Analyze

The article is supported by additional articles that examine the constitutionality of Critical Infrastructure Bill in Louisiana. The article is supported in its claim that the statute can be argued as legislativley motivated as the critical infrastructure bills arose after the Dakota Acess Pipeline protest and the Lousiana revised Bill came after the Bayou Bridge Pipeline protest. The article is additionally supported in analysis of additional critical infrastructure bills from other states, such as Texas, Dakota, etc. 

The methods/Theories used to produce claims of violations of First amendment and Due Process from the Revised statute are taken from Modern First Amendment Doctrines and approaches. The article as well utilizes previous court cases and their decisions to guide the analysis.

In terms of the Due Process Clause violation, the article states that any statue is in violation of the Due Process Clause if the statute is so standardless that is encourages or authorizes discriminatory enforcement. 

In terms of the First Amendment, the article estabilishes first how the United States Supreme Court analyzes cases that contest the First Amendment. Their are three theories introduced that support the first amendment, if a law is found to be prohibiting these theories, a case can be made that it violates the First Amendment. These theories include: "self-realization", "marketplace of ideas", and "democratic value". To determine wether the regulation effects a speaker or the marketplace two models are used: "speaker based" and "audience based". These are used to determine wether the statute will effect the public discourse or the individual. In the end, the article argues how each of these three theories are violated and therefore the statute is in violation of the First Amendment. 

The article as well looks at how the Supreme Court uses a "tiered-scrutiny" approach when analyzing the constitutionality of statutes. This allows the court to apply a different standard based on if the statute is content neutral or content based. Any content based statue is unconstitutional as it prohbits a certain type of speech. When a statute is content neutral, the court must provided evidence that the statute was content motivated. 

"The modifications to Louisiana Revised Statutes section 14:61 seem to be a direct response to the Bayou Pipeline protests for four reasons. First, this is evidenced by the addition of pipelines to the definition of "critical infrastructure" protected by the statute, as well as the creation of heightened penalties aimed at deterring those speaking out against the further construction of pipelines within the state. Second, the arrest of protestors were made within weeks of the modification of the statute, supporting the contention that the legislature made these changes to silence protestors. Third, a sponsor could [...] potentially have a personal motive [...] as energy and natural resource companies are his or her leading campaign donor [...]. Finally, the national trend of statutes protecting critical infrastructure which arose after the Dakota Access pipeline protests seems to suggest that the fear of opposition toward pipeline construction is what led the Louisiana Legislature to amend section 14:61" (Pg. 18). 

This quote describes the arguments that can be made in regards to proving motivation behind the legislative revisions. Despite the statute is content neutral, the motivations behind the statute prove that the statute be upgraded to strict scrutiny. 

"By suppressing the speech of those opposing pipeline construction within the state, the government restricts the ability of citizens to articulate their desires, inherently excluding them from the political process of making changes within their community and perpetuating their plight." 

"Though some regulations of conduct are permissible, it is impermissible for the legislature to suppress the expressive conduct of those opposing the Bayou Bridge pipeline construction, as this suppression results in a governmental distortion of public debate and offends the democratic system."

These quotes demonstrate how the statute can be held in violation of the first amendment. 

The main argument presented in the article states that the Louisiana Revised Statute section 14:61 of the Louisiana Critical Infrastructure Bill should be revoked as it is impermissibly in violation with the First Amendment and the Due Process Clause of the Constitution. The article notes the timing and vagueness of the additions to the infrastrutcure bill to be discriminatorily motivated towards silencing a certain type of speech. The Revised Infrastructure Bill included the addition of "pipelines", both in construction and operating as apart of the definition of "critical infrastructure". The revised bill estabilished a strict penalty of jail for no more than 20 years or fine of no more than $25,000. The revision followed the Bayou Bridge Pipeline construction protests. The article argues for the regulation to be held under strict scrutiny under the law as, though it is content-neutral, the legislative motive appears to be content-based. An analysis is appropriate to conduct despite being content neutral. As well, the article argues that the new regulation silences speech, in violation with the first amendment. Noted in the article, First amendment arguments fall into three theories or categorizes: "self-realization" theory, "marketplace of ideas" theory, and "democracy" theory. The article argues that all three theories that enable the preservation of the first amendment are violated through the revised bill sections. The statute distorts the marketplace of ideas as it enforces such a harsh punishment, is standardless, and vague that it has the effect of creating self-censorship. Without access to dissenting ideas in opposition to the pipelines, this deprives the public from the marketplace of ideas but also denies them from self realization in creating their own opinions from the opposining ideas around them. Finally, the statue is argued to deny democracy in that it restricts the publics ability to share their desires for their communties, excluding them from the political process, denying them a democratic process to voice an opinion. The article goes on to propose ways in which the courts can fix their practices in reviewals of Due Process and First Amendment legal cases. 

Piecemeal approach to self-regulation forecloses more sweeping structural change as well as an actual check on power thru independent control over corporations

No real audit and no punishment for violating something like the UN Global Compact.

Since the CSR initiatives align with some of the infrastructure/development and personal goals of the village elites, it forecloses resistance to the mine and in fact has spawned violent defense of the mine by local people. 

Mistrust of the NGOs, who come in and out, and who the corporations have carefully targeted with smear campaigns, forecloses certain kinds of alliances that could have put a check on corporate power, but perhaps not improved the lives of the villagers in the way they wanted.

They see their environmental training as enlightening the backward locals who eat turtle eggs or fish in the reefs - so here they are helping the charismatic environment and helping the unknowing locals to preserve natural beauty. They wanted to provide waste management - they believe it’s helpful to the locals and it also would help with their distaste for trash at the beaches. The other CSR initiatives are portrayed as being forcefully demanded by the village elites and given as concessions to improve security, so the narrative of “help” to the locals is less prominent.

Their scientists have neutralized the environmental damage their practices do - defining tailings as nontoxic 

Enviro-rituals - (Gusterson) - -Flamboyantly lick, eat, bathe in the tailings - for media, on road shows… Rituals demonstrate but also produce their belief in the harmlessness - cites Geertz 1973 and Althusser 1971. This is also a kind of diversion - because maybe the tailings are not toxic to a human’s licking them, but they destroy the marine life the way they are dumped into the ocean, and they may react with other things in such a way that the end result is extremely toxic to humans, not to mention that it is certainly extinguishing a staggering amount of marine life by nature of crushing, before anything else 

Charismatic species - they hand-release sea turtles near a resort, very publically, a very feel-good moment that “Feels like social action”, and produce narratives of unenlightened locals being the ones bad for the environment because they eat turtles and turtle eggs - criminalize subsistence - attribute to poverty and ignorance, so they spend corporate $ on environmental education, and tell the kids that what their families do is bad. (The subsistence activities are often social - so people do them even if they can afford to buy food differently)

In-house corporate anthropologist - debunking the idea of the “ecological noble savage” as something first world activists made up - of course there are different ways to be ecologically-minded… 

Things that compete with mining corporations for resources or charismatic cases that are easily blamed on the mine are the environmental issues they talk about and they work to address - missing is greenhouse gas, for example. 

Claim they focus on Western corporations to get Western funding - claim they’re not transparent whereas corps have annual reports to shareholders. Various defaming of the NGOs - saying they are in the hands of “international anti-development” NGOs, that they infiltrate and only create illusion of local resistance, say their clear goal is “to bring international mining companies to their knees” - [which is almost funny]

Clandestine strategies: instead of suing, put the NGO on a watch list of bad/ non transparent NGOs, use the NGO as a workshop case study of bad NGO, held by a different cooperative and influential NGO that allies with the corporation secretly; op-eds “placed” into newspapers calling for regulation of NGOs

Basically turning transparency and accountability against the NGOs

Control of information flow - circulating the inaccurate NGO bulletin to rile up anger at the NGO - 

They define themselves as “environmentally friendly,” “good”, “moral”, “responsible” mining corporation, and their moral narrative is defined against these other groups in different ways: they have healthy competition with the backward mines (also “dinosaur”, will go extinct, they do blatant pollution and human rights violation), patronizing superiority for the poor Indonesians, and they straight up vilify the activist NGOs

Mine managers are proud of the mine and the environmental/ social/development projects, which they raise as evidence 

A lot of local groups want to take credit for attacking the activists - attacking the activists and defending the mine becomes morally sensible to many of these actors

Interestingly the narrative here is that village elites have used tactics, including violence, blocking roads, etc., to force the mining corporation to act as the state and provide patronage, goods, development in the material/infrastructural sense. The corporations use the CSR to quell their protesting. 

State gets demoted to one player of “multi-stakeholder” process in these voluntary self-monitoring/ self-regulating situations. Corps are rhetorically also just one player, but come to these events in force and drive the rhetoric, and in fact it’s all up to them what they actually do

In remote areas, the state doesn’t provide infrastructure and services so the mining companies become de-facto state in the provision of these things.

Three features described for CSR - 1) voluntary self-regulation, 2) articulating the value to the profit of doing CSR, and 3) strong ties to development industry 

Differing beliefs about what is development - the Infrastructure -centered development is out of style - now it’s about self-help, participatory, bottom-up - the former is associated with slow state and new is associated with certain types of CSR - tho not the wins that the village elites got in this case 

US foreign policy logic - applied to corporations - get security by giving aid/CSR boons to people - Security guards perform human rights training intensely - laminated cards around necks. → new and different forms of violence

Taking the offensive with PR firms that are doing CSR consulting plus clandestine research and “strategies for destroying NGOs” - with naked instrumentalism in their reports, not using words like “vulnerable, marginalized, underrepresented” - get personal dirt on people in NGOs - use words like “vocal, emotional, aggressive, passive, proactive, and cooperative but unclean” - p158 - also offers contract of clost to $1M for a big secret smear/boost campaign. Advise against suing because of “david and golaith” image. 

“The Project Green Shield report recommended turning public opinion against LOH (NGO that accused Newmont) by using Indonesian movements for NGO transparency and an NGO Code of Ethics.” 

Giving loans to their critics - it may not silence them fully but it discredits and makes them seem complicit/ hypocritical