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.
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.
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?