No, Exxon. Lying is Not Protected Speech

December 1, 2017

What Exxon Knew is an ongoing story, currently making its way thru the courts.

Exxon is arguing that the information that it was putting out during the 80s and 90s to muddy the issue of climate science, were part of it’s protected “free speech”, and investigations into its actions by, among others, New York Attorney General Eric Schneiderman, impinge upon Exxon’s constitutional rights.

Judge so far has not been swayed – reminds Exxon that the issue is, if Exxon lied to its shareholders in SEC filings, in regard to the risks to its business model presented by climate change, then that’s a crime.

Inside Climate News:

ExxonMobil drew tough questions and skeptical responses from a federal judge on Thursday as it urged her to shut down two state investigations into whether the oil giant misled investors and the public about climate changerisks. The judge’s inquiries suggested the company had failed to build a strong enough case to halt the probes.

U.S. District Judge Valerie E. Caproni pressed Exxon’s lawyers to demonstrate how the investigations by the attorneys general of Massachusetts and New York are politically motivated efforts to suppress its free speech, as the company claims.

“I can expect you to come forward with something that doesn’t require wild leaps of logic,” she told Exxon’s lawyers.

The two attorneys general, Eric Schneiderman of New York and Maura Healey of Massachusetts, have asked the judge to dismiss Exxon’s lawsuit. Caproni gave them until Dec. 21 to file additional written arguments. Exxon will then have until Jan. 12 to respond.

Caproni’s tough questioning of Exxon and the tight schedule for the parties to argue the legal points of dismissing the case suggest the judge is close to reaching a decision, said Tom McGarity, a University of Texas law professor who has been following the case.

“It’s hard to say she is sending a direct signal about what side she will rule for,” he said. “But it sounds like she wants this resolved quickly and that she’ll seriously consider a motion to dismiss.”

Investigations into What Exxon Knew

The hearing in a Manhattan court was yet another step in the nearly two-year battle by Exxon to thwart investigations into how the company represented its understanding of the risks climate change poses to investors and potential investors. The time frame in question includes the years when Rex Tillerson, now U.S. secretary of state, was Exxon’s chief executive. (News reports today suggest Tillerson could be pushed out as secretary of state in the coming weeks.)

Caproni heard arguments in April and has been reviewing hundreds of pages of written arguments submitted by the attorneys general and Exxon. The case had previously been handled by a Texas judge who transferred it to New York earlier this year.

The legal battle began in the wake of an investigative series of stories, first by InsideClimate News and later by the Los Angeles Times, that disclosed Exxon was aware through its own scientific research of the consequences of climate change as early as 1977.

Climate Liability News:

The exchange took place during a nearly two-hour hearing on a motion filed by the attorneys general seeking to dismiss the case, which was first filed by the Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since been transferred to New York.

The suit alleges that investigations by Healey and Schneiderman into possible climate change-related deception are an abuse of their political positions and are in violation of the oil giant’s First, Fourth and Fourteenth amendment rights.

Thursday’s hearing focused on abstention doctrine, in which a court can refuse to hear a case that parallels a case in another court—in this instance, whether the New York case was duplicating a similar case filed by Exxon in Massachusetts and whether it could result in conflicting rulings.

Exxon filed a separate case against Healy in Massachusetts in 2016, alleging that her investigation is politically motivated and violates its First Amendment rights.

In January, Massachusetts Superior Court Judge Heidi E. Brieger ruled in favor of Healey, rejecting Exxon’s allegation that Healey’s request was overbroad, arbitrary and burdensome. Brieger pointed out that “zealously” pursuing defendants does not make Healey’s actions improper.

Exxon appealed Brieger’s decision and the appeal is scheduled to be heard on Dec. 5 before the Massachusetts Supreme Judicial Court.

Exxon attorney Justin Anderson told Caproni that evidence suggests the investigations were motivated by activists, including those associated with the Rockefeller Family Fund.

Caproni scoffed at the suggestion, suggesting that Exxon should then sue the Rockefellers.

“Ironic,” said Caproni, who pointed out that it was Rockefellers who originally founded Standard Oil, a predecessor of Exxon.

“Disturbing,” said Anderson.

“Fascinating,” said Caproni.

“Could be both,” said Anderson, adding that he wondered what happened to make them jump on the climate change bandwagon.

“They care whether subsequent Rockefellers can breathe,” said Caproni.

Anderson told the judge that the two attorneys general were attempting to prevent Exxon from exercising its First Amendment right to free speech and said that Healey and Schneiderman were attempting to silence those who disagree with their opinions, specifically the causes, impacts, remedies and severity of climate change.

Caproni wasn’t convinced, telling Anderson that Healey and Schneiderman don’t care about Exxon’s opinion, they care about Exxon’s disclosure.

“You don’t have the right to lie in your SEC filings,” said Caproni, who added that while Exxon can’t be penalized for its opinion, it can be penalized for lying.

 

 

 

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4 Responses to “No, Exxon. Lying is Not Protected Speech”

  1. Gingerbaker Says:

    Lying about AGW to shareholders – even tho it almost certainly has resulted in trillions of dollars of additional profit for them is a crime. (Somehow, I don’t see the logic here at all)

    And yet, surreptitiously running a multi-decade disinformation and propaganda campaign which has resulted in the premature death of millions; which will eventually cause billions to suffer or die; which will wipe out ecosystems, millions of species; and will cause 1240 trillion dollars in mitigation costs just in the first 1/100 increment of its chronological effect – these things are not actionable?!?

    What a world.


    • Exactly my thoughts. For some reason committing ecocide is completely acceptable in a legal sense and yet …… I guess it’s kind of like Al Capone and tax evasion. Somehow being found guilty of misleading investors is a rather unsatisfying outcome, considering the stakes!


  2. Reblogged this on The Most Revolutionary Act and commented:
    *
    *
    Exxon is arguing the false climate denial information it put out in the 80s and 90s was protected “free speech. So far the judge disagrees. His maintains if Exxon lied to its shareholders about the risks of climate change, they committed a crime.

  3. ubrew12 Says:

    Its not free speech to yell ‘Fire!’ in a crowded theater.
    Likewise, its not free speech to yell ‘No Fire!’ in a crowded theater that is, in fact, on fire. And that’s what Exxon has been doing (Earth is the crowded theater, and we either put out the fire or we roast).


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