Seventeen state Attorneys General around the country have embarked on a frightening campaign to shut-up fossil fuel energy companies and pro-fossil fuel think tanks, including one I am personally associated with: The Center for Industrial Progress run by Alex Epstein. Exxon has publicly questioned the claim that global warming is an imminent catastrophe. According to these AGs, this act of speech is a felony.
Yesterday, the Massachusetts AG publicly released a subpoena originally submitted on April 19 that demands Exxon produce all “documents and communications with” a number of well-known think tanks, including CIP, generated any time over the last 40 years. To provide a basis for this demand the AG has authored a novel constitutional theory: “The First Amendment does not protect false and misleading statements in the marketplace.”
Like hell it doesn’t. Let us momentarily ignore the fact that Exxon’s stated position is actually true. You would think the supposed legal chief of a state government understands the single most important sentence in the U.S. Constitution with a little more precision than what would be expected of some indolent campus protester.
Imagine a world in which someone could be convicted for simply making a false statement in the course of marketing his product. The History Channel (producers of “Ancient Aliens”) — in jail. Shopping mall Santas across the country — in jail. The Girl Scouts of America (motto: “On my honor, I will try: To serve God and my country…”) — in jail. Now add to that: a false statement, as determined by some judge, somewhere. Legal chaos.
Every judge in every court in the United States could be consumed 24 hours a day for a century by all the abstract, philosophical, political statements made by businessmen and disagreed with by someone else. Fraud is not any false statement. It is the knowingly false assertion of specific, concrete things about one’s product on which the seller can be reasonably assumed to have special expertise.
The AGs are exhibiting not only a misconception of the role of law in society but a desire to transform our institutions into an anti-justice system — into a system of metastasizing tumors bent on eating the rest of society.
They are not attacking mere Girl Scouts or mall Santas. They are attacking those who produce the cheap, reliable energy that powers virtually every home, every hospital, every vehicle in this country. This product is the difference between industrial civilization and the Dark Ages, between your loved ones living to 80 or living to 40. And the Massachusetts AG is attacking a friend of mine for thinking that he has a right merely to point out this fact.
His response was apt: “Fuck off, fascist.”
Eric Dennis, Ph.D. Physics, is a Senior Fellow at CIP. He has two decades of academic and professional experience building models of complex systems in physics and finance.