Social media has become a dumping ground of falsehoods and fake news intended to persuade or enrage, so when a Texas-based oil and gas company files suit against a Colorado environmental activist over an erroneous comment on Facebook, it’s a dispute worthy of examination.
First, here’s the post that sparked a lawsuit from the owners of SG Interests, an oil and gas company operating in western Colorado:
“While SGI alleges ‘collusion’ let us recall that it, SGI, was actually fined for colluding (with Gunnison Energy Corporation) to rig bid prices and rip off American taxpayers. Yes, these two companies owned by billionaires thought it appropriate to pad their portfolios at the expense of you and I and every other hard-working American.”
Paonia resident Peter Kolbenschlag wrote that comment on a news story that had been posted on Facebook by the Post Independent. The story was about the 2016 decision by the Bureau of Land Management to cancel leases SGI had purchased in the Thompson Divide. After the decision was made, SGI accused the Obama administration of colluding with environmentalists for a predetermined outcome and filed suit to stop the cancellations.
While Kolbenschlag’s post did include at least one factual error, it was not fake news.
The error was a pretty big one, by journalistic standards: SGI wasn’t “fined” for collusion. The U.S. Department of Justice accused SG Interests, based on a whistleblower report, of colluding with another company to avoid competition on four leases in Western Colorado. SGI and the Gunnison Energy Company settled the complaint out of court for $1 million but didn’t admit guilt.
It’s an important distinction. As a reporter, I would have written a correction and apologized for the error. That’s what journalists do when they make a mistake. Even opinion writers must get the facts right.
But honest mistakes of published fact are not libelous, at least not when written about public officials, figures or matters of public concern.
Intentionally published lies about someone or something to cause harm — job loss, a public boycott, defeat in the next election — should never be tolerated. But the court has been careful not to open the floodgates that would allow frivolous lawsuits to be filed, chilling free speech for anyone afraid of getting sued by deep pockets. For example, the onus of proving a statement is false rests with the plaintiff, not the defendant.
So when does an erroneous Facebook post cross the line between protected free speech and libel subject to punishment?
Well, first there’s a much higher threshold in this case. Federal leases of publicly owned mineral rights are definitely of public concern. Speech involving such matters must not only be false but must be published maliciously in order for certain damages to be awarded, according to a 1974 Supreme Court case.
This means that for SGI to receive monetary damages the company’s lawyers must prove Kolbenschlag’s error was more than a simple mistake made as he dashed out his Facebook comment.
Oh, and the company is going to have to prove that Kolbenschlag’s comment was false to begin with.
The U.S. Department of Justice wrote a press release celebrating the settlement agreement with SGI that said: “In 2005, GEC and SGI entered into a written agreement under which they agreed that only SGI would bid at the auctions and then assign an interest in the acquired leases to GEC. … As a result of the agreement between GEC and SGI, the United States received less revenue from the sale of the four leases than it would have had SGI and GEC competed at the auctions.”
That the company is willing to attempt to prove allegations of collusion are wrong in court when an activist made them, but not when the U.S. Department of Justice made them, is bizarre.
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