The Real Victim in the ExxonMobil Lawsuit is the First Amendment

In his June 26 op-ed, “ExxonMobil’s climate-change smoke screen,” Yale Law School Dean Robert Post called me and others who invoke the First Amendment to question the prosecution of those who dispute the legitimacy of climate change “grossly irresponsible.” He called global warming “perhaps the single most significant threat facing the future of humanity.” But human-induced global warming is unproven, not an undisputed fact. Mr. Post claimed that if ExxonMobil or others had committed “fraud,” that trumped the First Amendment. However, “simply labeling an action . . . ‘fraud’ . . . will not carry the day,” the Supreme Court explained in 2003.

In the countersuit filed by the Competitive Enterprise Institute against the outrageous subpoena issued by the U.S. Virgin Islands attorney general for CEI’s climate-change research, the attorney general was forced to show his cards. In a brief filed in D.C. Superior Court, the only two supposedly fraudulent statements by ExxonMobil he could cite were:

● “International accords and underlying regional and national regulations for greenhouse gas reduction are evolving with uncertain timing and outcome, making it difficult to predict their business impact.”

● “Current scientific understanding provides limited guidance on the likelihood, magnitude, and timeframe of physical risks such as sea level rise, extreme weather events, temperature extremes, and precipitation.”

These statements merely express uncertainty over climate change and climate policy. Anyone who believes these statements constitute fraud lacks common sense and an understanding of the applicable legal standards.

The “abuse” of the First Amendment here is by state attorneys general acting like a scientific Inquisition to silence what they believe is the wrong view in this vigorous, unsettled scientific debate.

Hans A. von Spakovsky, Washington

The writer is a senior legal fellow
at the Heritage Foundation.

Originally posted at The Washington Post.