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  • The Dean Of Yale’s Law School Just Schooled The Washington Post On Exxon And The First Amendment

    Blog ››› ››› ANDREW SEIFTER

    Yale Law School Dean Robert Post took to The Washington Post to completely dismantle the bogus claim that the attorneys general investigating ExxonMobil for fraud are trampling the company’s First Amendment rights. And in doing so, he pointed to one of several opinion writers who have misinformed the Post’s readers by advancing this “free speech” defense of Exxon's alleged deception on climate change. 

    Writing in The Washington Post on June 24, Robert Post criticized “ExxonMobil and its supporters” in the media for deceptively “[r]aising the revered flag of the First Amendment” to condemn attorneys general who are investigating Exxon. The attorneys general are looking into whether the oil company committed fraud by deliberating withholding truthful information about climate change from shareholders and the public in order to protect its profits. As Post explained, Exxon and its allies are “eliding the essential difference between fraud and public debate,” and if Exxon has indeed committed fraud, “its speech would not merit First Amendment protection.” He added: “Fraud is especially egregious because it is committed when a seller does not himself believe the hokum he foists on an unwitting public.”

    One of the conservative media figures that Post called out for distorting the Exxon investigations was The Washington Post’s own George Will, who penned an April 22 column peddling the false claim that the attorneys general pursuing Exxon are seeking to “criminalize skepticism” about climate change. And that wasn’t the only basic fact that Will butchered, as the Climate Denier Roundup explained at the time:

    George Will used his column in the Washington Post to offer a lesson on how this campaign [against Exxon] is part of a larger progressive strategy to shut down debate. But apparently it’s Will that needs a history lesson, as he uses as evidence a story about a 2013 IRS investigation accusing the agency of targeting conservatives. But that investigation “found no evidence” that the IRS actions were politically motivated.

    Unfortunately, Will is not the only voice on the Post’s opinion pages who has misrepresented the facts to defend Exxon.

    As the Climate Denier Roundup noted, the same day that Will’s column ran, the Post also published an op-ed by two officials at the Competitive Enterprise Institute (CEI), a think tank that peddled climate science denial while receiving funding from Exxon. The CEI op-ed repeated the falsehood that the attorneys general are seeking to “run roughshod” over Exxon’s First Amendment protections and prosecute “dissent.” It also engaged in carefully crafted legalese about CEI’s relationship with Exxon, as the Climate Denier Roundup observed:

    Worth noting CEI’s careful phrasing about its relationship with Exxon, which CEI says “publicly ended its support for us after 2005.” With Donors Trust and others making it possible to anonymize giving, the key word is “publicly.”

    Flashback to November 2015, and the story at the Post is much the same. Like Will, the Post’s Robert Samuelson claimed in a November 8 column that investigations of Exxon are an “assault” on free speech, and that the “advocates of a probe into ExxonMobil are essentially proposing that the company be punished for expressing its opinions.” Samuelson also repeated Exxon’s bogus talking point that a 1989 Exxon document proves that groundbreaking reports about Exxon by InsideClimate News and the Los Angeles Times "'cherry-pick[ed]' their evidence."

    Then there’s the Post editorial board itself, which prematurely concluded in a November 15 editorial that Exxon “didn’t commit a crime.” Perhaps the Post will reconsider after hearing from Robert Post on that matter. 

    From Robert Post’s June 24 op-ed in The Washington Post:

    If large oil companies have deliberately misinformed investors about their knowledge of global warming, they may have committed serious commercial fraud.


    ExxonMobil and its supporters are now eliding the essential difference between fraud and public debate. Raising the revered flag of the First Amendment, they loudly object to investigations recently announced by attorneys general of several states into whether ExxonMobil has publicly misrepresented what it knew about global warming.

    The National Review has accused the attorneys general of “trampling the First Amendment.” Post columnist George F. Will has written that the investigations illustrate the “authoritarianism” implicit in progressivism, which seeks “to criminalize debate about science.” And Hans A. von Spakovsky, speaking for the Heritage Foundation, compared the attorneys general to the Spanish Inquisition.

    Despite their vitriol, these denunciations are wide of the mark. If your pharmacist sells you patent medicine on the basis of his “scientific theory” that it will cure your cancer, the government does not act like the Spanish Inquisition when it holds the pharmacist accountable for fraud.

    The obvious point, which remarkably bears repeating, is that there are circumstances when scientific theories must remain open and subject to challenge, and there are circumstances when the government must act to protect the integrity of the market, even if it requires determining the truth or falsity of those theories. Public debate must be protected, but fraud must also be suppressed. Fraud is especially egregious because it is committed when a seller does not himself believe the hokum he foists on an unwitting public.


    If ExxonMobil has committed fraud, its speech would not merit First Amendment protection. But the company nevertheless invokes the First Amendment to suppress a subpoena designed to produce the information necessary to determine whether ExxonMobil has committed fraud. It thus seeks to foreclose the very process by which our legal system acquires the evidence necessary to determine whether fraud has been committed. In effect, the company seeks to use the First Amendment to prevent any informed lawsuit for fraud.

  • Wash. Post Editorial Board Slams GOP's Embrace Of "Bigotry, Hatred and Magical Thinking"

    The Washington Post: Extremism "Now Passes For Mainstream Republican Thought"

    Blog ››› ››› DAYANITA RAMESH

    The Washington Post editorial board criticized the Republican Party for pushing "fear-mongering and raw xenophobia" into the mainstream during the GOP presidential debates.

    With the help of conservative media, Republican candidates have started to push fringe rhetoric and ideas into the mainstream. For example, Sen. Marco Rubio (R-FL) changed his position on comprehensive immigration reform, due to backlash from right-wing media. Presidential frontrunner Donald Trump has touted a hoax about refugees from the Middle East, which was brought up in a conversation with Fox News' Sean Hannity. Radio host Rush Limbaugh claimed that Trump has changed the debate over immigration, because of his radio show. Following the attacks in Paris, right-wing media figures echoed calls from several GOP candidates to accept Christian refugees only, claiming that it would prevent potential terrorists from entering the U.S.

    As the December 16 editorial points out, these ideas, "once the hallmarks of fringe candidates" have gone "unremarked on by the Republican contestants." In addition, any attempts to steer the debate with "constitutional, legal and practical questions" are "contemptuously dismissed as 'political correctness,'" hereby making "bigotry, hatred and magical thinking the new normal":

    THE REPUBLICAN Party, once small government's champion, is now the party that breeds presidential contenders who would monitor schools and mosques, shut down parts of the Internet and exclude certain immigrants for no reason beyond the faith they profess. In the GOP debate Tuesday, those ideas -- along with can-you-top-this rhetorical barrages aimed at illegal immigrants and Syrian refugees -- received a generally polite reception, with constitutional, legal and practical questions contemptuously dismissed as "political correctness."

    True, the extremism that now passes for mainstream Republican thought, robbed of its shock value by the unfiltered ravings of Donald Trump, was punctured from time to time with expressions of dismay, incredulity and doubt.

    Former Florida governor Jeb Bush and Sen. Rand Paul (Ky.) skewered Mr. Trump's plans for the United States to ban all Muslim immigrants or murder the families of terrorists, and Mr. Paul, along with Ohio Gov. John Kasich, rightly dismissed Mr. Trump's blithe suggestion that he could somehow censor the Internet in parts of the world where jihadist sentiment runs deep.

    By and large, though, these ludicrous proposals went unremarked on by the Republican contestants, for whom bigotry, hatred and magical thinking are the new normal.

    The GOP's ideological sands are shifting with whiplash-inducing speed. Just a week after House Speaker Paul D. Ryan (R-Wis.) denounced Mr. Trump's callto bar entry to any Muslim immigrant, Sens. Marco Rubio (Fla.) and Ted Cruz (Tex.) both said they could "understand" the impulse behind the patently un-American idea, although each politely disagreed. As for Mr. Trump's four other main rivals, who flanked him on the stage in Las Vegas, none bothered even to address what surely counts as one of the most incendiary proposals ever made by a candidate seeking a major party's presidential nomination.

    It could be that the candidates quail at contending with the question of banning Muslims because polls suggest that about 60 percent of GOP primary voters like the idea. (A roughly equal proportion of all Americans don't.) However, lunacy has always had a constituency in this country -- plenty of people think the moon landing was a hoax and that the Sept. 11, 2001, attacks were an inside job. A litmus test for presidential candidates is whether they have the spine to speak truth to the fringe. By that standard, most of the current crop of Republican hopefuls fail.

    The candidates were no more courageous on the question of admitting Syrian refugees victimized by a dictatorial regime and the Islamic State's death cult. Despite the fact that neither the San Bernardino, Calif., assailants nor any of the known Paris attackers appears to have been Syrian -- most in Paris were French nationals -- virtually all the GOP contestants jockeyed to vilify Syrian refugees, with Mr. Trump raising the fact-free specter of "tens of thousands of [refugees] having cellphones with ISIS [Islamic State] flags on them."

    Fear-mongering and raw xenophobia were once the hallmarks of fringe candidates. Today the fringe candidates have stormed center stage, brandishing their zeal and hyperbole and, disturbingly, dragging the mainstream along with them.

  • Oil Industry Says "Jump," The Washington Post Asks "How High?"

    Blog ››› ››› OLIVER WILLIS

    In a front page story today the Washington Post claims that "Obama's focus on visiting clean-tech companies raises questions." The problem is that the people raising questions are clean tech's competitors in the oil industry.

    The article explains that President Obama who is on the record as a supporter of clean energy technology, has "fulfill[ed] a campaign pledge to push clean tech, from solar energy and wind power to electric vehicles," in part by visiting "22 clean-tech projects on 19 separate trips."

    What's the problem? The Post answers:

    The oil and gas industry, for example, has invested billions in energy innovation and job creation and could benefit from similar presidential attention, said Martin J. Durbin, executive vice president of the American Petroleum Institute.

    "He's missing an incredible opportunity he has to join with us to make a difference in economic growth, job creation, national security and clean technology," Durbin said. "If you went and added up the number of jobs at these clean-tech companies he visited, in all honesty, I think you're going to find a very modest number of jobs."

    So the trade association of the oil and gas industry -- the American Petroleum Institute -- raises a concern about their competitors, and the Post gives them a front page article? Even the hook doesn't make sense: How is it news that a President who ran a campaign in which he supported clean energy still supports it?

    This story does create an interesting precedent. Can rivals now just order up news stories that are critical of their competitors? Can Yankees fans "raise questions" about the Red Sox, and vice versa?

  • The Barely Noticed Call To Upend American Citizenship

    Blog ››› ››› SIMON MALOY

    In the latter portions of Monday night's Republican presidential debate, the candidates were asked how they would "prevent illegal immigrants from using our health care, educational, or welfare systems." The topic quickly veered into a discussion of citizenship, as debate moderator and CNN anchor John King asked: "If there are two illegal immigrants, two adults who came into this country illegally, and they have a child, should that child be considered a citizen of the United States?"

    Herman Cain answered "I don't believe so." He elaborated on his answer after the debate, telling ThinkProgress that the "14th Amendment doesn't talk about people that were here illegally." Tim Pawlenty, who has previously endorsed revoking the birthright citizenship clause of the 14th Amendment, said that birthright citizenship came about "because a U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution."

    This is a big deal. At least two people running for the presidency want to change the fundamental notion of American citizenship as it has been understood since Reconstruction. Indeed, they want to change the Constitution to achieve that end. But their position is not getting much in the way of media attention.

  • Hyping Boehner's "150 Economists," Media Ignore That Many Have History Of Dubious And Extreme Claims

    ››› ››› ERIC SCHROECK

    Several media outlets have reported on a letter sent by House Speaker John Boehner to President Obama signed by "150 economists" who support Boehner's spending cut proposal. But these media outlets have ignored that many of the economists who signed the letter have made baseless predictions in the past, some have endorsed dubious theories, and others have used extreme rhetoric to attack Obama and other Democrats.

  • Mixed Message: Right Attacks Obama For Both "Flip-Flop[ping]" And "Doubl[ing] Down" On Israel

    ››› ››› JUSTIN BERRIER

    The right-wing media have reacted to President Obama's speech to the American Israel Public Affairs Committee (AIPAC) by complaining either he "flip-flop[ped]" or "double[d] down" on his previous comments or both. However, in his speech to AIPAC, Obama simply reiterated his earlier call that negotiations between Israel and the Palestinians should be "based on the 1967 lines with mutually agreed swaps."

  • Experts Say Allegations In NLRB Complaint Against Boeing Represent "Classic" Case Of Labor Law Violations

    ››› ››› ADAM SHAH

    Conservative media figures continue to claim that the National Labor Relations Board is attacking states with lax labor laws and engaging in "unprecedented" actions by filing a complaint alleging that Boeing violated federal labor laws in connection with its decision to move the production line for its new 787 Dreamliner to South Carolina. In fact, labor law experts say that if the allegations against Boeing are true, the NLRB has presented a "classic" case of labor law violations.