ExxonMobil is fighting a subpoena seeking its internal documents on climate change, arguing that the order violates the company's constitutional rights. It's an argument that legal experts say is unusual but not unprecedented.
Earlier this month, U.S. Virgin Islands Attorney General Claude Walker initiated an investigation into whether Exxon misled the public on climate science. His office is also requesting records from the Competitive Enterprise Institute, a Washington, D.C.-based libertarian think tank to which Exxon has previously provided funding. In that subpoena, the AG's office accuses Exxon of defrauding the government and consumers, and "misrepresenting its knowledge of the likelihood that its products and activities have contributed and are contributing to climate change."
Walker is one of a few state attorneys general that have announced plans to use a variety of legal tools against Exxon and other companies they believe have "deceived investors and consumers about the dangers of climate change." The attorneys general from New York, California and Massachusetts have all announced investigations into Exxon specifically.
But Exxon says Walker's attempt to get its documents is politically motivated and a violation of the company's rights. It has filed its own lawsuit in a Texas court to block the subpoena.
"Defendants' actions violate ExxonMobil's constitutionally protected rights of freedom of speech, freedom from unreasonable searches and seizures, and due process of law and constitute the common law tort of abuse of process," Exxon told a Tarrant County, Texas, court, according to a filing posted by InsideClimate News.
The complaint says Walker’s inquiry will have a “chilling effect” on Exxon’s ability to engage in the climate change debate, and “discriminates based on viewpoint to target one side of an ongoing policy debate.”
Reporting from InsideClimate News and the Los Angeles Times last year spurred allegations that Exxon's scientists internally recognized the risks of climate change while publicly questioning that science. Climate change activists have sought to capitalize on these news reports, launching an "Exxon Knew" campaign.
Exxon says reports on internal documents "deliberately cherry-picked statements attributed to various company employees to wrongly suggest definitive conclusions were reached decades ago by company researchers."
The company should be willing to share more of its documents to prove that's the case, said New York AG Eric Schneiderman. "We believe they should welcome our investigation, because unlike journalists we will be able to get every document," he explained.
Exxon's invocation of the First Amendment is fairly unusual for a business, according to John Coates, a professor of law and economics at Harvard Law School. The Supreme Court has ruled that corporations do have First Amendment rights, but they aren’t necessarily as broad as those afforded to individuals.
“Even the most right-wing and pro-business judge would not equate the speech rights of a business to that of individuals,” he said.
There’s a history of corporations asserting their First Amendment right to pay for political speech (usually through ads) -- for example, in the 2010 Citizens United Supreme Court case -- and to battle certain regulations. Coates' research has documented a number of such cases. But it's uncommon for a company to simply assert that a request for information violates its right to free speech, he said.
"Exxon’s theory here leads to the completely untenable result that anytime a multinational corporation acts in a way that elected officials, or public opinion, disagrees with -- the corporation becomes immune from regulation because any regulation would interfere with its ability to promote ‘its’ opinions, however baseless or profit-motivated," Daniel Greenwood, a professor of law at Hofstra University, wrote in an email. "That isn’t free speech; it is anarchy."
"The First Amendment protects free speech -- not corporate autonomy to act as corporate management pleases without regard to the views of Americans or their officials," he continued.
But others have tried to defend the oil company's free speech rights on this topic. Washington Post columnist Robert Samuelson argued in November that Exxon's critics "are essentially proposing that the company be punished for expressing its opinions."
Erik Jaffe, a Washington, D.C.-based appellate litigator, told The Huffington Post that Exxon might have a viable case, as corporations should be considered an association of people.
“Corporate First Amendment rights are just a species of associational rights that everyone has,” he said. “The whole point of the First Amendment is, except in extremely rare circumstances, the government doesn’t get to chill speech.”
The Virgin Islands subpoena, he added, "is designed to chill speech that the attorney general doesn’t like."
Corporations have so much money that many people worry giving them broad First Amendment rights will drown out individuals' voices. This was at the heart of the 2010 Citizens United case, in which the Supreme Court essentially granted businesses, organizations and unions the right to make all the independent political expenditures they want, because it should be considered an extension of speech.
“We’re heading in the direction of corporations getting even more rights than individuals,” Coates said.
Jaffe disagrees, comparing corporations to wealthy individuals like Bill Gates.
“That’s not a First Amendment argument," he said. "That’s a social justice argument. Ordinarily we don’t stop rich people from speaking because they have too much money.”
The climate doubters at the Energy & Environment Legal Institute, a Washington-based think tank, are also defending Exxon and accusing the AGs of conspiring against the company. Using a Freedom of Information request, the group obtained and released documents showing that some of the AGs involved in the Exxon investigation met with climate scientists and activists who have sought to build a campaign against the oil giant. The group alleges that the AGs "secretly teamed up with anti-fossil fuel activists in their investigations against groups whose political speech challenged the global warming policy agenda."
Walker and the other crusading AGs think there is good precedent for their investigation, however. At the event announcing their efforts to target Exxon and other fossil fuel companies, New York's Schneiderman said the group is looking at "creative ways to enforce laws being violated by the fossil fuel industry and their allies."
Former Vice President Al Gore also spoke at the event, and likened the probe to the government's 1990s prosecution of tobacco companies for misleading the public about the links between smoking and cancer. In that example, the Department of Justice charged companies with violating the Racketeer Influenced and Corrupt Organizations Act, which was passed to fight organized crime.
"From the time the tobacco companies were first found out, it took 40 years for them to be held accountable under the law," Gore said. "We do not have 40 years to continue suffering the consequences of the fraud allegedly being committed by the fossil fuel companies where climate change is concerned."