Think back on the last donation you made for a cause. Perhaps it was to the Natural Resource Defense Council to aid them in their court battle to protect the Palisades Interstate Park. Maybe it was the Sierra Club, to support its Clean Air Act lawsuit against a Montana coal-fired power plant, or to any organization or individual battling Chevron in its epic, and manic court fight against Ecuadorians, lawyers, journalists, filmmakers, big tech companies, and most US environmentalists.
The donation was made. Your side of the court battle will win, or it won’t. End of story. Or at least, you think it’s the end of the story.
Imagine that eight years after you made the donation, you get a legal letter or subpoena from an intimidating Washington DC law firm representing the coal plant or oil company, informing you you’re going to be deposed and/or forced to appear in court in an ongoing racketeering lawsuit against the organization you supported. Said lawyers will explain that they are seeking co-plaintiffs in their multimillion dollar lawsuit, with an implication underlying the communication that if you’re not with us, you’re agin us.
And all because you donated $10.00 to an organization like the NRDC or the Sierra Club, to support them in their efforts.
Does this sound far-fetched, insane, impossible? Think again, because that’s just what’s happening in the RICO court case brought by Feld Entertainment (parent company of the Ringling Brothers circus) against several animal welfare groups and individuals because of the groups’ legal efforts on behalf of circus elephants.
Magistrate Judge Facciola of the DC district court ordered the animal welfare group defendants (the Humane Society of the US, the Animal Welfare Institute, Born Free USA, and Fund for Animals), to turn over confidential donor lists containing the names and contact information for every person or organization that donated money to the groups to support the then Endangered Species Act (ESA) lawsuit against Ringling Brothers.
From the order:
Accordingly, defendants will have to provide Feld with the names of 1) those donors who received a solicitation and earmarked a donation to support the ESA lawsuit or Rider (or both); and 2) those donors who attended a fund raiser and earmarked a donation in the same way. Donors who neither received a solicitation nor attended a fund raiser cannot possibly have been defrauded and therefore the disclosure of their identities is unnecessary.
By denying the animal welfare groups’ motion for a protective order for the donor information, Judge Facciola is giving permission for Feld Entertainment’s lawyers to contact, and question, these individuals. Feld’s lawyers assert in court documents that those who donated to the animal welfare groups in relation to this court action were defrauded, and would, therefore, be willing to enter the court as co-plaintiffs with Feld Entertainment, owner of Ringling Brothers circus…the organization considered the poster child for circuses with trained elephant acts, the very thing these donors deplore.
Not a problem, you might think, and seemingly Judge Facciola concurs with you. The scenario Facciola seems to have in mind is that Feld’s lawyers will politely have a chit chat with the folks, ask a few questions, get a few replies, and life will go on. And if the donors despise Ringling Brothers as much as I say, these polite chit chats should be short, and to the point.
Real life is never as simple or as black and white as court documents may imply. I have read most of the deposition transcripts from the earlier ESA (Endangered Species Act) case, which Judge Facciola most likely has not. Of course, he hasn’t; he wasn’t the presiding judge in that case. If he had, though, he might come to realize, as I have, that the opinion Judge Sullivan formed about the ESA case was based, for the most part, on out-of-context responses by an unsophisticated man from the Midwest (Tom Rider), under a daunting barrage of questions fired by an intimidating group of high powered Washington DC lawyers. I would like to think that if Judge Facciola did better understand the actual circumstances leading up to Judge Sullivan’s decision—the reality, not the fiction presented by Feld in court documents—he might have paused, just a moment, before subjecting innocent non-party citizens to the same treatment.
I’ve already sent out warnings into the community of those fighting for the welfare of circus elephants about what may be coming their way. I’m not a lawyer, so can’t give advice, but I have stated if I were to receive notice from Feld’s people, I would never appear in a deposition without having a lawyer present—yet another unconscionable burden on people who did nothing more than donate ten bucks eight years ago in order to help circus elephants.
Judge Facciola’s decision was a not a good one—disregarding argument and cavalier as regarding the First Amendment protections due to the non-party donors. That’s the key: he’s disregarded the rights of those not represented in the court room. And by doing so, he’s setting precedent that should seriously worry any group fighting for any cause—whether it be against the Keystone pipeline, for the wolves, in support of safer and healthier food, clean water and air, or circus elephants.
Thankfully, the animal welfare groups are fighting back to the limits set by law. But I worry, I seriously worry, the impact this case can have on any activist group in the future. Particularly after the Chevron court win and the glee with which corporations now consider RICO as both shield and weapon.
Think about it: how willing will you be to donate ten bucks to a cause if it meant you’ll be yanked into court years later?
