Guilt by Association Tag on Greenpeace USA

Greenpeace activists must stay away from a Shell offshore drilling operations, but that doesn’t mean a half-dozen 9th U.S. Circuit Court of Appeals judges are happy about it.

Six circuit judges dissented Wednesday the full 27-judge court’s refusal to hear the case en banc.  In March, a three-judge panel voted 2-1 in an order upholding a preliminary injunction that prohibited Greenpeace USA from coming within certain distances of Shell vessels involving in Arctic offshore oil exploration. (Earlier coverage.)

Greenpeace had been engaged in “Stop Shell” campaign to block drilling.  In 2010 activists boarded the Harvey Explorer during operations while the ship was in the Gulf of Mexico enroute to Alaska.  But those actions and others in New Zealand were taken by other activists in Greenpeace and not Greenpeace USA.  That struck a cord with the dissenters.

“This case should have been reviewed en banc because the majority opinion offends important principles that transcend the case: (1) A party should not be enjoined because of its association with other entities; and (2) A party should not be enjoined because it, with what I would have previously thought was free speech, endorsed or claimed affinity with ‘activists’ operations of other entities,” wrote Judge Ronald Gould.

He accused the majority of applying a “guilt-by-association model that offends justice.”

“I would prefer to see our opinions give organizations like Greenpeace USA the breathing space to let their fortunes rise or fall based on their conduct, not on their association with others and not on their free speech endorsement of others,” he said.

Gould was joined by Judges Harry Pregerson, Stephen Reinhardt, Kim Wardlaw, William Fletcher and Milan Smith.

Three judges did not participate in the vote, but the dissenters were still far short of the 13 votes needed to carry the day.


Case:  Shell Offshore, Inc. v. Greenpeace, Inc., No. 12-35332