- No, the “government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he'” [Josh Blackman, Washington Post; earlier on NYC human relations commission guidelines; Hans Bader/CEI on new D.C. rules along similar lines]
- Matt Welch on New York Attorney General Eric Schneiderman and the “casually authoritarian” movement to harass and legally penalize climate deniers [Reason] While styled as fraud probe, AGs’ climate denial investigation is essentially a SLAPP suit meant to silence advocacy [Ronald Bailey; letter from 13 attorneys general critical of probe] As one skirmish ends, expect wider war to continue, as Virgin Islands AG withdraws widely flayed subpoena against our friends at Competitive Enterprise Institute [John Sexton] Massachusetts Attorney General Maura Healey now chasing “right-leaning groups that have never received a penny from Exxon” including local political foe Beacon Hill Institute [Hans Bader/CEI] We’re the ones asking questions around here: AGs dodge public record/FOIA requests on probe [Chris Horner/Fox News]
- “N.Y. Senate passes bill banning funding for university student groups that ‘encourage’ ‘hate speech'” [Eugene Volokh]
- Licensing and other laws often restrict what members of professions and occupations can say, a problem that deserves more and better First Amendment scrutiny than it’s gotten [Timothy Sandefur, Regulation]
- Ninth Circuit will review ruling striking down Idaho ag-gag law [Baylen Linnekin on appellate amicus, Idaho Statesman, NPR last year]
- Ken White on why it’s okay to loathe Gawker and its actions but still see the danger in Thiel/Hogan episode [L.A. Times, related Dan McLaughlin, earlier]
Posts Tagged ‘climate deniers to the wall’
“Oil as the new tobacco” — and what that might mean
Promoters of the “Exxon Knew” climate denial subpoena campaign have made a point of saying they intend to repeat the playbook of the 1990s multi-state and federal tobacco litigation, this time with the energy industry and its various trade associations, allies, and non-profit/university well-wishers as targets. But what does it mean to repeat the tobacco playbook? As one who has written at length about that episode (along with various other authors including Cato’s Robert Levy, the late Martha Derthick, and Margaret Little) I can help spell out what that means. The public-sector tobacco litigation fell out of favor as a policy model because it was the scene of vast corruption fueled by the availability of billions in fees to politically favored private lawyers; because of its grotesque violations of elemental legal fairness, such as the enactment of statutes retroactively knocking out legal defenses for the state’s opponents; because of its quick-change remake of purported initial idealism into cash on the barrelhead as the primary driver of settlement; and because of its grave civil liberties violations such as the federal government’s assertion of a right to close down industry trade associations and seize their files. Are advocates of the new climate-denial litigation hoping for it to follow the same path? [Valerie Richardson, Washington Times, thanks for quoting me]
Environmental roundup
- Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
- Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
- Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
- “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
- And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
- Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]
“They oughta be investigated for RICO!”
“[Disliked person or institution] should be investigated for racketeering!” is the sort of slogan “waved around by morons like a big foam finger at a ball game.” But RICO, or the Racketeer Influenced and Corrupt Organizations Act, is a law requiring proof of “the commission of a whole bunch of very specific federal crimes… not just any crime [but] only the ones on the list.” It “is not a … frown emoji. It’s not an exclamation point. It’s not a rhetorical tool to convey you are upset about something…. RICO doesn’t mean ‘this organization advocates things that are bad for society.'” Wait, there’s no RICO predicate act for climate denial or for being the NRA?
Ken White’s RICO explainer at Popehat observes that civil RICO is overused in court both by pro se litigants and by plaintiff’s lawyers who employ it as “a scare tactic and a propaganda tool.” So overused is it that “judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that’s something judges don’t do for almost any other cause of action…. So why do we still have civil RICO? Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.” Incidentally, the cutesy acronym for an anything-but-cutesy law is because “Congress likes acronyms like your great-aunt likes porcelain cats.”
P.S. From Jonathan Adler, Greenpeace, RICO, and what goes around comes around.
Massachusetts AG to Exxon: hand over your communications with think tanks
Appalling: Massachusetts Attorney General Maura Healey has demanded papers of “major associations and think tanks involved in climate skepticism” that may be in the files of the ExxonMobil Corp. including groups to which Exxon has never given a dollar [The Hill; Mike Bastasch, Daily Caller] One of her targets, Alex Epstein, author of The Moral Case for Fossil Fuels, responded with extremely rude language entirely unprintable in this space [same] Meanwhile, 19 Democratic members of Congress from California including Reps. Ted Lieu and Zoe Lofgren have written a letter to California Attorney General Kamala Harris urging her to continue full speed ahead with her probe into wrongful climate opinion and to pay no attention to critics’ cries that the First Amendment might somehow be relevant [same] Attorney general Claude Walker of the Virgin Islands is fighting a sanctions motion by the Competitive Enterprise Institute over his overreaching subpoena [WSJ editorial] As for “the claim by activist groups and liberal politicians that they are doing to Exxon Mobil what they did to tobacco,” does that mean they’re planning on cartelizing the oil industry and bolstering its profits while making sure billions in contingent fees get siphoned off to the lawyers among their political donors? [Holman Jenkins, Wall Street Journal] Earlier here, here, etc., etc.
California Senate shelves bill enabling lawsuits against climate “deniers” — for now
The California Senate has shelved, at least for now, a bill that would lay the groundwork for a campaign of lawsuits against so-called climate deniers. The California Climate Science Truth and Accountability Act of 2016 (Senate Bill 1161), which had passed two committee hurdles, would retrospectively lift what is now a four-year statute of limitations so as to allow unlimited lawsuits under the state’s notoriously pro-plaintiff Unfair Competition Law, or s. 17200, over advocacy related to climate change. While the deadline has now passed for the bill to be enacted on its own under ordinary legislative procedure, it could still pass this year under “gut-and-amend” procedures or a rules waiver. [Valerie Richardson/Washington Times and earlier, Andrew Stuttaford/National Review, Watts Up with That, thanks for quotes in all; earlier]
Free speech roundup
- Our defense of free expression should go beyond the utilitarian and consequentialist: Flemming Rose’s acceptance speech last week on receiving the Cato Institute’s 2016 Milton Friedman Prize for Advancing Liberty [Cato Daily Podcast, WSJ “Notable and Quotable” excerpt, earlier; Michael Tanner on Rose’s role in the Mohammed cartoons episode and more recent Cato book, The Tyranny of Silence; my related post in context of Copenhagen terrorist attack]
- Virgin Islands attorney general withdraws D.C. subpoena demanding 10 years of records from Competitive Enterprise Institute in “climate denial” probe, in what looks to be a tactical fallback rather than a durable concession of CEI’s rights [CEI; John Sexton]
- FIRE (Foundation for Individual Rights in Education) launches every-other-week podcast series, kicked off by interview with Jonathan Rauch, author of Kindly Inquisitors [“So To Speak“]
- “Tax Prep Company Tries To Sue Unhappy Customer Into Silence; Hit With Damages In Anti-SLAPP Order” [Tim Cushing, TechDirt]
- Media law has intersected with champerty and maintenance in the copyright complaint campaigns of recent years [earlier, OpenSource, and CopyHype on RightHaven episode]
- One of my community’s favorite businesses, Flying Dog Brewery, is using the damages received from a legal battle with the state of Michigan over its Raging Bitch IPA label to found a nonprofit “First Amendment Society” dedicated to “awareness-raising and advocacy around free-speech issues and organizing events that promote “the arts, journalism and civil liberties”; on Wednesday I attended its kickoff press conference in Washington, D.C. with civil rights lawyer (and friend of this site) Alan Gura and Flying Dog CEO Jim Caruso [Ronald Collins, Elizabeth Nolan Brown/Reason, Flying Dog, earlier]
California “climate science truth” bill would revive lapsed statutes of limitation
An extraordinary bill in the California legislature, promoted as making it easier to sue fossil fuel companies over their involvements in public debate, would lift the four-year statute of limitations of the state’s already extremely liberal Unfair Competition Law, otherwise known as s. 17200 — and retrospectively, so as to revive decades’ worth of time-lapsed claims “with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced anthropogenic-induced climate change.” Despite a 2004 round of voter-sponsored reform which curbed some of its worst applications, s. 17200 still enables what a California court called “legal shakedown” operations in which “ridiculously minor” violations serve as the predicate for automatic entitlement to damages, attorneys’ fees, and other relief.
Combined with the plans laid by California Attorney General Kamala Harris — part of the alliance of AGs that has sought to investigate not only oil, gas, and coal companies, but private advocacy groups and university scientists who have played a role in what is characterized as “climate denial” — the bill would begin laying the legal groundwork for an astonishingly broad campaign of inquisition and, potentially, expropriation. The bill was approved by a subcommittee and was further amended May 10 to provide that climate science-related claims of any age would begin a four-year reviver period as of next January. [Northern California Record; the left-leaning Union of Concerned Scientists has a piece supporting the bill]
Section 2(b) of the bill declares it the California legislature’s policy to promote “redress for unfair competition practices committed by entities that have deceived, confused, or misled the public on the risks of climate change or financially supported activities that have deceived, confused, or misled the public on those risks” [emphasis added] — a very clear signal that the target is public issue advocacy, and not merely (say) advertising that is directed at consumers in their capacity as buyers of gasoline at the pump. Last month, a federal court slapped down, as an unconstitutional burden on First Amendment rights, California Attorney General Kamala Harris’s demand for the donor lists of nonprofits that carry on operations in California.
Climate advocacy as “racketeering”: they knew
They knew, because their own allies had told them: “As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO.” — an official of the Union of Concerned Scientists, writing to the organizers of a campaign to enlist scientists behind a call for a RICO investigation of the fossil fuel industry for its statements about climate change. The letter added, explaining UCS’s unwillingness to back the letter, “We don’t think that Sen. [Sheldon] Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.” [Reason]
Despite cautions like these, calls for a RICO investigation soon caught on among the political class and an investigation launched by Democratic state attorneys general has now aimed dragnet climate subpoenas at the Competitive Enterprise Institute and, thus far less directly, at nearly 100 advocacy, free-market, and university-based groups. “These include the U.S. Chamber of Commerce Foundation, the George Mason University Law and Economics Center, the American Enterprise Institute, the National Taxpayers Union Foundation, the Cato Institute [which publishes Overlawyered], the National Black Chamber of Commerce, the Federalist Society for Law and Public Policy Studies, the Heritage Foundation, and on and on,” writes Ronald Bailey. CEI responded to the subpoena here (in a brief written by Andrew Grossman) and here, and on May 13 Cohen Milstein, the private contingency-fee law firm representing the attorney general of the Virgin Islands, responded, reserving the right to compel compliance with the subpoena, which demands the production of ten years’ worth of documents.
Presidential candidates Hillary Clinton and Bernie Sanders are among public figures who have backed calls for a racketeering investigation of fossil fuel companies’ participation in climate debates. I have found no evidence that either has expressed concern about the direction in which such investigations are headed.
Free speech roundup
- Why Josh Blackman signed Wednesday’s New York Times ad protesting the AGs’ investigation and subpoenas on climate advocacy;
- Proposed revision of ABA Model Rules of Professional Conduct barring discrimination by lawyers could have major anti-speech implications [Eugene Volokh]
- “Game Studio’s Plan To Deal With Critic Of Games: Sue Him To Hell” [Timothy Geigner, TechDirt]
- The Citizens United case was correctly decided, says Michael Kinsley. And he’s right. [Vanity Fair]
- Fifth Circuit ruling prescribes attorney fee award after defeat of frivolous trademark litigation under Lanham Act [Popehat]
- So what’s a good way to support teaching evolution without climbing in bed with folks who put free speech in scare quotes? [National Center for Science Education on Twitter: “Tobacco Science, Climate Denial, and ‘Free Speech'”]