SLAPPed in the climate change debate

December 5, 2015

 

In an op-ed at FoxNews, Curt Levey writes that while the nation's campuses are hosts to the most prominent battles in the war on free speech, "equally ominous is a campaign ... to use criminal and civil laws to punish fossil fuel companies for expressing doubts about the inevitability of catastrophic climate change." New York Attorney General Eric Schneiderman's investigation of Exxon Mobil, ostensibly for failing to adequately warn investors about the financial risks posed by climate change, is perhaps the most disturbing example.   

 

Levey points out that Schneiderman's investigation "is akin to a SLAPP suit (a strategic lawsuit against public participation), which by definition, is aimed not at a legal victory but at silencing one's opponents in a public debate through intimidation and the burden of legal costs."

 

Mr. Levey argues that:

 

"While Schneiderman is entitled to champion a vision of climate doom, he is not entitled to use the laws against securities fraud to silence those with a different vision. ... There is little doubt that nuclear war would have a catastrophic effect on corporate profits, but companies are not obligated to discuss those risks in their financial filings. Moreover, debate about matters of public concern, such as climate change, are at the core of the speech protected by the First Amendment. ... Where, as in New York, the government tries to suppress speech because it disagrees with the content, the courts impose the strictest First Amendment scrutiny."

 

Levey reminds us that the precedent being set here "could well come back to bite [progressives] and their sacred cows." For example:

 

"Consider the corporations advocating for immigration reform while arguing that it won't cost the jobs of American citizens. [They may be guilty of securities fraud unless they] are explicitly warning their investors that business plans predicated on hiring immigrants will be endangered if evidence emerges that immigration reform hurts American workers."

 

Similarly, "What if corporate executives suspect there are real differences in the scientific ability or interests of men and women but hide their doubts from investors? Should these gender-difference deniers go to jail?"

 

The op-ed goes on to cite additional examples, including potential liability for "the green lobby's decades-long -- but now discredited -- warning that the world would soon run out of fossil fuels," and "the groundless claim that building the Keystone Pipeline would increase carbon emissions."

 

Levey concludes that "If Schneiderman and his green comrades succeed, their model for silencing critics will surely be replicated by attorneys general and trial lawyers on the left and right." But perhaps that's a good thing, because giving progressives a taste of their own excesses may well be the only way to teach them the importance of free speech on matters of public concern, on college campuses, and beyond.

 

Read Mr. Levey's op-ed here.

 

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