Court Ruling Against Chicago Sheriff Proves Thuggish Anti-WikiLeaks Blockade Was Unconstitutional

By Glenn Greenwald, The Intercept

03 December 15

he 7th Circuit Court of Appeals in Chicago issued an excellent written ruling on Monday that has broad implications for rights of free speech and political activism in the U.S. The court ruled that Cook County Sheriff Tom Dart violated the First Amendment rights of Backpage.com, an online classified ad site, by pressuring Visa and MasterCard to prohibit payments to the site on the ground that the sheriff dislikes some of the site’s “adult” (i.e. sex) ads, which he believes promote prostitution. Writing for the court, Judge Richard Posner explained that Sheriff Dart previously attempted to prosecute Craigslist for such sex ads and failed, and thus decided to destroy Backpage using a different strategy:

Context within article. (photo: The Intercept)

Noting the serious harm to an entity from having a public official suffocate its sources of revenue not through prosecution but extra-judicial coercion, the court ordered the sheriff immediately to cease the threatening behavior and to notify Visa and MasterCard of the ruling, explaining that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

Beyond the positive outcome in this specific case — What kind of person would become sheriff of Chicago and then choose to spend his time worrying about adult sex ads? — the 7th Circuit’s ruling is crucial for protecting free speech rights generally. That’s because corrupt public officials have realized that they can abuse their power to pressure corporations to “suffocate” private actors whom they dislike but who are breaking no laws.

The most notorious, most dangerous case was in late 2010, when Joe Lieberman blatantly abused his power as chairman of the Senate Homeland Security Committee to implicitly threaten and coerce companies like Amazon to terminate website hosting and payment processing services to WikiLeaks, which had just published the Afghanistan and Iraq war logs and diplomatic cables. That quickly led other companies, including Visa, MasterCard, Bank of America and PayPal, to terminate credit card processing for the group, driving them close to bankruptcy. In other words, Joe Lieberman almost completely destroyed a media and political organization group he disliked not through prosecution but with nothing more than thuggish threats to the companies that serviced it.

Just as was true of the compliant companies in the WikiLeaks case, Visa and MasterCard denied that they terminated Backpage’s accounts due to government pressure, but the 7th Circuit saw right through that falsehood: “It’s true that Visa filed an affidavit stating that ‘at no point did Visa perceive Sheriff Dart to be threatening Visa.’ But what would one expect an executive of Visa to say? I am afraid of the guy?” The court added that “Visa and MasterCard were victims of government coercion aimed at shutting up or shutting down Backpage’s adult section (more likely aimed at bankrupting Backpage — lest the ads that the sheriff doesn’t like simply migrate to other sections of the website).”

As I wrote at the time of the WikiLeaks blockade, “Any attempt by political officials to start blocking Americans’ access to political content on the internet ought to provoke serious uproar and unrest.” That’s because: “no matter what you think of WikiLeaks, they have never been charged with, let alone convicted of, any crime; Lieberman literally wants to dictate — unilaterally — what you can and cannot read on the internet, to prevent Americans from accessing documents that much of the rest of the world is freely reading.”

As a result of that incident, Daniel Ellsberg, The Intercept’s co-founding editor Laura Poitras, John Cusack, Xeni Jardin, and various EFF personnel such as J.P Barlow, along with myself, created a group — Freedom of the Press Foundation — driven by concern over how dangerous these threat-based blockades can be. The initial goal was to circumvent and destroy the Lieberman-led blockade of WikiLeaks by raising money for the group ourselves (which we did in substantial amounts), but the broader goal “was to block the U.S. government from ever again being able to attack and suffocate an independent journalistic enterprise the way it did with WikiLeaks.”

This new ruling from the 7th Circuit highlights how dangerous such extra-judicial pressure campaigns can be, and makes them much more difficult by clearly ruling them to be unconstitutional. As the court explained:

In his public capacity as a sheriff of a major county (Cook County has a population of more than 5.2 million), Sheriff Dart is not permitted to issue and publicize dire threats against credit card companies that process payments made through Backpage’s website, including threats of prosecution (albeit not by him, but by other enforcement agencies that he urges to proceed against them), in an effort to throttle Backpage. See Bantam Books, Inc. v. Sullivan, supra, 372 U.S. at 67. For where would such official bullying end, were it permitted to begin?

To permit such pressure tactics against organizations disliked by political officials is to endorse “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion. The formula consists of coupling threats with denunciations of the activity that the official wants stamped out, for the target of the denunciation will be reluctant to acknowledge that he is submitting to threats but will instead ascribe his abandonment of the activity to his having discovered that it offends his moral principles.” Anyone who would approve of such tactics, said the court, is “giving official coercion a free pass because it came clothed in what in the absence of any threatening language would have been a permissible attempt at mere persuasion.”

Very few large media outlets objected to Lieberman’s tyrannical coercion campaign against WikiLeaks, even though it so obviously can threaten them as well, because of competitive and ideological dislike for the group. This new judicial ruling underscores why that campaign was so dangerous, and so clearly illegal. As the court concluded about the sheriff’s threats with reasoning perfectly applicable to Lieberman’s: “Those threats were not protected by the First Amendment; they were violations of the First Amendment. “

Palm Oil's Corporate Deception: Green-Washing a Dirty Industry

By teleSUR

03 December 15

he expansion of oil palm plantations around the tropical world presents a fierce assault on the climate in the name of corporate profits. While the industry green-washes palm oil under the guise of biofuels and so-called sustainable development, digging behind the corporate myths reveals a complex mess of deforestation, pollution, “carbon debt,” and destruction of biodiversity, wildlife habitat, and food security, often along with grave human rights abuses.

Global palm oil production has been on the rise since at least the 1970s, and the proclaimed biofuels hype has given the industry a boost since the early 2000s. Oil palm production has massively ballooned in Indonesia and Malaysia, the two largest producers representing some 85 percent of global production. But expansion has also been significant in Latin America, where Colombia, Ecuador, Honduras, and Guatemala are all now within the top 10 largest and fastest growing palm producers in the world.

Palm Oil’s ‘Carbon Debt’ and Environmental Disaster

Oil palm plantations are expanding through massive deforestation, which increases carbon emissions. Clearing mature forests, which sequester huge amounts of carbon, releases carbon into the atmosphere and wipes out future carbon storage, often permanently. According to the World Wildlife Fund, the equivalent of 300 football fields is cleared every hour to make way for oil palm plantations. Converting rainforests and other tropical habitats like grasslands and peatlands into oil palm plantations creates a major “carbon debt” that could take as long as centuries to repay - clearly too late for urgent action on climate change.

According to Tanya Kerssen, an independent researcher based in Latin America, palm oil production brings a whole web of negative impacts for the environment.

“Perhaps the worst impact, globally, is the massive destruction of forests, peatlands, and other diverse ecosystems that are home to people and wildlife,” Kerssen told teleSUR, stressing that there is no single impact. “These areas are critical for regulating hydrological cycles - including rainfall and groundwater levels - maintaining good water quality, preventing erosion, and controlling flooding. They also capture carbon from the atmosphere and sustain diverse types of subsistence and commercial food production.”

Palm processing waste also produces emissions. These waste products release a huge amount of methane gas, which traps more heat than carbon dioxide and contributes to global warming. According to the U.N., between 2.5 and 3.75 tons of industrial waste are generated by each ton of a palm oil produced. What’s more, if a wastewater pond ruptures, it brings a flood of contamination to the surrounding ecosystem. Runoff from oil palm production, even without a waste storage failure, already contaminates soil and water due to the heavy use of chemical fertilizers, herbicides, and other agrochemical inputs. This can wreak havoc on wildlife habitats and communities and jeopardize other agricultural production.

Finally, oil palm in its industrial form is farmed as a single crop on massive plantations, known as a monoculture, which poses threats to local biodiversity, including agricultural and food diversity. As Kerssen explained, “the original sin of the palm oil boom is land grabbing - the taking over of natural areas or community lands and destroying any possibility of creating sustainable alternatives on those lands.” That is, aside from converting forests and decimating habitats, oil palm monocultures often also displace local agriculture with negative impacts for food security, food sovereignty, and local environmental conservation.

Environmental Impacts from Indonesia to Latin America

The environmental crisis of oil palm is perhaps most clear in Indonesia, the world’s largest palm oil producer, where raging forest fires have recently caught global attention and forced the country to declare a state of emergency. Huge swathes of forest have been converted to oil palm plantations, releasing huge amounts of carbon dioxide with slash-and-burn clearing techniques and decimating precious wildlife habitats. According to the World Wildlife Fund, orangutans have lost more than 80 percent of their natural habitat in Indonesia in the past 20 years. Raging forest fires have also had serious impacts on human health and spawned a national public health crisis. What’s more, palm expansion is also fueling a human rights crisis in Indonesia, as symbolized by the murder of an Indonesian environmental and anti-palm oil activist earlier this year.

In Colombia, the largest palm producer in Latin America and fourth largest in the world, oil palm plantations have expanded through deforestation and displacement. While the industry prides itself on expanding largely into low-productivity grasslands instead of tropical forests, these same zones are often cleared of their human inhabitants through paramilitary violence. The Colombian government, in concert with paramilitaries and big agribusiness, has “violently removed” Afro-Colombians, Indigenous people, and campesinos to make way for palm monocultures, according to the food and development policy institute Food First. What’s more, Rainforest Rescue reports that a supplier of so-called organic and ecological palm oil in Colombia, Daabon Group, has been found responsible for “serious accidents and spills, excessive use of water, pollution, deforestation and the eviction of small farmers from their land.”

In Guatemala, oil palm plantation expansion similarly threatens the health and food sovereignty of local communities. A recent case of massive contamination in Guatemala’s Pasion River highlights the extent of damage to the environment and public health caused by the palm oil’s industrial waste. The Pasion River was declared an ecological disaster after thousands of dead fish surfaced in June as a result of agrochemicals pollution from a nearby palm oil production site. The water contamination also severely impacted local families who rely on the river for drinking water, hygiene, and as a food source. The targeted assassination of Rigoberto Lima Choc, a Guatemalan environmental and human rights activist fighting the contamination of Pasion River, is also a particularly egregious example of the abuses caused by the rapidly expanding industry in the region.

The Palm Oil Profit Motive

Investment in oil palm expansion is one of the World Bank’s prioritizing projects that have appealing qualities for investors and agribusiness corporations, but devastating effects for small farmers and the environment when farmed in its industrial form as a monoculture.

Oil palm is an edible oil crop that can be sold for multiple uses as a “flex crop,” a term used to describe a single crop that can be sold for food, animal feed, fuel, and industrial products. In the case of oil palm, these “flexible” uses include for cooking oil, food additives, cosmetics, industrial uses like plastics and explosives, and biofuel. This is what sets oil palm apart from other industrial crops in the eyes of investors and makes it perfect fodder for financial speculation.

As Kerssen explained, financial speculation and the potential to sell in multiple “diversified” markets maximizes return on corporate investment. “Oil palm is well-suited for the highly ‘financialized’ nature of our current global economy,” she explained, adding that “diversification” through a single crop makes investment “safer” because the flex crop can be sold for whatever purpose is most lucrative.

“Basically, oil palm offers risk mitigation combined with high returns, thus making it an attractive crop for financial speculation,” Kerssen added.

On the other hand, oil palm production reproduces historical inequality of the plantation system through land grabbing, displacement, and labor exploitation of campesinos, not to mention environmental consequences that have lasting impacts on the health and food security of local communities.

Green-Washing a Dirty Industry

While the rapid expansion of oil palm plantations across the tropical world is often justified in the name of ramping up biofuel production, oil palm has a lot more to do with agricultural financialization than with green energy. But the “biofuel” label is leveraged to green-wash the destructive, often violent, expansion of agribusiness corporations, their profits, and their monopoly on land and resources across the global south.

Activists have slammed the Roundtable on Sustainable Palm, which purports to promote “sustainable development” and “green energy” through oil palm expansion, as “window dressing” to cover up the environmentally-destructive monopolization of land and resources and for turning a blind eye to land grabbing and grave abuses of human rights perpetrated by the industry.

According to Kerssen, author of “Grabbing Power: The new struggles for land, food, and democracy in Northern Honduras,” biofuel uses actually makes up a small portion of the palm oil agricultural portfolio, which as a flex crop bends to where it maximizes corporate profits.

“While you often hear about the expansion of oil palm as linked to ‘biofuels,’ non-fuel uses of oil palm are actually much more important both in quantity and value,” said Kerssen. “So obviously the demand for biofuels can't adequately explain the rapid expansion of oil palm plantations. As a ‘flex crop’ used as a flexible accumulation and speculative strategy, it makes much more sense.”

Palm oil’s use as a biofuel - of questionable efficacy to begin with given oil palm’s extensive carbon debt - is a very convenient label to green-wash huge corporate profits and financial speculation. By eliminating forests or local food production to make way for industrial monoculture, oil palm is doing damage to the environment and food security, albeit under the “green” banner of biofuels.

Is Sustainable Palm Oil Possible?

Some argue that there is no place for palm oil in a sustainable future. Others say that with rigorous regulation and oversight, palm oil could play a role in rural development without negative consequences for communities and the environment.

A coalition of NGOs recently called on the big players in the global palm oil trade to clean up their act with respect to grave human rights abuses and ensure that suppliers in Latin America are not guilty of rights violations.

Fruit of the oil palm from which oil is extracted. (photo: AFP)

But many are skeptical that the model of voluntary industry self-regulation regarding environmental and human rights standards will fall far short of substantial reform needed in the palm oil sector, which already green-washes its brutal track record.

For Kerssen, the high stakes will require larger transformation within the industry and beyond to achieve sustainability.

“Real sustainability won't happen without dismantling the corporate monopolies that control the industry. It won't happen without land reform,” said Kerssen. “And it won't happen without locally-specific ecological studies and soils research to see how much oil palm can sustainably be grown and using what kinds of agroecological practices.”

But for Kerssen, it’s important to consider whether large-scale palm oil production is really needed in the first place. She says digging into the issue of sustainability necessarily begs the question: “Why grow palm oil at all?”

“Currently the answer is because there is global ‘market demand,’” Kerssen explained. “But the main use for palm oil - refined vegetable oil and processed foods - is responsible for shortening lifespans and making people sick all over the world, particularly among the poor.”

In the face of this reality, Kerssen added, the big question is how to transform agricultural production to shift away from such a huge emphasis on unhealthy, environmentally and socially destructive palm oil to much more diversified farming practices that can “better sustain local economies and ecosystems and healthy people.”

“I think we can arrive at any number of interesting and creative solutions that involve continued oil production,” said Kerssen, “but it requires first asking the right questions.”