Minnesota Supreme Court Rules Against DAPL Company's Anti-Press Subpoenas

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The Minnesota Supreme Court ruled against Energy Transfer, a major fossil fuel pipeline company, and its efforts to force a grassroots-aligned media organization known as Unicorn Riot to reveal newsgathering materials.

“We hold that the plain language” of the Minnesota Free Flow of Information Act (MFFIA)—a reporter’s shield law—“protects Unicorn Riot’s newsgathering activities during the Standing Rock Protests,” the Minnesota Supreme Court ruled. “Nothing in the statutory text leads us to believe that the privileged information that Unicorn Riot collected during the Standing Rock Protests should be excepted from the prohibition on disclosure under the MFFIA.”

Unicorn Riot reporter and co-founder Dan Feidt reacted to the decision. “For a decade, we have been working to cover social struggles like the Indigenous-led movement against the Dakota Access Pipeline.”

“We will keep asserting the freedom of the press to cover these crucial events and political movements,” Feidt added. 

In 2019, Energy Transfer, which is President Donald Trump’s "biggest energy donor,” pursued litigation in North Dakota against Greenpeace for the environmental group’s role in protests against the Dakota Access Pipeline. A jury sided with the pipeline giant and ordered Greenpeace to pay $667 million earlier this year. 

Energy Transfer subpoenaed Unicorn Riot and Unicorn Riot reporter Niko Georgiades in March 2021. The company demanded published and unpublished videos, audio recordings, images, reports, articles, letters, emails, press releases, statements, internet postings, and other content. It also sought sensitive information about the organization’s structure and donors. 

At the time of the subpoenas, Trevor Timm, the executive director of the Freedom of the Press Foundation, said the breadth of the subpoenas was striking, “not only encompassing things like story drafts and internal communications, but also the personal information of Unicorn Riot’s donors.”

“[A] judge should see this for what it is: a menacing attempt to intimidate a news outlet whose only ‘crime’ is being critical of the company. It should be thrown out immediately,” Timm further declared. 

Notably, in December 2022, Hennepin County District Court Judge Joseph Klein upheld the MFFIA’s protections against the forced disclosure of newsgathering materials. However, Klein ordered Unicorn Riot and Georgiades to produce a log of “privileged” documents and answers to Energy Transfer’s subpoenas. Unicorn Riot and Georgiades appealed this order. 

In May 2024, the Minnesota Court of Appeals concluded that the district court erred. A judge may “not order a privilege log or require the production for in camera review of information that is privileged” under Minnesota’s shield law. Energy Transfer appealed and lost this past week.

“The [Minnesota Supreme] Court's decision is a welcome reminder that we value independent journalism in Minnesota,” stated Teresa Nelson, the legal director for the ACLU of Minnesota, which represented Unicorn Riot and Georgiades. “This win is particularly important as large corporations increasingly attempt to intimidate reporters through litigation and in the face of unprecedented attacks on the freedom of the press by the Trump administration and other government officials.”

On behalf of the Minnesota Newspaper Association, E.W. Scripps Company, and St. Paul Pioneer Press, the Reporters Committee for Freedom of the Press (RCFP) submitted a brief in defense of Unicorn Riot’s rights under Minnesota’s shield law. 

Energy Transfer concedes “that the privilege is absolute and its statutory exceptions do not apply here. They nevertheless argue that even if Unicorn Riot would ordinarily be covered by the Shield Law, it surrendered the MFFIA’s protections by ‘participating’ in the DAPL protests and being arrested in the course of newsgathering,” RCFP wrote to the state supreme court [PDF].

RCFP continued, “According to Appellants, the MFFIA does not apply to information gathered during a journalist’s allegedly unlawful conduct. The Court of Appeals roundly, and correctly, rejected that argument.”

To be clear, no criminal cases were ever pursued by prosecutors against anyone working for Unicorn Riot.

Feidt recalled the media organization’s motivation for covering the protests against the Dakota Access Pipeline:

…The pipeline endangers the health of Indigenous people and others downstream to this day, particularly members of the Standing Rock Sioux Tribe, who firmly opposed the pipeline project for years. It leaked five times in just its first half year of operation—part of an enormous spray of leaks from Energy Transfer’s poorly designed infrastructure.

Repression of Indigenous people is often a forerunner to expanded future campaigns. Much like today’s federalized National Guard operations against protests in California, the North Dakota National Guard took control of the protested pipeline construction area. The campaign to crush these protests included advanced tactics by private players, including an “Information War” by the National Sheriffs Association, and espionage by security firm Tigerswan in a “counterinsurgency” campaign. The FBI sent informants, and Customs and Border Protection deployed a Reaper drone for 281 hours over six months, similar to tactics recently seen against protests in Los Angeles...

The matter is not entirely resolved. The Minnesota Supreme Court sent the case back to the district court to “determine whether and to what extent Unicorn Riot should be required to produce privilege logs in response to Energy Transfer’s subpoenas.” Yet, crucially, the supreme court emphasized that the district court must consider whether responding to the subpoenas would “impose an undue burden.”

On top of the fact that Energy Transfer already succeeded in its litigation against Greenpeace and does not need the newsgathering materials, it is likely that the district court will recognize that the subpoenas are too burdensome and end the pipeline giant’s anti-press effort altogether.

Greenpeace has challenged the $667 million award, maintaining that Energy Transfer has engaged in an attack on freedom of assembly and speech that must not be allowed to stand.