http://news.ft.com/cms/s/8963eb0a-25c7-11d9-81d9-00000e2511c8.html Activists' hands tied for 7 years by Jonathan Birchall in New York Financial Times Published: October 24 2004 22:04 | Last updated: October 24 2004 22:04
Some of the protesters wore tiger suits; others wore brightly coloured T-shirts under business suits. They entered the front lobby or climbed on the roof of ExxonMobil's headquarters in Irving, Texas. The protest, involving more than 30 members of Greenpeace, the environmental activist group, was aimed at the world's largest oil company and its policies on global warming. Now, almost 18 months later, Greenpeace has signed a court agreement that will prevent its supporters from staging any similar protests against ExxonMobil, not only in Texas but anywhere in the US, for seven years. The agreement is believed to be the first of its kind involving a US company and a protest group. While it stems from a bitter and long-running global campaign by Greenpeace against ExxonMobil, it could also serve as a precedent for other companies with operations in the US - from Wal-Mart to Huntingdon Life Sciences - that face the challenge of "direct action" by protest groups. Exxon said it was "satisfied" with the consent judgment by a Texas judge, which covers corporate property, filling stations and any event sponsored by the company or involving company officers. Any breach would bring the automatic risk of fines and imprisonment. ExxonMobil has previously secured court injunctions against Greenpeace protesters in cases in the UK and Europe involving action and blockades of its facilities. But such nationwide injunctions are extremely rare in the US, with previous case law focused on anti-abortion protests and union disputes. "It's certainly unusual," says Erwin Cherminsky, professor of law at Duke University in North Carolina and a specialist in freedom of speech issues. "But this is an injunction that doesn't prohibit that which the law does not already prohibit." Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, says he finds the scope of the injunction "fairly drastic". In particular, he says, language dealing with perceived threats to people entering or leaving facilities goes beyond standards set in disputes over anti-abortion protests. "You don't enjoin every possible variety of expressive act unless you're clear that no other remedy is available," he says. The agreement is a blow for Greenpeace, which has made non-violent direct action a key element in its campaign strategy. Lisa Finaldi, campaigns director at Greenpeace USA, says the group agreed to the settlement in part to avoid an indefinite ban on action against ExxonMobil. "We've been around for 30 years, and we can handle a seven-year ban, but we couldn't handle a lifetime ban against one of the largest companies in the world," she says. Greenpeace says it was also concerned about more serious felony charges being laid over a hand injury sustained by a 67-year-old security guard, although Exxon has agreed not to press for prosecution. However, the pre-emptive scope of the agreement has troubled some civil rights advocates. Julian Bond, a veteran of the black civil rights struggle of the 1960s and chairman of the National Association for the Advancement of Colored People, has accused Exxon of a "heavy-handed" attack that was an "assault on the time-honoured tradition of free speech". "What would have happened [in the 1960s] if the bus companies in Alabama had taken out injunctions against the civil rights protests by the Southern Christian Leadership Conference?" asks Elliott Schrage, who lectures on business and human rights issues at Columbia University. Exxon counters: "The Greenpeace break-in should not be mistaken as following 'the right of non-violent protest' . . . Greenpeace breaks laws not because its members are subject to unjust laws but because Greenpeace has failed by democratic means to get its way." The company also argues that its response was justified in the aftermath of the terror attacks of September 11 2001. The incident occurred, it says, "when the country was on level orange alert . . . The current climate makes Greenpeace's activities directed at ExxonMobil all the more irresponsible and dangerous." Fred Garcia, founder of Logos Consulting, a US-based crisis management consultancy, says a change in corporate attitudes towards direct action is not surprising in the post-September 11 world. "I wouldn't be at all surprised to see a more robust approach, with companies seeing this kind of thing as a security issue rather than a business reputation issue." Greenpeace leaders say the ExxonMobil case coincides with actions by the US government that they believe send a message that this kind of direct action against companies is not acceptable in the current climate. Applying a rarely used law of 1872, the Department of Justice sought to prosecute Greenpeace - albeit unsuccessfully - in a federal court in Miami this year over a protest in which activists boarded a freighter allegedly carrying a shipment of mahogany from the Amazon region. "The US government, not the city or the state, was seeking to curtail the entire organisation. I think this gives quite a clear signal, whether to industry or to others, that people who take direct action are fair game," says Sarah Burton, Greenpeace International's legal consultant. In another incident earlier this year, the US attorney in Pittsburgh initially laid federal criminal charges against Greenpeace activists who scaled a 700ft (213m) smoke stack at a power station run by Allegheny Energy, using laws aimed at the threat of sabotage or terrorism. The federal charges were subsequently dropped; a less serious state case against the protesters is continuing. Greenpeace says it will continue its campaign against ExxonMobil within the limits set by the Texas court. At this year's Exxon annual general meeting the group was already subject to a temporary court injunction of similar scope. It responded by projecting images of the effects of global warming on to the side of the building in Dallas that was hosting the meeting. "In the US we have restrictions and we believe we can live by them," says Ms Finaldi.
