Defending Exxon’s Denial: It’s Their Right to Free Speech!

April 25, 2016

In the world of science denial, Money is Speech, corporations are people, Donald Trump is Galileo, and apparently, lying to your customers and shareholders is exercising your constitutional rights.

Above, brave and patriotic Tobacco executives practice their First Amendment right of Free Speech,  in 1994.

Inside Climate News:

Exxon, the Competitive Enterprise Institute and their allies are invoking free speech protections in a pugnacious pushback against subpoenas from attorneys general seeking decades of documents on climate change. Their argument is that the state-level investigations violate the First Amendment rights of those who question climate science.

Exxon has sued to block a subpoena issued by the attorney general of the U.S. Virgin Islands, and in an unusual step, named as a defendant the Washington, D.C. law firm and attorney representing the territory in the inquiry. In its complaint against the Virgin Islands subpoena, Exxon wrote, “The chilling effect of this inquiry…strikes at protected speech at the core of the First Amendment.”

In a pointed letter to Virgin Islands Attorney General Claude Walker on April 20, CEI’s attorney called the subpoena “offensive” and “un-American,” and warned to “expect a fight.” Andrew Grossman, outside counsel for CEI, wrote, “You have no right to wield your power as a prosecutor to advance a policy agenda by persecuting those who disagree with you.”

The conservative non-profit Energy & Environment Legal Institute, an ally of CEI, recently released emails that show that the attorneys general considering investigating Exxon were briefed by two environmentalists. E&E got the emails through a Freedom of Information Act request to the Vermont attorney general’s office. Though such meetings with environmental and industry advocates are widely considered routine, E&E described the meetings as secretive collusion, an idea that has been echoed on conservative websites and among some mainstream media outlets.

The AGs have not changed course amid the counterattack. But Exxon and its allies appear to be aiming as much at public opinion as at state law enforcement. After InsideClimate News and later the Los Angeles Times published stories last year detailing Exxon’s cutting edge climate research in the 1970s and its subsequent efforts to disparage climate science, the company initially argued it has conducted climate science without interruption for 40 years. It also answered a subpoena by New York Attorney General Eric Schneiderman and produced 10,000 pages of records by the end of 2015.

Now, its emphasis appears to have shifted. As the company tries to defend its climate contrarian stance, Exxon argues that it has voiced honest dissent on the science that a conspiracy of environmentalists and attorneys general wants to silence. “Our critics, on the other hand, want no part of that discussion. Rather, they seek to stifle free speech and limit scientific inquiry while painting a false picture of ExxonMobil,” spokeswoman Suzanne McCarron wrote in a post on the company’s blog on April 20 titled “The Coordinated Attack on ExxonMobil.”

Exxon and CEI’s lawyers have experience waging long battles with government attorneys on controversial cases. Exxon’s law firm Paul, Weiss, Rifkind, Wharton & Garrison and CEI’s attorneys, BakerHostetler, represented the tobacco industry for years. Exxon’s firm also represents the National Football League as it deals with the scandal over its concussion research.

CEI’s lawyers, Andrew Grossman and David Rivkin, have launched a project called Free Speech in Science, which aims to “stop the intimidation” of those who disagree with accepted climate science. In an op-ed in the Wall Street Journal, the lawyers compared climate deniers to Galileo and added, “As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted ‘consensus’ view.”

David Rivkin and Andrew Grossman in the Wall Street Journal (paywalled):

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann’s 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann’s famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

(Blogger’s Note: Dr Mann’s research has since been replicated and confirmed by numerous subsequent studies)

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann’s lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view.

Here, CEI’s Chris Horner shows how First Amendment is done.

Journal again:

Mr. Mann’s lawsuit divided climate scientists—many of whom recognized that it threatened vital scientific debate—but the climate Inquisition was only getting started. The past year has witnessed even more heavy-handed attempts to enforce alarmist doctrine and stamp out dissent.

Assuming the mantle of Grand Inquisitor is Sen. Sheldon Whitehouse (D., R.I.). Last spring he called on the Justice Department to bring charges against those behind a “coordinated strategy” to spread heterodox views on global warming, including the energy industry, trade associations, “conservative policy institutes” and scientists. Mr. Whitehouse, a former prosecutor, identified as a legal basis for charges that the Racketeer Influenced and Corrupt Organizations Act, or RICO, the federal statute enacted to take down mafia organizations and drug cartels.

In September a group of 20 climate scientists wrote to President Obama and Attorney General Loretta Lynch encouraging them to heed Mr. Whitehouse and launch a RICO investigation targeting climate skeptics. This was necessary since, they claimed, America’s policy response to climate change was currently “insufficient,” because of dissenting views regarding the risks of climate change. Email correspondence subsequently obtained through public-records requests revealed that this letter was also coordinated by Mr. Whitehouse.

Intimidation is the point of these efforts. Individual scientists, think tanks and private businesses are no match for the vast powers that government officials determined to stifle dissent are able to wield. An onslaught of investigations—with the risk of lawsuits, prosecution and punishment—is more than most can afford to bear. As a practical reality, defending First Amendment rights in these circumstances requires the resources to take on the government and win—no matter the cost or how long it takes.

It also requires taking on the Climate Inquisition directly. Spurious government investigations, driven by the desire to suppress a particular viewpoint, constitute illegal retaliation against protected speech and, as such, can be checked by the courts, with money damages potentially available against the federal and state perpetrators. If anyone is going to be intimidated, it should be officials who are willing to abuse their powers to target speech with which they disagree.

That is why we are establishing the Free Speech in Science Project to defend the kind of open inquiry and debate that are central to scientific advancement and understanding. The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials. Scientists, policy organizations and others should not have to fear that they will be the next victims of the Climate Inquisition—that they may face punishment and personal ruin for engaging in research and advocating their views.

The principle of the First Amendment, the Supreme Court recognized in Dennis v. United States (1951), is that “speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.” For that principle to prevail—in something less than the 350 years it took for the Catholic Church to acknowledge its mistake in persecuting Galileo—the inquisition of those breaking from the climate “consensus” must be stopped.

Reliable shill George Will chimes in at the Washington Post:

Authoritarianism, always latent in progressivism, is becoming explicit. Progressivism’s determination to regulate thought by regulating speech is apparent in the campaign by 16 states’ attorneys general and those of the District of Columbia and the Virgin Islands, none Republican, to criminalize skepticism about the supposedly “settled” conclusions of climate science.

“The debate is settled,” says Obama. “Climate change is a fact.” Indeed. The epithet “climate change deniers,” obviously coined to stigmatize skeptics as akin to Holocaust deniers, is designed to obscure something obvious: Of course the climate is changing; it never is not changing — neither before nor after the Medieval Warm Period (end of the 9th century to the 13th century) and the Little Ice Age (1640s to 1690s), neither of which was caused by fossil fuels.

Today, debatable questions include: To what extent is human activity contributing to climate change? Are climate change models, many of which have generated projections refuted by events, suddenly reliable enough to predict the trajectory of change? Is change necessarily ominous because today’s climate is necessarily optimum? Are the costs, in money expended and freedom curtailed, of combating climate change less than the cost of adapting to it?


21 Responses to “Defending Exxon’s Denial: It’s Their Right to Free Speech!”

  1. philip64 Says:

    The WSJ piece does what deniers have always done: blatantly misrepresent the facts to advance their unsavoury cause. Its description of Michael Mann’s lawsuit is particularly laughable. Mann brought libel action against publications that accused him, in effect, of deliberate fraud. Nothing more, nothing less. The rest is hot air.
    The piece goes on to claim that the suit “divided climate scientists—many of whom recognized that it threatened vital scientific debate”. Really? How many said any such thing? And where?
    And then there’s the peddling of out-and-out delusional fantasy: “As the scientific case for a climate-change catastrophe wanes…”
    All such arguments rely on the readers being ill-informed, blinkered and gullible. Happily they’re losing that battle too.

  2. astrostevo Says:

    They have the right to their own opinions – not their own facts.

    (As the old saying goes.)

  3. Gingerbaker Says:

    Big Tobacco was not sued by the government and then lost. They settled. And remember – cigarettes harm users directly. Gasoline does not. Gasoline does not cause cancer and heart disease. It is not addictive. And Exxon doesn’t burn it in your car – YOU do.

    The two cases are pretty different. And free speech is an issue here. (Although I do not think corporations are people, or that they have free speech rights (as opposed to corporate speech rights). Because that is the law of the land. Supposedly.

    • otter17 Says:

      As I understand it, the essence of the law isn’t so much predicated on whether there is a direct or indirect harm involved, but the idea that a risk is discovered with the product, and then an effort to mislead the public and shareholders is undertaken. One can’t use “free speech” as a defense to knowingly deceive shareholders or the public… and the risk involved of altering the planet for many centuries is a big deal for which to lie to or mislead the shareholders and public.

      • Gingerbaker Says:

        What laws exist that punish telling lies outside of libel or false advertising? A Fox News affiliate sued for the right to knowingly tell falsehoods as truth on a newscast, for heaven’s sake, and WON.

        Exxon advertised its gasoline as an excellent fluid for you to burn in your car’s engine. They were telling the truth.

        And IF the U.S. D.A’s manage somehow to actually bring suit against Exxon under RICO or some ginned-up stockholder disclosure charge, I predict Exxon’s lawyers will rip them to shreds. Exxon is *required* to inform their shareholders that AGW would be bad for business ?!? How are they supposed to tell?!? – each year since 1940 they sold a billion more dollars a year of product. Bad business? It is to laugh.

        And it’s not just ridiculous – who gives a @&%* ?? But do you hear of anyone with any standing who has enough balls to get them prosecuted for what their REAL sins are? NO? Me either. 😦

        Why do I seem to be the only person pissed off about this?

        • otter17 Says:

          On a few of the points…

          Exxon was apparently not telling the truth to shareholders concerning its knowledge of AGW. Yes, despite the sometimes big profits made during the era of spreading misinformation on the subject of AGW, Exxon was still obligated to tell the truth concerning what it knew about longer-term trends that would effect its business, with AGW being a very big deal for a fossil fuel with no technically feasible means for capturing/sequestering its primary combustion byproduct.

          You are by no means the only one pissed off about this, as I am right there with you. I just mix some of that anger with optimism, and a look back in history to where RICO was a lynchpin in changing the tune of other industries using the same deceitful playbook. I am curious, though, what are the real sins in your view?

          • Gingerbaker Says:

            “what are the real sins in your view?”

            Running a dishonest and surreptitious propaganda campaign to undermine the scientific consensus, popular opinion, and legislative action and which has resulted in the deaths of millions and eventually civilization as we know it. These are Crimes against Humanity, worthy of prosecution at the International Criminal Court. IMO, of course..

            “Exxon was still obligated to tell the truth concerning what it knew about longer-term trends that would effect its business

            Don’t think you can make the case that all things that could affect their business needed disclosure, nor that their business was in fact affected when their profits *were never bigger*. And, really, who cares? Compared to their true crimes, this is like settling for crumbs. A misdirection move. A shiny squirrel.

          • otter17 Says:

            Well, I think one could also think of the RICO investigations in terms of an obtainable first step, rather than a diversion. I know little of international law, or much about law period, but I would suppose such an international case would be difficult to prosecute, notwithstanding the political opposition to such a move. We have established law and precedent that has punished deceitful practices among an industry before. The tobacco industry was warned internally that it was causing a holocaust of sorts concerning preventable deaths, but it still held on to that information privately while publicly denouncing it. The same applies here, and the first step is already underway by AG’s around the country.

            I think under disclosure laws, one MUST disclose a risk to the business, and one certainly can’t take the opposite stance in public while talking with experts internally about it. I also don’t think it matters if one can propagandize the public sufficiently to ignore the problem. The point is, investors and the public cannot be deceived, because the shoe will eventually drop on the industry without some technical breakthrough in sequestration.

        • The InsideClimate article notes that the AG is not trying to limit free speech. That’s a strawman/smoke-screen posed by the FFers.

          The AG would like to investigate for fraud.

          FFers promoted their business interests with a campaign of lies and deceit at the expense of the environment and all those who use/need its services (everybody).

          Walker, however, has countered by saying, “the First Amendment does not shield any company from being investigated for fraud.

          Shareholders have a clear case if they can prove damage, but I think that side of the story is a minor technicality. I would like to see the true, meaningful… OBVIOUS, deliberate, reckless damage/injustice addressed.

          • Gingerbaker Says:

            Yes! The true crime is as as you just stated it:

            “FFers promoted their business interests with a campaign of lies and deceit at the expense of the environment and all those who use/need its services (everybody).”

            But that is NOT what the D.A.’s are prosecuting. Hence my bitterness.

          • But that is NOT what the D.A.’s are prosecuting

            I believe that IS what they are investigating/seeking to prosecute.

          • Gingerbaker Says:

            No – you just posted what they consider the issue – shareholder fraud..

            And here is what Exon will argue – that their internal reports don’t mean squat. They do NOT make a scientific consensus – peer-published scientists do that.

            And why jump to the conclusion that – even if AGW might be true – that it would affect shareholder’s stock? These internal reports were from 50 years ago. And their shareholders have enjoyed nothing but gigantic returns.

            To demonstrate fraud, you have to show that some was DEFRAUDED. Good luck to the D.S.’s with that. Indeed, Exxon’s despicable actions re propaganda did the exact opposite of defrauding shareholders – they unarguably delayed the very actions by Congress that would have led to loss of stock value.

            And if the D.A.’s then argue that that propaganda campaign had no effect on Congress, then they have just destroyed the basis of any case against Exxon for Crimes against Humanity!

  4. mbrysonb Says:

    Sounds like they’re a bit desperate. Lying to shareholders about risks to the corporation really is a crime– so they’ve unleashed the lawyers to lie for them, pretending these statements were protected political speech rather than lies told in reports to people who have a stake in the company and a right to know about risks to the company’s profitability. It won’t change the legal situation, so I can only guess they’re hoping to make the prosecutions politically poisonous. But comparing themselves to Galileo, and repeating the same hoary old BS they’ve been spreading for years? I think they’re running out of time, and they know it.

    • Gingerbaker Says:

      And I say “Good Luck!!” to the prosecution who is going to have a long row to hoe to prove that the public was not informed about AGW. (What does “AGW” stand for, anyway?)

      Or that it affected their business.

      Or that shareholders actually lost a dime of value.

      Or that FF’s did nothing to protect that shareholder value. (Of course they did, and that is their true crime!)

      Or that there was anything the company could do about it, considering that fossil fuel regulations come from Congress and the Executive. And there is an entity called the EPA which oversees all of this and which – to this very day – does not consider CO2 a pollutant.

      And CO2 being something Exxon does not sell. It sells gasoline. It is Exxon’s shareholders who take that lovely amber ambrosia and turn it into ugly disgusting CO2 when they flagrantly and knowingly burn it in their big expensive luxury limousines. Is Exxon to be responsible for the evils people do with its natural organic extracts, its wholesome tisanes, its pure and protective ointments?

      • mbrysonb Says:

        Funny that you say the EPA “does not consider CO2 a pollutant”– there was a Supreme Court case not that long ago which found that CO2 fell within the the EPA’s regulatory scope under the Environmental Protection Act. (contrary to those who’d brought case and were opposing any regulation). So not only do they consider it a pollutant, that position is settled law.

        • Gingerbaker Says:

          The EPA gets to regulate CO2 as of 2014 from a limited number of large power plants and factories. Not gasoline or cars or stoves or furnaces or airplanes. No joy.

  5. mbrysonb Says:

    I don’t think they can count on the Supreme Court anymore, either (as they did, successfully, in the years of litigation over the Exxon Valdez spill).

  6. ubrew12 Says:

    You have a right to free speech, but not to yell ‘fire’ in a crowded theater. Exxon has, for 30 years, yelled ‘What fire?’ in a crowded theater… that was on fire. So, I think they knowingly engaged in deceptive speech that has/will kill many, many people. Worse: they did it for money.

  7. […] The past week has seen a barrage of opinion pieces carrying water for the fossil fuel industry, defending against the ongoing fraud investigations. The Washington Post had two pieces, Newsweek had one and the Financial Times had an editorial, in addition to op-eds in a couple of other conservative outlets. Of those six, half were penned by groups funded at least in part by fossil fuel companies. The arguments are all by and large the same, claiming that the investigations infringe on fossil fuels companies’ right to free speech while steadfastly ignoring the fact that ExxonMobil funded climate denial to protect their business model. Photo credit: Minale Tattersfield / Flickr The arguments are all by and large the same, claiming that the investigations infringe on fossil fuels companies’ right to free speech while steadfastly ignoring the fact that ExxonMobil funded climate denial to protect their business model. Only the Financial Times editorial actually acknowledges the “misleading claims from fossil fuel interests and their allies” but concludes that it is “because the stakes [of the debate] are so high that all arguments must be heard.” While that sounds fair at first Glantz, it quickly sounds silly when applied to a recent example: the tobacco industry’s denial of the fact that its carcinogenic product is addictive. […]

  8. […] The company’s defense strategy is borrowed from Tobacco industry – it claims that disseminating misleading and distorted information and poisoning a national conversation was part of exercising its “Right of Free Speech”. […]

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