August 16, 2016
Several state Attorneys General have made headlines recently for their efforts to force ExxonMobil and others—through subpoenas—to turn over research and comments about climate change over the last four decades. Whatever views one has about climate change, this is a dangerous and concerning precedent. The Attorneys General have embarked on a wide-reaching fishing expedition that wanders far afield from what they are supposed to be doing, and trenches on the freedom of speech and the press.
As the chief legal officer of the state, a state attorney general has several important duties. Among these are ensuring that the peoples’ legal and constitutional rights, such as those found in the First Amendment, are vigorously protected, and consumer protection laws are enforced. These are not responsibilities that can or should be ignored.
Let’s start with the First Amendment. The First Amendment protects the people from a government that would choose which views on matters of public importance are acceptable and which are not. But these Attorneys General are doing the opposite—by punishing companies with which they disagree. Even if the subpoenas never result in legal action by the Attorneys General, the scope of the subpoenas ensures that the companies will incur substantial costs and time. This “viewpoint discrimination” is one of the worst violations of the freedom of speech.
In fact, the recent climate change investigation by the Attorneys General will likely have a chilling effect on debate in this area. That is not only anathema to the First Amendment, but it is especially regrettable because we are talking about matters of science. Scientific consensus used to say that the Earth was flat and the sun revolved around it. We should be glad that outside thinkers challenged the consensus, and we should welcome continuing challenges to what scientists are saying today.
The investigation here is particularly troubling because it reaches back to decades-old research and expression. Individuals now must be wary not only of challenging today’s views, but also whatever people might be saying forty years from now. This is unworkable and would hinder productive scientific debate and discussion.
To justify their fishing expedition, the Attorneys General have invoked their duty to investigate consumer fraud. While there is some question about what they actually plan to do with the investigation, it exceeds any accepted understanding of consumer fraud. When asked about his theory of the case, the Attorney General of New York would only say that “[w]e have to see what documents are in there, but certainly all of the claims would lie in some form of fraud.”
Consumer protection is an important role of an Attorney General. At times, companies defraud customers, who do not have the power, wherewithal, or resources to fight back. An attorney general can step in to protect consumers in the state and encourage better business practices. This process sometimes involves a targeted use of the subpoena power.
But these Attorneys General are not targeting false information intended solely to induce a commercial transaction; rather, they seek to compel broad disclosure of public advocacy on matters of public concern. They have sought information on donations made to think tanks and advocacy groups.
The Attorney General of the Virgin Islands subpoenaed all communications about climate change from the Competitive Enterprise Institute simply because that group received funds from ExxonMobil. In a separate subpoena to ExxonMobil, he ordered all communications between the company and hundreds of non-profits, universities and scientists, regardless of any funding. Due to pressure from the Competitive Enterprise Institute and ExxonMobil, and outcry from the public at large, the Attorney General decided it was best to withdraw the subpoenas but stipulated that they could be reinstated.
Unperturbed, the Attorney General of Massachusetts has issued a subpoena to ExxonMobil again demanding 40 years of records, including communications with non-profits and journalists in the media.
Ironically, the action proposed by these Attorneys General will likely harm consumers, who will ultimately bear the costs of producing the decades of subpoenaed records. And it will harm the public by bringing the weight of the government to bear on one side of a public debate, chilling the exercise the freedom of speech and the press.
State attorneys general perform many critical duties for their States and their citizens—which we all endeavor to fulfill to the best of our ability. But those duties do not include using our legal power to punish those with whom we disagree under the guise of consumer protection. When government enforcement starts to target public companies simply because they express a viewpoint at odds with our own, we begin walking down a dangerous pathway.
Patrick Morrisey serves as attorney general for West Virginia.