Recent years have seen a lot of debate about free speech. It has been about whether large tech companies can inappropriately censor content shared or posted by individuals. The overpowering power of large internet companies to censor speech is a fact. Section 230 of 47 U.S.C. SS 230 as it is currently interpreted by courts, protects–calls to reform
However, corporations are increasingly being targeted by the pro-censorship forces. They have recently teamed up with anti-fossil-fuel groups and the plaintiffs’ barre. This new litigious conglomeration and Big Tech censorship are united in keeping politically incorrect facts from the public discussion. Plaintiffs’ lawyers, environmental groups, state and local governments, have all filed lawsuits, sometimes in duplicate, seeking to hold fossil fuel companies responsible for climate change. Many of these lawsuits (including Suncor Energy and Board of County Commissioners of Boulder County), seek to create tort liability for clearly protected speech.
The Suncor and similar lawsuits claim that fossil fuel companies mislead the public about climate change. They cite as evidence their advocacy against or for policies that impact their legal business, as well as “false advertisement” that highlights the industry’s investments in technologies to reduce carbon emissions. These activities are considered unprotected deceptive speech. The First Amendment does not grant corporations the right to deceive customers about the nature and quality of their products. However, plaintiffs do not provide any evidence. These lawsuits seek tort liability for truthful statements about corporate investments, or to criminalize the industry’s position on controversial climate science issues.
However, this does not mean that corporations cannot make deceptive and false claims. Facebook could be sanctioned by the FTC if it falsely claimed that it does not track private consumer data. However, the evidence clearly supports that it has, and without violating the First Amendment. Facebook could still advertise that it wants to make privacy-friendly products, and that it can resist stricter privacy regulations.
This category is much more similar to the one at issue in climate litigation cases. In his dissension from a denial in National Review, Justice Alito stated that climate change was “one of most hotly discussed issues of the day”.
Americans debate and discuss various aspects of climate change every day. The constitutional protection of freedom to express is designed to allow all views to be heard and taken into consideration.
Justice Alito’s observation is applicable in Suncor as well as other climate lawsuits. Boulder County’s complaint mentions oil companies that run ads critical of the Kyoto Agreement to address global heating. It also complains about some oil executives who testified decades ago in agreement to most experts that climate science was not “settled.” Massachusetts’ lawsuit accuses the oil industry of “greenwashing” marketing campaigns. This apparently involves promoting their investments in clean energy to hide “massive environmental harms.”
Sign up today
Receive weekly emails to your inbox
All of this speech, regardless of whether or not the plaintiffs in these cases are correct, is constitutionally protected. Protected political speech includes speaking out against any treaty that could be detrimental to your business. Academic debate is also hampered by the notion that scientific inquiry has reached a consensus. Justice Alito observed, “Political discussion often involves claims and counterclaims regarding the validity of academic studies. Today, it is an understatement that our public discourse has been uninhibited and robust and is wide-open.”
Suncor‘s questions refer to federal common law and not the First Amendment. The Court has the opportunity to address this issue. Federal common law is frequently used to protect speech. A lot of the case law regarding reporter’s privilege is based on a Synthesis of both the First Amendment, and federal common law.
The Court should intervene to stop endless lawsuits brought by ideologically motivated state and local governments, and financially motivated plaintiff’s bars. These suits are meant to suppress speech and limit public discourse. These suits will impact public discourse across the country and require uniform law enforcement. (Ironically finding liability for “greenwashing” could perversely discourage companies from making the incremental changes favored by environmentalists. While it is important to discuss the consequences and best solutions for climate change, participants who are concerned about tort liability cannot even engage in the discussion.
