Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘climate deniers to the wall’

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.”)

Filed under: , , , , , , ,

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]

Filed under: , , , , , , , ,

WSJ on climate RICO

An editorial in this morning’s Wall Street Journal is blunt:

Advocates of climate regulation are urging the Obama Administration to investigate people who don’t share their views.

Last month George Mason Professor Jagadish Shukla and 19 others signed a letter to President Obama, Attorney General Loretta Lynch and White House science adviser John Holdren urging punishment for climate dissenters. “One additional tool — recently proposed by Senator Sheldon Whitehouse — is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change,” they wrote.

In other words, they want the feds to use a law created to prosecute the mafia against lawful businesses and scientists. … [RICO] can inflict treble damages upon a defendant. Enacted to stop organized crime and specifically to prosecute individuals tied to loansharking and murder-for-hire, it was long seen as so powerful a tool that the government warned prosecutors to limit its use.

The scientists’ RICO letter was “inadvertently posted” on the website of a group almost entirely funded by taxpayers [Ian Tuttle, National Review Online; Coyote] Rob Nikolewski at Watchdog.org has more on the letter and its aftermath, and quotes me:

Walter Olson, senior fellow at the libertarian Cato Institute’s Center for Constitutional Studies, thinks that’s a dangerous step to take.

“This is core political persuasion,” Olson told Watchdog.org. “If this is illegal racketeering, then potentially an awful lot of things that people debate about are also illegal racketeering … It’s a dangerous power because it won’t be used even-handedly.”

Earlier coverage here, here, etc. Some possible insight into litigation strategies of climate-RICO promoters at Inside Climate News here and here.

Filed under: , , , ,

“Using RICO against climate change skeptics an attack on free speech”

I’m interviewed at Vermont Watchdog about the truly terrible idea of aiming a civil RICO/racketeering action or investigation against the forces of “climate denial” over wrongful advocacy. The notion seems to have some well organized friends, including Sen. Sheldon Whitehouse (D-R.I.) and, more recently, twenty scientists who recently signed a letter calling for such a probe. “I have no idea how it affects the First Amendment” says one of the letter’s signers, a Vermont scientist, according to a companion report. I should note that when I speak of RICO in the interview transcript, I am referring to the civil-litigation side of the law (“civil RICO”) as distinct from the law’s other wing, “criminal RICO.”

I note, and reject, the idea that the First Amendment protects only truthful speech and thus has no application here because climate skepticism is false. (As Cato and many others argued in last year’s Supreme Court case of Susan B. Anthony List v. Driehaus, controversial speech need not be true to be protected, and in practice an “only truth has rights” rule would give the state a stifling power to punish advocacy in debates that it considers settled.) In substantial part, I note, debate in Washington (and not just in Washington) proceeds by way of advocates’ deployment of half-truths, selectively marshaled data, scientific studies with agendas, and so forth. It is common for both sides to use these techniques. The same techniques are also accepted as standard currency within the adversary process itself, in which the law takes such pride, which makes it particularly absurd to propose defining it as unlawful racketeering to “use dubious information to advance a cause.”

Among those promoting this bad idea: BoingBoing, often regarded as a pro-free-speech site.

P.S. Adapted together with an earlier post into one at Cato at Liberty.

Filed under: , , , ,

Because only Truth has rights

Scientists’ “Letter To President Obama: Investigate Deniers Under RICO” is exactly what it sounds like [Greg Laden, ScienceBlogs] We earlier noted, as a step toward attaching legal consequences to unwanted advocacy, Sen. Sheldon Whitehouse’s (D-R.I.) op-ed “urg[ing] the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of ‘conservative policy’ groups an apparent target of the investigation as well,” as well as Gawker’s call to “arrest climate change deniers.”

P.S. For more on the widely publicized book Merchants of Doubt by Naomi Oreskes and Erik Conway, which condemns various scientists said to be too skeptical of the factual basis for regulation, see links gathered by Judith Curry, including this Reiner Grundmann review. Yet more: “I have no idea how it affects the First Amendment” says Vermont scientist who backs probe of wrongful advocacy [Bruce Parker/Watchdog, quotes me]

Filed under: , , , , , , ,

Sen. Whitehouse urges RICO suit against climate wrongthink

Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?

Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:

In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.

By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.

Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”

P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer.

Filed under: , , , , , ,