. 
  Raskin.

  * Washington Times article; submitted by Rep. Mace.

Documents are available at: docs.house.gov.

 
FREE SPEECH UNDER ATTACK (PART III): THE LEGAL ASSAULT ON ENVIRONMENTAL 
                   ACTIVISTS AND THE FIRST AMENDMENT

                             ----------                              


                     Wednesday, September 14, 2022

                   House of Representatives
                  Committee on Oversight and Reform
           Subcommittee on Civil Rights and Civil Liberties
                                                    Washington, DC.

    The subcommittee met, pursuant to notice, at 10:07 a.m., in 
room 2154, Rayburn House Office Building, and via Zoom; Hon. 
Jamie Raskin (chairman of the subcommittee) presiding.
    Present: Representatives Raskin, Wasserman Schultz, Kelly, 
Pressley, Norton, Mace, Higgins, Sessions, Biggs, and Donalds.
    Mr. Raskin. Good morning. The committee will come to order.
    Without objection, the chair is authorized to declare 
recess of the committee at any point.
    Without objection, I will now recognize myself for an 
opening statement.
    Thank you to our witnesses for coming and participate in 
this important hearing. It is our third addressing ongoing 
attacks on freedom of speech in America. Our first two focused 
on the assault on freedom of speech on campus, in schools, K 
through 12, as well as in colleges. We examined a nationwide 
push to ban books deemed politically or ideologically incorrect 
and censor the expression of students, teachers, and families 
in the classroom, a trend which, unfortunately, shows no signs 
of abating as we begin the new school year.
    Today, we turn our attention to the multi-pronged effort by 
the fossil fuel industry to attack its opponents and silence 
environmental activists through the strategic deployment of 
civil litigation, specifically, so-called SLAPP suits, 
strategic litigation against public participation. SLAPP suits 
come in many forms: civil suits alleging defamation, libel, 
slander, tortious interference with contract, and even 
allegations that individuals or groups are engaged in a corrupt 
racketeering enterprise under RICO. For example, Energy 
Transfer Partners, the company that is building the Dakota 
Access Pipeline and which made $66 billion in revenues in 2021, 
alleged that environmental nonprofits and other activists were 
engaged in criminal racketeering violations against the 
company. Its claim was the defendants' First Amendment 
protected activities, such as organizing, talking to neighbors, 
communicating with people online, sharing information, and 
protesting against pipeline construction, constituted 
predicated acts sufficient to trigger RICO Act liability and 
cause the award of millions of dollars in damages.
    After several years and millions of dollars spent in 
litigation by the defendants, the case was simply thrown out of 
Federal Court as meritless. But great damage was done in the 
meantime to the groups and individuals sued to the staggering 
time and financial, and emotional, and political costs of 
having to defend against the meritless, but overwhelmingly 
difficult lawsuit. To make matters worse, after its case was 
thrown out of Federal Court, Energy Transfer simply re-filed 
the same claims in state court, creating essentially another 
RICO case that is still ongoing today.
    Similarly, Exxon invoked to really use Texas law to try to 
depose city officials from California in an apparent effort to 
set up another SLAPP RICO case after several municipalities 
sued for damages related to the rising sea levels. Again, after 
several years of litigation, the case was rejected by the Texas 
Supreme Court for lack of personal subject matter jurisdiction. 
But in the meantime, the damage was done with the strategic 
efforts to discourage and to punish citizens just for 
exercising their First Amendment rights.
    Wealthy and powerful corporate entities are dragging 
citizens and public interest opponents through meritless, but 
protracted and extremely costly litigation to expose anyone who 
dares to stand up to them to financial and personal ruin. In 
its work to silence its critics, the fossil fuel industry is 
also pushing for the passage of anti-protest laws dressed up as 
critical infrastructure protection statutes, and we are going 
to hear about these.
    The first of these laws was passed in Oklahoma in 2017, 
with the explicit purpose of punishing pipeline protesters. 
Although the state already had criminal penalties for trespass, 
vandalism, destruction of property, and tampering, the new law 
created draconian penalties for the exact same crimes in the 
vicinity of critical infrastructure, such as terms of up to 10 
years in prison for vandalism or defacing property. Under that 
law, individuals and groups could be fined or sued for tens of 
thousands of dollars for involvement even in lawful activities, 
like letting a critical infrastructure protestor stay in your 
home or camp on your property. Since that time, 16 states have 
followed with substantially similar or identical statutes, 
which dramatically increase civil and criminal penalties for 
what would otherwise be misdemeanor, civil disobedience 
offenses, like disorderly conduct or clearly First Amendment 
protected activity, like rallying and chanting, and taking a 
position on a public policy question.
    Anne White Hat, an indigenous water protector, who we are 
going to have the benefit of hearing from today, was subjected 
to one of these critical infrastructure laws. In Louisiana, 
where she was apprehended by law enforcement officers who were 
moonlighting on the fossil fuel industry's payroll as private 
officers, she faced up to five years of hard labor for the 
crime of trespass. This is despite having been permitted to be 
on the land that she was removed from by the landowners.
    It is crucial that Congress protect the rights of American 
citizens and civic groups to engage in lawful political protest 
from whatever political perspective without being subjected to 
ruinously expensive and meritless retaliatory litigation. 
Presently, 30 states have, in a bipartisan manner, adopted 
anti-SLAPP laws to protect citizens from baseless lawsuits. 
However, 18 states don't have these laws in place, and there 
has never been a Federal anti-SLAPP law. In the coming days, I 
hope to introduce a strong Federal anti-SLAPP corollary, and I 
hope my friend, Ms. Mace, and friends on both sides of the 
aisle will join me in our efforts to end the chilling and 
punitive practice of stifling and discouraging civic action by 
the people of the United States. I look forward to hearing from 
our witnesses today.
    And with that, I am happy now to recognize the very 
distinguished ranking member, Ms. Mace, for her opening 
statement.
    Ms. Mace. Thank you, Mr. Chairman, and I want to thank all 
the witnesses for being here this morning today with us.
    South Carolina's 1st congressional District is the district 
that I represent, and we are on the front lines of American 
scientific, technological, and even environmental innovation. 
In fact, tens of thousands of people who work in these sectors 
call South Carolina's 1st congressional District home, and we 
are very proud of that. These jobs require a high degree of 
expertise and training with an eye for ensuring tomorrow's 
America is more advanced, more prosperous, more safe, and, in 
fact, more environmentally friendly and more green.
    The beautiful coastal district that I am honored to 
represent faces unique environmental challenges that I have 
tackled since the first day I ever took office, as an example 
of this, signing on, as an original co-sponsor with my fellow 
Republican from Florida, H.R. 4696, the American Shores 
Protection Act, which would codify the former President's 
executive order to extend a moratorium on oil and gas drilling 
off the coast of South Carolina, Georgia, and Florida. I am 
also proud to have 100 percent rating with the Conservation 
Voters of South Carolina. I am often sometimes the lone 
Republican to vote on environmental measures when we are on the 
floor of the House. And I maintain this perfect rating and 
score not by trumpeting alarmist environmental propaganda, but 
by advancing sensible, practical, logical solutions to face 
South Carolina's challenges.
    I want to make myself clear: the low country depends on the 
preservation of our region's environment, both for our 
prosperity and our region's wellbeing. Billions of dollars we 
depend on in our economy because of the tourism that we have. 
We have clean water, clean beaches, clean air, and sometimes we 
like to say our beaches are paved with gold, they are so 
beautiful. Left wing, environmentalists, however, far too often 
try to shut down American industry without offering reasonable 
replacements. With the state of energy prices in the U.S. 
today, it is not time for policies that will make energy more 
expensive and less reliable, but we got to work together on our 
future. And our reliance on oil and gas to fuel our lives, it 
is not going away tomorrow, nor should it. We have time to 
transition to greener, more robust energy policies.
    We must maintain robust domestic energy policies to allow 
ourselves and our allies to be energy independent. While we tap 
into billions of barrels of oil and natural gas here at home, 
we need to develop alternatives like nuclear, wind, solar, and 
geothermal. In fact, earlier this year Representative Ro Khanna 
and I of California, when we did a bill to ban Russian oil and 
gas imports, we were looking for the government to study 
alternative forms of energy and look at the benefits of using 
those in the future. The uniqueness of that bill, we were very 
proud to work on.
    Multiple Biden Administrations, however, have called for 
censoring de-platforming of individuals who say things that 
they disagree with. They call anything disagreement, 
disinformation, and so I see this issue of censorship actually 
being two-sided. I think both sides have done some things that 
are wrong, inherently wrong, inherently violate civil rights, 
inherently violate the Constitution. But while we are having 
this hearing today, I don't know why we are talking about, you 
know, just attacks on the left, but attacks have happened by 
this Administration. In fact, Gina McCarthy, the White House 
climate advisor, said during an interview that Big Tech 
companies should censor information she disagrees with about 
the environment and climate change, saying, ``Tech companies 
have to stop allowing specific individuals over and over again 
from spreading disinformation. We need the tech companies to 
really jump in here.''
    Jen Psaki, former White House Press Secretary called on Big 
Tech to do more to censor the Joe Rogan podcast, for example, 
for having interviewed people with dissenting views on the 
Administration's COVID response. After Spotify put a disclaimer 
on the podcast for listeners who chose to stream it, she said 
their actions didn't go far enough, saying, ``So this 
disclaimer, it is a positive step, but we want every platform 
to continue doing more to call out misinformation and 
disinformation while also uplifting accurate information.'' Of 
course, the implication is that the Biden Administration 
dictates truth, while also dissenting view is labeled 
disinformation.
    Mark Zuckerberg recently acknowledged during an interview 
on the Joe Rogan podcast that Facebook reduced distribution on 
its platform of a New York Post article, breaking the news in 
October 2020 about Hunter Biden's abandoned laptop. They did 
this after a general request from the FBI. Zuckerberg stated, 
``We just kind of thought, hey, look, if the FBI, which I still 
view as legitimate institution in this country, is very 
professional law enforcement, if they came to us and tell us 
that we need to be on guard about something, I am going to take 
that seriously.''
    Emails obtained from the Federal Government through 
litigation earlier this month show extensive coordination 
between 45 Biden Administration officials and social media 
company employees to censor content related to COVID-19. So why 
aren't we looking into government-sanctioned threats against 
free speech? Calls to sensor or de-platform certain people the 
Administration disagrees with politically or even entire news 
stories that could be harmful to a political candidate are 
inappropriate and foster a culture that is hostile to our 
fundamental freedom of speech.
    And it is not one side or the other. Oftentimes, I think it 
can be both. Direct collusion by the government to silence 
opposition is even more troubling. We should also be talking 
about the Administration's decision to resume the undemocratic 
practice of sue and settle at the EPA, which allows special 
interest groups to make rules through lawsuits instead of the 
rulemaking process. This prevents the voices of Americans from 
being heard by removing them from rulemaking process while 
allowing environmental groups to have more say in policy then 
the American public, and don't get me started on the racket of 
lawsuits by environmental groups here today.
    While the Biden Administration has been attacking free 
speech, I have also been working on bipartisan solutions, the 
issues facing not only my state, but our country. This is why I 
work across the aisle to promote sensible energy policy. We can 
only solve the hardest problems in our country with bipartisan 
solutions, and only then will we accomplish the demands of the 
American people.
    I want to thank the chairman and the witnesses for their 
participation today, and I did want to ask unanimous consent, 
Mr. Chairman, to enter the following articles into the record.
    Mr. Raskin. Without objection.
    Ms. Mace. Thank you. An Axios article detailing how Gina 
McCarthy called on Big Tech to crack down on climate change 
misinformation; an article from The Washington Post detailing 
how then White House Press Secretary Jen Psaki called for 
Spotify to do more than add a disclaimer to Joe Rogan's 
podcast; an article from CNN detailing how Mark Zuckerberg 
revealed Facebook was acting on a general FBI warning when it 
decreased distribution of a New York Post story on the infamous 
laptop; an article from Deseret News,detailing how dozens of 
Biden Administration officials worked with social media 
companies to censor dissenting COVID-19 opinions. Thank you, 
and I yield back.
    Mr. Raskin. All right. Without objection, they will be 
entered in the record. We look forward to reading those, and 
thank you for your opening statement, Ms. Mace.
    Mr. Raskin. Now I have the privilege to introduce our 
witnesses today. First, we have Professor Anita Ramasastry, who 
is the Henry Jackson Professor of Law at the University of 
Washington School of Law. And then we will hear from Deepa 
Padmanabha, who is the deputy general counsel for Greenpeace 
USA and a constituent of mine, I understand. Then we will hear 
from Daren Bakst, a senior research fellow in Environmental 
Policy and Regulation at the Center for Energy Climate 
Environment, the Heritage Foundation. Then we will hear from 
Elly Page, a senior legal advisor at the International Center 
for Not-for-Profit Law. And last, we will hear from Anne White 
Hat, a member of the Sicangu Lakota Nation from L'eau Est La 
Vie Camp.
    The witnesses will be unmuted so we can swear them in. If 
everybody would please stand and raise your right hands.
    Do you swear or affirm that the testimony you are about to 
give is the truth, the whole truth, and nothing but the truth, 
so help you God?
    [A chorus of ayes.]
    Mr. Raskin. All right. Let the record reflect that all the 
witnesses have said yes, and with that, we will go ahead, and 
your written statements will be made part of the record. And 
with that, Professor Ramasastry, you are first. You are now 
recognized for your testimony.

 STATEMENT OF ANITA RAMASASTRY, HENRY M. JACKSON PROFESSOR OF 
        LAW, THE UNIVERSITY OF WASHINGTON SCHOOL OF LAW

    Ms. Ramasastry. Thank you. Chairman Raskin, Ranking Member 
Mace, members of the committee, thank you for the invitation to 
participate in this important hearing this morning. My name 
Anita Ramasastry. I am the Henry M. Jackson Professor of Law at 
the University of Washington School of Law in Seattle, and from 
2017 to 2019, I served as president of the Uniform Law 
Commission, which is an unpaid role. The Uniform Law 
Commission, established in 1892, provide states with 
nonpartisan, well-conceived, and well-drafted legislation that 
brings clarity and stability to critical areas of state 
statutory law. And I should say it is a membership organization 
of all the 50 states, the District of Columbia, and Puerto 
Rico, and the Virgin Islands. From 2016 to 2022, I also served 
as an expert appointed by the U.N. Human Rights Council to work 
with governments, business, and civil society to address issues 
relating to corporations and human rights abuses.
    The views I expressed in this testimony are my own and 
should not be construed as representing any official position 
of the organizations I mentioned above.
    I will make three key points today and will be pleased to 
answer questions from the committee. The first one is that 
there is indeed a growing trend of SLAPP suits as a means to 
silent dissent, not only in the United States, but globally. 
Across the globe, human rights defenders who speak out about 
issues of public concern face a range of attacks because they 
raise concerns about human rights, risks, and harms associated 
with economic and environmental activity. SLAPP suits, which 
are criminal or civil lawsuits brought or initiated by business 
entities to intimidate critics, are one type of attack. These 
lawsuits can drain the resources of community members, 
environmental advocates, and journalists who speak out in 
support of human rights and the environment. The reason is an 
escalation globally and in the U.S. in SLAPP litigation as a 
tool to close civic space. The fossil fuel sector is one case 
in point.
    The Business and Human Rights Resource Center, a respected 
documentation center, notes that between 2015 and 2021, it 
identified 355 cases that bear the hallmarks of SLAPP suits 
brought or initiated by business actors against individuals and 
groups relating to their defense of human rights with the 
environment. These suits were analyzed against a larger 
backdrop of more than 3,100 reported attacks on human rights 
defenders globally. So again, I think it is the numbers and the 
volume that we should be concerned about. There also seems to 
be a rising volume of legal actions by the energy sector, in 
particular, against civil society groups.
    The Business and Human Rights Resource Center again, which 
tracks these SLAPP actions found that 12 carbon majors brought 
at least 24 lawsuits against 71 environmental human rights 
defenders between 2015 and 2018, seeking a total of $904 
million in damages. Just this week, Birthright International 
released a report in which it identified 152 cases over the 
past 10 years where the fossil fuel industry has used SLAPP 
suits and what it describes as other judicial harassment 
tactics and attempts to silence or punish its critics in the 
United States.
    Now, I will note briefly that many of the oil and gas 
companies or fossil fuel companies that we are focusing on 
today have made strong visible public human rights commitments. 
Those commitments include adherence to international frameworks 
of guidance that call upon companies, and they have made 
commitments to respect the rights of civil society to consult 
and to engage with them, and to allow them to peacefully 
assemble and express their views. So what we are seeing in the 
trend in terms of SLAPP litigation is inconsistent with those 
public commitments that these companies have made.
    My second point is that SLAPP actions do chill free speech 
and assembly, that there is a larger cost, not only for those 
organizations that are sued, but for access to information by 
the public more broadly. So why should we be concerned about 
these numbers? The reason is that SLAPPs can impose devastating 
consequences on those who are sued, draining them financially 
and emotionally, and discouraging them from exercising their 
right to free speech. Civil society groups that face these 
suits may opt to end their advocacy rather than being 
encumbered with protracted litigation and often end up settling 
actually in ways that will restrict through settlement the 
right to free speech.
    Now, SLAPPs are a threat to public participation, 
democracy, and the rule of law, and a direct attack on rights, 
such as the right to freedom of expression and assembly. As an 
expert who has worked with the U.N. observing the impacts of 
these proceedings on communities and individual human rights 
defenders and organizations globally and in the U.S., I have 
seen the effect of prolonged and protracted litigation that 
often involves multiple parties and cast a wide net. So while I 
speak about this in the aggregate, you will hear from other 
witnesses today about what that toll is actually to individuals 
and organizations. But I can attest to that as an expert who 
has worked for years in the field with these organizations.
    Now, my third point is about the need to restore balance. 
And I think this is consistent with what we have heard from 
Chairman Raskin and Ranking Member Mace, which is that Congress 
should address this trend, and restore balance, and promote 
avenues for free expression and assembly. I believe a key 
solution here is the adoption of anti-SLAPP laws that allow 
courts to review cases at an early stage in the proceedings to 
see if they are indeed a public concern and whether the SLAPP 
suit itself is frivolous or has merit.
    Now, in recent years, as you heard from the chairman, 
several states have adopted or amended their anti-SLAPP laws. 
As of April 2022, 32 states and the District of Columbia have 
anti-SLAPP laws, but, again, 18 do not. The Uniform Law 
Commission recently drafted and approved for enactment the 
Uniform Public Expression Participation Act. This is a state-
of-the-art anti-SLAPP law for the states and was designed to be 
adopted by states, and has already been enacted in states as 
diverse as Kentucky and Washington. The act contains a clear 
framework for the efficient review and dismissal of SLAPPs. If 
a respondent cannot establish a prima facie case, then claims 
can be dismissed.
    Now, with the state reform is currently underway, there is 
another question about whether we need a Federal law, and I 
believe the answer is yes and that they can coexist. So the 
state statute and the Federal, as a matter of cooperative 
federalism, if a corporation sues the civil society 
organization in the Federal court for a state law tort, for 
example, such as libel, today, it is not clear whether they can 
invoke a protection of a state law in Federal court, assuming 
one even exists. The Federal law combined with the stronger 
state law will also preclude forum shopping.
    So in conclusion, I urge Congress and the House of 
Representatives, I hope that they will act to restore balance 
and to protect and preserve the ability of civil society to 
participate in public debates concerning important topics, such 
as climate change, the environmental impacts of the fossil fuel 
industry, and other related topics without fear of being 
dragged into lawsuits that will take a significant toll on 
their ability to engage in the civic sphere. Thank you.
    Mr. Raskin. Thank you, Professor Ramasastry. And now, Ms. 
Padmanabha, you are recognized for your five minutes.

    STATEMENT OF DEEPA PADMANABHA, DEPUTY GENERAL COUNSEL, 
                         GREENPEACE USA

    Ms. Padmanabha. Chairman Raskin, Ranking Member Mace, and 
members of the committee, thank you for the invitation to 
participate in today's hearing. My name is Deepa Padmanabha and 
I am deputy general counsel for Greenpeace USA, one of the 
leading organizations exposing global environmental problems 
and promoting solutions that are essential to a green, just, 
and peaceful future. I am pleased to have the opportunity to 
discuss attacks on free speech in the form of strategic 
lawsuits against public participation, or SLAPPs. I walked 
through the doors of Greenpeace 11 years ago because I truly 
believed in its mission. I never could have imagined that a few 
years later, my career would become dedicated to protecting our 
fundamental right to free speech.
    In May 2016, Greenpeace USA was hit with its first SLAPP 
suit filed by Resolute Forest Products, one of Canada's largest 
logging companies, alleging damages of $100 million for 
publicly challenging the company's forestry practices. And not 
long after, in 2017, we were hit with a very similar suit 
brought by Energy Transfer, the company behind the Dakota 
Access Pipeline, claiming $300 million in damages for allegedly 
orchestrating the resistance at Standing Rock. At issue in both 
lawsuits was our right to make the public aware of business 
practices that we believe are harmful to both our health and 
our planet. What made these lawsuits different from previous 
SLAPPs was the use of the Racketeer Influenced and Corrupt 
Organizations Act, or RICO, a law that was designed to go after 
the mafia. These companies were trying to equate advocacy work 
to protect our planet with organized crime.
    And the similarity between the lawsuits was no coincidence. 
It was the same lawyers behind both suits who had indicated 
they were shopping this tactic around. It was clear that these 
corporations were trying to send a message to small groups, 
activists, and anyone and everyone with a voice: watch out, or 
you could be next. We knew we had to fight these lawsuits head 
on because their implications reached well beyond Greenpeace. 
The fundamental right to speak out, organize, resist, and show 
solidarity across movements was under threat. Our First 
Amendment right to free speech was in jeopardy. Smaller groups 
could be sued into silence by the mere filing of a suit of this 
magnitude, which is the precise intention behind this tactic.
    We quickly realized that we were not alone in this fight. 
Groups across issue areas, from the environment, to labor, to 
human rights and beyond, came together to send a message that 
when you go after one of us, you go after all of us. That was 
the birth of Protect the Protest, a coalition that was created 
to fight back against the use of SLAPPs. While we successfully 
got RICO thrown out of both lawsuits, these corporations 
continue to pursue whatever claims they can to consume our 
resources and distract us from our work to protect the planet 
and its people. They also used other SLAPP tactics, including 
third party subpoenas to go after small groups and individuals. 
The costs associated with these lawsuits are a drop in the 
bucket for these communities, but they are an existential 
threat to public watchdogs, who play a critical role in our 
society.
    So here we are more than six years from when the first 
SLAPP was filed against us, still forced to invest time and 
resources into these legal battles that otherwise would have 
been used to protect communities and the environment from toxic 
pollution and the existential threat of climate change. While 
our window to fight the climate crisis continues to shrink, we 
have to fight these suits head on because the voices of those 
who protect our planet in our communities cannot be silenced.
    Whether you support or oppose our positions, it is non-
negotiable that Greenpeace and everyone else has a right to 
freely discuss, criticize, and/or denounce practices that 
impact our health and our livelihoods. That is what the First 
Amendment guarantees. SLAPPs put that healthy debate on ice. 
Corporations with deep pockets can effectively buy freedom from 
criticism by censoring their opponents. Now is a critical 
moment for Congress to act and introduce Federal anti-SLAPP 
legislation. Thirty-two states and the District of Columbia 
have enacted commonsense anti-SLAPP legislation, and all were 
introduced in a bipartisan or nonpartisan fashion.
    While Federal legislation might not put an end to all 
SLAPPs, it would be a significant step toward becoming a Nation 
of justice where our fundamental right to speak truth to power 
is protected. Thank you.
    Mr. Raskin. Thank you so much for your testimony. Now, Mr. 
Bakst, you are recognized for your five minutes.

STATEMENT OF DAREN BAKST, SENIOR RESEARCH FELLOW, ENVIRONMENTAL 
     POLICY AND REGULATION, CENTER FOR ENERGY, CLIMATE AND 
              ENVIRONMENT, THE HERITAGE FOUNDATION

    Mr. Bakst. Chairman Raskin, Ranking Member Mace, and 
distinguished members of the subcommittee, thank you for this 
opportunity to discuss governmental efforts to chill speech and 
limit public participation on climate, energy, and 
environmental issues. My name is Daren Bakst, and I am senior 
research fellow for environmental policy and regulation at the 
Heritage Foundation. The views I express in this testimony are 
my own and shouldn't be construed as representing any official 
position of the Heritage Foundation.
    Open discourse should be the norm in this Nation, yet when 
it comes to energy and environmental issues, the chilling of 
speech is too often a reality. There are regular ad hominem 
attacks, such as the inappropriate label, ``climate deniers,'' 
for those who do not follow the climate narrative. But I guess 
far worse, there are calls to put people in jail for their 
views on climate. James Hansen, one of the most well-known 
climate activists, argued that CEOs of fossil fuel companies 
should be tried for high crimes against humanity and nature. 
UNESCO's website is prominently featuring an article arguing 
that it is time to prosecute climate deniers. Federal 
legislators have urged the Department of Justice to prosecute 
climate skeptics using RICO, actually.
    There are recent reports of Biden Administration officials 
pressuring social media companies to restrict speech, such as 
speech connected to climate policy. The government appears to 
be doing an end run around the First Amendment by using others 
to block speech it could otherwise not directly censor on its 
own. This is being done apparently to go after concerns about 
misinformation, but misinformation as just another way of 
labeling speech that one doesn't like, including subjective 
speech, is neither right nor wrong. These actions are 
inexcusable.
    It is incredible that in United States where freedom of 
speech is held so sacred, that defending such a basic right is 
even necessary, but that is where we find ourselves right now. 
Plus, if we are really concerned about misinformation, it 
certainly should not come from government trying to dictate 
what citizens can say and not say. It should focus on how the 
government itself is disseminating misinformation. Congress has 
long recognized the problem of government disseminating 
misinformation and created the Information Quality Act to 
empower the American people to address these problems.
    So now I would like to quickly turn to some regulatory 
issues, and, unfortunately, there are two examples, actually, I 
think, that show the limiting of public participation and the 
different perspectives that people have.
    In April 2021, EPA Administrator Michael Regan dismissed 
all of the members of the legally required panels of the Clean 
Air Scientific Advisory Committee and the EPA Science Advisory 
Board. This shocking move, at a minimum, gives the impression 
that the administrator wants to hear only from those who will 
support the Biden Administration's agenda. Second, the problem 
of sue and settle looks to be coming back. The sue and settle 
tactic gets around the protections afforded to citizens by 
Congress through the Administrative Procedure Act. In general, 
environmental groups will sue an environmental agency, like 
EPA, to require them to issue a specific rule. There are times 
when this can affect the substance of rules. These agreements 
are usually made behind closed doors without public input and 
often without interveners. The Trump Administration issued a 
memo to prevent abuses and help to promote public 
participation, but the Biden Administration revoked this memo.
    So what should be done? Well, first of all, Congress needs 
to ensure that the Federal Government doesn't directly or 
indirectly censor Americans for their opinions. Congress should 
focus any concerns regarding misinformation where it belongs: 
misinformation disseminated by the government. Congress should 
require independent reviews of the foundational studies 
informing an agency's understanding of major issues, and 
Congress should take action to prohibit sue and settle.
    There is going to be disagreement on policy objectives, and 
even when there is agreement on the objectives, there will be 
disagreement on how to achieve the objective. Disagreement 
doesn't call for attacking those we disagree with, but instead 
engaging in thoughtful and respectful discourse on the issues. 
But the government itself is taking actions that are counter to 
these basic principles of this country and the Constitution. 
Congress should put an end to these actions to help to create 
an environment where people are not scared to speak on the 
issues, but empowered to voice their concerns, regardless of 
their perspectives on these issues. Thank you.
    Mr. Raskin. Thank you very much for your testimony, Mr. 
Bakst. And now, Ms. Page, you are recognized for your five 
minutes.

STATEMENT OF ELLY PAGE, SENIOR LEGAL ADVISOR, THE INTERNATIONAL 
                 CENTER FOR NOT-FOR-PROFIT LAW

    Ms. Page. Thank you, Chairman Raskin, and good morning to 
you. Thank you, Ranking Member Mace, members of the 
subcommittee. My name is Elly Page, and I am a senior legal 
advisor with the International Center for Not-for-Profit Law. 
This morning, I would like to share with you why we at ICNL and 
so many others are concerned that critical infrastructure laws 
threaten Americans' First Amendment rights.
    In recent years, people across the country have turned out 
to protest new pipeline projects: Floridians worried about how 
pipelines will affect their drinking water, farmers in Illinois 
concerned about their fields, indigenous leaders in Minnesota 
wanting to protect tribal lands, fishermen in Louisiana fearing 
the loss of their livelihoods. In response, many states have 
introduced laws that can criminalize nonviolent protests around 
pipelines. As the chairman noted, Oklahoma was the first of 
these. In 2017, the state enacted a law creating new felonies 
that can cover protesters near ``critical infrastructure.'' 
Under the law, critical infrastructure is defined to include 
pipelines and a variety of other fossil fuel facilities. That 
same year, the American Legislative Exchange Council, or ALEC, 
which has ties to fossil fuel companies, began circulating a 
model bill based on Oklahoma's law. Since then, at least 16 
other states have enacted very similar laws.
    Supporters of the laws say that they're needed to protect 
infrastructure from damage by bad actors, but let's be clear: 
these laws are unnecessary. In most, if not all, states, 
existing law already criminalizes conduct that can end up 
damaging our Nation's infrastructure. When the Governor of 
Minnesota vetoed a critical infrastructure bill, he said that 
was why: existing state law on trespass and property damage was 
deficient. Instead, these new laws, many of which are adopted 
with fossil fuel industries' explicit support, can be used to 
target pipeline protesters by criminalizing and chilling 
nonviolent protest activity.
    They do so in three key ways. First, the laws create 
extreme penalties. Under Arkansas' critical infrastructure law, 
a protester can face six years in prison for peacefully 
trespassing onto a pipeline constructionsite. In several 
states, those found guilty under critical infrastructure laws 
can also be sued by pipeline companies, opening them up to 
costly civil lawsuits, like the kind we've heard about this 
morning. We at ICNL have heard from folks on the ground who 
wants to protest lawfully but are afraid of getting caught up 
in these kinds of penalties, who have opted to stay home 
instead of speak out.
    Second, the laws are overbroad and vague. North Dakota's 
law bans inhibiting or impeding pipeline construction. Such 
broad language covers constitutionally protected speech. It 
could seemingly even cover a lawful protest that is far from 
any pipeline but delays pipeline equipment. Louisiana's law, 
meanwhile, bans unauthorized entry onto pipelines, but it is 
not clear what that means in a state with over 125,000 miles of 
pipeline, much of which isn't marked or even visible, so it is 
not clear where individuals can and can't be legally present. 
And the stakes are high: five years in prison. Third, in many 
cases, the laws make protesters and organizers liable for other 
people's unlawful conduct. They effectively codify guilt by 
association. Under Oklahoma's law, if a church group organizes 
a protest and one person at the protest trespasses, the group 
could be charged as part of a criminal conspiracy and fined a 
million dollars.
    Critical infrastructure laws are extreme, overbroad, and 
unnecessary. Advocates have successfully challenged parts of 
these laws, and courts have found them to be unconstitutional, 
but most remain on the books and continue to be used to target 
and harass nonviolent protesters, as we will hear from my 
fellow witness, Ms. White Hat.
    Congress can take action to protect Americans First 
Amendment Rights, first, by ensuring that Federal energy 
legislation doesn't intentionally strengthen enforcement of 
critical infrastructure laws, but instead includes safeguards 
for peaceful protest; second, by encouraging the Department of 
Justice to file amicus briefs in support of litigation against 
critical infrastructure and other anti-protest laws; and third, 
by enacting legislation, like a Federal anti-SLAPP Law that can 
help protect protesters and protest organizers from being 
silenced by industry backed lawsuits.
    Thank you, and I would be happy to answer your questions.
    Mr. Raskin. Thank you very much, Ms. Page. And now, Ms. 
White Hat, you are recognized for your five minutes of 
testimony.

 STATEMENT OF ANNE WHITE HAT, SICANGU LAKOTA, L'EAU EST LA VIE 
                              CAMP

    Ms. White Hat. [Speaking native language]. Relatives, I 
greet you today with a heartfelt handshake in my beautiful 
Lakota language. I am Sicangu Lakota from Rosebud, South 
Dakota, and a resident of the state of Louisiana. I am a 
mother, and herbalist, and a water protector. In 2016, I 
returned to my ancestral home to join the indigenous-led 
resistance to Energy Transfer Partners' plan to build the 
Dakota Access Pipeline and assault the waterways and unceded 
land of the Lakota Oyate in violation of the 1868 Fort Laramie 
Treaty. This pipeline cut across four states and under the 
Mississippi River, posing grave threats to the contours of 
Mother Earth's real critical infrastructure, including the 
waterways of the Mississippi River down to the Gulf Coast of 
Mexico.
    As a mother, I never intended to get arrested. However, on 
September 18, 2018, I was arrested and charged with two felony 
counts under new amendments to Louisiana's critical 
infrastructure law. I was facing up to 10 years in prison. I 
was told that I was being arrested for trespassing two weeks 
prior on remote land being worked on by the pipeline company in 
the Atchafalaya Basin, despite my having the expressed 
permission of the landowners to peacefully protest there. 
Louisiana State Court later ruled that it was, in fact, the 
pipeline company that was trespassing, yet we were the ones 
brutally assaulted and arrested that day, and then the weeks 
following by the same uniformed sheriff's deputies working 
privately for the pipeline company, and also by pipeline 
workers themselves. Over a dozen of us have for several years 
had the possibility of lengthy prison sentences hanging over 
our heads.
    But sharing what happened to me is not the only reason why 
I am here today. I want to talk about the coordinated effort of 
industry, lawmakers, and law enforcement to isolate, attack, 
and silence our movement. This collusion emerges from a 
centuries-long history of attacks on my people as we resist the 
consolidation of power over this country by a white supremacist 
system bent on maintaining exclusive authority over our land. A 
key tactic in the coordinated attack on us is known as lawfare: 
the weaponizing of the legislative process to attack social 
movements.
    The first so-called critical infrastructure law emerged in 
Oklahoma in 2017 and was picked up by the American Legislative 
Exchange Council, or ALEC, a lobbying front group for 
corporations that masquerades as a nonprofit. ALEC uses a 
nationwide network of industry-backed lawmakers to catapult 
critical infrastructure laws into states across the country. 
ALEC-affiliated lawmakers have been the sponsors of draft 
critical infrastructure laws in all but 5 of the 23 state 
legislatures where they have been introduced, many of them as 
lead sponsors. Understand that existing Louisiana law already 
criminalized the types of activities industry claimed it was 
focused on. All this law did was ratchet up formerly 
misdemeanor offenses to much more serious criminal felony 
charges for First Amendment protest activity.
    At their heart, critical infrastructure laws are intended 
to prevent people from joining the groundswell of opposition to 
fossil fuel extraction because this movement threatens their 
profits. The new law only served as a pretext to inflict more 
violence against us. Local police working privately for 
pipeline companies wasted no time before violently arresting 
us, as I briefly described earlier. The coordinated attack on 
our movement also included efforts to silence the journalists 
who risked their safety and wellbeing to tell the world about 
what was happening to us. Karen Savage, an investigative 
reporter who is here today, was arrested twice under the felony 
trespassing law while documenting illegal construction and the 
tactics used against us. She was assaulted by a pipeline worker 
while filming the violent arrest of three peaceful water 
protectors. When she reported the assault to the St. Martin 
Parish Sheriff's Office, it went nowhere. She later learned 
that the lieutenant who took her report was among the 58 
sheriff deputies moonlighting for the pipeline company, a 
practice that left no one to protect the rights of water 
protectors and reporters.
    In our experience, amendments to this law only serve to 
embolden lawlessness amongst oil industry supporters. 
Escalating violence has been used for centuries against people 
who challenge the concentration and misuse of power. This is 
nothing new to us, but what we experienced needs to be 
recognized by all as a coordinated assault on a movement. 
Indigenous people continue to be the first responders to the 
worsening effects of climate crisis. Our actions are part of 
our commitment as caretakers of the places we live in.
    We are the proud founders and sustainers of an ever-growing 
global movement to defend against the irrevocable destruction 
of our Mother Earth. It is in that spirit that we call upon all 
in this committee to bring your power to bear in support of the 
water protectors that are defending what is precious to us all. 
Thank you very much for your time.
    [Speaking native language].
    Mr. Raskin. Thank you very much for your testimony, Ms. 
White Hat. And with that, I am going to go to Ms. Kelly to 
begin our member questioning of the witnesses.
    Ms. Kelly. Thank you, Mr. Chairman. Thank you, Ranking 
Member for holding this hearing, and thank you to the 
witnesses.
    An emerging issue that relates to anti-SLAPP, and anti-
protests laws, and what are known as anti-ESG bills, 
increasingly, commercial investors are putting more emphasis on 
environmental, social, and governance, or ESG, issues in 
selecting stocks while still meeting investment goals. While 
ESG has grown in popularity in recent years and has long been 
considered by financial institutions in making investment 
decisions, ESG has become a new boogeyman and a cudgel to be 
used against anyone that opposes the fossil fuel and gun 
industries.
    So far anti-ESG legislation has been adopted or introduced 
in 17 states. Texas passed a bill in 2021 that prohibits any 
governmental entity in the state from doing business with any 
financial institution that has divested from the oil and gas 
industry. This law forced five of the state's largest municipal 
bond underwriters out of Texas, so now while Texas can say 
their anti-ESG bill is another feather in their anti-woke cap, 
it is costing Texas taxpayers hundreds of millions of dollars.
    I would like to introduce into the record a University of 
Pennsylvania study from earlier this year, which explains that 
this new law will cost Texas entities an additional $303 to 
$532 million in interest on the first eight months of the law's 
enactment.
    Mr. Raskin. Without objection.
    Ms. Kelly. Sorry. Professor Ramasastry, what can you tell 
us about the impetus behind the ESG laws?
    Ms. Ramasastry. Great. Thank you so much, Representative 
Kelly. Just to be brief, ESG--environmental, social, and 
governance factors--have been around for some time since the 
70's and 80's. These are just a manner in which companies can 
disclose how they are addressing different issues in their 
business operations. I am an ``S'' person. I deal with social 
rights. So when we think about human trafficking, and forced 
labor, and global supply chains, companies disclose kind of 
what steps they are taking to address those issues.
    So this is nothing new. As you are saying, it has now 
become a hot potato issue, but I think there is a sort of 
misunderstanding of it. It is basically, and this is outside of 
any government requiring this--the companies have been asked 
and have been doing so from a long time--what they are doing to 
address environmental risks in their business operations, 
social risks, like forced labor and human trafficking, and kind 
of what they have in terms of governance to prevent things like 
corruption in their business.
    So it is just a method of disclosure, and it is a method 
that companies have been doing to be responsive to a whole 
range of different kinds of investors. You have socially 
responsible investors who need this data. You have pension 
funds that may or may not want it. I mean, again, as we have 
seen, even state pension funds want to understand and make 
decisions based on this information. So I think the controversy 
is just about, well, why is any of this relevant, right? Is it 
going to somehow hamper profits? And that is where I think the 
``E'' is where there has been a lot of debate. And the question 
is, is disclosing information about, for example, carbon 
emissions--CO2--or climate mitigation something that is 
relevant to in decisionmaking?
    Ms. Kelly. Well, let me ask you this.
    Ms. Ramasastry. Go ahead. I am sorry.
    Ms. Kelly. The financial institutions have been accused of 
``discriminating'' against fossil fuel companies by not 
investing in them. And then how would you respond to 
accusations----
    Ms. Ramasastry. Well, I think----
    Ms. Kelly [continuing]. being discriminated against.
    Ms. Ramasastry. I would respond in the sense that we saw 
the response of BlackRock to the Republican attorney general's 
letter where they said this is not what we are doing, right? We 
are asking for that information as part of a larger set of 
indicators that we want to look at when we think about whether 
there is going to be a risk to the company, right? So they are 
just saying that it is part of a mix of information that will 
help make decisions about not only short-term profits, but 
long-term profits. So as BlackRock indicated, they are still 
investing in the fossil fuel and oil and gas sector, but they 
are saying that, you know, over time, they are going to need 
that information because there is a question about material 
risk. So I think the question there is that it is a piece of 
information that will be important.
    Ms. Kelly. Are there any First Amendment implications in 
creating government mandates as to which publicly traded 
companies financial institutions can invest in?
    Ms. Ramasastry. I think there are differences of opinion 
here. Now, I am not a First Amendment expert, but just in a 
nutshell, there is a question about the SEC and whether it can 
mandate this disclosure. So some opponents are saying it is 
compelled speech, but I think there is a strong and plausible 
argument that this is nothing new, right? These disclosures 
help consumers understand how their companies are making 
decisions environmentally and that these are just about factual 
issues, again, that really go to materiality.
    Ms. Kelly. Thank you. My time is up, but thank you so much. 
I yield back.
    Mr. Raskin. Ms. Kelly, the documents you wanted to 
introduce will be introduced without any objection, and thank 
you for making this really important point about the anti-ESG 
laws. And that is something that the subcommittee could 
definitely take up because that is another threat to freedom of 
speech and expression, and an attempt to interfere with the 
company's own policies trying to advocate in this field.
    With that, I would like to recognize Mr. Higgins for his 
five minutes of questioning. Mr. Higgins, to you.
    Mr. Higgins. Thank you, Mr. Chairman. It is striking that 
we are having this hearing today. A lot has been said about 
Louisiana, so we are going to talk about Louisiana. Generally 
speaking, my colleagues in the Democratic Party, it is a broad 
generalization admittedly, but I mean, the sky is blue, the 
grass is green. The Democrat Party is a party of attorneys, and 
the Republican Party is a party of businessmen. This is a 
general reference that when you first come into Congress, it is 
a pretty clear understanding Democrats love lawsuits. Love 
them.
    Every energy project in Louisiana has got to set aside a 
large percentage of its projected budget to defend against 
lawsuits. Every pipeline, every LNG plant, every petrochemical 
expansion, every one of them have to set aside money. It is not 
all huge companies, you understand? You could put a small hole 
in the ground, it could be a $10, $12 million project, a small 
company to have to set aside, you know, million, $2 million 
because of the toxic legal environment in Louisiana, because 
Democrats and climate activists love to sue petrochemical 
projects and energy projects, including LNG plants, which 
represent the hope of the entire world to reduce emissions. And 
nowhere is it done more clean than in the United States of 
America.
    Why you got 125,000 miles of pipeline in Louisiana, young 
lady? Because it is Louisiana. It is where you get your energy 
from. It is where you get your petrochemical products from. 
Everything you use, everything you are wearing, your clothes, 
your shoes, your glasses, your phone, your iPad, the vehicle 
you got here in, the plane you flew here on, all of that 
requires petrochemical products and energy that is drawn out of 
Louisiana. So yes, we have pipelines. It is the safest means by 
which to transport energy product. It is safer than rail. It is 
safer than vehicle. It is safer than by water. And LNG, for 
God's sakes, the entire world has reduced emissions because of 
LNG projects out of Louisiana. But a Louisiana energy company 
cannot come into Louisiana without getting sued by the left. 
You talk about protests and First Amendment rights.
    I would like for anyone here who could define for me how it 
is OK to vandalize equipment on a legally operating project, 
like a pipeline in Louisiana, and say that that is our right to 
go and destroy equipment, vandalize equipment. That is not 
protest. That is against the law, and you should be arrested 
for that. The young lady referred to a lack of action out of 
the sheriff's department. I know that sheriff's department. I 
know those men. They are squared away. They have to deal with 
this stuff all the time, climate activists causing problems. 
The workers or the contractors didn't go to your house or 
wherever you work and cause issues and interfere, threaten, and 
shut down, and getting away, caused safety problems. You went 
there and caused those problems.
    I am going to ask Ms. Page. We have a witness here, Mr. 
Bakst, but I am going to ask you, Ms. Page. I am going to give 
you the balance of my time of 30 seconds. Explain to America 
why it is OK for climate activists to break the law and 
vandalize equipment on a job site. You have the floor, good 
lady.
    Ms. Page. Thank you. I think we have been focused on the 
critical infrastructure law's chilling impact on nonviolent 
protests protected by the First Amendment. I would also note, 
again, how important is to --
    Mr. Higgins. Is vandalizing equipment what you would call a 
nonviolent protest? Just tell us.
    Ms. Page. I have just emphasized that there are laws in all 
states to address that kind of conduct, and --
    Mr. Higgins. So is it OK to arrest a climate activist if 
they vandalize equipment?
    Ms. Page. I think our concern would be, again, that the 
draconian --
    Mr. Higgins. That is a non-answer. Mr. Chairman, my time 
has expired. I yield.
    Mr. Raskin. OK. Thank you for your questioning. We go now 
to Ms. Norton. You are recognized for your five minutes.
    Ms. Norton. Thank you very much, Mr. Chairman. I am amazed 
at the kinds of laws we are seeing go into effect. I must tell 
you, I have been a First Amendment lawyer. I can't believe 
these laws will stand, the 17 states that have anti-protest 
laws, which they disguise as critical infrastructure laws, and 
they are really so beyond criminalizing violent activity or 
other disruptive activity. They criminalize organizing. They 
criminalize peaceful protests. I was a First Amendment lawyer 
before I came to Congress and went before the Supreme Court, 
argued cases before the Supreme Court involving First Amendment 
activity. I can't believe these laws will stand.
    In Oklahoma, for example, organizations and individuals can 
be fined up to $1 million if they support people opposing 
pipeline construction as co-conspirators. We have heard from 
Ms. White Hat, who was arrested, where it was in Louisiana, 
punishable by up to five years, even beyond the property that a 
pipeline runs through, even if it is underground. That is why I 
think these laws cannot stand. As a former tenured professor of 
law focusing on constitutional law, that one is particularly 
disturbing to me.
    Ms. Page, many of these laws are nearly identical in 
nature, and they focus on criminalizing opposition to pipeline 
construction. Can you tell us why that is and how the fossil 
fuel industry is connected to these laws?
    Ms. Page. Thank you, yes. So we know, at least from 
expressed statements in a number of cases from the sponsors of 
this legislation, that they are introducing these laws because 
of protests they have seen, either in their own states or 
elsewhere. So the sponsor of the Oklahoma bill for instance, 
became the basis of the ALEC Model law. So the protest, like 
the one at Standing Rock, was the ``main reason'' behind this 
bill. In South Dakota, the Governor, Kristi Noem, explicitly 
said that the bills she introduced were designed to cutoff 
funding for pipeline protesters. So we have that evidence at 
least of, in addition to other information, as Ms. White Hat 
provided, about the links between ALEC and fossil fuel 
companies into the design behind this legislation.
    Ms. Norton. Thank you. Professor Ramasastry, turning to 
you. What are the implications of fossil fuel companies 
championing anti-First Amendment statutes like these in state 
legislatures across the country?
    Ms. Ramasastry. Again, thank you, Representative. The 
issue, I think, is surprisingly of consistency. What we are 
seeing is that these companies have made very strong public 
commitments to this concept of respect for human rights, 
including engagement and consultation, actually with civil 
society groups and advocates as a way of addressing issues. So 
this is counter to the commitments they are making, so it is a 
surprise to see them engaging in this in the legislatures, and 
I hope that this discussion will help, I think, bring that to 
light.
    And of course companies have different kinds of people. The 
sustainability people aren't the government relations people. 
But what I would say is, again, in terms of restoring balance, 
I have heard that there are laws in the books to deal with 
criminal trespass and other issues already, and what we do need 
is rebalancing-- that is my plea--by using I think, Federal 
anti-SLAPP legislation as an antidote to what we are seeing 
now.
    Ms. Norton. Ms. Padmanabha, Greenpeace has been 
investigating the connection between the fossil fuel industry 
and the American Legislative Exchange Council--that is called 
ALEC--in advancing anti-protest laws in state legislatures, and 
what can you tell us about the connection?
    Mr. Raskin. The gentlelady's time has expired, but please, 
answer the question.
    Ms. Padmanabha. OK. Yes, there is a very deep connection. 
As many know, ALEC is a secretive group of corporate lobbyists. 
Many of them have very public ties to the fossil fuel industry, 
and it is very clear that they have been trying to rewrite 
state laws to benefit corporations over people for a number of 
time. And so these connections are not hidden connections. They 
are very available to the public and very well-known at this 
point.
    Mr. Raskin. Thank you very much. Thank you, Ms. Norton, for 
your five minutes of questioning. I am going to come in just a 
second to Mr. Sessions for his five minutes.
    First, without objection, we are going to enter into the 
record from BusinessInsider.com an article entitled, ``Inside 
Louisiana's Horrifying Cancer Alley, an 85-Mile Stretch of 
Pollution and Environmental Racism.''
    Mr. Raskin. And with that then, Mr. Sessions, you are 
recognized for your five minutes of questioning.
    Mr. Sessions. Mr. Chairman, thank you very much, and I want 
to thank you, I think, for holding this hearing today because I 
think public discussion on both sides of this issue and issues 
is necessary.
    I want to say to the witnesses that are here today, thank 
you. Thank you for taking time to be with us. I don't know that 
we have gotten anything other than accusations that there are 
two sides that are deeply, deeply at war against each other on 
the high seas, on land, and all across the globe. It is 
governments against people who produce food. It is men and 
women who are in a legitimate industry trying to produce 
energy, trying to keep us out of the cold, trying to keep us 
cool in the summer. It is men and women who are engaged in 
trying to use, as our young ranking member said, all of the 
above.
    And I want to really thank Ms. Mace for her conversation, 
because it is hard to find a balance in this. It is hard to 
find a balance when two sides with hundreds of people on each 
side, perhaps thousands, are actually so committed to their 
side that they really cannot see the need for the other. I 
think it is important that we note that just as of late, we 
have not recognized the real impact of what a one-sided answer 
does, whether that be a one-sided answer on what might be 
called fossil fuels or all of the above, or a one-sided that 
might be on the other side, which may be environmentalism.
    We are looking at one of the largest, literally, group of 
people in the world called California that is in a mature phase 
of over 25 years, perhaps more, of following environmental 
activism to do away with the balance, and now they are asking 
their citizens to not drive, to not use electricity, to not do 
these things. They have placed arbitrarily California and 
millions of people in a diminished position: elderly people, 
people in hospitals, people who are disabled, people who 
actually need balance in their life, and Americanism at its 
best.
    And so I would say to the gentleman from Maryland, thank 
you for bringing this group together. I am not going to lecture 
you. That is not what this is about. But I would say that if we 
are going to fix the problem, we need both sides to back off 
from their position a little bit, to be able to see where the 
balance is. But political activism on someone else's pipeline 
or someone else's backyard is a very difficult argument, in my 
opinion, that several of you hold. You hold that the right of 
the public should have a say in these matters. I think you do. 
I think you do through elected officials. I think you do 
through policy. I think that you do in certain states that 
overwhelmingly have adopted those policies. But in states that 
actually produce the energy that have the pipelines that beat 
the stuffings out of driving trucks or trains up and down our 
freeways is a best practice, the best way for us to continue a 
process.
    The young chairman had a hearing, perhaps last year, where 
we talked about pipeline safety. I attended that full hearing. 
I respected the words that were said by the people who came 
forth, and I engaged the companies in that behavior that became 
apparent in that hearing. That is why we have hearings. But 
those companies recognize they had a problem, and they did 
things about it. And I think that is the activism that we need 
that Mr. Raskin showed. I now engage those companies on their 
pipeline safety. But I would say to each of you, as witnesses, 
thank you for bringing your story to us. But I would ask that 
if we are going to heal this country, it is going to take 
people that do produce energy. It is going to take people who 
have built pipelines. It is going to take consumers that cannot 
be put in desperate need for what they are going to get. They 
need the balance also.
    And so I want to thank not only our ranking member, the 
gentlewoman from South Carolina, but I want to thank Mr. Raskin 
because when we hear from both sides, then we get a better 
understanding about the real policies that need to come. And I 
encourage us, and, Mr. Raskin, you know that I deeply believe 
in a balance, and that balance means that we can have energy 
and afford it.
    Last, I have a Down syndrome son. I have a son that cannot 
take care of himself, and he is overwhelmed by changes that 
take place in our country, but he is an example. And millions 
of other disabled intellectual as well as disabled people, 
maybe they are veterans, that actually need to make sure that 
we have the air conditioning on, energy at a price that is 
affordable. And this means that we can throw down our sword 
that we have at each other and find that compromise. So please 
know, just because you come from a state and hold very strong 
views, a state that produces the energy has an obligation to do 
that, to take care of all of us.
    Mr. Raskin, I want to thank you for the balance that is 
exhibited today. Ms. Mace, thank you for your leadership on 
this issue. And I thank each of you today. I yield back my 
time.
    Mr. Raskin. And thank you very much, Mr. Sessions, for 
those very thoughtful comments, and I will definitely have some 
comments elaborating on some of the things you said when it is 
my turn. In the meantime, I am going to recognize the very 
distinguished gentlelady from Massachusetts, Ms. Pressley, 
whose beautiful district I got to visit during the recess. Ms. 
Pressley, you are recognized for five minutes.
    Ms. Pressley. Thank you so much, Chairman Raskin. Fossil 
fuel companies have abused the legal system to escape 
accountability for their role in exacerbating the climate 
crisis and endangering frontline communities, which I represent 
in the Massachusetts 7th. And today's hearing really does 
underscore why we have to put an end to their attacks on 
environmental justice organizers and climate activists once and 
for all. Strategic lawsuits against public participation, known 
as SLAPP suits, they have been used across the country by Big 
Oil. For example, when several California cities sued Exxon for 
damages related to climate change, Exxon brought a countersuit, 
not in Federal court, but in a Texas state court, seeking to 
depose California residents for actions taken only in 
California. Now, this was complex and dubious lawyering to try 
and create a racketeering, or RICO, case against the residents 
and municipalities.
    Professor Ramasastry, can you tell us about how this case 
fits into the way Big Oil companies in slack abuse works?
    Ms. Ramasastry. Thank you, Representative Pressley. I think 
the larger issue, and what I tried to illustrate without 
getting into each individual case, is to say that there is a 
larger strategy here, which is not only within the United 
States, but global, and I appreciate what we are hearing from 
all members here about the issue of balance. What we are seeing 
is, and I would say, that one of the issues is that there are 
certain parts of the legal profession who have really taken up 
this. So it is not just about the companies, but it is also 
about the law firm sort of pursuing these zealous tactics where 
there is a clear imbalance of power, we have seen. The results 
are in these suits that the companies typically don't prevail, 
but they prevail in terms of the duration of the suits, the 
cost of the suits, and the inequality of resources that 
governments and/or civil society groups have, right? So this is 
the larger issue that I want to highlight.
    And so again, we need to rebalance. These suits really 
represent that inequality of resource, and power, and 
rebalancing through things like anti-SLAPP legislation. I was 
part of the Uniform Law Commission, which is a 50-state 
bipartisan organization that is focused on cooperation and 
balance. So I come to you here today saying we do need balanced 
solutions, but we have a situation now of tremendous asymmetry. 
Thank you.
    Ms. Pressley. Do you mind, Professor, just expanding upon 
exactly what was the ultimate outcome of that litigation, and 
how long did it take?
    Ms. Ramasastry. I do not know the ultimate outcome of the 
Exxon case that you are talking about.
    Ms. Pressley. OK.
    Ms. Ramasastry. I mean, as I understand it, now it has been 
dismissed, and that, on appeal, that dismissal has been upheld, 
but the specific grounds I can't speak to.
    Ms. Pressley. And I think that took about four years to 
litigate. Thank you.
    Ms. Ramasastry. And I would just say four, is actually 
relatively short compared to some of the other cases that have 
been mentioned in today's hearing.
    Ms. Pressley. And although that lawsuit did not work, it 
did not stop the lawyers at Exxon, you know, at all from 
continuing to abuse the legal system. In fact, in my home state 
of Massachusetts, our attorney general, Maura Healey, filed an 
action against the company seeking damages for sea level rise 
related to climate change, and in response, Exxon filed a 
special anti-SLAPP lawsuit against the state. So Exxon was 
hoping to use the very law that is designed to stop them from 
avoiding accountability as a mechanism to avoid accountability. 
Professor, are you aware of any instances where anti-SLAPP 
would be appropriately used against state enforcement or 
regulators?
    Ms. Ramasastry. So I don't, and, again, if you look at 
different laws that are dealing with sort of anti-SLAPP, they 
have different types of application of scope. But again, I 
think the question of balance is that, if you see it as a 
counter tactic, a court has the ability to make that decision 
fairly quickly. So again, these laws can be used by companies 
as well as by civil society. But the question is, at a very 
early stage, a court has the ability to say this doesn't have 
merit and to dismiss it if a company, again, is using this 
tactically as opposed to really to deal with an underlying 
legal issue.
    Ms. Pressley. But it is a consistent tactic sort of in this 
playbook, you know, of powerful entities like the fossil fuel 
industry. It is a consistent tactic.
    Ms. Ramasastry. Consistent. I guess I would say that the 
larger issue is that it is part of a larger, consistent 
approach to using a legal system and to create a prolonged 
resource intensive approach to issue.
    Ms. Pressley. Very good. And in fact, the Massachusetts 
Supreme Court, after more than three years of litigation, 
denied Exxon's motion and is allowing the matter to proceed, so 
three years. So these delay tactics and judicial harassment by 
Exxon, by Chevron, and others really only serves their greedy 
interests and harm our planet. I represent one of the 
district's frontline communities that is disproportionately 
impacted by some of the highest rates in the country, so, like, 
justice delayed is justice denied. We cannot allow Big Oil to 
continue use the legal system to escape accountability. It is 
really all it comes down to. So thank you, and I yield.
    Mr. Raskin. Thank you very much, Ms. Pressley. I now 
recognize Mr. Donalds for his five minutes of questioning.
    Mr. Donalds. Thank you, Mr. Chairman. Actually, in some 
respects, to piggyback off the last comments by the gentlelady 
from Massachusetts, I think if we take a look at the legal 
system, what we have seen in America is that it is abused to a 
large degree. And I think some of the first abuses actually 
come from certain attorney generals that want to take energy 
companies into court, citing climate change and sea level rise 
as the reason for suit, with, you know, respectfully speaking, 
you know, to the members who will probably disagree with my 
comments, the fact that climate change is not settled science. 
But we are not talking about the theories of gravity or 
evolution here. We are talking about the amount to which man is 
contributing to a change in global temperatures anywhere from 1 
to 2 degrees Celsius, and that science, with respecting 
everybody in the room, is not clear.
    What is clear is that the constant move of lawsuits against 
energy companies does derail projects, it does raise the cost 
of projects, and those costs are borne by the citizens that we 
all serve. Look no further than the people of California right 
now, through a myriad of regulatory policy and, I am quite 
sure, lawsuits in the past in that state. Now the Governor is 
telling the citizens of California they can't cool their home 
below 78 degrees in the middle of some of the warmest time in 
California, you know, the month of August and September. It is 
pretty hot out there.
    So the costs are borne by the citizenry, regardless of the 
politics. Regardless of where people fall on the science of 
anthropologic global warming, manmade climate change, whatever 
you want to call it, that science is not clear. I think there 
were earlier commentary today talking about ESG. As somebody 
who did work in the financial industry, I will tell you 
firsthand that ESG policy, those portfolios where ESG is run, 
have actually underperformed normal investment portfolios, and 
the fees associated with ESG funds are actually higher than a 
typical non-ESG fund. That is the data. Those are the facts. 
And so there are serious questions where pension plans in the 
various states should actually be investing in ESG portfolios 
if they are earning a lower return over time for the pensioners 
who typically are hardworking people in every state in the 
country.
    Mr. Bakst, quick question for you. In your interpretation, 
what have you seen with these SLAPP lawsuits? Do you believe 
that it is really that we have legal games on both sides of the 
argument with respect to climate change?
    Mr. Bakst. Thank you for the question. There is certainly 
going to be legal games for everybody. But it is interesting 
that in my testimony I was talking about one of the chilling 
effects of states bringing lawsuits against people for their 
speech and what their actions are in these companies, yet the 
examples being used are those lawsuits I am complaining about. 
In fact, when we are talking about the SLAPP, you seem to be 
focused on what municipalities are doing, the government is 
doing against these fossil fuel companies, and also see what 
Massachusetts is doing. So I am not really sure how that is 
impacting climate activists unless you want to explain that 
this equated municipalities in the states as a climate 
activists, so I don't really understand that argument.
    One thing I think it is really important to understand is 
that there are tradeoffs. If you want to go on electricity and 
you want to get rid of cars, and you basically want to import 
all your energy like California does, it is going to have 
costs. It is going to have cost to Californians, and it is 
going to have a disproportionate impact on low-income Americans 
and low-income Californians who get hurt the most because they 
spent a greater share of their after-tax income, I mean, basic 
needs, like running the air conditioning. So there are 
tradeoffs and I think, unfortunately, we are ignoring those 
tradeoffs and also chilling necessary speech to be able to 
address these types of critical points to ensure that we 
protect all Americans.
    Mr. Donalds. Well, I would argue, and thank you for your 
comment, I think that there is a broader concern when it comes 
to officials and government, and let's be very clear. I mean, 
it is pretty apparent now with everything that has been coming 
out in news and in podcasts--shout out to Joe Rogan--that, you 
know, we have officials of government who have gone to social 
media companies about tamping down on information, about 
silencing dissent. We know firsthand, and that is not the topic 
of this hearing, Mr. Chairman, but we know firsthand that the 
White House was working with social media companies and media 
companies to basically silence dissent with respect to the 
handling of COVID-19. So if we know that the White House was 
clearly engaged in silencing Americans through the back door, 
why wouldn't we think that there are other officials in 
government, not just here federally, but around the country, 
who has silenced dissent on climate change? With that, I yield 
back, Mr. Chairman.
    Mr. Raskin. Thank you very much, Mr. Donalds. I am now 
going to recognize myself for my questioning. I didn't want to 
spend any time relitigating the question of whether or not 
climate change is real. Let me just say the scientific evidence 
for climate change is unequivocal, and it demonstrates that 
greenhouse gas emissions have been dramatically warming the 
Earth's surface, and this is based on now many decades of 
scientific evidence. Also, California hardly needs me to defend 
their excellent record in rising to the occasion of dealing 
with climate change. But I am submitting an article for the 
record, headlined, ``California Breaks Record by Achieving 100 
Percent Renewable Energy for the First Time.'' A hundred 
percent of the energy in their state portfolios now comes from 
renewable energy sources.
    Now, so my friend Mr. Sessions had to leave. I want to 
thank him for noting that we had hearings about pipeline 
safety, but also about the failure of a number of pipeline 
companies to honor their contracts and their legal obligations, 
to make restitution to landowners, or to restore land that had 
been damaged that was taken from private landowners by the 
eminent domain process. So we were looking at abuse of eminent 
domain to have the government in service of pipeline companies 
declare private land, the government's land, and turning it 
over to the pipeline companies, and it was supposed to be 
restored to the status quo ante and it wasn't. And that is 
throughout the Southwest, and the West, and the Midwest where 
we have seen that. That is a separate problem, but I thank him 
for, you know, gesturing to those hearings.
    Now, as to today's matter, I am glad that my friend, Mr. 
Higgins, pointed out that there is violence at demonstrations. 
There has been violence at some of those demonstrations at the 
pipeline, and that is not what I am here to talk about. Anyway, 
I don't defend violence in any way at all, just as I am sure 
Mr. Higgins would not defend the violence that overran the 
Capitol of United States on January 6, 2021. While we defend 
the right of people to gather in the seat of government, the 
Nation's Capital, to peaceably assemble under the First 
Amendment and to non-violently protest and petition for redress 
of grievances, we do not support the right of people to come 
and beat our police officers over the head with Confederate 
battle flags, or Trump flags, or American flags, and I am sure 
he would not defend that.
    But I just don't want to confuse the issue because what we 
are talking about here is First Amendment protected, nonviolent 
expression. And obviously every state has laws and there are 
Federal laws against violence, which should be enforced against 
anyone of any ideological stripe who thinks that the 
constitution or his or her own political mission gives them the 
right to commit violence against other people.
    Now, since we are talking about defending First Amendment 
rights, I want to start first with you, Ms. Ramasastry, because 
we are talking about some different things. SLAPP suits are 
one. And if you could answer as cogently as possible, what are 
the most effective forms of anti-SLAPP statutes adopted by the 
states, and what are the least effective, and so what should we 
be looking at in Congress?
    Ms. Ramasastry. I think the key issue here is really about 
a review that allows for courts to dismiss cases based on this 
idea can a company or whoever it is that is bringing the suit 
make a prima facie case that there really is some underlying 
substantive harm. This is what is the key. And so, again, if 
the underlying action that has been complained about by the 
environmental group or whoever is a matter of public concern 
and you can define that, and I think in certain ways relating 
to public protest or engaging the Government, that is one key 
thing. So scope and then the issue of how a court can sort of 
quickly determine. What we really need to do is say whoever is 
bringing the act or SLAPP suit has to be able to demonstrate 
that the case really factually has merit. I mean, that is the 
crux of it. That is what is most effective.
    Mr. Raskin. In other words, you force them to essentially 
prove or at least prefigure the case right up front, rather 
than allowing it.
    Ms. Ramasastry. Yes, that is right.
    Mr. Raskin. Got you.
    Ms. Ramasastry. They have to do that right away, and that 
allows for that balance.
    Mr. Raskin. Thank you very much. Ms. White Hat, let me come 
to you. Thank you for your very vivid description of the 
critical infrastructure legislation and what that means. How is 
critical infrastructure defined in these laws? Do they define, 
for example, a state capitol, or school board, or the U.S. 
Congress voting as critical infrastructure?
    Ms. White Hat. I understand critical infrastructure 
includes things like railroad lines, not waterways, not our 
water systems. I think it is like electrical lines, those kinds 
of things.
    Mr. Raskin. Got you. Thank you for that. And finally, I 
wanted to come to both Mr. Bakst, if I have got time, and also 
to Ms. Padmanabha. Both of you, I think, mentioned the abuse of 
the RICO statute, and perhaps Ms. Page, about abuse of the RICO 
statute to go after people who are just engaged in civic 
organizing. I know a lot of small businesses, even some big 
businesses have also complained about the way that RICO is 
being used as a way to go after them. Do you all think, as 
briefly as possible, that RICO reform is also indicated as a 
way to protect free expression? And perhaps we can start with 
you, Ms. Padmanabha.
    Ms. Padmanabha. Thank you, Chairman Raskin, for your 
question. Absolutely. I think that there needs to be some sort 
of overhaul of how RICO can be used. I will say that in the 
case of Greenpeace, while we thought a lot of groups came 
together because they felt that RICO was going to be used as 
the new tool against organizing and we fought these suits head 
on, we were able to get RICO thrown out of both of our Federal 
cases. And we haven't seen any new Federal RICO cases filed 
because we actually have good law. That doesn't say that this 
tactic won't reappear, but I think that both in the courts and 
in the legislature, RICO does need to be addressed.
    Mr. Raskin. OK. Mr. Bakst, what do you think about it?
    Mr. Bakst. Yes, real briefly. I don't want to claim to be a 
RICO expert, but to the extent that the Department of Justice 
is using RICO to try to censor protected speech, then, yes, 
there needs to be reforms of speech, not necessarily actions.
    Mr. Raskin. Thank you, and, Ms. Page?
    Ms. Page. I am not well-placed to discuss Federal RICO. We 
have been focused on state law, use of state RICO charges and 
conspiracy charges against protest-related activities.
    Mr. Raskin. OK. My time is overdue. Thank you very much. 
Mr. Biggs, you are recognized for your five minutes.
    Mr. Biggs. Thank you, Mr. Chairman. Mr. Bakst, you wrote 
that when it comes to energy and environmental issues, that 
chilling speech is too often the reality. Expand on that, 
please.
    Mr. Bakst. I mean, even in kind of civil discourse, people 
are called climate deniers with a clear kind of connection to 
the Holocaust, but I think that is inappropriate. It is 
inappropriate to call for people to be put into jail because 
they hold views that are different than your own. That seems 
to, quite honestly, cross the line. It is inappropriate for the 
Federal Government to try to go after companies for their views 
or individuals for their views. It has just gotten way out of 
hand, and it is hard to have any type of really any discourse 
on issues when you are scared to death.
    And quite honestly, the other thing I included in the 
written testimony is that there are scientists and people who 
want to do research on some of these important issues. They 
just won't do it because they don't want to commit career 
suicide. To me, that hurts everybody, not just those people and 
those careers and academics, but policymakers who are trying to 
have good information to make informed decisions.
    Mr. Biggs. You said Federal legislators have urged the 
Department of Justice to prosecute climate skeptics, including 
under RICO, and that certain states are getting creative to try 
and prosecute conventional fuel companies. Please expand on 
that, and if you can, identify any of these Federal legislators 
who have urged climate skeptics to be prosecuted under RICO.
    Mr. Bakst. Yes, I cited that in the testimony. I believe it 
was Senator Whitehouse who was involved in that, and there 
might have been some other representatives in the House as 
well. The lawsuits that have actually been talked about in this 
SLAPP context are some of the lawsuits that I am talking about 
as it relates to the states, so, like, Massachusetts going 
after fossil fuel companies, or New York, or whatever states or 
municipalities, for that matter.
    So it is kind of ironic that the things I am complaining 
about are actually examples of the strategic lawsuit against 
public participation that they are using. To me, when the 
government is going after you and you are a private citizen, 
using the existing law that is on the books to protect your 
right for speech, it just doesn't seem like that is an abuse on 
the part of these companies.
    Mr. Biggs. So one of the founders of Greenpeace, Dr. 
Patrick Moore, in an article where he describes why he left 
Greenpeace, noted that his former colleagues ignored science 
and supported specifically speaking of the chlorine ban, then 
forcing his departure because, despite science concluding that 
there were no known health risks and ample benefits from 
chlorine in drinking water, Greenpeace and other environmental 
groups have continued to oppose the use of chlorine for more 
than 20 years. So when we see the chill that becomes almost the 
anti-scientific censorship that you are referring to, what does 
that do for the overall health of human beings and the 
advancement of science to protect the environment and our 
communities?
    Mr. Bakst. Well, it hurts it, and what is really concerning 
is that the administrators of the state and regulators who are 
actually making the policies that impact all Americans are 
using junk science. And there is no transparency as it relates 
the science is being used, so the American people and outside 
experts are not able to evaluate the studies that are being 
used by Federal officials to make decisions. And instead, what 
happens is their efforts to basically reach a policy outcome 
and they cherry pick studies ultimately to kind of get to that 
policy outcome. That doesn't do anybody a good service, 
regardless of what you have on the issue.
    Mr. Biggs. So, you know, I can't help as I read this, and I 
read your remarks and some of the other remarks, and having 
watched this for some time, I can't help but think of Thomas 
Kuhn and his discussion of paradigm shifts. With science, the 
new theory which will become orthodox is always at some points 
heterodox to the rest of the scientific system. And when you 
basically attack any scientist, who may be looking at something 
or questioning, that is really what science is all about, 
whether it is social science or any of the hard sciences. And 
the reality is, how does this censorship, this attack on those 
who may be heterodox today which actually may become orthodox 
tomorrow, how does it prevent advancement in science?
    Mr. Bakst. Well, the scientists are never going to 
challenge the alleged conventional wisdom. They are scared to 
death from doing so. The academic researchers has all kinds of 
problems with peer review processes, academics not being able 
to replicate studies, people not wanting to kind of reach to do 
certain research that will in any way jeopardize their career. 
The government relies on junk science, and then it just kind of 
continues, becomes the conventional wisdom over and over, and 
there is never going to be a challenge of it, and policy that 
is informed by that science ultimately continues. And what we 
need to have is kind of an ongoing regular system in place so 
that we can challenge the major studies and science that is 
informing the policy decisions made by agencies so they are 
always able to challenge that conventional wisdom.
    Mr. Biggs. Mr. Chairman, I just have one last quick 
question. I apologize.
    Mr. Raskin. Please.
    Mr. Biggs. But it gets to actually even the notion of where 
Federal grants go to study, what items are going to be studied, 
because now I will just summarize them and you can agree or 
disagree, because it seems to me that we churn, we keep sending 
new grant money to basically reinvent the wheel, not reinvent 
the wheel, to actually buttress whatever the foundational 
science that is there instead of actually advancing the science 
and moving forward, because if you never move to a heterodox 
position and allow heterodoxy to actually go forward and 
actually challenge the orthodoxy, no matter how outlandish it 
may seem, you will never change to another advanced. Would you 
just comment on that?
    Mr. Bakst. I agree with that point. And I think one of the 
things that needs to be evaluated is just take a look at 
probably how little science or any research dollars are going 
to challenge this kind of conventional wisdom. Very little, if 
any.
    Mr. Raskin. Thank you very much. The gentleman's time has 
expired. Thank you. And, Ms. Wasserman Schultz, you are 
recognized for your five minutes of questioning.
    Ms. Schultz. Thank you so much, Mr. Chairman, and I 
appreciate the opportunity to have this important discussion 
because the fossil fuel industry has a long history of 
spreading disinformation both about climate change and the 
industry's overwhelming culpability related to climate change.
    In 2019, this subcommittee held a hearing which addressed 
the oil industry's climate change denial campaign that dates 
back to the 1970's. While fossil fuel companies have now 
largely acknowledged the existence of climate change, their 
disinformation tactics have evolved to include greenwashing and 
new ways of silencing dissenters. Ms. Padmanabha, can you tell 
us briefly about some of the greenwashing tactics that the 
fossil fuel industry uses?
    Ms. Padmanabha. Sure. So the fossil fuel industry, as we 
have discussed, has been attempting to control the narrative, 
not only through the silencing of dissent, but also trying to 
flip the switch on whose speech is being attacked. And so when 
it comes to misleading consumers about the impacts of climate 
change and everything that is coming out now about how long 
fossil fuel companies have been aware of their business 
practices on climate change, there is all of a sudden this 
attempt to flip the switch and try to regain control of the 
narrative to, for example, in Massachusetts filed as anti-SLAPP 
motion, saying we are the victims here. All of these are free 
speeches under attack. We see this in different lawsuits that 
are being brought about greenwashing, about the misleading of 
consumers to ultimately capitalize on profit.
    And so what is very different about the fossil fuel 
industry and movements in terms of the discussion on free 
speech, is that at issue for the fossil fuel companies is there 
is an actual profit. There is an actual commercial interest. 
The attacks on movements are about building a movement, 
educating the public, organizing, and so these are very, very 
different issues that I think the fossil fuel companies are 
trying to combine.
    Ms. Schultz. Thank you. Really, SLAPPs and anti-protest 
laws are new forms, as you are mentioning, of dis-and 
misinformation that are spun by the fossil fuel industry. By 
preventing opposing views from being heard, the fossil fuel 
industry is making sure that their narrative dominates above 
all others. Again, Ms. Padmanabha, how do SLAPPs affect 
environmental activists' willingness to speak out against the 
fossil fuel industry?
    Ms. Padmanabha. They have a tremendous impact. I mean, you 
know, any of us can imagine one day waking up and having a $300 
million lawsuit served on us. I mean, what would that do? And 
the thing that is so problematic about SLAPPs, it is the mere 
filing of the suit that creates the chilling effect, and I 
think that that is what we really need to keep in mind, because 
in our case, for example, our first SLAPP was filed in 2016. We 
are still fighting this. I mean, the costs, even though, 
ultimately, whether truth is proven to get to the point of 
actually proving the truth that your free speech, is being 
attacked. If there is no anti-SLAPP statute, you have to 
undergo years and potentially millions of dollars of 
litigation, and I think an important point is that most SLAPPs 
are not filed against big organizations.
    Ms. Schultz. Right.
    Ms. Padmanabha. They are filed against individuals, who are 
trying to protect their water, protect their land from 
developers. That is the history of the SLAPP suit. And so those 
stories don't get the attention because the mere filing of the 
suit when they think about having to put food on the table, it 
silences them. They need to think about the ability to survive.
    Ms. Schultz. Thank you. Another predatory tactic is to 
deploy so-called critical infrastructure laws to ratchet up 
criminal penalties and fines against protesters. So these are 
post 9/11 statutes that purport to protect all of our vital 
resources, like food, and water, and communications, but these 
are often vaguely drafted laws, basically, that shields fossil 
fuel companies from environmental protests. For example, in 
Texas, prosecutors are trying to charge Greenpeace protesters 
with felonies for disrupting a bridge over an oil shipping 
channel, but without this critical infrastructure law, these 
would just have been misdemeanors.
    So Ms. Page, I am going to ask both these questions. Mr. 
Chairman, if I could have the indulgence of them both 
answering. Ms. Page, how do anti-protest laws disguised as 
critical infrastructure laws affect the same willingness to 
speak out? And Ms. White Hat, how have these laws in Louisiana 
changed your approach to activism?
    Ms. Page. Thank you, Representative. Absolutely, these laws 
can have a dramatic chilling effect on people's willingness to 
speak out: their combination of extreme penalties as you said, 
felony penalties in many cases, often with many years of prison 
as a potential punishment, and then these vaguely drafted 
criminal offenses that can cover constitutionally protected 
speech. I mean, I think about the woman, and I believe she was 
a member of the White Earth Nation, who was demonstrating 
against construction of new pipelines. She was near the 
constructionsite, but not purposefully on pipeline property, 
and she saw a rare plant that she just read about and walked 
over to get a closer look. And it turns out just those few 
steps took her over the property line, and now she faces 
thousands of dollars in fines and potential jail time.
    So you think about what it says to the average citizen who 
sees these laws, these draconian penalties, how sweeping the 
laws are, and imagine the impact that has when you are thinking 
about whether or not to exercise your First Amendment Rights, 
knowing that you can be caught up in those kinds of penalties, 
even if you are trying to stay within the bounds of the law.
    Ms. Schultz. Thank you. Ms. White Hat? Mr. Chairman, if you 
wouldn't mind allowing Ms. White Hat.
    Mr. Raskin. Please.
    Ms. Schultz. Thank you.
    Ms. White Hat. Thank you. In terms of how it affected my 
activism, it was very stressful to have those charges hanging 
over my head for three years, and it counts, like, every day, 
wondering if they are going to come knocking on the door to 
take me to jail and having to make plans for my children, et 
cetera. But in terms of just being out there and going out, it 
really has a chilling effect on us as frontline organizers, not 
just for us to be able to have to go and do the work that we 
do. It also impacts other First Amendment rights, like freedom 
of religion. One of the gentlemen involved in our lawsuit was 
denied the right to travel, to go to practice his religious 
activities. So it is not just that it calls our activism, but 
it also hurts other parts of our First Amendment Rights as 
well.
    Ms. Schultz. Thank you so much, Mr. Chairman for your 
indulgence.
    Mr. Raskin. And thank you Ms. Wasserman Schultz for your 
questioning. I now get to recognize the ranking member, Ms. 
Mace, for her questioning.
    Ms. Mace. Thank you, Mr. Chairman, and I thank our 
witnesses again today for being here, and for your time and 
effort to talk about censorship in the First Amendment. I love 
the Constitution just as much as our chairman, and one of the 
questions I had of all the panelists this morning, the first 
and second question, ``yes'' or ``no.''
    [Chart]
    Ms. Mace. As you can see behind me, there is a group of 
demonstrators gathered together in support of climate 
initiatives during the People's Climate March rally in D.C. 
Starting with the professor who is here this morning, is this 
considered protected free speech, yes or no?
    Ms. Ramasastry. Oh, first of all, I can't really see the 
photo, but, again----
    Ms. Mace. It's peaceful protestors at the Climate, yes, 
here in D.C.
    Ms. Ramasastry. So again, lots of caveats and assumptions. 
I would say, again, if people are demonstrating in a way that 
is peaceful, peaceful assembly, that should be protected.
    Ms. Mace. And, Ms. Padmanabha, ``yes'' or ``no.'' Is this 
protected free speech behind me?
    Ms. Padmanabha. Yes, it is.
    Ms. Mace. And Mr. Bakst?
    Mr. Bakst. Yes, looks peaceful.
    Ms. Mace. Ms. Page?
    Ms. Page. Yes, it appears to be.
    Ms. Mace. Ms. White Hat?
    Ms. White Hat. It appears peaceful.
    [Chart]
    Ms. Mace. And then the second one, the example I wanted to 
share is an image from the Dakota Access Pipeline 
constructionsite of a person who is pouring gasoline on a pile 
of tires to block a roadway and prevent law enforcement by 
protecting pipeline employees from doing their job on privately 
owned property. I would like to start with the professor. 
``Yes'' or ``no,'' is this an image of protected free speech?
    Ms. Ramasastry. Again, caveats. I am not seeing the full 
picture, so I would say based on your description, likely not.
    Ms. Mace. And Ms. Padmanabha?
    Ms. Padmanabha. I am not here to comment on the actions of 
individuals.
    Ms. Mace. So you don't know. OK. Mr. Bakst?
    Mr. Bakst. No, that is not protected speech.
    Ms. Mace. And Ms. Page?
    Ms. Page. I don't know without more information. I would 
say that if it is violent, unlawful conduct, that is not 
protected by the First Amendment.
    Ms. Mace. Ms. White Hat?
    Ms. White Hat. I decline to answer on the basis of the 
First Amendment Right of association for myself and others. 
Thank you.
    Ms. Mace. So this picture of the Dakota Access protesters, 
they set fires, they lobbed Molotov cocktails, they fired shots 
to face off with police, and they were trespassing in this 
particular example. And, Mr. Chairman, I would like to ask 
unanimous consent to enter into the record this article by The 
Washington Times about this particular, what some would call 
protests, but clearly a violation of constitutional rights.
    Mr. Raskin. Without any objection.
    Ms. Mace. And then my third question for the panelists, 
everybody, and I will start with professor again today here 
this morning. Is it just the right trying to silence the speech 
of the left, or does the left also try to silence the speech of 
the right? Is it just one-sided or is this an issue that can be 
seen as two-sided, both sides doing it?
    Ms. Ramasastry. Yes, my remarks were about that, right? I 
kept speaking about balance and the fact that the new anti-
SLAPP laws we have at the state level, which I helped lead, 
were about balance and had tremendous bipartisan support.
    Ms. Mace. And do you see it on both sides, Ms. Padmanabha, 
where both sides are trying to silence or center the speech of 
others?
    Ms. Padmanabha. On a theoretical or academic point of view, 
I do. But in reality, it is really the deep pockets who are 
doing the silencing and those deep pockets tend to fall on the 
side of the fossil fuel industry and their allies.
    Ms. Mace. And Mr. Bakst?
    Mr. Bakst. Look, I think the LNG environmental climate 
area, it does tend to be on the left, silencing conservatives 
more, but there is no question there. There might be abuse of 
existing state statutes, so I want to make some of these one-
sided. But examples I have heard today, especially as it 
relates to actions being taken, that don't deserve to be 
protected speech are not examples of conservative silencing 
speech.
    Ms. Mace. And Ms. Page?
    Ms. Page. So at least for the critical infrastructure and 
other anti-protest laws that I was invited to speak about, I 
can say that we have seen them introduced and approved with 
very few if any exceptions by conservative lawmakers.
    Ms. Mace. Ms. White Hat?
    Ms. White Hat. Thank you. In our experience, the critical 
infrastructure law amendments that were passed in Louisiana 
were directly aimed at silencing our movement.
    Ms. Mace. Thank you. And then Mr. Bakst, if I have time one 
more minute, a couple of questions? So how does the left 
silence opposing views on climate and energy policies that they 
do disagree with. My first question.
    Mr. Bakst. Yes, I think we have been able to capture a lot 
of that just making it, trying to literally make it a crime, 
throw people in jail, have to force the government actually 
doing that, and that is pretty chilling. Not allowing research 
to flow to different perspectives, career scientists or 
academics being scared to death to actually even engage in 
certain researching and certain speech, I think those are some. 
And also, certainly the Biden Administration and these reports 
of trying to use social media companies or any third party to 
try to act as the agent of the government to censor speech. 
That to me is a violation of First Amendment, at least as it is 
being reported.
    Ms. Mace. We agree. Thank you, Mr. Chairman. I yield back.
    Mr. Raskin. All right. Well, thank you very much, Ms. Mace. 
I want to thank all of the witnesses for your excellent 
testimony today on this really important subject. I want to 
thank all the members for their participation.
    I also want to request the following documents be 
introduced into the record that were offered by Ms. White Hat, 
the Third Circuit ruling in Bayou Bridge Pipeline v. 30.00 
Acres, excerpts from deputy depositions, transcript of 
Louisiana Senate hearings, ALEC attacks report, Louisiana 
pipeline map, and six photos of arrests, including violence and 
a demonstrator's sign. All of these, without objection will be 
entered into the record.
    Mr. Raskin. And let's see. Members will have five 
legislative days within which to submit any additional written 
questions for our five distinguished witnesses today to the 
chair, and I will forward them to the witnesses for their 
response. And please, witnesses respond as quickly as you are 
able so we can complete the record to this hearing.
    Mr. Raskin. Again, thank you for your excellent and 
instructive testimony that will help us develop some 
legislative ideas going forward.
    [Whereupon, at 11:52 a.m., the subcommittee was adjourned.]

                                 [all]