Exxon Sues to Make Lying “protected speech”

June 18, 2016



Conclusions from an early 80s vintage Exxon Briefing on Climate Change


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.”

Charlie Pierce in Esquire:

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.



20 Responses to “Exxon Sues to Make Lying “protected speech””

  1. mbrysonb Says:

    Indeed. The government clearly has no compelling interest in the ongoing existence and health of the nation. /snark

    What a bunch of scheming, greedy schlemiels. There is no prison dank and dark enough for them… Tobacco wound up paying large (not large enough, I know). I begin to think the oil boys are smelling the coffee and feeling just a little bit frightened.

  2. From the essay, “… 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… ”

    Seeing as the well financed and coordinated, decades long disinformation campaign waged by the fossil fuel industry, largely lead by Exxon, is the reason why Industrial Climate Disruption is a politically contested issue, this seems a distinct improvement upon the definition of “chutzpah” as someone who kills his parents then throws himself on the mercy of the court as an orphan.

    • Shameless self-promotion perhaps, but I believe quite relevant:

      Blowing Smoke: 32 Organizations

      • mbrysonb Says:

        A nice list of (mostly) the usual suspects. How libertarianism went from fringe nonsense to the power behind many thrones would be an interesting tale, given that fringe nonsense is all that it ever could be on intellectual merit. I expect the underlying theme of the story is the combination of the myth of original acquisition and the desire of the wealthy and powerful to be absolutely and unquestionably free to do as they please, and damn the consequences (for others). Sociopaths want to be free!

        • What put organizations on the list for the purpose of analysis was having participated in both the defense of fossil fuel and tobacco. Then the question became whether the organizations were also identifiably libertarian. I expected that those that were would be widespread. More than two thirds of the organizations appear to be. It makes sense that they would be as raising a politically motivated volunteer army by employing a value-based ideology that is largely independent of scientific evidence or facts can be far more cost effective than the alternative.

          This sort of business model can greatly leverage the efforts of those that are actual paid employees of the organization itself at very little cost. Furthermore, given the abstract, generalized nature of a political ideology, such organizations are easily repurposed for the needs of different campaigns, clients and even industries.

  3. If”…lying in your political campaign is protected speech, ” and Exxon is claiming their [possible] lying is protected speech, then is Exxon running for office? I know that under Citizens United corporations are reaffirmed as persons, but I did not know they can run for office. (Why would they want to? Isn’t it easier to control the officeholders from behind the scenes?) Good Grief.

    • indy222 Says:

      They already ARE in office – remember Gilens and Page (2014) and the finding that there is almost perfect correlation between what the corporate elites and their lobbys want in legislation, and what legislation is actually enacted, while they find ZERO correlation between what average citizens want and what is enacted.

  4. Sir Charles Says:

    You make as much money as possible and lie and cheat your customers… You don’t care about others and future generations… That’s the “land of freedom”. Real democracy looks different.

  5. ubrew12 Says:

    You have ‘free speech’, but not to yell ‘Fire!’ in a crowded theater. For 40 years, Exxon has been yelling ‘No Fire!’ in a crowded theater that is, in fact, on Fire.

    • Gingerbaker Says:

      That is a really terrible analogy. You can not falsely yell “Fire” in a theater because doing so will cause immediate and direct harm to the people present.

      Immediate harm is the exact opposite of the [CO2] situation.

      • Jim Housman Says:

        Unless, of course, you live on a small island or in the city of Miami.

      • mboli Says:

        Regarding the “no fire in a burning theater” analogy: even though climate change plays out over decades, the effect of the duplicitous speech started in the very short term. It has been about a quarter century since the UN Framework Convention on Climate Change, and very little has happened. The net effect of climate disinformation has been to almost stymie coordinated public response. And delaying response has considerably increased the costs and the harms that will inevitably result. Arguably the harm started immediately, where the harm was inaction by a civilization that, had it not been misinformed, likely would have been addressing this issue.

  6. Gingerbaker Says:

    I’ll say it again:

    AFAICT, lying IS protected speech.

    But protected speech is not the issue that the AG’s are investigating – they are investigating shareholder fraud.

    And shareholder fraud – who cares? That is not their real crime, as we all know. But nobody dares talk about that, evidently.

    • Jim Housman Says:

      They got Al Capone for tax evasion. Whatever works, I say, as long as it is a real crime and not something Trumped up.

      Wow! That word is taking on an expanded meaning.

    • mboli Says:

      I agree that alleging that shareholders were misled about risks to the company seems like weak beer.
      And surely a company can advocate in the political sphere for its own interests.
      I really hope there is a stronger legal basis.

      • greenman3610 Says:

        what is it about misleading investors that you find “weak beer”?
        Meanwhile, I’d like to speak to you about a sure-fire investment in Florida real estate.

        • I agree with mboli. The damage this company has caused, and will continue to cause, is orders of magnitude greater than “misleading investors”. Ecocide is a more appropriate accusation. Frankly, even dismantling the company and throwing principles in prison, seems inadequate to me!

        • mboli Says:

          It seems to me (an uninformed civilian) that it is hard to draw a definitive link between the harmful act — poisoning the public discourse — and some putative harm to shareholders. Knowledge of climate change is easy to come by, the shares are publicly traded. Exxon didn’t withhold some critical information that a) it exclusively held and b) misled a captive audience into making bad investment choices.
          Shareholders may even possibly have benefited and are still benefiting from Exxon’s dissembling.
          The harm wasn’t to shareholders so much, it was to everybody.
          I see the parallels to the tobacco companies. But it is easier to see the harm there. Tobacco companies persuaded people to smoke and get sick. By poisoning the public discourse, they staved off regulation that quite directly affected their business.
          Before the big state law suits against the tobacco companies, there were suits by individuals who had been claimed they had been duped into smoking by companies that knew the dangers of tobacco. Have there been similar actions against the oil companies? Are there stock holders or customers who claim they were individually harmed by Exxon’s deliberate inattention to climate change? I kind of think that if harm to stock holders was obvious, they would have sued already.
          So these are reasons why I feel that basing a suit on harm to investors may be weak.
          But I freely admit that the legal eagles working for the various state attorneys general are probably smart, and chose this strategy for good reasons.

  7. I’m not a lawyer, and maybe that’s why it’s fairly straightforward to me. Lying for personal financial benefit should be (if it is not) illegal. For example, I had a landlord to refused to give me back my deposit when I moved out. I took him to small claims court to get my money back. He lied directly to the judge, the judge was not as stupid as the landlord thought he was, and the judge found in my favor. The landlord was lying for personal gain. So is and was Exxon. If there’s a legal difference it’s simply because lawyers have made fortunes pretending there’s a difference.

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