In the 1980s, scholars George W. Ping and Penelope Canan began researching a troubling new trend taking root in the United States’ legal system. They warned that this phenomenon, known as Strategic Lawsuits Against Public Participation (SLAPPs), posed a substantial risk to the future of democratic participation.[1] SLAPPs are used to dissuade citizens from engaging in public discourse by manipulating the judicial systems that were designed to protect the very right to do so.[2] Rather than prevailing on merits, their objective is to intimidate, exhaust, and financially burden the defendant.[3] Over three decades later, SLAPPs remain a persistent issue in the United States (U.S.) and are now emerging across Europe as well. [4]
However, the U.S. and European Union (EU) have taken diverging approaches to regulating the increasing use of SLAPPs to silence Non-Governmental Organizations (NGOs) and individual activists. These differences are illustrated in the ongoing dispute between Greenpeace International and Energy Transfer. In 2017, Energy Transfer filed a federal lawsuit against Greenpeace over its alleged involvement in the Dakota Access Pipeline protests, but the case was dismissed for lack of evidence. [5] Energy Transfer then refiled the case in North Dakota state court, where, in March 2025, a jury awarded Energy Transfer over $660 million in damages against Greenpeace International.[6] Even if the verdict is overturned on appeal, the lawsuit has already achieved its intended purpose by depleting resources through years of litigation and sending a clear message that activism comes at a significant cost. In response, Greenpeace International is now seeking protection from the North Dakota judgment in the Netherlands by using the new Anti-SLAPP Directive (“the Directive”). [7] Specifically, Greenpeace is arguing that Energy Transfer’s lawsuit constitutes an abusive tactic designed to suppress public participation.[8]
Adopted by the EU in 2024, the Directive is an encouraging first step toward establishing a uniform framework against abusive litigation.[9] Among its core provisions are cross-border safeguards, early dismissal procedures, fee-shifting, and compensation for damages.[10] While concerns remain over its limitations in scope, the Directive nonetheless indicates the EU’s recognition of the need for increased procedural protections to combat SLAPPs.[11] The Greenpeace International case will be the first significant test of the Directives’ cross-border provision, which offers a shield against judgments in third-party countries.[12] For NGOs and activists, the outcome could prove pivotal in defining the scope of anti-SLAPP protections across Europe.[13] At the same time, this case also raises questions regarding the adequacy of U.S. anti-SLAPP protections.
The U.S. currently has no federal anti-SLAPP legislation.[14] Instead, protection depends on state laws.[15] Thirty-eight states have enacted anti-SLAPP statutes, but their scope and effectiveness vary significantly.[16] Only ten of these states have adopted the Uniform Public Expression Protection Act (UPEPA), which provides a consistent legal framework for dismissing these lawsuits.[17] Many states, such as North Dakota, provide inadequate protection, or none at all.[18] Even where state anti-SLAPP statutes exist, their effectiveness is undermined by a lack of federal protection.[19] Federal circuit courts are divided on if state anti-SLAPP statutes can be applied in federal proceedings.[20] Therefore, even when a state statute is applicable, the plaintiff can potentially circumvent it by asserting a federal cause of action.[21]
Although Congress has considered enacting a federal anti-SLAPP law, no such legislation has been passed to date.[22] Some federal courts claim that they already have the means to dismiss these suits through existing procedural tools.[23] However, these tools are time consuming and ill-suited for reducing the use of SLAPPs, which still succeed at imposing financial burdens regardless of whether they are ultimately dismissed.[24] Also, unlike the EU’s anti-SLAPP directive, there is generally no mechanism for the defendant to recover attorney’s fees.[25] Instead, the U.S. legal framework allows plaintiffs to exploit jurisdictional gaps that enable forum shopping and inconsistent results.[26]
Greenpeace International is just one of many examples which illustrates how the absence of federal anti-SLAPP protections leaves advocacy groups and individuals increasingly vulnerable to prolonged and costly litigation. The ongoing case in the Netherlands may offer Greenpeace International an avenue to recover significant losses incurred in North Dakota. Meanwhile, its outcome could also demonstrate to U.S. lawmakers the increasing need for stronger anti-SLAPP legislation. By enacting a federal statute modeled, in part, on the protections set forth in the EU’s Directive, Congress could take a crucial step towards protecting activists from the detrimental costs of SLAPPs and align the U.S. with emerging international standards. Until a comprehensive anti-SLAPP framework is adopted, verdicts similar to North Dakota’s will likely embolden further misuse of the courts to silence public participation.
[1] George W. Pring, SLAPPs: Strategic Lawsuits against Public Participation, 7 Pace Env’t L. Rev. 3–6
(1989).
[2] Id. at 21.
[3] Id. at 7–8.
[4] See Shilpa Jindia, EU vs. US Courts Face Off on Free Speech, Drilled Media (July 2, 2025), https://drilled.media/news/EU-SLAPP (stating that in recent years journalists and environmental groups have faced increasing SLAPPs in Europe).
[5] Amanda Chu & Jamie Smyth, Greenpeace hit with $660mn damages bill in US court over oil pipeline protests, Fin. Times (Mar. 19, 2025), https://www.ft.com/content/90e3650f-26a4-4225-8ea0-048d39c22282.
[6] Id.
[7] See Jindia, supra note 4.
[8] Id.
[9] See Press Release, Council of the European Union, Anti-SLAPP: Final Green Light for EU Law Protecting Journalists and Human Rights Defenders (Mar. 19, 2024), https://www.consilium.europa.eu/en/press/press-releases/2024/03/19/anti-slapp-final-green-light-for-eu-law-protecting-journalists-and-human-rights-defenders.
[10] Id.
[11] See Justin Borg-Barthet & Francesca Farrington, The EU’s Anti-SLAPP Directive: A Partial Victory for Rule of Law Advocacy in Europe, 25 Ger. L. J. 840, 855 (2024) https://doi.org/10.1017/glj.2024.51.
[12] Jindia, supra note 4.
[13] Matthew Taylor, ‘Legal bullying’: global protest rights on line in Dutch court case, say activists, The Guardian (July 4, 2025), https://www.theguardian.com/environment/2025/jul/04/protest-rights-dutch-court-case-slapps-eu-greenpeace.
[14] Jay Adkission, Free Speech Rights: Anti-SLAPP Laws Of The U.S. Ranked By Quality, Forbes (Mar. 26, 2025, at 23:20 ET), https://www.forbes.com/sites/jayadkisson/2025/03/26/free-speech-rights-anti-slapp-laws-of-the-us-ranked-by-quality.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Daniel A. Horwitz, The Need for a Federal Anti-SLAPP Law, N.Y.U. J. of Legis. & Pub. Pol’y (2020), https://nyujlpp.org/quorum/the-need-for-a-federal-anti-slapp-law.
[20] SLAPP Suit, Legal Info. Inst. (last visited Jan. 2025) https://www.law.cornell.edu/wex/slapp_suit; see also Kirk Herbertson, Congress Has Introduced Bipartisan Federal Anti-SLAPP Legislation: A Closer Look, EarthRights Int’l: Blog (Dec. 5, 2024), https://earthrights.org/blog/congress-has-introduced-bipartisan-federal-anti-slapp-legislation-a-closer-look (explaining that the Supreme Court has denied petitions to resolve the split, so circuit courts that view state anti-SLAPP statutes as substantive, because they protect First Amendment rights, find them applicable in diversity cases, and circuits that view them as entirely procedural do not apply them).
[21] Horwitz, supra note 19.
[22] See SLAPP Protection Act, H.R. 8864, 117th Cong. (2022); see also Free Speech Protection Act, H.R. 10310, 118th Cong. (2024) (introduced by Representatives Jamie Raskin and Kevin Kiley to establish procedures that protect organizations and individuals from SLAPPs).
[23] Horwitz, supra note 19.
[24] Id.
[25] Id.
[26] Id.