Transcription complète de Big Oil’s First Amendment Defense: Can Climate Denial Be Protected Speech?

3: So why are we talking about a nineteen seventy six First Amendment decision Because it began a decade's long effort by some of the country's most powerful companies and industries to whittle away at the distinction between individual rights and corporate rights. This was the beginning of the idea that money equals speech and is therefore protected by the First Amendment basically as long as that speech is not explicitly endorsing a political candidate. Now, the idea that corporations have free speech rights to say whatever they want has extended to climate change. This idea is at the core of Exxon's defense against securities and consumer fraud cases brought against the company by the New York and Massachusetts attorneys general, and if cases currently being brought against it by several cities counties in the state of Rhode Island to recover the costs of dealing with climate change make it to trial, we should expect to see more of this free speech defense there too. 00:04:13 Speaker 1: By the time two thousands rolled around and the election of two thousand, what was happening was there were extraordinary amounts of money that were called soft money that we're going to groups that weren't disclosing where they were getting the money from, and they were spending their money very cleverly to essentially advocate for individuals to be elected, but without using what the court and bucklee've bet had identified as special magic words that really trigger the kind of regulation and show that you're expressly advocating for a candidate, not an issue. So Buckly being LEO said that if you use words like vote for, or elect or defeat, those are the words that indicate that, hey, this is it's an expenditure, but we're going to treat it kind of life a contribution because you're really advocating for this exact candidate, and you're not really talking about an issue. There were these independent groups that were taking huge amounts of money and either doing other things with them, like voting drives or paying for administrative costs rather than speech or putting out ads. For example, there was an ad in the two thousand election put out by a group that was favoring George Bush that said don't get Gord at the gas book. So they didn't use any didn't say vote against Gore, defeat Gore, or vote for Bush. They just said don't get Gord at the gas monk. That allowed them to then pay for this ad with contribution with money from anywhere. 00:05:45 Speaker 3: So Buckley Vivalo said, spending money in support of a particular political idea is a form of protected free speech no matter who's doing it. And the US courts have for a really long time said that corporations are essentially just groups of people and therefore do have constitutional rights. The courts decided that as early as the late eighteen hundreds, and more recent cases have only handed more rights to corporations. Now, forty years after the Buckley v. Valeo decision exonmobil is even alleging that investigations by the New York and Massachusetts ags and the sixteen cost recovery cases filed against it are a conspiracy to quash its First Amendment rights, specifically to stop it from saying whatever it likes about climate change, even if that includes undercutting science it knows to be true. One of the things this podcast tries to do is unpack the history and complexities of how we understand climate change today and how we got to where we are. And this is a key part of it. So we're going to do a deep dive into how exactly we got to the point where free speech could feasibly extend to climate denial. It's complicated and a little dense. So if you have questions or anything else to add, to Drilled podcast dot com and drop us a line, or you can tweet at me at Amy Westervelt. Okay, here we go, Hi, Amy Westervelt, And this is Drilled. 00:07:17 Speaker 4: This is something that I think Americans generally need to be concerned about the acts of a big corporation seeking to stomp out or stamp out the efforts of one little attorney general from asking questions. It's as simple as that Exon itself has taken the step rather extraordinary of filing an action against me to say that I don't have the authority to ask questions the day that happens. That in this country, that's a serious problem. So you know what's really galling you love this, Exxon's using the First Amendment that we are that I am interfering with Exxon's First Amendment right. I don't know how they get there, but that's what they've articulated, and they're coming at us. 00:07:54 Speaker 3: That's Massachusetts Attorney General maur Healy talking about Exon's First Amendment suit against her last year. The company alleged that the state's fraud probe against it infringed on its First Amendment rights. The Massachusetts court affirmed Healey's right to investigate Exon, and Exon appealed that decision to the Supreme Court, which declined to hear the case. But Exon has filed multiple other complaints along First Amendment grounds. Here's Michael Berger, executive director of Columbia University's Saban Center for Climate Change Law, explaining where we are right now. 00:08:26 Speaker 5: Exon has filed a number of different challenges to the investigations undertaken by the Massachusetts and New York state attorneys General in a number of different courts. They filed challenges in the Federal District Court in Texas, they filed lawsuit in New York State in Federal District Court in New York, and had filed another case in Massachusetts. The Supreme Court denied cert without comment of Exon's requests to appeal decision that came out of the Massachusetts court system. 00:09:02 Speaker 3: Since a lot of these suits are still active, it's important to understand the recent history of these sorts of cases where corporations invoke the First Amendment. Buckley v. Valeo was important, but this idea didn't necessarily start or end with that case. John Enton is a constitutional law expert and a

professor at Case Western Reserve University Law School. He was a law clerk to then Judge Ruth Pieter Ginsberg when she was on the US Court of Appeals for the District of Columbia Circuit. 00:09:31 Speaker 2: The basic question is though corporations have legal rights? And the answer is yes. The Supreme Court has said for a long time that corporations are legal persons, and think the big case on that was in the eighteen eighties, there were some earlier cases that sort of hinted at that, and so the main modern cases on corporate speech rights have come, I think in the advertising and the commercial speech area. In those cases, the Supreme Court has said that commercial speech advertising enjoys and here's where things get a little fuzzy. The Court back in the nineteen seventies said that commercial speech enjoyed qualified First Amendment protection, and in more recent cases, the Court has suggested that maybe commercial speech should get more than qualified protection, maybe even as much protection as core political speech. 00:10:38 Speaker 3: Okay, so the court draws a distinction between commercial speech and political speech, and political speech is actually granted more rights, remember that, But in. 00:10:48 Speaker 2: The commercial speech area generally, the Supreme Court has said that false more misleading speech is not protected. 00:10:59 Speaker 3: Of course, the First Amendment was also invoked in the Hobby Lobby case when Hobby Lobby wanted to opt out of the federal mandate that health insurance needed to include coverage for contraceptives. They cited religious reasons, and the Supreme Court ruled in their favor. 00:11:13 Speaker 2: So there may be a question about how far the reasoning in Hobby Lobby might apply, say to a publicly traded corporation, and the issue there was religious rights, not more general speech rights. But the Supreme Court said that the hobby lobby is a closely health corporation, was entitled to invoke religious rights free exercise. 00:11:40 Speaker 3: Why are we talking about the hobby lobby birth control case? What could freedom of religion possibly have to do with climate change? Allow me to remind you of our friend cole lobbyist Fred Palmer from season one. 00:11:55 Speaker 1: You're doing God's work every time you turn your car on and you burn fuels and you put CO two in the ear, You're doing the work the Lord. 00:12:03 Speaker 6: Absolutely, that's the system. 00:12:05 Speaker 1: That's the ecological system we live in. 00:12:08 Speaker 3: Okay. So it's a huge stretch and no one is making a religious claim yet. Plus if they did, there's an equal claim to be made for the religious mandate to be stewards of the earth. But the point here is that the First Amendment can be invoked in lots of different ways, and every case sets some sort of precedent for future cases. Hate Drilled listeners taking a quick break here to let you know a little bit more about our membership program. We do get some amount of grant funding to keep Drilled going, but your support would allow us to do more reporting, more collaborations, more investigative series, all that stuff. To join the membership program, go to Critical Frequency dot org slash Joe. It's four ninety nine a month and that gets you access to bonus content, sneak previews. You'll get an ad free feed, which might not always be the case here unfortunately, and you'll get access to all the other shows on the Critical Frequency Network too. Next week's bonus episode features Brian mcinernie, who you heard from a tiny bit in season one. 00:13:19 Speaker 7: When I first started doing this and I would talk about climate change, it was like another subject like geology, hydrology, meteorology, and it was well received and then at some point it got politicized. 00:13:30 Speaker 3: He's a hydrologist in Utah who speaks candidly about what happened when climate change started to get political. It's really interesting and I think you'll like it, so again, to sign up, go to Critical Frequency dot org slash join. Thanks for your support, it really means a lot. Okay, back to the show. 00:13:57 Speaker 8: Mister Olson, Are you taking in the position that there is no difference in the First Amendment rights of an individual a corporation? After all? Is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings full purposes of campaign finance. 00:14:28 Speaker 6: What the Court has said in the First Amendment context New York Times versus Sullivan, Gross Chain versus Associated Press, and over and over again is that corporations are persons entitled to protection under the First Amendment. 00:14:43 Speaker 3: The best known case around this idea of corporate First Amendment rights is, of course, Citizens United, which undoubtedly also helped the Hobby Lovy case. If you don't know the story, here's a quick summary. In the early two thousands, Congress passed the McCain Fine Gold Act, which basically tightened up election law again and cracked down on political contributions. Then, during the two thousand and eight primaries, Citizens United was a group that was against Hillary Clinton, and they made a whole crooked Hillary movie. Who is Hillary Clinton? 00:15:15 Speaker 6: She's continually trying to redefine herself and figure out who she is. 00:15:22 Speaker 3: At least with Phil Clinton, he was just in a good time. 00:15:25 Speaker 1: Charlie. 00:15:26 Speaker 3: Hillary's gotten a genuine. 00:15:29 Speaker 1: Hillary is really the closest thing we have in America to a European socialist. 00:15:33 Speaker 3: If you thought you knew everything about Hillary Clinton, wait till you see the movie Hillary, the movie on DVD. Now, the Federal Election Commission said this movie violated election law. 00:15:46 Speaker 1: There's this McCain fible provision that says you can't do that as a corporation, and that that's how the lossit

came to. 00:15:52 Speaker 2: That. 00:15:52 Speaker 1: So when up the Supreme Court, as the Supreme Court said, look, that kind of limitation doesn't work. If the corporation or union or any other grouping of people that get together to do something, those groupings, those are associations, have First Amendment rights just like they always have and other kind of constitutional rights because they're just groups of the people. And people don't lose those rights simply because they decide to act together as a corporation or as a partnership or as a union, which is just in many ways in theory. 00:16:29 Speaker 2: Of groop betting of employees. 00:16:31 Speaker 1: As long as the corporation or union isn't coordinating with the candidate, that is, as long as it's an independent group and not working with the candidate, then it's just like any other person is just engaged in spending expenditures and that's protected activity. 00:16:50 Speaker 3: Despite this history of steadily expanding corporation's First Amendment rights, a distinction still remains between political speech and commercial speech, in between any sort of protected speech and fraud. Should any of Exxon's claims actually make it to the Supreme Court, that will be the key question. 00:17:07 Speaker 2: So there's a whole series of areas in which corporations or have had their First Amendment rights recognized. That doesn't necessarily tell us, however, the circumstances in which the corporation can be held liable for false or mason these speech, particularly if the argument they're going to make in these cases almost certainly is we're not engaged in commercial speech in the sense that we're not advertising and we're not proposing a commercial transaction. The Supreme Court has generally not said that you have to show an actual victim of decession. I mean, I think in this situation, and the States are going to say, look, at least some of these companies knew what they were saying was not true, and that we know that they knew that because we have obtained information about what they knew at the time that they were making various sorts of sentence, and so I think the case. You know, these cases are likely to turn on pandual evidence. 00:18:07 Speaker 3: Slawyer says. There was one recent case where the Supreme Court validated a person's right to lie under the First Amendment. 00:18:14 Speaker 1: An individual was wearing medals, military medals that he didn't earn, and a Congress that had passed a law saying, hey, it's a crime to wear military medals that you didn't earn, also to claimed want of military honors that he didn't earn, and the Supreme Court said, no, you have a free speech right to lie. So in terms of what would happen in this kind of Exxon situation, you know, there's an a tension between the at least an individual that was an individual wearing medals, individual's First Amendment right to lie, and a corporation's First Amendment right to defraud people. But that is a pretty

big difference. The Court often looks to history when determining if there are going to be limits on First seven right. Historical common law the law of England at the time the United States was founded in the eighteenth century, and a common law there were certainly limits on speech related to fraud. You couldn't defraud people you couldn't lie to people and then get them to buy their product. That could absolutely be prosecuted or prevented. So it seems to likely you never know, but it seems to me likely that there is a court would find that there's a pretty big difference between allowing somebody to lie about military honors he personally won and allowing businesses to simply lie about their products in a way that is frauding. 00:19:47 Speaker 2: You know. 00:19:47 Speaker 1: Look, the reality is, if Exxon knew about harm caused by its products and didn't disclose that harm to people, or made affirmative statements that lied about what that harm is, that's really no different than any other situation in which a manufacturer has a predate that closes injury and the manufacturer lies or covers up the injury caused by the product that the manufacturer knew about it or had reason to know about it. Generally speaking, the manufacturer is going to be able to be held liable for it. 00:20:27 Speaker 3: The fact that the Supreme Court declined to hear the first of Exxon's countersuits could mean something about their view of Exxon's First Amendment defense, or it could mean nothing. 00:20:37 Speaker 1: There's nothing in the person thatent forasy of being probed, you know, or destigated entity, so that that could have a lot to do with it as well. 00:20:47 Speaker 3: Entin says the fact that the lower courts have all rejected these claims so far could also play into it. 00:20:52 Speaker 2: I mean, you don't have to have a conflict in the lower course for the Supreme Court to take but it certainly helps make the case scene or make the issue seem more worthy of Supreme Court review. 00:21:02 Speaker 3: And Burger thinks we may well see a Supreme Court case out of these claims. 00:21:07 Speaker 5: So this court issue that Exon is raising in all. 00:21:10 Speaker 9: Of these cases, whether the investigations by the. 00:21:12 Speaker 5: Attorney's General violate their constitutional rights and that it's all part of this political conspiracy to quash their pre speech may yet make it to the Supreme Court. Are at the very least Exon, assuming it loses at the Second Circuit, will have the opportunity to petition the Supreme Court again, and that time the petition would be on the substance of issues. 00:21:36 Speaker 3: Even if it makes it that far. Though it's not a slam dunk for Exxon. 00:21:40 Speaker 9: The First Amendment does not protect corporations who are committing fraud, doesn't protect corporations who are committing security fraud, and those are the that's the nature of these investigations. 00:21:54 Speaker 3: The underlying question, then, is where the line between political speech and deception lies and just how much proof attorneys would need to show that Exxon was not in fact sharing opinions or political ideas, but telling the public and investors an entirely different story than the one it knew to be true. And there you have it, the weird and wild history of Dollars's speech fraud as political expression and are always evolving understanding of the First Amendment. One interesting thing to add is that the Chevron attorney who's been speaking on behalf of all the oil companies as these cost recovery cases go to court is Ted Boutros, whose specialty is the First Amendment and free speech. He's even the guy defending CNN against the White House on First Amendment grounds. That's it for this time. We'll see you in two weeks with another episode, and next month we'll have a whole new series for you. Thanks for listening, see you next time. Drilled is produced and distributed by Critical Frequency. Reporting is done by me. Our story consultant is Rika Murphy. Our theme music is by Martin Wissenberg. Additional music in this episode is by David Whited and Damien Verrett. Mixing is done by Elliott Peltzman. Our cover art is by Lucas Lisakowski. Drilled is made possible in part by a generous grant from the Institute for Governance and Sustainable Development. We really appreciate. There's a board you can find Drilled wherever you get your podcasts. Please remember to rate and re view the podcast. It helps us find new listeners and fight climate deniers. Thanks a lot, to see you next time.