Climate Litigation Chills Speech and Debate

In recent years, much of the debate around free speech has centered on whether large technology companies, in their roles as gatekeepers to the public square, inappropriately censor content posted or shared by individuals and other businesses. And, indeed, the overweening power of large internet firms to censor speech—a power that Section 230 of the Communications Decency Act, 47 U.S.C. § 230, as currently interpreted by courts protects—calls for reform.

Increasingly, however, it is corporations that find themselves in the crosshairs of the pro-censorship forces, who have recently linked up with the plaintiffs’ bar and anti-fossil fuel groups. Both Big Tech censorship and this new litigious conglomeration are united in keeping politically incorrect facts out of the public discourse. Over the last decade, plaintiffs’ attorneys, environmental groups, and state and local governments have filed suits, often duplicative, that seek to hold fossil fuel companies liable for climate change. Many of these lawsuits, including Suncor Energy v. Board of County Commissioners of Boulder County, which is pending before the Supreme Court awaiting input from the solicitor general, seek to create tort liability for what is clearly protected speech.

The plaintiffs in Suncor and similar lawsuits allege that fossil fuel companies have misled the public about the risks of climate change, citing as evidence their advocacy for and against policies that affect their lawful business as well as so-called “false advertising” that highlights the industry’s investments in technologies designed to reduce carbon emissions. The lawsuits state that such activity amounts to unprotected deceptive speech. While the First Amendment clearly does not give corporations the right to deceive their customers about the nature of their products, the plaintiffs provide no evidence of such deception. These suits seek tort liability for true statements about corporate investments—or to criminalize the industry’s position on controversial matters in climate science.

This is not to say there are no examples of actual false and deceptive claims made by corporations. The FTC could sanction Facebook if it made false claims that it doesn’t track private consumer data, when the evidence clearly shows that it has done so, without running afoul of the First Amendment. However, Facebook would be fully within its rights to advertise or publicly state that it is trying to offer more privacy-friendly products and can fend off stricter privacy regulations.

This latter category is far more analogous to what is at issue in cases over climate litigation. As Justice Alito noted in his dissent from a denial of cert in National Review v. Mann, climate change is “one of the most hotly debated issues of the day” and that

Americans discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.

Justice Alito’s observation applies in Suncor and other climate lawsuits. For example, Boulder County’s complaint cites oil companies running ads criticizing the Kyoto Agreement to address global warming as “unrealistic and economically damaging” and complains of some oil executives testifying decades ago in agreement with most experts at that time that climate science was “unsettled.” Meanwhile, Massachusetts’s lawsuit against the industry accuses oil companies of “‘greenwashing’ marketing campaigns,” which apparently means advertising their investments in clean energy and other environmentally friendly policies to conceal “massive environmental harms.”

Regardless of the veracity of plaintiffs’ claims in these cases, all of this speech is constitutionally protected. Speaking out against the effects of entering a treaty that would be harmful to one’s business is clearly part of the core of protected political speech. By the same token, characterizing the consensus on any matter of scientific inquiry as “settled” stifles academic debate. As Justice Alito noted, “Political debate frequently involves claims and counterclaims about the validity of academic studies, and today it is something of an understatement to say that our public discourse is often uninhibited, robust, and wide-open.”

The questions presented in Suncor involve federal common law, not the First Amendment directly. However, the Court can take this opportunity to address this topic. Federal common law is often used to protect speech. For example, much of the case law surrounding reporter’s privilege derives from a synthesis of the First Amendment and federal common law.

The Court must step in to address endless lawsuits by ideologically motivated state and local governments and the financially motivated plaintiff’s bar when done to stifle speech and rein in the acceptable limits of public discourse. Recognizing that these suits will have an effect on public discourse nationwide calls for uniform application of the law. (Ironically, finding liability for supposed “greenwashing” will perversely disincentivize companies from making the incremental reforms favored by environmentalists.) It is important for us to debate the implications and best remedies for climate change, but this cannot be done when participants are worried about tort liability for even engaging in the discussion.

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