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Speech-chilling subpoena issued by Virgin Islands AG in climate investigation

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Yesterday, just a few days after the Competitive Enterprise Institute (CEI) criticized investigations of Exxon by state Attorneys General over its speech related to climate change, CEI was hit with a subpoena demanding 10 years’ worth of documents relating to a wide range of topics. The subpoena was issued by Virgin Islands Attorney General Claude Walker on April 4 and received by CEI on April 7.

"CEI will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association for Attorney General Walker to bring such intimidating demands against a nonprofit group," said CEI General Counsel Sam Kazman.

The subpoena closely follows CEI’s expression of opposition to the Attorney General’s investigation. On April 1, CEI’s Myron Ebell criticized the investigation by Walker and other state attorneys general, and warned that it signaled a potential "shakedown" of the oil industry. I work at CEI as a lawyer. On March 29, I was quoted by Legal Newsline criticizing the investigation at length as a threat to climate science and the First Amendment. I also authored an earlier commentary at CNS News criticizing the investigations as a violation of federal appeals court rulings protecting free speech against investigations and lawsuits (decisions such as White v. Lee (2000) and in In re School Asbestos Litigation (1994)).

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.

The fact that this subpoena so closely followed CEI’s speech critical of the investigation, which had begun last fall in the office of New York Attorney General Eric Schneiderman, is curious, to say the least, raising red flags under the First Amendment. Courts sometimes find that adverse action is motivated by speech based on the fact that it closely follows the speech. [See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (finding that an employee discharged less than two months after filing a complaint with employer and 10 days after filing state complaint had established a causal connection); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996) (finding an inference of causation where 12 days elapsed between complaint and employee’s discharge); Holava-Brown v. General Electric, 1999 WL 642966, *4 (2d Cir. Aug. 10, 1999) (two to three months)].

Originally posted at Examiner