It isn’t often that global warming becomes a free speech issue. However, this may be the case in New York, where 11 state attorneys general filed an amicus brief in federal court in support of ExxonMobil in late April. ExxonMobil is in the midst of a lengthy legal battle with New York Attorney General Eric Schneiderman, who has spent more than a year trying to obtain decades of documents from the company first looking to see if ExxonMobil had lied to the public about the risks of climate change and, later, backtracking to determine if the company had defrauded investors by overstating the sizes of its reserves. In a call on Tuesday, Texas Attorney General Ken Paxton spoke about the case as an abuse of prosecutorial power and an infringement on first amendment rights.
Paxton was one of the attorneys general who signed the amicus brief which pointed out flaws in the prosecution’s investigation and case. Paxton, does not mince words on the matter, calling the ExxonMobil case an “unfortunate misuse of prosecutorial power” that he and others were committed to aggressively challenging. The ExxonMobil example is particularly egregious for Paxton, who sees the issue as a straightforward freedom of speech case.
“A company has a right to express itself on anything it wants to,” Paxton said. Paxton believes that the lawsuit against ExxonMobil is little more than a political witchhunt.
The amicus brief argues that, while law enforcement has authority to investigate possible wrongdoing, it lacks the right to “engage in unrestrained, pretextual investigative excursions to promote one side of an international public policy debate, or chill the expression of viewpoints in those debates.”
The case itself addresses several serious constitutional issues. While law enforcement certainly has the authority to investigate wrongdoing, Paxton argues that the case against ExxonMobil is more a policy position than a real law enforcement issue and continuing to seal documents relating to the investigation hurts the company. He even went as far as to describe the lawsuit as “an organized campaign of employment discrimination and an attempt to chill speech.”
“[It’s] certain that we don’t want government in the practice of investigating companies for having the wrong opinion on climate change,” he said.
The brief is specifically aimed at the actions of Schneiderman and Massachusetts Attorney General Maura Healey, who have both taken leading roles in the campaign against Exxon. For the two Democratic attorneys general to act in this way weighted the case against ExxonMobil, Paxton said, since the company’s reputation would suffer even if the allegations were proven false. Instead, he said, the attorneys general were using their authority as prosecutors to attempt to influence a debate that should be left in the realm of politics, not law.
“[The attorneys general] are not using their power in an impartial manner,” according to the brief. “Rather, they are embracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints. This is bad faith.”
Paxton expanded on this line of reasoning, explaining that he fears that settling public policy debates in the courts will effectively gag dissenting opinions.
“Whether we like the issue or not, the effect is to chill speech,” Paxton said, calling the Exxon case a “slippery slope to government controlling more and more speech.”
During the Tuesday call, Paxton acknowledged the New York Attorney General’s right to gather information from sources confidentially, while also stating that such communications should not be privileged if there is evidence of bad faith or collusion to investigate for remunerative political purposes. Paxton said the situation marked “uncharted territory.”
The bad faith elements of the case include evidence that the New York Attorney General met with Al Gore, members of the Rockefeller Family Fund, and other environmentalists in the weeks prior to November 2015, when Schneiderman opened his investigation of the multinational corporation.
The Energy and Environmental Legal Institute played a role in the sprawling multi-state legal battle by using sunshine laws to sue for records of New York Attorney General Eric Schneiderman’s contacts with members of the Rockefeller Family Fund and other environmentalists in the weeks prior to November 2015, when Schneiderman opened his investigation of the company.
Chris Horner, a senior legal fellow at the Energy and Environment Legal Institute, one of the groups that has sued the New York Attorney General for records, tells InsideSources that law protecting confidential investigative correspondence exists for a reason, but it falls on Schneiderman’s office to justify why the correspondences are being withheld.
“In this case, Schneiderman has to establish that he is permitted to and did in fact deputize the party’s biggest donor [billionaire Tom Steyer], and the Rockefeller Family Fund, to help him perform his law enforcement duties. That it wasn’t using his office to pursue a political campaign, that is, that he wasn’t telling the truth when recruiting fellow AGs,” he wrote.
Leo Doran contributed to this article.
