ExxonMobil’s Smoke Screen & Climate Change are Real

by Duane Nichols on June 27, 2016

ExxonMobil Stockholders Meeting - Houston

Exxon-Mobil is abusing the first amendment (and worse)

From an Op-Ed by Robert Post, Washington Post, Page A-27, Sunday, June 26, 2016

<< Prof. Robert Post is dean and a professor of law at the Yale Law School, New Haven, CT>>

Global warming is perhaps the single most significant threat facing the future of humanity on this planet. It is likely to wreak havoc on the economy, including, most especially, on the stocks of companies that sell hydrocarbon energy products. If large oil companies have deliberately misinformed investors about their knowledge of global warming, they may have committed serious commercial fraud.

A potentially analogous instance of fraud occurred when tobacco companies were found to have deliberately misled their customers about the dangers of smoking. The safety of nicotine was at the time fiercely debated, just as the threat of global warming is now vigorously contested. Because tobacco companies were found to have known about the risks of smoking, even as they sought to convince their customers otherwise, they were held liable for fraud. Despite the efforts of tobacco companies to invoke First Amendment protections for their contributions to public debate, the U.S. Court of Appeals for the D.C. Circuit found: “Of course it is well settled that the First Amendment does not protect fraud.”

The point is a simple one. If large corporations were free to mislead deliberately the consuming public, we would live in a jungle rather than in an orderly and stable market.

Raising the revered flag of the First Amendment, ExxonMobil and its supporters 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.

One would think conservative intellectuals would be the first to recognize the necessity of prohibiting fraud so as to ensure the integrity of otherwise free markets. Prohibitions on fraud go back to Roman times; no sane market could exist without them.

It may be that after investigation the attorneys general do not find evidence that ExxonMobil has committed fraud. I do not prejudge the question. The investigation is now entering its discovery phase, which means it is gathering evidence to determine whether fraud has actually been committed.

Nevertheless, ExxonMobil and its defenders are already objecting to the subpoena by the attorneys general, on the grounds that it “amounts to an impermissible content-based restriction on speech” because its effect is to “deter ExxonMobil from participating in the public debate over climate change now and in the future.” It is hard to exaggerate the brazen audacity of this argument.

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.

But if the First Amendment does not prevent lawsuits for fraud, it does not prevent subpoenas designed to provide evidence necessary to establish fraud. That is why when a libel plaintiff sought to inquire into the editorial processes of CBS News and CBS raised First Amendment objections analogous to those of ExxonMobil, the Supreme Court in the 1979 case Herbert v. Lando unequivocally held that the Constitution does not preclude ordinary discovery of information relevant to a lawsuit, even with respect to a defendant news organization.

The attorneys general are not private plaintiffs. They represent governments, and the Supreme Court has always and rightfully been extremely reluctant to question the good faith of prosecutors when they seek to acquire information necessary to pursue their official obligations. 

If every prosecutorial request for information could be transformed into a constitutional attack on a defendant’s point of view, law enforcement in this country would grind to a halt. Imagine the consequences in prosecutions against terrorists, who explicitly seek to advance a political ideology.

See also: www.FrackCheckWV.net

{ 2 comments… read them below or add one }

Wikipedia June 28, 2016 at 7:23 am

Robert Charles Post was born in 1947. Post received his A.B. degree from Harvard in 1969 and earned his law degree from Yale in 1977.

While at Yale, he served as an editor of the Yale Law Journal. He then clerked for D.C. Circuit Judge David Bazelon and Supreme Court Justice William J. Brennan, Jr. Post subsequently earned a Ph.D. in History of American Civilization from Harvard University, worked briefly in private practice, and started his career in law teaching at Berkeley Law in 1983.

Post moved from Berkeley to Yale in 2003 and succeeded Harold Koh as Dean when Koh was appointed to serve as Legal Adviser to the U.S. State Department. Post has been quoted in the New York Times on the composition of the Supreme Court.

Post’s academic interests include constitutional law, First Amendment, legal history, and affirmative action. His Citizens Divided (2014) looks at the constitutional aspects of electoral finance.


Reuters Update June 28, 2016 at 3:19 pm

U.S. states, Rockefellers clash with U.S. House panel on Exxon climate probes

By Terry Wade, HOUSTON, June 24, 2016

(Reuters) – With a number of U.S. states proceeding with investigations of Exxon Mobil Corp’s (XOM.N) record on climate change, the attorney general of Massachusetts and investment funds of the Rockefeller family on Friday told a Congressional committee it lacked powers to oversee those probes.

The pushback is the latest chapter in a high-stakes fight between the world’s largest publicly traded oil company and a coalition of state attorneys general who have said they would go after Exxon to try and force action to tackle climate change.

The House Committee on Science, Space and Technology last week reiterated demands that state attorneys general hand over any records of consultations the prosecutors had with outside environmental groups before their probes were opened.

Republicans on the committee have said about 20 state officials overreached when they jointly said in March they would participate in inquiries into whether Exxon executives misled the public by contradicting research from company scientists that spelled out the threats of climate change.

State officials have said the committee has no right to get involved.

“The Committee lacks authority to interfere with an investigation by the Massachusetts Attorney General’s Office into possible violations of Massachusetts law by ExxonMobil,” said a letter to the committee from the office of Massachusetts Attorney General Maura Healey that was seen by Reuters.

In another letter to the House panel seen by Reuters, the Rockefeller Brothers Fund and the Rockefeller Family Fund, two investment funds that have been critical of fossil fuels linked to climate change, said the committee’s request “imperiled the funds’ First Amendment rights” and said “Congress’s investigatory power is not unlimited.”

Last week, Exxon asked a federal court to throw out a subpoena that would force it to hand over decades of documents on climate change to Healey’s office.

Both sides in the standoff have sought to use the First Amendment of the Constitution, which guarantees freedom speech and freedom of assembly, among other protections, to press their cases.

The House committee has complained the inquiries risk stifling free speech and scientific inquiry, and that state officials were coordinating with special interest groups.

Exxon, which declined to comment on Friday, has repeatedly said that it has acknowledged the reality of climate change for years and communicated this to investors.

Source: http://mobile.reuters.com/article/idUSKCN0ZA3KX


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