John Locke Update / Research Newsletter

The Criminalization of Speech, Continued

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As I have previously reported, last May US Senator Sheldon Whitehouse (D-R.I) proposed subjecting people who make politically incorrect statements about climate change to criminal investigation, and in September a group of respected academics went on the record endorsing that outrageous idea. When it comes to using the law to punish unpopular speech, however, it turns out that NY Attorney General Eric Schneiderman was way ahead of them. According to the New York Times, Scheiderman has been investigating Exxon Mobil’s statements about climate change for more than a year, and recently he took the extraordinary step of issuing a subpoena requiring the company to turn over financial records, emails, and other documents regarding:

A period of at least a decade during which Exxon Mobil funded outside groups that sought to undermine climate science, even as its in-house scientists were outlining the potential consequences — and uncertainties — to company executives.

Climate activists will no doubt be pleased by this development, and so will lawyers and state attorneys general with fond memories of the tobacco litigation bonanza of the 1990s. As the Times notes:

Attorneys general for other states could join in Mr. Schneiderman’s efforts, bringing far greater investigative and legal resources to bear on the issue. Some experts see the potential for a legal assault on fossil fuel companies similar to the lawsuits against tobacco companies in recent decades, which cost those companies tens of billions of dollars in penalties.

For those who care about due process, freedom of speech, and other civil liberties, on the other hand, these developments are very worrying.

Constitutional scholar, Philip Hamburger, for example, lists four major concerns, two related to the separation of powers and two related to freedom of speech.

Regarding the separation of powers, Hamburger notes that, because it gives the Attorney General broad power to demand testimony, papers, and other information whenever he or she deems it relevant to an investigation of corporate misconduct, a statute like New York’s Martin Act poses a serious threat to due process:

Federal and state constitutional law traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee….The only opportunity for the executive to demand information was thus through the judiciary. Nor was this an accident. As recognized in the 18th century disputes over warrants, executive demands for papers might be useful, but they were too dangerous to be tolerated. Over the past century, however, the law has changed. Now, a government administrator or even an attorney general can simply demandinformation by issuing a subpoena under his own signature….

Judges are the traditional guardians of the subpoena power, and allowing prosecutors to displace them is like asking the fox to guard the hen house.

Moreover, by violating the separation of powers such statutes also tend to circumvent the democratic process:

Attorneys general use settlements to regulate in ways that the legislature did not. Dissatisfied with enacted regulations, attorneys general employ their subpoenas to impose restrictions in settlement that failed to pass muster in the political process. The unlawful intrusion into private papers thus evades the constitutional paths for both adjudication and lawmaking.

Turning to the implications for “for freedom of speech and political dissent,” Hamburger says:

An attorney general is apt to demand information only when the target violates what a majority in his state considers the boundaries of law or justice. But that is a central part of the constitutional danger. The discretionary executive power to extract private information will tend to be used only when it is apt to satisfy the demos.Of course Exxon is not Socrates, and its empirical research is a far cry from his elenctic inquiry. Nonetheless, there are parallels, for the prosecutorial subpoena to Exxon appeals to populist anxieties. In refusing to join the crowd — in refusing to accept its climate beliefs — Exxon has questioned the gods of the city, and for this it now is being forced to answer.

Allowing the mob to determine what may or may not be said, notes Hamburger, not only suppresses unpopular political opinion, it inhibits scientific progress:

The scientific method is not about establishing truth, but about testing hypotheses to discern error. This mode of inquiry — an essential foundation of modern life — will be eroded if institutions face denunciation, even prosecution, for failing to declare their allegiance to populist interpretations of complex research.The attorney general’s understanding of the climate may be true, but for purposes of science, what is far more important than truth is the freedom to dispute it, and if his subpoena persuades corporations to diminish their attempts to test and question the truth, he will have chilled scientific and political dissent and instituted a sort of Lysenkoism.

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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