When in trouble, change the subject—or at least try to. So it is that the world’s oldest, richest, and most powerful oil company, under investigation for apparently lying to investors and the public for decades about the deadliness of its products, has launched a high-stakes counterattack under the unlikely flag of the First Amendment. On April 13, ExxonMobil filed suit to block a subpoena issued by the attorney general of the US Virgin Islands. Following revelations from the Los Angeles Times and InsideClimate News, the subpoena charged that the company may have violated the territory’s anti-racketeering law. It questioned whether Exxon told investors, including the territory’s pension fund, one thing about climate change (that it wasn’t a danger) while its own scientists were privately telling its management the opposite.
New York Attorney General Eric Schneiderman raised the same question when he subpoenaed Exxon in November. The oil giant turned over some 10,000 pages of documents, which Schneiderman’s staff is reviewing. But when Virgin Islands Attorney General Claude Walker requested many of the same documents, Exxon not only refused; it went on the offensive. The company’s countersuit asserted that Walker’s subpoena was an attempt “to deter ExxonMobil from participating in ongoing public deliberations about climate change…. The chilling effect of this inquiry, which discriminates based on viewpoint to target one side of an ongoing policy debate, strikes at protected speech at the core of the First Amendment.”
Soon, in an exercise in mass ventriloquism, myriad voices on the right—including the Heritage Foundation, National Review, the New York Post, Reason, and the Hoover Institution—took up the refrain. Outraged that 16 other state attorneys general had pledged action against the fossil-fuel industry, Washington Post columnist George Will charged that the law-enforcement officials were trying “to criminalize skepticism about the supposedly ‘settled’ conclusions of climate science.” Fox News accused the AGs of “collusion” with activists, citing a meeting that a member of Schneiderman’s staff had with a representative of the Union of Concerned Scientists.
The right-wing chorus predictably glided past the fact that, as a matter of law, the First Amendment is no shield for fraud. And telling one thing to investors while privately knowing the opposite to be true, as Big Tobacco once did, is plainly fraud. But now, it was all about Exxon as the victim, with the usual left-wing villains—overreaching government and environmental extremists—trampling the oil company’s free-speech rights because it had dared to take an unconventional position on climate change. Exxon even used the same law firm that defended Big Tobacco—Paul, Weiss, Rifkind, Wharton & Garrison—to file its countersuit.
Will crying “free speech” succeed in blunting the effort to bring Exxon and its fellow fossil-fuel giants to justice? It’s too soon to know, and compelling evidence runs in both directions.
Framing Exxon as a victim isn’t an easy sell beyond the right-wing echo chamber. Nor is climate denial. The vast majority of voters and policy-makers now understand that climate change is a real and growing danger. And most people have little trouble believing that Exxon knew full well about this danger, even as it spent decades and tens of millions of dollars portraying climate change as a “premise that defies…common sense,” to quote former CEO Lee Raymond.