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.