New York Attorney General’s climate-change investigation is unconstitutional

New York Attorney General’s climate-change investigation is unconstitutional

Should government officials be able to cut off donations to groups because they employ people disparaged as “climate change deniers,” even if the group in question is a think tank that studies a wide range of topics, only a few of which relate to climate change at all, and the “denial” in question includes telling politically inconvenient truths about the cost of proposed climate change legislation? Only a single-issue zealot with ideological blinders and a contempt for the First Amendment would think so.

But that hasn’t stopped New York Attorney General Eric Schneiderman and California Attorney General Kamala Harris investigating Exxon, partly for making donations to think tanks like the American Enterprise Institute and groups like the American Legislative Exchange Council, because these large organizations include a few people deemed “climate change deniers,” even though climate change has no relation to most of their activities. (I have been to many speeches and luncheons at AEI, and not a single one related to climate change or even energy or environmental policy.)

The First Amendment has long been interpreted as protecting corporate lobbying and donations, even to groups that allegedly deceive the public about important issues. For example, in In re School Asbestos Litigation, 46 F.3d 1284 (3d Cir. 1994), a federal appeals court ruled that the maker of an asbestos product could not be held liable for joining and financially supporting a trade association for makers of asbestos products, even though the trade association allegedly “disseminated misleading information about the danger of asbestos in schools directly to” the plaintiffs, where “at least some” of the trade association’s “activities were constitutionally protected.”

So even if being a “climate denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a non-profit that employs such a person would not be (especially given that a think tank like AEI also contains scholars whose positions on subjects like tax policy, labor law, property rights, and lawsuit abuse would be congenial to a corporation like Exxon).

In any event, judging from Schneiderman’s own remarks, Exxon did not engage in any deception about the health risks of its products when used (the way asbestos makers were accused of doing, and the big tobacco companies in fact long did), much less speech unprotected by the First Amendment. What angers Schneiderman most appears to be political opposition to certain controversial environmental legislation, not deception or views at odds with sound science: He is upset that Exxon had the temerity to note that policies advocated by climate change activists have real world costs, and may not be politically viable.

Schneiderman complains that Exxon noted that “switching over to renewables by the end of this century would raise energy costs” substantially, and that “Exxon Mobil essentially ruled out the possibility that governments would adopt climate policies stringent enough to force it to leave its reserves in the ground, saying that rising population and global energy demand would prevent that. ‘Meeting these needs will require all economic energy sources, especially oil and natural gas,’ it said.”  (For a discussion of Exxon’s non-misleading positions about climate science, and why Schneiderman’s own complaint about it is at odds with actual climate data over the last 30 years, see this commentary by the liberal editor of The Washington Post, and this commentary at GlobalWarming.org.)

As the editorial board of Bloomberg News put it, “On the face of it, the company’s research on climate change and its previous public positions on climate policy not only fail to amount to fraud, they aren’t even necessarily at odds. You might accept the reality of man-made global warming and still argue against strict new rules on emissions — if, for example, you believe that such restrictions would do more harm than good. . . .that position isn’t indefensible, and certainly shouldn’t be illegal.”

So when I first read about state attorneys general investigating Exxon over its donations, and for allegedly minimizing the likelihood or ramifications of climate-change legislation, I wondered what was the point of such investigations, because any sanctions imposed on Exxon for such contributions would obviously run afoul of the First Amendment (as lawyers and newspapers like The Washington Post and USA Today have noted). As the Post’s Bob Samuelson noted earlier, ExxonMobil is being vilified for “expressing its opinions,” and exercising its constitutional right of free speech.

In so doing, I overlooked the likelihood that these investigations are designed not to uncover any wrongdoing, but simply to harass Exxon, by subjecting it to bad publicity and the costs of producing thousands of pages of documents in response to endless demands from partisan investigators. The process is the punishment.

Sadly, government officials can usually get away with this sort of abuse when they investigate conduct. But speech is a different matter. 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.

Similarly, in In re School Asbestos Litigation, 46 F.3d 1284 (3d Cir. 1994), a federal appeals court found that the mere pendency of a lawsuit against a company for belonging to, and contributing to, a trade association, violated the First Amendment even if it would never ultimately be found liable based on that associational activity. Accordingly, it took the extraordinary step of granting a mandamus petition to order the lawsuit dismissed, even though the trial judge had refused to dismiss the lawsuit on summary judgment, and the denial of summary judgment is not ordinarily appealable at all.

As the appeals court explained, the mere existence of the lawsuit unconstitutionally chilled the company’s First Amendment rights: “while the district court’s ruling did not directly prohibit Pfizer from associating with the SBA during the remainder of the district court proceedings, there can be little question that in reality the district court ruling will powerfully inhibit Pfizer from doing so. Under the court’s reasoning, any further participation by Pfizer in SBA activities–any contributions, any attendance at meetings, etc.–would appear to constitute evidence of Pfizer’s participation in an ongoing conspiracy or concert of action and thus be admissible at trial to prove such claims.”

Schneiderman’s investigation of Exxon similarly violates the First Amendment (as will Harris’s if it becomes similarly prolonged or burdensome). The mere existence of Schneiderman’s protracted investigation of Exxon discourages it from contributing to groups like the American Enterprise Institute (AEI) and the American Legislative Exchange Council (ALEC), and chills its speech about climate-related legislation and its costs, in violation of the First Amendment.

Schneiderman has pressured Exxon not to fund groups like AEI and ALEC, complaining that “we know” Exxon has “been funding organizations that are even more aggressive climate change deniers. . . . like the American Enterprise Institute, ALEC, the American Legislative Exchange Council.”

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. For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003). Similarly, it revived a free speech lawsuit by a businessman over a village official’s letter to Chamber of Commerce criticizing it for publishing the businessman’s ad critical of village policies in the Chamber’s publication. Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991). For other, similar rulings, see Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005), and Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985).

Government retaliation for speech does not necessarily need to include explicit threats or pressure to violate the First Amendment. For example, if the government merely reprimands a public employee for his speech, or censures a private citizen for his speech, some courts find that to be a violation of the First Amendment. See, e.g., Columbus Education Association v. Columbus Board of Education, 623 F.2d 1155 (6th Cir. 1980) (government employee reprimand violated First Amendment).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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