Reps. Jamie Raskin, D-Md., and Katie Porter, D-Calif., probably didn’t plan for their committee hearings to run at the exact same time this week, but the hearings sure were talking to each other.
In her Committee on Natural Resources hearing, Porter highlighted the role PR firms play in blocking climate policy. Rep. Blake Moore, R-Utah, and his selected witness, Amy Cooke, CEO of the conservative John Locke Foundation, expressed concern that preventing companies and their hired PR firms from spreading misinformation about climate change would have a chilling effect on free speech.
Meanwhile, the House Oversight Subcommittee on Civil Rights and Civil Liberties, chaired by Raskin, focused on free speech attacks against environmentalists, digging into the fossil fuel industry’s attempts to curb citizens’ speech rights via strategic litigation and laws that criminalize protest. Taken together, the two are a perfect illustration of the industry’s First Amendment strategy: expand free speech for corporations, curb it for citizens.
Raskin’s free speech hearing focused on two key tactics: the increased filing of strategic lawsuits against public participation, or SLAPPs — defamation suits aimed at penalizing citizens or citizen groups for exercising their First Amendment rights — and the proliferation of so-called critical infrastructure bills, which pile on fines and criminal sentences for those caught trespassing or vandalizing near pipelines, power plants, railroads, or other infrastructure. These anti-protest bills were a direct industry backlash to the Standing Rock protests in 2016 and 2017. Starting with a law passed in Oklahoma in 2017, they proliferated with the help of the industry group American Fuel and Petrochemical Manufacturers and the American Legislative Exchange Council, which drafts and disseminates pro-corporate model legislation for adoption by state governments. Seventeen states now have critical infrastructure laws on the books, with several more considering proposals.
“SLAPPs and anti-protest bills are really two sides of the same coin,” said Deepa Padmanabha, deputy general counsel for Greenpeace and a witness at Raskin’s hearing. “They’re tactics used by the same corporate actors to quash dissent. They’re pushing legislation to silence us, to criminalize our critiques through anti-protest bills. And they’re also filing SLAPP suits to silence dissent.”
Greenpeace has dealt with both. Greenpeace USA activists were arrested in 2019 under Texas’s felony critical infrastructure law for unfurling banners on a bridge, which temporarily blocked shipping. The goal of the action was to highlight the connection between the oil industry and climate change.
Greenpeace is engaged in active litigation in a couple of SLAPP suits too. In one, Energy Transfer, the company behind the Dakota Access Pipeline, sued the organization for its role in the Standing Rock protests. The suit was initially filed in federal court and invoked the Racketeer Influenced and Corrupt Organizations Act, or RICO, a law designed to prosecute organized crime. “Energy Transfer was alleging that our advocacy work to uplift Indigenous voices at Standing Rock constituted organized crime,” Padmanabha said.
Because RICO allows for damages to be tripled if a defendant is found guilty, Greenpeace faced a $1 billion fine. Losing that suit would have had a truly chilling effect on free speech. A federal judge threw out the case, but Energy Transfer filed again in North Dakota (minus the RICO charge), a state that doesn’t have an anti-SLAPP law on the books.
“SLAPPs and anti-protest bills are really two sides of the same coin.”
Anti-SLAPP laws allow defendants a quick way to get SLAPP suits dismissed, minimizing the time and money spent on meritless cases. Currently, 31 states and the District of Columbia have adopted anti-SLAPP statutes, which makes it fairly easy for corporate entities to go venue shopping for a court in a state without such a law. To address that gap, Raskin proposed new legislation this week to create federal anti-SLAPP protection. While some players in the fossil fuel industry may oppose Raskin’s bill, others have actually sought to avail themselves of anti-SLAPP protections. Exxon Mobil, for example, in its final attempt to thwart the fraud case against it in Massachusetts, argued that the suit was a SLAPP.
The oil company’s attorney Justin Anderson maintained that Massachusetts Attorney General Maura Healey’s fraud complaint against Exxon was not valid because the company’s public statements on climate policy should be considered political opinion (“petitioning activity,” in legal parlance), not misleading advertising — even when Exxon falsely claimed that climate change wasn’t real and overstated the company’s investments in low-carbon technology.
When one judge asked why Exxon would file an anti-SLAPP complaint rather than make a First Amendment argument in court, Anderson made clear that the point was to avoid discovery, when the corporation would be asked to hand over files and make its executives available for depositions. “The anti-SLAPP statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset before burdensome discovery is imposed on the party,” he argued.
The “petitioning activity” argument is one that the industry and its allies have trotted out repeatedly, both in court and in congressional hearings like those held this week. It’s a broad interpretation of free speech rights for corporations, the very sort of protection these same companies are opposed to extending to individuals. In his testimony before Raskin’s subcommittee, Daren Bakst, a senior research fellow on environmental policy and regulation for the Heritage Foundation, said, “The chilling effects are states bringing lawsuits against people for their speech.” It’s hard to tell because he said “people,” but he meant oil companies. Which he made clear by immediately referencing “what municipalities are doing, the government is doing against these fossil fuel companies. And I also see that Massachusetts is doing.”
This view of an oil company as a person who is being silenced for simply sharing their views on climate policy is the basic argument oil companies are making in dozens of cases across the country. These cases, brought by both municipalities and states, hinge either on fraud or nuisance claims and effectively ask that fossil fuel companies pay up for delaying action on climate, which increased both the impacts of the climate crisis and the price of adapting to a warming world. In all of them, the corporate defendants make some version of a free speech argument. They maintain that their public speech about global warming differed from their internal knowledge because their public statements were “petitioning speech,” related to their political views and desires and thus, protected. The industry has been building the foundation for such an argument for about as long as it has known about climate change — since the late 1960s.
“They will try to defend their misinformation efforts as political speech covered by the First Amendment and not subject to false advertising laws.”
The argument arose out of a situation not unlike the one playing out today, with war driving up prices at the pump and oil companies desperate to control public perception.
According to documents from Mobil’s corporate archive at the University of Texas at Austin, the company’s longtime PR whiz Herbert Schmertz and then-CEO, Rawleigh Warner, came up with an idea to help wrestle back control of the narrative. Using Mobil’s PR and advertising budget, they would create “idea advertising” to push the company’s take on key issues of the day and create the sense of Mobil as a citizen with a distinct personality.
They ran weekly advertorials in the New York Times as well as regular placements in a wide range of other publications, from the Los Angeles Times and the Wall Street Journal to Time and Fortune. Then Schmertz proposed TV and radio too. Why not?
In the early 1970s, Mobil took their TV and radio advertorials to all the big broadcast stations and only one, NBC, agreed to run them. CBS and ABC said they preferred to have their journalists cover energy issues. For Schmertz and Warner, it was a battle they had to win. What if the newspapers, or PBS, started to rethink playing nice with Mobil? In a media blitz, the two blasted CBS and ABC from every angle, in their NYT spot, on radio and TV programs, at events. Warner went to various business clubs to talk about the importance of protecting corporate free speech. Schmertz testified before Congress in 1978, urging First Amendment protection for Mobil’s ads and arguing that there was no difference between Mobil advertorials and New York Times editorials, because after all the Times was a business too.
Mobil helped rally support and funding for the first big Supreme Court case on the matter, First National Bank of Boston v. Bellotti, the precursor to Citizens United. The court ruled that corporations could spend whatever money they wanted to influence politics, overruling a Massachusetts statute that said otherwise. “If the restricted view of corporate speech taken by the Massachusetts court were accepted,” Justice Lewis A. Powell wrote, “government would have the power to deprive society of the views of corporations.”
“I don’t think people really appreciate how big of a deal that was in shifting the rules of speech in the public space,” environmental sociologist Robert Brulle said. “Now, suddenly, corporations could use their budgets — which are enormous, you know, much larger than individuals — to advocate their position in the public space. … It allowed for a systematic distortion of the public space that gives corporations basically a loudspeaker to amplify their voice above everybody else’s.”
The 2010 Citizens United ruling, of course, intensified that dynamic. Whereas Bellotti allowed corporations to publicly campaign for particular ballot initiatives or candidates, Citizens United allowed political speech of any sort without disclosure of who was paying, who was actually speaking. Oil companies have been working to broaden corporate free speech rights even more in recent years, as their arguments in climate litigation and before Congress show.
“They will try to defend their misinformation efforts as political speech covered by the First Amendment and not subject to false advertising laws,” said Brulle, who has co-authored briefs in some of these cases.
Robert Kerr, who’s researched Mobil’s role in the corporate free speech movement for years, said to side with the oil companies’ arguments in these cases, the Supreme Court would have to turn its back on about a century’s worth of legal precedent. “It’s really deeply established even by some of the members of the current Supreme Court that the First Amendment will never protect expression that is fraud,” he said. “The worry now is that with this court there seems to be a majority that wants to say yes to almost any question the corporate interests raise.”
It makes sense then, that the industry and its allies would be working hard to rebrand climate denialism as simply a difference of opinion, to put some distance between greenwashing and fraud, to collectively gasp about the “chilling effect” (a phrase that came up so often in minority witness testimony this week that it’s hard to believe someone somewhere wasn’t disseminating talking points) that tackling misinformation might have on free speech. The fact that those efforts are happening alongside coordinated attempts to criminalize protest is more of the same: corporations drowning out the public.
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