- Clarifying Penn Central: does a government taking property violate Fifth Amendment when it groups together commonly owned parcels in such a way as to avoid an obligation to provide just compensation? [Ilya Shapiro, Ilya Somin on Supreme Court case of Murr v. Wisconsin]
- How to win NYC real estate cleverest-deal-of-year award: sacrifice floor space to outwit regulation [Alex Tabarrok]
- Desert delirium: “Phoenix has the cheapest water in the country” [Coyote]
- If you ban low-quality housing you might discover it was the only housing low-income people could afford [Emily Washington, Market Urbanism]
- Who’s cheering on/gloating over climate-speech subpoenas? Media Matters, of course, and some others too;
- “Exhibiting Bias: how politics hijacks science at some museums” [John Tierney, City Journal]
- Hadn’t realized Karen Hinton, of Chevron-Ecuador suit PR fame, was (now-exiting) flack for NYC Mayor De Blasio [New York Post; Jack Fowler/NRO]
Posts Tagged ‘climate deniers to the wall’
Peggy Little on the climate advocacy subpoenas
At the Federalist Society blog, Margaret (Peggy) Little, practicing attorney and director of The Federalist Society’s Pro Bono Center, has published a summary and analysis (parts one, two) of the ongoing criminal investigation of Exxon and its relations with dozens of advocacy groups, university scholars, trade associations and others with whom it is said to have collaborated in the supposedly improper cause of climate “denial.”
As one of the shrewdest analysts of the outrageous tobacco litigation saga, Little is particularly well situated to spot the parallels:
…Nearly every speaker [at the “AGs United for Clean Power” press conference] expressly cited the state AGs’ successful victory over the tobacco industry as a template for this action. One AG called upon other countries, states, communities and individuals to join in this effort. Why the public announcement before the facts come in? Why the global call to arms by this minority of state AGs?
An alert observer will recognize that this press conference follows right on the heels of drastic fiscal crises in many states. The state AGs’ wildly successful settlement with the tobacco industry in the 1990s –which incidentally also deployed foreign countries, dissenting states, cities, towns and health insurers to amass industry-busting claims– shifted a quarter of a trillion dollars to the states and their attorneys, leading to fiscal and governmental bloat that, to borrow a term from the climate activists, is unsustainable. New targets need to be identified and demonized so that this state regulatory confiscation from private industry can continue.
Another echo is the role of private law firms angling for what could be stupendously large contingency fees, a phenomenon that was the driving force of the state tobacco litigation. Little notes the role of prominent class action and tort firm Cohen Milstein, which “has a state AG practice headed by partner Linda Singer, former AG of the District of Columbia. The New York Times has profiled [its] solicitation of state AGs to bring class action and mass tort suits.” Another private attorney involved in the new affair, Matt Pawa, is likewise deep in contingency-fee representations of state attorneys general to pursue ostensibly governmental claims in which public officials would ordinarily be expected not to take a personal financial interest. If the AGs’ press conference was characterized by “hot,” accusatory, prejudicial rhetoric more often associated with plaintiff’s lawyers than with professional prosecutors, this might be why, Little notes.
She also makes clear the deep political illegitimacy and unaccountability of the regulation-through-litigation Fourth Branch these suits are intended to set up:
These extortionate suits are cynically Made to Settle. Professor G. Robert Blakey, a RICO consultant engaged by the Department of Justice to plan the federal tobacco lawsuit, frankly admitted, “this case is not made to win, it’s made to settle.” Both the state and its contingency fee outside financiers are thus in a position to reap enormous rewards with no risk of judicial precedents that would stem the tide of other, like initiatives against other industries. A state is a subsidized political plaintiff, driven by interest groups and ideology and its officers’ political ambitions; it can afford to bring a weak case and pursue it more vigorously than could any private plaintiff. Further, the arsenal of remedies at its disposal—consent decrees, injunctive relief, enforcement powers available under its consumer protection, trade practices and antitrust statutes—are simply not available to a private tort plaintiff. All of which underscores why these contingency arrangements violate the targets’ due process rights.
I wrote a whole book in 2003 — The Rule of Lawyers — on the pretensions of this emerging Fourth Branch of litigators and why they were not consistent with American self-government. For a while — as one after another attempt at a “next tobacco,” from guns to soft drinks, failed to take off — it looked as if maybe our system had learned the lesson and that the scandals would not repeat. If only that were so!
AGs redefine climate dissent as “fraud”
I joined guest host Steve Simpson on Blog Talk Radio’s Yaron Brook Show, along with guests Sam Kazman (CEI) and Alex Epstein (“The Moral Case for Fossil Fuels”) to discuss the free speech threat of attorney general climate denial investigations (“AGs United for Clean Power”). Related, and recent: “Is Eric Schneiderman colluding with other AGs in an illicit war on Exxon?” [New York Post editorial) Investigation “a flatly unconstitutional assault on speech the state dislikes. I find something terrifying in the notion” [Stephen Carter, Bloomberg View] “While I think that climate change is both human-caused to a significant extent and likely to be a problem, I would warn my environmentalist friends about the dangerous precedent the attack on CEI sets.” [Eli Lehrer, Washington Examiner] “The Climate Police Escalate” [WSJ editorial]
What’s the problem with Rhode Island officials and free speech, anyway?
Seriously, what’s their problem? [Hans Bader on the Rhode Island attorney general’s proposal for a ban on many hostile social media posts, covered here earlier] Meanwhile, a Providence Journal editorial blasts home-state Sen. Sheldon Whitehouse:
…in dealing with [carbon dioxide emissions], or any crisis, it is vitally important that America not discard its essential values of freedom.
Regrettably, Sen. Sheldon Whitehouse, D-R.I., continues to make noises about using government to prosecute some of those who willfully persist in questioning the scientific consensus on climate change. …
This is troubling: a U.S. senator and attorney general [Loretta Lynch], both sworn to uphold the Constitution, mulling legal action against American citizens and companies for the “crime” of challenging a scientific theory. A number of Democratic attorneys general — including Rhode Island’s Peter Kilmartin — have also expressed interest in prosecuting those whom they believe are deliberately misleading the public about this issue.
Turning such disagreements into punishable acts of fraud would seem to be legally difficult. But that may not be the point. The threat alone could have a chilling effect on free speech, by intimidating dissenters into silence. Such an approach would be an affront to the scientific method, which involves the free exploration of ideas. …
President Thomas Jefferson said in his first inaugural address: “Error of opinion may be tolerated where reason is left free to combat it.”
There is no reason to pit environmentalism and free speech against one other. We can join together to protect our planet without trying to silence those who argue against us.
Some more recent commentary on the AG subpoena investigation Sen. Whitehouse helped orchestrate: Richard Epstein, George Will, Ronald Rotunda. As Prof. Rotunda points out, the government not only declines to prosecute advocacy research in other contexts, but often funds it. And the 2012 Alvarez v. U.S. (stolen valor) case establishes that outright, knowing lying for advantage often receives constitutional protection as well, on the recognition by the courts that “if the government can punish that, we go down a steep slippery slope. … The marketplace of ideas, not the subpoena power of government, should decide what is true or false.” More: “The environmental campaign that punishes free speech” [Sam Kazman and Kent Lassman (CEI), Washington Post]
Climate advocacy subpoenas, III
- “…the open, naked promise to use prosecutorial powers as a political weapon is a prima facie abuse of office. In a self-respecting society, every one of those state attorneys general would have been impeached the next day.” [National Review editorial]
- Lefty foundations funded investigative report that kicked off the prosecute-climate-deniers push, and even funded the group that then gave an award to that ostensibly independent report [Jon Henke, earlier on Columbia School of Journalism role here and here; Jillian Kay Melchior on Inside Climate News]
- Grand public announcement by attorneys general and former Vice President Al Gore made no mention of huddles with Rockefeller philanthropies that led up to it [Reuters; summaries of conversations via pro-CEI public records request]
- Major angle not yet widely publicized is that ALEC, hugely demonized on Left, likely to be in cross hairs: “In his remarks, Maryland Attorney General Brian Frosh made a point of adding … [the] American Legislative Exchange Council as potential targets.” [Climate Investigations]
- What’s private class action law firm Cohen Milstein doing in the middle of all this? Three guesses [National Review editorial; note “place of production” commanded in subpoena text]
- “Climate Investigations” website seeks to promote idea of giving private lawyers what could prove wildly lucrative contingent-fee role in crusade against climate deniers; note that such private lawyers not only drove tobacco Medicaid recoupment litigation from the start, but (a tale told in Chapter 1 of my book The Rule of Lawyers) helped shape the epic corruption of that tobacco caper;
- Reactions by the targets: a statement from incoming CEI president Kent Lassman vows to fight; “Exxon Fires Back at Climate-Change Probe” [WSJ; AP/U.S. News via Virgin Islands Free Press on move to quash subpoena]
- “Federal law makes it a felony ‘for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).'” It doesn’t exempt state attorneys general [Glenn Reynolds, USA Today]
Earlier generally here and specifically on the subpoena of the Competitive Enterprise Institute here and here.
Free speech roundup
- Eric Turkewitz has collaborated with other law bloggers on a series of April Fool’s blog hoaxes, but this year many bloggers sat out his joke about Donald Trump suits against the press. Sort of a canary in the coal mine right there [Paul Alan Levy]
- It’s come to this: Providence Journal runs pro/con debate on whether to criminalize “climate denial” [Michael E. Kraft, H. Sterling Burnett, link fixed now h/t Gitarcarver] Putting the R.I. in RICO: Sen. Whitehouse trades charges with WSJ, other malefactors (hello!) who keep fighting him on climate probe [Edward Fitzpatrick, Providence Journal, WSJ]
- “Judge Dismisses Felony Charge Against Michigan Jury Rights Pamphleteer” [Jacob Sullum, earlier on nullification activists and the law here, etc.]
- Feminist urges banning porn on the rationale least consistent with the First Amendment: that it operates as propaganda, the way a philosophical treatise might [Washington Post]
- FIRE announces free online First Amendment library; also interviews Eugene Volokh in a seven-minute video [Ronald Collins/Concurring Opinions]
- Greater Glasgow Police to social media users: “Think before you post or you may receive a visit from us this weekend.” [Alex Massie, Spectator, earlier on Scotland speech bans]
More on the CEI subpoena
As we noted on Friday, New York Attorney General Eric Schneiderman, more recently joined by several other state attorneys general, has pursued an investigation of the ExxonMobil corporation and its links to “climate denial” that has now resulted in a subpoena (from the attorney general of the U. S. Virgin Islands, Claude E. Walker) demanding ten years’ worth of internal documents from the Competitive Enterprise Institute. CEI, which issued a statement last week (with the text of the subpoena) vowing to resist the legal attack, has a further statement and links here; CEI’s Myron Ebell also recorded a Cato podcast (“fishing expedition… threatens our future… designed to shut us up”) with interviewer Caleb Brown.
Megan McArdle, Bloomberg View, calls the new developments “an attempt to criminalize advocacy”:
State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.”
New York Attorney General Eric Schneiderman gave the game away when he explained that they would be pursuing completely different theories in different jurisdictions — some under pension laws, some consumer protection, some securities fraud. It is traditional, when a crime has actually been committed, to first establish that a crime has occurred, and then identify a perpetrator. When prosecutors start running that process backwards, it’s a pretty good sign that you’re looking at prosecutorial power run amok….
The rule of law, and our norms about free speech, represent a sort of truce between both sides. We all agree to let other people talk, because we don’t want to live in a world where we ourselves are not free to speak. Because we do not want to be silenced by an ambitious prosecutor, we should all be vigilant when ambitious prosecutors try to silence anyone else.
Hans von Spakovsky, Heritage Foundation:
This investigation is intended to silence and chill any opposition. It is disgraceful and contemptible behavior by public officials who are willing to exploit their power to achieve ideological ends….
Given the coalition that has been formed by state attorneys general to conduct a grand inquisition against climate change deniers, this subpoena from the Virgin Islands attorney general is probably just the first assault in their quasi-religious war against unbelievers. Researchers, scientists, think tanks, universities, and anyone else who works or speaks in this area should be aware that they may soon become a target of these malicious investigations.
Hans Bader of CEI, at Law and Liberty:
As the Washington state supreme court noted in Rickert v. State Pub. Disclosure Commission (2007), our forefathers “did not trust any government to separate the true from the false for us” in the realm of politics.
A sobering aspect of the state AGs’ crusade is what is taking place outside of courtrooms: they are pressuring companies to cut off donations to nonprofit groups that employ “climate-change deniers.” … New York’s and California’s attorneys general have investigated Exxon for making donations to think tanks like the American Enterprise Institute and lobbying groups like the American Legislative Exchange Council. Schneiderman complains that these two specifically are “even more aggressive climate change deniers” than the run of the mill. (Ironically, while these large organizations include a few people labeled as “climate change deniers,” they focus mostly on issues having nothing to do with climate change.)
…even if being a “climate change denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a nonprofit that employs such a person would not be a crime.
In February we noted Bader’s strong argument that a “prolonged investigation in response to someone’s speech can violate the First Amendment” in itself even when “eventually dropped without imposing any fine or disciplinary action.”
I’m also quoted in a piece in Vermont Watchdog by Michael Bielawski and Bruce Parker that came out just before the subpoena report, on some of the issues in the investigation.
CEI subpoenaed over climate wrongthink
The campaign to attach legal consequences to supposed “climate denial” has now crossed a fateful line:
The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore….
The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.
CEI General Counsel Sam Kazman said the group “will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association.” More coverage of the subpoena at the Washington Times and Daily Caller.
A few observations:
- If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) groups conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. Like yours.
- This article in the Observer details the current push to expand the probe of climate advocacy, which first enlisted New York AG Eric Schneiderman and then California’s Kamala Harris, into a broader coalition of AGs, with Massachusetts and the Virgin Islands just having signed on. More than a dozen others, such as Maryland Attorney General Brian Frosh, seem to be signaling support but have not formally jumped in. More: Peggy Little, Federalist Society.
- CEI people, many of them longtime friends of this site, have been active critics of the Schneiderman effort, with Hans Bader, a senior attorney there, highly critical just a week ago.
- In these working groups of attorneys general, legal efforts are commonly parceled out among the states in a deliberate and strategic way, with particular tasks being assigned to AGs who have comparative advantage in some respect (such as an unusually favorable state law to work with, or superior staff expertise or media access). Why would one of the most politically sensitive tasks of all — opening up a legal attack against CEI, a long-established nonprofit well known in Washington and in libertarian and conservative ideological circles — be assigned to the AG from a tiny and remote jurisdiction? Is it that a subpoena coming from the Virgin Islands is logistically inconvenient to fight in some way, or that local counsel capable of standing up to this AG are scarce on the ground there, or that a politician in the Caribbean is less exposed to political backlash from CEI’s friends and fans than one in a major media center? Or what?
- I recommend checking out the new Free Speech and Science Project, which intends to fight back against criminalization of advocacy by, among other things, organizing legal defense and seeking to hold officials accountable for misusing the law to attack advocacy.
- This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I note in a new piece at Cato, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.
[cross-posted at Cato at Liberty and reprinted at FEE; see also new Cato podcast with CEI’s Myron Ebell (“fishing expedition… threatens our future… designed to shut us up.”)]
Behind that “scientists’ letter” on climate denial as legal offense
Remember that “scientists’ letter” in which twenty or so credentialed scientists signed their names to a letter asking that so-called climate deniers be investigated, as Sen. Sheldon Whitehouse (D-R.I.) had been demanding? On inquiry, however, some of the signatories did not seem to know much about the letter or to be particularly committed to the idea. According to David Rifkin and Andrew Grossman’s new Wall Street Journal piece (ungated here), open records requests have now established that the letter was coordinated by Sen. Whitehouse himself. Background here, here, etc.
Rifkin and Grossman also announce the formation of a new, and badly needed, Free Speech in Science Project. “The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials.”
Environment roundup
- Oh, George Takei, must you approvingly link to conspiracy site saying Zika virus microcephaly is caused by Monsanto? [archived]
- Texas lawyer who blew GM trial sued over alleged BP compensation scam [Laurel Brubaker Calkins and Margaret Cronin Fisk, Bloomberg Business Week]
- “Enviros Plan To Militantly Shutter World’s Major Coal Plants” [Daily Caller]
- Obama administration has been on a tear imposing compulsory energy efficiency standards on consumer products, but a bill in Congress would halt that trend [Paul (“Chip”) Knappenberger and Patrick Michaels, Cato]
- From the vaults: Ted Frank notes how historic preservation laws can lead owners to pre-emptively demolish a building for fear that exploring options to save it could lead opponents to organize and seek an injunction [Point of Law]
- “Obscure Taxpayer-Funded Program Bankrolls Anti-Pipeline Activists” [Inside Sources]
- Pressed by Sen. Sheldon Whitehouse, Attorney General Loretta Lynch says Exxon’s claimed climate denial has been referred to FBI [Grist, I get a mention]