Exxon Sues to Make Lying “protected speech”
June 18, 2016
ExxonMobil has sued Massachusetts Attorney General Maura Healey over her investigation into whether the energy giant lied about climate change to mislead its shareholders and the public.
Exxon’s complaint was filed Wednesday in federal district court in Fort Worth, Texas. Healey’s office has subpoenaed millions of documents from the company going back four decades, and Exxon claims Healey is “abusing the power of government to silence a speaker she disfavors.”
The complaint argues that Healey’s investigation violates the First and Fourth amendments of the U.S. Constitution, which protect free speech and prohibit unreasonable searches; that the investigation violates Massachusetts’ four-year statute of limitations; and that the company does not do business in the state.
Cyndi Roy Gonzalez, a spokesperson for Healey’s office, said the First Amendment “does not protect false and misleading statements in the marketplace” and that “Exxon’s assertion that we cannot investigate it because the company has not engaged in business here in Massachusetts is completely preposterous.”
The legal war on decades of disinformation is being waged on many fronts. Here in the Commonwealth (God save it!), attorney general Maura Healey is being sued by poor little embattled Exxon for trying to “intimidate” the company through her demand for the documents proving that the struggling small business had been lying about its complicity in demolishing the planet. We are flirting dangerously close to the classic law-school definition of “chutzpah” here. Per DeSmog:
In its 33-page filing against Massachusetts AG Healey, Exxon lays out what it sees as the “facts” about the efforts of Attorneys General to prudently investigate the company’s historical relationship with climate science.
The first of the “Facts” that ExxonMobil lays out in making its case is that 20 Attorneys General, led by New York AG Eric Schneiderman, held a press conference in New York City dubbed “AGs United for Clean Power.”
The horrors! Yes, this is in fact… a fact. Twenty courageous AGs bravely stepped in front of cameras and microphones — a press conference! — to rail against Washington gridlock on climate policy and announce their leadership efforts to find ways to hold the oil industry accountable for its insidious work to block climate policy action at the federal and state levels over the past several decades.
So Exxon’s first “fact” oddly confirms the legitimate and ordinary efforts of state AGs to work together to get things done in the absence of Washington leadership. In short, to identify and hold accountable those who have encouraged doubt and distraction in order to delay action on the most pressing issue of our time.
Over the ensuing five pages of its Complaint for Declaratory and Injunctive Relief, Exxon proceeds to list 34 more “facts” that rehash the details of the March 29, 2016 press conference. Seriously, five pages of quotes and ‘facts’ pulled from a very public, YouTubed press conference… imagine the hourly rate these Exxon attorneys earned for transcribing cherry-picked quotes?
So let’s sum this up – here we have a frivolous SLAPP-like lawsuit filed by a massive multinational oil company in an industry-friendly Texas jurisdiction seeking the court’s heavy-handed smackdown of a totally reasonable investigation (known in legal parlance as a Civil Investigative Demand or CID) launched by the attorneys general of 17 states.
Most spectacularly, Exxon is accusing Healey–and the other 16 attorneys general–of interfering with its First Amendment right to free speech. Gaze in awe, thanks to Inside Climate News.
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.”
Yes, friends, here is the argument that corporate fraud is protected speech.
Now, it is true that lying in your political campaign is protected speech. However, the free speech rights of drifters and bunco artists–namely, lying for profit–is a quick trip to the slammer. (Pump-and-dump stock schemes are the index patients in this area.)
And, believe it or not, thanks to the reasoning of the Supreme Court in Citizens United, and especially in the oily chambers of a Texas court, Exxon might have a chance if it argues that its climate-denial mendacity was protected speech in that it involved a contested political issue, and I am not making this up, either, as Dave Barry used to say. From ICN:
“The CID (civil investigative demand) is an impermissible viewpoint-based restriction on speech, and it burdens ExxonMobil’s political speech,” according to the lawsuit. “Attorney General Healey issued the CID based on her disagreement with ExxonMobil regarding how the United States should respond to climate change.
“And even if the CID had not been issued for that illegal purpose, it would still violate the First Amendment, because it burdens ExxonMobil’s political speech, and its demands are not substantially related to any compelling governmental interest,” Exxon argued in the filing.