Government turns up the heat on the First Amendment

U.S. Supreme Court Justice Robert Jackson famously wrote that the “very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials.”  His point was that a crisis du jour should not void a person’s constitutional liberties.  It’s too bad that some climate change activists who find themselves holding government office have forgotten this basic point.
Recently, several state attorneys general have announced their plans to use the coercive power of their offices to obtain confidential business information from ExxonMobil.  The argument goes that Exxon perpetrated a fraud on consumers over the last several decades by misleading them into believing that climate change is false and that emission of greenhouse gases is harmless.  The investigation is supposedly justified based on an analogy to the tobacco fraud litigation.
{mosads}That analogy is weak.  The tobacco companies were accused of inducing consumers to purchase cigarettes through misleading characterization of nicotine’s risks.  But Exxon and other energy companies did not induce people to purchase their products because of what they claimed about global warming.  Rather, consumers purchased their products because fossil fuels are cheap and efficient sources of energy.  Indeed, notwithstanding that a significant majority of Americans today believe that global warming is happening, fossil fuel consumption in this country continues apace.
Unfortunately, also continuing speedily is the government’s infringement on liberty and privacy in the name of climate change.  Earlier this month, Claude Walker, the Attorney General for the U.S. Virgin Islands, served a subpoena on the Competitive Enterprise Institute (CEI), a nonprofit think tank prominent for its skeptical views on climate change.  The ostensible basis for the subpoena is to obtain documents relevant to the island government’s “consumer fraud” investigation of Exxon.  Mr. Walker, like many of his stateside counterparts, appears to have forgotten about the Constitution.
The freedom of speech protected by the First Amendment to the Constitution includes the freedom to associate.  As the Supreme Court explained in its landmark decision in NAACP v. Alabama, “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.”  But the freedom to associate also requires a certain degree of privacy and autonomy.  The NAACP Court frankly noted that “compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved.”  Recognizing “the vital relationship between freedom to associate and privacy in one’s associations,” the Court concluded that these protections are especially important where “revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
The CEI subpoena transgresses these critical constitutional protections.  For example, it demands all documents pertaining to any statement, article, report, or other publication made by CEI that was funded directly or indirectly by Exxon, even through third-party donor trusts or capital funds.  And it goes beyond any connection to Exxon itself by requiring the disclosure of all documents and communications “concerning the likelihood that or extent to which any of the products sold by or activities carried out by ExxonMobil directly or indirectly impact Climate Change.”  Such intrusiveness is precisely the affront to the First Amendment that the Supreme Court in NAACP rejected.
One might argue that CEI and its donors have nothing to fear from producing the requested documents, because they are not the objects of any investigation.  Yet such a blithe dismissal of the First Amendment would fail to perceive the practical stakes at issue.  Although CEI’s donors may approve of CEI’s approach to the climate change debate, they may not wish to be known publicly as supporting that mission.  After all, inviolability of group privacy, in the NAACP’s Court’s words, “may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”  In today’s political climate, those who deny global warming surely are espousing a form of “dissident belief.”
No doubt, government officials and individual citizens who believe that swift and dramatic responses to climate change are necessary to keep the Earth habitable are sincerely upset by entities like CEI and its donors.  But as the Supreme Court observed in another famous decision, “Extraordinary conditions do not create or enlarge constitutional power.”  The threat of global climate change is no reason to erase the First Amendment freedoms that protect climate change deniers as much as climate change advocates.

Schiff is a principal attorney with Pacific Legal Foundation.


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