Posts Tagged ‘Exxon’

Are the climate-speech subpoenas constitutional?

New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:

A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.

In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.

Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:

These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.

Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.

An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.

Previously on the probe here and here (and earlier here and here), and on the New York attorney general’s office here and here.

[cross-posted from Cato at Liberty]

Climate deniers as “enemy of the state”

Secretary of State John Kerry says he’ll “leave it to other people” whether ExxonMobil and the Koch brothers should be considered “an enemy of the state,” as urged by a Rolling Stone interviewer [James Taranto] The law firm of Brownstein Hyatt sees indications that the effort to prosecute ExxonMobil for wrongful advocacy on climate matters will be “the next Keystone Pipeline,” an issue seized on by environmental advocates as symbolic well beyond its practical importance. And Steve Coll, dean of Columbia’s journalism school, insists that the lefty donors behind the school’s recent support for a Los Angeles Times hit job on Exxon were “prominently disclosed” — a good case for the Internet Wayback Machine. [Michael Bastasch, Daily Caller]

Climate speech: “One assumes that there is something illegal about that, but, even if there isn’t…”

Environmentalist writer Bill McKibben, often cited as a key intellectual influence behind the push to have some climate advocacy by business declared illegal, concedes to a friendly interviewer that he’s “not sure what the legality of all this is” concerning ExxonMobil’s alleged conduct: “one assumes that there is something illegal about that, but, even if there isn’t…” [Rolling Stone] William Tucker alleges, based on his account of a personal encounter some years back, that the New Yorker writer himself elects to de-emphasize as politically unhelpful (as opposed to actually false) some scientific insights favorable to nuclear generation of electricity [Real Clear Energy, no #McKibbenKnew hashtag yet]

Meanwhile, New York Attorney General Eric Schneiderman confirmed to Judy Woodruff that donations to “climate denial organizations” such as the center-right American Enterprise Institute (!) are central to his probe [PBS] I worked at AEI back in the 1980s but have no recollection of spending time on any issues related to climate change, although perhaps I had better wait for the subpoena before saying anything definitive.

Daniel Fisher at Forbes notes the likely course of the “fishing expedition”: “if you are the New York attorney general you can create public theater to bring pressure on a particular defendant.” Fisher notes that oil majors face political risks in Africa, central Asia and thanks to our feckless politicians, the United States too (duplicate link fixed now). Michael Bastasch at the Daily Caller notes evidence that Sen. Sheldon Whitehouse (D-R.I.), an impresario of the climate prosecution push, conferred behind the scenes with scientists who signed a letter endorsing the effort. And Richard Epstein discusses the various developments in a Hoover podcast.

Free speech roundup

  • Uh-oh: “40% of Millennials OK with limiting speech offensive to minorities” [Pew Research, Cathy Young on Twitter (“OK, NOW can we stop the ‘naww, political correctness isn’t a threat to free speech, it’s just about courtesy’ spin?”)]
  • Breezy but informative guide to why Schneiderman & Co. might hope to find, amid the general rule that the First Amendment protects business speech about public policy, an exception/ loophole for business speech about public policy when it affects securities [Matt Levine, Bloomberg View; earlier on climate speech investigations here, etc.]
  • “Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)” [Popehat on Michigan case of Bible Believers v. Wayne County, Dearborn protesters threatened with arrest for “disorderly conduct” arising from prospect of violence against them]
  • Discrimination law: “Can Office Depot be forced to print flyers that it disapproves of?” [Eugene Volokh; compare Hands On Originals case in Kentucky]
  • Scary: UK’s Muslim Council calls for controls on UK press coverage of Islamic issues [Ben Flanagan, Al-Arabiya] Prominent Labour MP says he would have “no problem” with reintroducing blasphemy laws [National Secular Society]
  • Cook County sheriff sent letterhead takedown demands to Backpage.com over sex ads, but Supreme Court has looked askance at informal you’d-better-not-publish-this pressure by government [Ilya Shapiro and Randal John Meyer, Cato]
  • Portland, Ore. police department “encourages the reporting to law enforcement” of “offensive language used on social media” even when not illegal. It does? [Charles Cooke]

Free speech roundup

  • Those who want to protect American university life from mob intimidation, speak now or forever hold your peace [Conor Friedersdorf on Yale and Missouri incidents, Greg Lukianoff on Yale, Thom Lambert on Missouri; more on Missouri; John Samples/Cato] “Sorry, kids, the First Amendment does protect ‘hate speech'” [Michael McGough, L.A. Times]
  • #ExxonKnew folks, please listen: “engaging in scientific research and public advocacy shouldn’t be crimes in a free country. Using the criminal law to shame and encumber companies that do so is a dangerous arrogation of power.” [Bloomberg View editorial, earlier here, etc.]
  • Judge orders Facebook post taken down as campaign contribution improper under Colorado law; while target of enforcement was public charter school, logic of ruling could extend to entirely private entities as well [Megan Geuss, ArsTechnica]
  • Did anyone really not see this coming? Hate speech laws give authorities powerful weapon with which to crack down on speech by critics and minorities [Elizabeth Nolan Brown, Reason, on Kenya]
  • Cato amicus brief, Kentucky Court of Appeals: printers shouldn’t be forced to print gay-pride messages they don’t agree with [Ilya Shapiro/Cato, Eugene Volokh]
  • “That’s not harassing, stalking, libeling or cyber bullying. That’s called reporting.” Florida Man offers to help with online reputation management but digs himself and client in further [Tim Cushing, TechDirt, background]
  • Feminist lawprof we’ve met before attacks Internet-protecting Section 230, confusion ensues [Mike Masnick, TechDirt]

Another step toward climate speechcrime: New York subpoenas

Months of agitation promoting a government investigation of supposedly wrongful advocacy on the issue of climate change have begun to pay off. As Holman Jenkins [paywall] notes, purportedly levelheaded Democrats and environmentalists are now jumping on the bandwagon for a probe of possible unlawful speech or non-speech by energy companies and advocacy groups they’ve backed. Perhaps the most remarkable name on that list is Hillary Clinton, who said the other day in New Hampshire, referring to Exxon, “There’s a lot of evidence that they misled people.” That’s right: Hillary Clinton, of all people, now wants to make it unlawful for those who engage in public controversy to mislead people.

The first high-profile law enforcer to bite, it seems, will be Eric Schneiderman, whose doings I’ve examined at length lately. “The New York attorney general has launched an investigation into Exxon Mobil to determine whether the country’s largest oil and gas company lied to investors about how global warming could hurt its balance sheets and also hid the risks posed by climate change from the public,” reports U.S. News. Show me the denier, as someone almost said, and I will find you the crime: “The Martin Act is a nearly empty vessel into which the AG can pour virtually any content that he wants,” as Reuters points out. More on the Martin Act here and here.

At Forbes, Daniel Fisher notes the possible origins of the legal action in an environmentalist-litigator confab in 2012 (“Climate Accountability Initiative”) in which participants speculated that getting access to the internal files of energy companies and advocacy groups could be a way to blow up the climate controversy politically. Fisher also notes that Justice Stephen Breyer, in the Nike v. Kasky case dismissed 12 years ago on other grounds, warned that it will tend to chill advocacy both truthful and otherwise by businesses if opponents can seize on disagreements on contentious public issues and run to court with complaints of consumer (or presumably securities) fraud.

Perhaps in this case chilling advocacy is the whole point. And very much related: my colleague Roger Pilon’s post last week, “Whatever Happened to the Left’s Love of Free Speech?“; Robert Samuelson (“The advocates of a probe into Exxon Mobil are essentially proposing that the company be punished for expressing its opinions.”)

Free speech roundup

  • Understanding the liberal-conservative gap on what “free expression” means [Ronald K. L. Collins]
  • Foes of Yik Yak “want universities to ban the very app that gives marginalized students a voice on campus” [Amanda Hess, earlier] No-platforming: “It is an anti-Enlightenment movement.” [Claire Lehmann on Germaine Greer case] At UCLA, administrators and activists are attacking the core right to free speech [Conor Friedersdorf]
  • “If you know what you’re doing, you bring in the litigators before you start running your mouth.” [Popehat on game developer’s lawsuit threats, language]
  • “Climate change, Galileo, and our modern Inquisition” [Edward Dougherty, Public Discourse/MercatorNet on climate RICO] “Veteran campaigner Bill McKibben and Democratic presidential candidate Bernie Sanders demand the Obama administration launch a criminal investigation [over Exxon’s allegedly improper issue advocacy]… victory over deniers and climate criminals is always just around the corner” [Holman Jenkins, Jr., WSJ, paywall]
  • In Denmark, courage of cartoon editors belatedly recognized, yet fear governs press [Jacob Mchangama, Politico Europe]
  • Federal judge: First Amendment forbids Kentucky officials to shut down parenting column written by N.C. psychologist on grounds that it constitutes practice of psychology in Kentucky without a license [Caleb Trotter, Pacific Legal Foundation]
  • “To Tweet or Not to Tweet: How FDA Social Media Guidelines Violate the First Amendment” [Kirby Griffis and Tamara Fishman Barago, Washington Legal Foundation]

May 7 roundup

  • NY lawyer sanctioned $10K for behavior at deposition [Debra Cassens Weiss, ABA Journal]
  • Obvious dangers and the W.V. frat-house rear-launched bottle rocket case [Popehat, earlier here, here]
  • Review of Liberty’s Refuge, new book on freedom of assembly by Washington U. lawprof John Inazu [Anthony Deardurff, Liberty Law]
  • If forfeiture and asset freeze can be deployed in a copyright enforcement case, where will they strike next? [Timothy Lee, Cato]
  • Hard-hitting Kim Strassel column on Al “Crucify Them” Armendariz [WSJ, earlier] Exxon CEO Rex Tillerson: “If you want to live by the precautionary principle, then crawl up in a ball and live in a cave.” [Coyote] Washington Post on the case for the Keystone pipeline [Adler]
  • Losing two looks like carelessness: second Durham County D.A. removed from office for misconduct [Volokh, KC Johnson]
  • Why won’t the Eighth Circuit recognize fraudulent misjoinder? [Beck]