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First Amendment Fight: CEI’s Climate Change Subpoena

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First Amendment Fight: CEI’s Climate Change Subpoena

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About:

On March 29, 2016, New York Attorney General Eric Schneiderman and 16 other state attorneys general, joined by Al Gore, launched an intimidation campaign to criminalize speech and research on the climate policy debate. These AGs called themselves, “AGs United for Clean Power,” and one of their very first targets was the Competitive Enterprise Institute. On April 7, 2016, CEI received a subpoena from U.S. Virgin Islands Attorney General Claude Walker demanding a full decade’s worth of our communications, emails, statements, and other documents regarding energy and climate policy. Those documents included private donor information.

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For the next few months, CEI and our allies worked together to beat back this subpoena. We succeeded, and in June 2016, AG Walker dropped his unlawful subpoena. However, that is not enough—it’s not enough for a government official to simply stop behaving badly. AG Walker violated one of the most fundamental principles of American democracy.

CEI filed sanctions against AG Walker, and we are awaiting a ruling on this motion. There must be a consequence for AG Walker's offensive use of government power to harass and silence people who hold differing opinions. This cannot be tolerated.

TIMELINE: Fighting the Subpoena

  • Wednesday, April 20, 2016: CEI filed an objection to the subpoena calling it "offensive," "un-American," and "unlawful."
  • Friday, May 13, 2016: Walker’s local attorney informed CEI that they rejected the organization’s legal arguments, but they would withdraw the DC subpoena. Walker’s attorney gave us no decision about the underlying Virgin Islands subpoena, but she did note that Walker might reissue the DC subpoena if he changed his mind in the future.
  • Wednesday, May 18, 2016CEI sponsored a full-page advertisement in The New York Times highlighting abusive efforts by New York Attorney General Eric Schneiderman, U.S. Virgin Islands Attorney General Claude Walker, and a coalition of other “AGs United for Clean Power” to silence the speech of the more than 100 businesses, nonprofits, and private individuals who question the AGs’ positions on climate change.
  • Friday, May 27, 2016: We moved for sanctions in DC Superior Court.
  • Tuesday, June 28, 2016: DC Superior Court held a hearing on our motion for sanctions.  In opposing our motion, Walker’s local counsel argued that Walker was conducting an ongoing investigation of ExxonMobil for fraud, and that he had a legitimate interest in CEI documents. In a letter to the Wall Street Journal on June 24, 2016, Walker said that he was subpoenaing CEI for information that “can shed light” on whether we “broke the law,” which is more than intimidation, it’s an accusation. The judge stated that she’d be issuing a ruling in due time.
  • Wednesday, June 29, 2016: Walker announced that he was withdrawing his Exxon subpoena.
  • Thursday, June 30, 2016: Walker announced he was withdrawing his Virgin Islands CEI subpoena. We immediately informed the court of these developments, pointing out that the withdrawal of the Exxon subpoena was seriously at odds with what his attorney had told the court at the hearing.
  • What’s next? Our motion for sanctions against AG Walker is pending, and we are awaiting the court’s ruling. We also successfully sued Eric Schneiderman’s office under New York State’s freedom of information law, obtaining an official copy of the founding document of his AG coalition—the Common Interest Agreement. For more information on that case, see https://cei.org/litigation/cei-v-attorney-general-new-york

CEI has long been a champion of sound climate change policy, and opposed previous attempts to use McCarthy-style tactics by officials aiming to limit discussions between nonprofit policy groups and the private sector regarding federal policies.

 CEI President Kent Lassman said:

"Walker’s subpoenas are a flagrant violation of the First Amendment, and the clear conclusion to draw following his withdrawal of the ExxonMobil subpoena is that these subpoenas were a baseless fishing expedition from the beginning. All Americans have the right to support causes they believe in and the CEI subpoena is an abuse of the legal system and an effort to intimidate and silence individuals who disagree with certain attorneys general on the climate debate. Disagreeing with a government official is not a crime; abusing government power to take away Americans’ rights is.​"

 CEI General Counsel Sam Kazman said:

“Our case for sanctions against Walker is stronger than ever.  Even aside from questions of misrepresentation to the court, Walker’s decision to yank his subpoenas in the face of legal challenges indicates that he had no valid reason to issue them in the first place. And that makes the need for sanctions even clearer—because when a law enforcement officer breaks the law, it’s not enough for him to simply stop behaving badly. A violation like this of the First Amendment needs to be paid for, because that’s the best way of ensuring that it doesn’t happen again.”


Legal Documents: 

October 19, 2016 | Virgin Islands Response to CEI Notice of Supplemental Authority

October 17, 2016 | CEI Notice of Supplemental Authority

August 31, 2016 |  CEI v. The Attorney General of New York

July 5, 2016 | Virgin Islands response to Consent Motion

June 30, 2016 | Consent Motion by CEI for Leave To File Notice of Supplemental Authority in Support of Its Motions

June 30, 2016 | Letter Detailing Dismissal of VI Subpoena

June 17, 2016 | CEI Opposition to Cross-Motion

June 2, 2016 | Virgin Islands Opposition to Motion to Dismiss Under Anti-SLAPP, Fees and Sanctions

June 2, 2016 | The Center for Individual Rights Amicus Brief in Support of CEI

May 27, 2016 | Motion for Fees

May 20, 2016 | Notice of Termination of D.C. Subpoena

May 16, 2016 | Motion to Dismiss Under D.C. Anti-SLAPP Act | Memorandum | Declaration of Sam Kazman | Declaration of Andrew Grossman

May 13, 2016 | Letter Announcing Plan to End DC Action

May 10, 2016 | Letter from CEI’s Attorney to USVI’s Attorney

April 20, 2016 | CEI Objections to Attorney General Walker's Subpoena

April 20, 2016 | Letter to Attorney General Walker

April 12, 2016 | Letter to Sam Kazman 

April 7, 2016 | Subpoena of CEI from U.S. Virgin Islands Attorney General Walker 


News Releases:

October 19, 2016 | Texas Order in Exxon Case Flagged in CEI's Case Against AG Walker over Subpoena

August 31, 2016 | CEI Sues NY AG Schneiderman for Common Interest Agreement on Climate Change Subpoena Campaign

June 30, 2016 | Virgin Islands Withdraws CEI Subpoena, Bolstering Need for Sanctions Against AG Walker

June 30, 2016 | Virgin Islands’ Withdrawal of Exxon Subpoena Confirms Unconstitutional Nature of its Attack on CEI

June 28, 2016 | CEI Presents Arguments in Motion for Sanctions Against USVI Attorney General

June 17, 2016 | In Subpoena Saga, CEI Pushes for Sanctions Against Virgin Islands AG

June 15, 2016 | CEI Responds to Massachusetts AG Maura Healey over latest Climate Subpoena

June 6, 2016 | US Virgin Islands Attorney General Criticizes CEI For Defending Free Speech

May 23, 2016 | Virgin Islands AG Withdraws DC Subpoena of CEI

May 18, 2016 | CEI Runs “Abuse of Power” Ad In New York Times

May 16, 2016 | CEI Asks Court To Fine AG Walker Based On Bad Faith And DC Anti-SLAPP Law

April 20, 2016 | CEI Strikes Back At Unlawful Subpoena

April 18, 2016 | Emails Reveal AGs Colluding with Green Groups to Investigate Climate Skeptics

April 7, 2016 | CEI Fights Subpoena to Silence Debate on Climate Change


CEI Commentary:

March 29, 2017 | Sam Kazman | One Year Later AGs United for Clean Power has Fallen Apart

August 23, 2016 | Kent Lassman | Our Fight against Government Intimidation 

July 1, 2016 | Sam Kazman | Shake Up in Subpoena Land

June 27, 2016 | CEI Staff | How CEI Is Defending Your Right To Speak Freely

June 14, 2016 | Hans Bader | Attorney General Schneiderman's Lame Defense of Speech-Chilling Climate Change Investigation

June 09, 2016 | Sam Kazman | A Complaint We Didn't Expect to Hear: Virgin Islands Attorney General Now Says We're Wasting His Time

May 18, 2016 | New York Times Ad Attacks AGs’ Abuse of Power, Defends Free Speech

April 22, 2016 | The Washington Post | Kent Lassman and Sam KazmanThe Environmental Campaign that Punishes Free Speech

April 13, 2016 | Kent Lassman | CEI Will Surmount Crimethink Persecution 

April 12, 2016 | Marlo Lewis | Our Take: The Climate-Related Subpoena

April 12, 2016 | What Others are Saying About CEI's Climate Change Subpoena

April 8, 2016 | Myron Ebell | Attorney General's Climate Investigation Subpoenas CEI

April 8, 2016 | Hans Bader | Attorneys General Launch Intimidation Campaign with Subpoena against CEI


Press Highlights:

August 31, 2016 | The Wall Street Journal | Editorial  Schneiderman’s Climate Secrets

August 31, 2016  | Politico | Elana Schor Conservative think tank sues Schneiderman over Exxon probe records

July 23, 2016 | The Hill | Timothy Cama Exxon Allies Cry Foul Over Law Firm in Climate Probe

July 8, 2016 | The Wall Street Journal | Editorial The Climate Police Crack-Up

June 29, 2016 | The Hill | Timothy Cama Virgin Islands Withdraws Climate Subpoena Against Exxon

June 29, 2016 | The Washington Post | Hans A. von Spakovsky The Real Victim in the ExxonMobil Lawsuit is the First Amendment

June 29, 2016 | Washington Examiner | John Siciliano | Dem AG Backs Down in Exxon Climate Fight

June 15, 2016 | Wall Street Journal | Editorial | The Climate Police Blink

May 27, 2016 | Fox News | Bret Baier |  VIDEO: Sam Kazman Discusses CEI's Climate Change Subpoena on Fox News

May 20, 2016 | The New York Times | John SchwartzState Officials Investigated Over Their Inquiry Into Exxon Mobil’s Climate Change Research

May 16, 2016 | The Washington Times | Valerie RichardsonThink Tank Asks Court to Fine Virgin Islands A.G. After He Agrees to Pull Climate Subpoena

May 8, 2016 | Richmond Times-Dispatch| Editorial | Political Inquisitions on the Rise

April 30, 2016 | The Wall Street Journal | Editorial | The Climate Police Escalate

April 25, 2016 | Financial Times | Editorial | Climate Change Sceptics Must Be Able to Speak Out

April 22, 2016 | Washington Post | George Will | Scientific Silencers on the Left are Trying to Shut Down Climate Skepticism

April 19, 2016 | National Review | Rich Lowry  | Eric Schneiderman and His Gang of AGs Are Trampling the First Amendment

April 13, 2016 | U.S. News and World Report | Peter Roff  | Climate Change Witch Hunt

April 12, 2016 | The Washington Times | Editorial | Intimidation through Investigation

April 11, 2016 | USA Today | Glenn Harlan Reynolds | Dear Attorneys General, Conspiring Against Free Speech is a Crime

April 8, 2016 | The Blaze | Fred Lucas | ‘Outrageous Violation of the First Amendment’: State AGs Take the Next Step in Going After Climate Change Skeptics

April 8, 2016| The Hill | Devin Henry | Think Tank Vows to Fight Climate Change Subpoena

April 8, 2016 | Overlawyered | Walter Olson | CEI Subpoenaed over Climate Wrongthink

April 8, 2016 | Bloomberg | Megan McArdle | Subpoeaned Into Silence on Global Warming 


Other Resources:

June 16, 2016 | Media Call with CEI

June 15, 2016 | ExxonMobil’s Complaint in US District Court against AG Healey

June 9, 2016 | Taxpayers Protection Alliance and 47 Free-Market Groups Support CEI’s Fight to Protect Free Speech

May 26, 2016 | Senators Demand DOJ Cease Investigation Into Opponents of President Obama’s Energy Policies

April 19, 2016 | Civil Investigative Demand of Exxon from Massachusetts AG Healey

April 13, 2016 | Complaint in Exxon Mobil Corporation v. Claude Earl Walker et. al. (Texas District Court)

March 15, 2016 | Subpoena of Exxon Mobil from U.S. Virgin Islands Attorney General Walker 

June 2015 | Marlo Lewis | Report: Time for a Sensible Sense of Congress Resolution on Climate Change