The Environment for Free Speech

Free speech is under attack from three main sources around the world.

• Government repression has increased. After the Soviet Union fell, Russia enjoyed a free-for-all. Alas, today Mr. Putin has tightened the muzzle again.
• A number of non-state actors are at that game. Journalists in Mexico who investigate corruption may end up dead. Jihadists shoot French cartoonists.
• Finally, there are people who think they have a right to not be offended, and who expect to use the state – or the university administration – to enforce that right.

Another government attack on free speech is from a coalition of environmental alarmists and law enforcement. It may be more pernicious than the first three because of its subtlety.

Lawrence Torcello, Assistant Professor of Philosophy, Rochester Institute of Technology, thinks that deliberate misinformation about the climate is criminally negligent. Torcello seems to think that opposition to the climate alarmists is for personal gain. He trots out the usual bugbear Koch brothers, citing an article by Dr. Robert J. Brulle, a professor of sociology and environmental science at Drexel University.

The problem, according to Torcello, is that global catastrophe is upon us, and only immediate action will save us. Thus anything that acts against the "scientific consensus" is criminal negligence. Never mind that global warming has stopped for almost the last two decades. And if urgency really is warranted, then a full discussion of the science is required, not shutting up dissenters. Anything less than the full give and take of scientific debate smacks of the Inquisition and Galileo.

One could dismiss this as the harmless rants of professors of philosophy and sociology. But, as Ayn Rand pointed out, ideas have consequences.

What makes the alarmists particularly disconcerting is that they have recently gained the assistance of several American attorneys general. On March 29^th, New York Attorney General Eric T. Schneiderman announced a coalition of six state attorneys general to investigate climate "denialists". He made the announcement at a conference presided over by discredited climate alarmist Al Gore. Speaking at the one day conference were green attorney Matt Pawa and Peter Frumhoff, director of science and policy at the Union of Concerned Scientists.

Schneiderman had previously issued subpoenas to ExxonMobil demanding it turn over internal documents he hoped would show that ExxonMobil had fraudulently mislead investors about the results of its own research into climate change. Now he expanded that effort, both by bringing in more attorneys general (and their tax funded budgets), and by expanding the target list.

The next salvo came in the form of subpoenas from US Virgin Islands Attorney General Claude Walker to the Competitive Enterprise Institute (CEI) to give up ten years' worth of documents pertaining to its relationship with ExxonMobil. Walker issued subpoenas to ExxonMobil for communications between it and some 90 conservative or libertarian think tanks.

Since then, Massachusetts AG Maura Healey subpoenaed ExxonMobil for 40 years of internal documents. She also subpoenaed decades worth of documents from a number of conservative organizations. Some of the subpoenaed organizations, such as philosopher Alex Epstein's Center for Industrial Progress (CIP), have never received any money from ExxonMobil. Healey also attended Schneiderman' press conference.

The basic idea is to use the Racketeer Influenced and Corrupt Organizations Act, or RICO, to go after the fossil fuel industry. RICO was originally written to go after gangsters, mafiosi. Not corporate executives or think tanks. But in a classic special case of Murphy's Law, "Any law that can be abused will be abused", activists used RICO to bring down the tobacco industry.

Climate alarmist legal theorists have been promoting the legal theory for more than four years. At a conference at the Scripps Institution of Oceanography in La Jolla in June, 2012, a group of tobacco activists and alarmist activists discussed the strategy. Among the attendees were Frumhoff and Pawa. They outlined Walker's strategy exactly:

State attorneys general can also subpoena documents, raising the possibility that a single sympathetic state attorney general might have substantial success in bringing key internal documents to light.
Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control 11

How much more sympathetic to bringing down "climate deniers" can you get than a former EPA attorney such as Mr. Walker? The alarmists had one problem: like the tobacco control effort, they had no smoking gun documents. That was the purpose of the CEI and ExxonMobil subpoenas.

Here is the thinking on RICO:

Richard Ayres, an experienced environmental attorney, suggested that the RICO Act, which had been used effectively against the tobacco industry, could similarly be used to bring a lawsuit against carbon producers. … As Ayres put it, "RICO is not easy. It is certainly not a sure win. But such an action would effectively change the subject to the campaign of deception practiced by the coal, gas, and oil companies."
Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control 13

CEI subsequently went to the court of public opinion and got Walker to withdraw his subpoena to CEI – but not that to ExxonMobil. This does not mean that the threat of litigation against CEI has gone away. Walker can re-issue the subpoena at any time.

CEI is correct that these subpoenas are simply attempts to intimidate. Regardless of the end result, the effort to comply will be expensive. So also will CEI's defense against it. Suing to cause the defendant grief is common enough that it even has its own term of art in the legal business. It is called a Strategic Lawsuit Against Public Participation (SLAPP) suit. That may not be Walker's intent. But it is a byproduct of the subpoenas, intentional or not. Recall Ayre's comment on RICO: "It is certainly not a sure win. But such an action would effectively change the subject to the campaign of deception practiced by the coal, gas, and oil companies."

The goal isn't necessarily to win the suit. It is to make opposing the alarmists so expensive as to discourage exactly the open and free debate so essential to both the scientific method and political discourse in a republic.

The second best response, however crude (consider yourself warned), came from philosopher Alex Epstein – probably not on the advice of counsel. In its entirety it reads, "F**k off, fascist." Quite.

The best response, however, came from another source entirely.

If it is possible to minimize the risks of climate change, then the same goes for exaggeration. If minimization is fraud, exaggeration is fraud. … If Exxon's disclosure is deficient, what of the failure of renewable energy companies to list climate change as a risk? … If climate change is perceived to be slowing or becoming less of a risk, many "clean energy" companies may become less valuable and some may be altogether worthless. Therefore, any fraud theory requiring more disclosure of Exxon would surely require more disclosure by "clean energy" companies. …

Some evidence may support these statements [on the effects of climate change]. Other evidence may refute them. Do these statements increase the value of clean energy investments offered for sale by Kleiner Perkins? Should these statements justify an investigation into all contributions to environmental non-profits by Kleiner Perkins's partners? Should these questions be settled by our state courts under penalty of RICO charges? May it never be. As Justice Jackson noted, our "forefathers did not trust any government to separate the true from the false for us."

Letter, 13 Attorneys General to their colleages, June 15^th, 2016. Citations omitted.

In other words, "You want to play RICO? We can play RICO, too!"