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A Quarter-Billion Dollars for Defamation: Inside Greenpeace’s Huge Loss

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A Quarter-Billion Dollars for Defamation: Inside Greenpeace’s Huge Loss

When the environmental group Greenpeace lost a nearly $670 million verdict this month over its role in oil pipeline protests, a quarter-billion dollars of the damages were awarded not for the actual demonstrations, but for defaming the pipeline’s owner.

The costly verdict has raised alarm among activist organizations as well as some First Amendment experts, who said the lawsuit and damage awards could deter free speech far beyond the environmental movement.

The verdict “will send a chill down the spine of any nonprofit who wants to get involved in any political protest,” said David D. Cole, a professor at Georgetown Law and former national legal director of the American Civil Liberties Union. “If you’re the Sierra Club, or the N.A.A.C.P., or the N.R.A., or an anti-abortion group, you’re going to be very worried.”

The lawsuit, filed by Energy Transfer in 2019, accused Greenpeace of masterminding an “unlawful and violent scheme” to harm the company’s finances, employees and infrastructure and to block the construction of the Dakota Access Pipeline. Greenpeace countered that it had promoted peaceful protest and had played only a minor role in the demonstrations, which were led by the Standing Rock Sioux Tribe over concerns about its ancestral land and water supply.

A key part of Energy Transfer’s case relied on defamation claims. For example, the jury found that Greenpeace defamed the company by saying it had “damaged at least 380 sacred and cultural sites” during pipeline work, the first of nine statements found defamatory.

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Greenpeace called Energy Transfer’s lawsuit an attempt to muzzle the company’s critics. “This case should alarm everyone, no matter their political inclinations,” said Sushma Raman, interim executive director of Greenpeace USA. “We should all be concerned about the future of the First Amendment.”

Greenpeace has said it will appeal to the Supreme Court in North Dakota, the state where the trial was held. Free-speech issues are widely expected to figure prominently in that filing.

But Greenpeace was not the only party invoking the First Amendment.

Upon leaving the courtroom, the lead lawyer for Energy Transfer, Trey Cox of Gibson, Dunn & Crutcher, called the verdict “a powerful affirmation” of the First Amendment. “Peaceful protest is an inherent American right,” he said. “However, violent and destructive protest is unlawful and unacceptable.”

Vicki Granado, a spokeswoman for Energy Transfer, described the verdict as “a win for all law-abiding Americans who understand the difference between the right to free speech and breaking the law.”

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The clashing comments shine a light on a central tension in the debate: Where do you draw the line between peaceful protest and unlawful activity?

“If people are engaged in non-expressive conduct, like vandalism, like impeding roadways such that cars and passers-by can’t use those roadways, the First Amendment is not going to protect that,” said JT Morris, a senior supervising attorney at the Foundation for Individual Rights and Expression, a nonprofit that defends free speech across the ideological spectrum. “But peaceful protest, criticism of companies on matters of public concern, those are all protected.”

The verdict landed in the midst of a larger debate over the limits of free speech. President Trump has accused news outlets of defaming him, and he has been found liable for defamation himself. His administration has targeted law firms he perceives as enemies, as well as international students deemed too critical of Israel or of U.S. foreign policy. Conservatives have accused social media platforms of suppressing free speech and have vowed to stop what they call online censorship.

“There’s nothing in this particular political climate that’s shocking anymore,” said Jack Weinberg, who in the 1960s was a prominent free-speech activist and later worked for Greenpeace. (He’s also known for the phrase “Don’t trust anyone over 30,” although that’s not exactly how he said it.) “But it’s wrong,” he said of the verdict, “and it will have profound consequences.”

There has long been a high bar for defamation lawsuits in the United States.

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The First Amendment protects free speech and the right to protest, and a landmark 1964 Supreme Court decision, New York Times v. Sullivan, strengthened those protections. To prevail in a defamation suit, a public figure must prove that the statement was false and was made with “actual malice,” meaning knowledge that the statement was false, or reckless disregard for its veracity.

Carl W. Tobias, a professor at the University of Richmond School of Law, said that ruling intentionally raised the bar to win a defamation suit. “It’s extreme,” he said. “It’s meant to be.”

Eugene Volokh, a senior fellow at the Hoover Institute at Stanford University, pointed to the history of that famous case. It concerned a 1960 ad in The Times that described police actions against civil rights demonstrators in Alabama as “an unprecedented wave of terror.”

A police official sued the paper and won. But the Supreme Court overturned the verdict. The court ruled that protecting such speech was necessary, even if it contained errors, in order to ensure robust public debate.

In a Greenpeace appeal, Mr. Volokh said, the evidence demonstrating whether Greenpeace’s statements were true or false would be crucial in evaluating the verdict, as would the question of whether Greenpeace’s statements were constitutionally protected expressions of opinion.

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Other issues that loom: What was permitted to be entered into evidence in the first place, and whether the instructions to the jury were sufficient. Then, he said, if the statements are found to be clearly false, is there enough evidence to show that Greenpeace engaged in “reckless falsehood, acts of so-called actual malice?”

Any award for defamation chills free speech, Mr. Volokh added, whether against Greenpeace or against the Infowars host Alex Jones, who was found liable for more than $1 billion over his false statements about the murder of children at the Sandy Hook school shooting.

In the Greenpeace case, the nine statements found by the jury to be defamatory referred to Energy Transfer and its subsidiary Dakota Access. One statement said that Dakota Access personnel had “deliberately desecrated burial grounds.” Another said that protesters had been met with “extreme violence, such as the use of water cannons, pepper spray, concussion grenades, Tasers, LRADs (Long Range Acoustic Devices) and dogs, from local and national law enforcement, and Energy Transfer partners and their private security.”

Other statements were more general: “For months, the Standing Rock Sioux have been resisting the construction of a pipeline through their tribal land and waters that would carry oil from North Dakota’s fracking fields to Illinois.”

The protests unfolded over months, from mid-2016 to early 2017, attracting tens of thousands of people from around the world, and were widely documented by news crews and on social media.

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Janet Alkire, chairwoman of the Standing Rock Sioux Tribe, argued that Greenpeace’s statements were true and not defamatory. “Energy Transfer’s false and self-serving narrative that Greenpeace manipulated Standing Rock into protesting DAPL is patronizing and disrespectful to our people,” she said in a statement, using an abbreviation for the Dakota Access Pipeline.

She said that “scenes of guard dogs menacing tribal members” were publicly available “on the news and on the internet.”

Videos of the incidents in question weren’t shown at the trial. Everett Jack Jr. of the firm Davis, Wright Tremaine, the main lawyer for Greenpeace, declined to discuss why.

The 1,172-mile pipeline, priced at $3.7 billion when announced, has been operating since 2017. It carries crude oil from North Dakota to Illinois.

During the trial, some arguments hinged on whether the pipeline crossed Standing Rock’s land, or how to define tribal land. The pipeline is just outside the borders of the reservation but crosses what the tribe calls unceded land that it had never agreed to give up.

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There was also debate about whether tribal burial grounds were harmed during construction. Experts working for the tribe found that was the case, but experts brought in by Energy Transfer did not.

Even if a statement was false, Mr. Cole said, a defendant cannot be held liable if they had a basis for believing it. He also predicted that the penalty would likely be reduced on appeal if not overturned.

Martin Garbus, a veteran First Amendment lawyer, led a delegation of lawyers to North Dakota to observe the trial, who have said that the jury was biased against the defendants and that the trial should have been moved to another county. He expressed concern that an appeal to the U.S. Supreme Court could be used to overturn Times v. Sullivan. He noted that Justice Clarence Thomas has called for the Supreme Court to reconsider that case.

But Mr. Cole, Mr. Tobias and other experts said they did not expect the court to reconsider Times v. Sullivan.

Greenpeace has said previously that the size of the damages could force the organization to shut down its U.S. operations.

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The lawsuit named three Greenpeace entities, but it centered on the actions of Greenpeace Inc., based in Washington, which organizes campaigns and protests in the United States and was found liable for more than $400 million.

A second organization, Greenpeace Fund, a fund-raising arm, was found liable for about $130 million. A third group, Greenpeace International, based in Amsterdam, was found liable for the same amount. That group said its only involvement was signing a letter, along with several hundred other signatories, calling on banks to halt loans for the pipeline.

Earlier this year, Greenpeace International filed a countersuit in the Netherlands against Energy Transfer. That lawsuit was brought under a European Union directive designed to fight what are known as SLAPP suits, or strategic lawsuits against public participation — legal actions designed to stifle critics. (State law in North Dakota, where Energy Transfer brought its case against Greenpeace, doesn’t have anti-SLAPP provisions.)

The next hearing in the Netherlands case is in July.

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Video: SpaceX Rocket Launches Carrying 3 Weather-Monitoring Spacecraft

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Video: SpaceX Rocket Launches Carrying 3 Weather-Monitoring Spacecraft

new video loaded: SpaceX Rocket Launches Carrying 3 Weather-Monitoring Spacecraft

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SpaceX Rocket Launches Carrying 3 Weather-Monitoring Spacecraft

Two of the spacecraft are for NASA and one is for the National Oceanic and Atmospheric Administration.

“Three, two, one — engines full power and liftoff. Go, Falcon. Go IMAP. Go SWFO-L1 and go Carruthers.” “And we are flying three new missions on a million-mile journey to track space weather.”

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RFK Jr. wants an answer to rising autism rates. Scientists say he’s ignoring some obvious ones

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RFK Jr. wants an answer to rising autism rates. Scientists say he’s ignoring some obvious ones

This week, the Trump administration announced that it was taking “bold action” to address the “epidemic” of autism spectrum disorder — starting with a new safety label on Tylenol and other acetaminophen products that suggests a link to autism. The scientific evidence for doing so is weak, researchers said.

Health and Human Services Secretary Robert F. Kennedy Jr. said federal officials “will be uncompromising and relentless in our search for answers” and that they soon would be “closely examining” the role of vaccines, whose alleged link to autism has been widely discredited.

Kennedy has long argued that rising diagnoses among U.S. children must mean more exposure to some outside influence: a drug, a chemical, a toxin, a vaccine.

“One of the things that I think that we need to move away from today is this ideology that … the autism prevalence increase, the relentless increases, are simply artifacts of better diagnoses, better recognition or changing diagnostic criteria,” Kennedy said in April.

Kennedy is correct that autism spectrum disorder rates have risen steadily in the U.S. since the U.S. Centers for Disease Control began tracking them, from 1 in 150 8-year-olds in 2000, to 1 in 31 in 2022, the most recent year for which numbers are available.

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But physicians, researchers and psychologists say it is impossible to interpret this increase without acknowledging two essential facts: The diagnostic definition of autism has greatly expanded to include a much broader range of human behaviors, and we look for it more often than we used to.

“People haven’t changed that much,” said Alan Gerber, a pediatric neuropsychologist at Children’s National Hospital in Washington, D.C., “but how we talk about them, how we describe them, how we categorize them has actually changed a lot over the years.”

Defining ‘autism’

The term “autism” first appeared in the scientific literature around World War II, when two psychiatrists in different countries independently chose that word to describe two different groups of children.

In 1938, Austrian pediatrician Hans Asperger used it to describe child patients at his Vienna clinic who were verbal, often fluently so, with unusual social behaviors and at-times obsessive focus on very specific subjects.

Five years later, U.S. psychiatrist Leo Kanner published a paper about a group of children at his clinic at the Johns Hopkins Hospital in Baltimore who were socially withdrawn, rigid in their thinking and extremely sensitive to stimuli like bright lights or loud noises. Most also had limited verbal language ability.

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Both Asperger and Kanner chose the same word to describe these overlapping behaviors: autism. (They borrowed the term from an earlier psychiatrist’s description of extreme social withdrawal in schizophrenic patients.)

This doesn’t mean children never acted this way before. It was just the first time doctors started using that word to describe a particular set of child behaviors.

For the next few decades, many children who exhibited what we understand today to be autistic traits were labeled as having conditions that have ceased to exist as formal diagnoses, like “mental retardation,” “childhood psychosis” or “schizophrenia, childhood type.”

Autism debuted as its own diagnosis in the 1980 third edition of the Diagnostic and Statistical Manual of Mental Disorders, the American Psychiatric Assn.’s diagnostic bible. It described an autistic child as one who, by the age of 2½, showed impaired communication, unusual responses to their environment and a lack of interest in other people.

As the decades went on, the DSM definition of autism broadened.

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The fourth edition, published in 1994, named additional behaviors: impaired relationships, struggles with nonverbal communication and speech patterns different from those of non-autistic, or neurotypical, peers.

It also included a typo that would turn out to be a crucial driver of diagnoses, wrote cultural anthropologist Roy Richard Grinker in his book “Unstrange Minds: Remapping the World of Autism.”

The DSM’s printed definition of autism included any child who displayed impairments in social interaction, communication “or” behavior. It was supposed to say social interaction, communication “and” behavior.

The error went uncorrected for six years, and the impact appeared profound. In 1995 an estimated 1 in every 500 children was diagnosed with autism. By 2000, when the CDC formally began tracking diagnoses (and the text was corrected), it was 1 in every 150.

Reaching underserved communities

In 2007, the American Academy of Pediatrics recommended for the first time that all children be screened for autism between the ages of 18 and 24 months as part of their regular checkups. Prior to that, autism was diagnosed somewhat haphazardly. Not all pediatricians were familiar with the earliest indicators or used the same criteria to determine whether a child should be further evaluated.

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Then in 2013, the fifth edition of the DSM took what had previously been four separate conditions — autistic disorder, Asperger’s disorder, childhood disintegrative disorder and pervasive developmental disorder — and collapsed them all into a single diagnosis: autism spectrum disorder.

The diagnostic criteria for ASD included a broad range of social, communication and sensory interpretation differences that, crucially, could be identified at any time in a child’s life. The term was no longer limited only to children whose development lagged noticeably behind that of their peers.

Since that definition was adopted, U.S. schools have become more proactive about referring a greater range of children for neurodevelopmental evaluations. The new DSM language also helped educators and clinicians better understand what was keeping some kids in disadvantaged communities from thriving.

“In the past, [autism was] referred to as a ‘white child’s disability,’ because you found so few Black and brown children being identified,” said Shanter Alexander, an assistant professor of school psychology at Howard University. Children of color who struggled with things like behavioral disruptions, attention deficits or language delays, she said, were often diagnosed with intellectual disabilities or behavioral disorders.

In a sign that things have shifted, the most recent CDC survey for the first time found a higher prevalence of autism in kids of color than in white children: 3.66%, 3.82% and 3.30% for Black, Asian and Latino children, respectively, compared with 2.77% of white children.

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“A lot of people think, ‘Oh, no, what does this mean? This is terrible.’ But it’s actually really positive. It means that we have been better at diagnosing Latino children [and] other groups too,” said Kristina Lopez, an associate professor at Arizona State University who studies autism in underserved communities.

The severity issue

An autism diagnosis today can apply to people who are able to graduate from college, hold professional positions and speak eloquently about their autism, as well as people who require 24-hour care and are not able to speak at all.

It includes people who were diagnosed when they were toddlers developing at a noticeably different pace from their peers, and people who embraced a diagnosis of autism in adulthood as the best description of how they relate to the world. Diagnoses for U.S. adults ages 26 to 34 alone increased by 450% between 2011 and 2022, according to one large study published last year in the Journal of the American Medical Assn.

Kennedy was not correct when he said in April that “most cases now are severe.”

A 2016 review of CDC data found that approximately 26.7% of 8-year-olds with autism had what some advocates refer to as “profound autism,” the end of the spectrum that often includes seriously disabling behaviors such as seizures, self-injurious behavior and intellectual disability.

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The rate of children with profound autism has remained virtually unchanged since the CDC started tracking it, said Maureen Durkin, a professor of population health science and pediatrics at the University of Wisconsin-Madison. Indeed, the highest rate of new diagnoses has been among children with mild limitations, she said.

For many researchers and advocates, the Trump administration’s focus on autism has provoked mixed emotions. Many have lobbied for years for more attention for this condition and the people whose lives it affects.

Now it has arrived, thanks to an administration that has played up false information while cutting support for science.

“They have attempted to panic the public with the notion of an autism epidemic as a threat to the nation, when no such epidemic actually exists — rather, more people are being diagnosed with autism today because we have broader diagnostic criteria and do a better job detecting it,” said Colin Killick, executive director of the Autistic Self Advocacy Network. “It is high time that this administration stops spreading misinformation about autism, and starts enacting policies that would actually benefit our community.”

This article was reported with the support of the USC Annenberg Center for Health Journalism’s National Fellowship’s Kristy Hammam Fund for Health Journalism.

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Forest Service reverses decades-long ban, allows wildfire firefighters to use N95 masks

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Forest Service reverses decades-long ban, allows wildfire firefighters to use N95 masks

The U.S. Forest Service has announced it is reversing a ban on federal firefighters wearing masks, and will give crews protective N95s as they battle increasingly intense fires across the nation.

For decades, the agency argued their use made firefighters vulnerable to heat exhaustion.

Other wildfire-prone nations, such as Canada, Greece and Australia, provide their firefighters with masks to prevent lung damage and smoke-related diseases, including cancer and organ failure — and have not seen increases in heat stroke among the crews.

The policy will have little bearing on local and regional urban firefighters, such as those in Los Angeles and Los Angeles County.

“We are actually encouraged to wear them,” said Jonathan Torres, engineer and spokesman for the Los Angeles County Fire Department.

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“There are chemicals that are unknown to us that are part of our work,” as buildings and infrastructure burn, he said. Masks provide some protection against harmful smoke particles and chemicals released when plastics, upholstery and synthetic building materials burn.

Earlier this week, the forest agency announced it has stockpiled roughly 80,000 N95 masks and will include them as part of the equipment they provide for large fires.

The decision came following a series of New York Times reports that detailed the Forest Service’s decades-long refusal to require, or even offer, masks to its crews, despite recommendations from state and federal health agencies, and a growing body of evidence that wildfire smoke is harming firefighter health.

“To provide masks, and even require masks, is an implicit admission of the health hazards of smoke,” said Timothy Ingalsbee, executive director of Firefighters United for Safety, Ethics and Ecology, an organization that promotes the health and safety of wildland firefighters.

Ingalsbee and others say the Forest Service’s reluctance to encourage mask wearing was probably motivated by concern it would be admitting that smoke poses dangers and risks to its crews.

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Research shows that firefighters have a 9% higher risk of getting a cancer diagnosis than the general public, and 14% higher risk of dying from cancer. Crews may be exposed to smoke and other toxins believed to cause cancer, such as benzene, phenols and heavy metals, while fighting fires.

Federal lawmakers are now working on safety legislation to protect federal and contract wildland firefighters, and have sent a series of letters to the Forest Service criticizing what they call its decades-long neglect.

Reports suggest that “that federal agencies are neglecting their duty to protect the health of wildland firefighters,” wrote Reps. Jared Huffman (D-San Rafael), Maxine Dexter (D-Ore.) and Joe Neguse (D-Colo.) in a letter to Forest Service chief Tom Schultz. “Neglecting the health of current firefighters will make future recruitment harder and leave our communities vulnerable.”

On Tuesday, they grilled Schultz at a House oversight meeting.

Huffman urged Schultz to warn workers about the dangers of smoke exposure: “Chief, do you feel like the Forest Service is doing everything that it can to make the safety risk of smoke inhalation known to firefighters?”

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Gov. Gavin Newsom and the California Department of Forestry and Fire Protection also announced Tuesday that the state will be funding research designed to examine how smoke and other occupational exposures may increase cancer risk in firefighters.

The research, which includes a collaboration among scientists and experts at UCLA, UC Davis and Cal Fire, is backed by nearly $9.7 million in state funding and will include 3,500 firefighters from departments across the state over a two-year period.

The study comes at a time when the Trump administration has made drastic cuts to cancer research.

“It’s California at our best: our world-class public universities teaming up with the women and men who put their lives on the line to protect others — all in an effort to improve health outcomes for all,” Newsom said in a statement.

The study will include a focus on the exposures and biological changes that occurred in firefighters who responded to the Eaton and Palisades fires in Los Angeles.

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Ingalsbee said that masks are not always appropriate when fighting fires — there are activities, such as traipsing up and down steep terrain when a N95 mask can get gummed up with debris and sweat and make it difficult for a firefighter to breathe.

However, he said the vast majority of the time, when firefighters are at their base camps, where it’s often smoky, or driving along dusty, sandy roads, masks could go a long way to protect their lungs, reducing exposure.

“There are times when masks are unsuitable and firefighters overheat and they are uncomfortable,” he said. “But there’s a lot of times when they’d be very useful in limiting their exposure. And maybe could save some lives.”

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