Fewer than 10% of Americans consider “climate change” to be a large concern of theirs, a position contrary to what many politicians embrace. Because so few Americans believing in Anthropogenic Global Warming (man-caused climate change), several state attorneys general have chosen to investigate what they call “climate change deniers,” to build a criminal case of fraud. Apparently, if people do not believe that human activity is warming the globe, it must be because industry uses secret funds to mislead us.
Last spring, New York Attorney General Eric T. Schneiderman, and 16 other attorneys general (15 Democrats and one independent) announced that they’re investigating energy companies and scientists who do not embrace global warming with the certainty of Euclidian geometry.
At the press conference, Schneiderman said, “The bottom line is simple: Climate change is real; it is a threat to all the people we represent.” Other attorneys general echoed his certainty. “Climate change has real and lasting impacts on our environment, public health, and the economy,” said California Attorney General Kamala D. Harris. Money must be behind refusing to believe in global warming. Shortly after that, Senator Sheldon Whitehorse (D. R.I.) warned us, “Fossil fuel companies and their allies are funding a massive and sophisticated campaign to mislead the American people about the environmental harm caused by carbon pollution,” so he urged the Department of Justice to prosecute all those involved.
We learned in August that Mr. Schneiderman is demanding “extensive emails, financial records and other documents,” which imposes an extensive undertaking on all those subject to these demands.
These prosecutorial tools — extensive discovery, interrogatories, depositions, document turnover, and the threat of fraud prosecutions —make scientific dissent riskier, more expensive, and career-ending. If Newton’s rivals had such tools, we’d still be studying Aristotelian physics, which reigned supreme for nearly 2,000 years.
The prosecutors are chilling free speech. The marketplace of ideas, not prosecutorial power, should decide what is true or false. In United States v. Alvarez (2012) (6 to 3), the Supreme Court told us that we have a constitutional right to lie about receiving the Congressional Medal of Honor. The Court was not recommending lying, but it recognized that if the government can punish that, we go down a slippery slope with a steep incline. Justice Kennedy said that the government cannot “compile a list of subjects about which false statements are punishable.” Justice Breyer defended lying, “even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”
Even the three dissenters in Alvarez would protect lying in matters of science: “Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern” would “present a grave and unacceptable danger of suppressing truthful speech.”
Here’s the irony in the case of General Schneiderman: When Republicans in Congress issued a subpoena asking him to produce communications between climate change activists, the Obama Administration and his fellow Attorneys General, he suddenly becomes a born again Federalist concerned about separation of powers and liberty limiting the actions of state sovereigns. He doesn’t seem to understand that his subpoenas squelch the “free speech” interests of climate change critics. He should comply with congressional subpoenas, because federalism does not trump the First Amendment.
These prosecutors are not investigating people who believe in global warming, only those who think that there is more to investigate. Al Gore was standing next to Schneiderman at his press conference. Recently leaked documents show thatGeorge Soros is a major funder ($30 million) of Al Gore and his climate agenda. No wonder Schneiderman is ducking the Congressional subpoenas, while depriving his adversaries of the very speech the Founders’ thought sacrosanct.
Ron Rotunda is the Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence at the Chapman University Dale E. Fowler School of Law.