By John W. Nikolaou (CMC ’19)
ExxonMobil has recently been subpoenaed by a coalition of state attorney generals (AGs) demanding over 40 years of internal company communications to investigate whether Exxon committed fraud by downplaying the impact of climate change. Massachusetts Attorney General Maura Healey has been the most vocal AG of the Democrat-led coalition of attorneys general, known as the Green 20, formed in March to investigate fossil-fuel companies and others who “challenge” the catastrophic climate-change narrative, or “consensus.” While the subpoenas have been applauded by some who have historically accused Exxon of attempting to misguide the public and shareholders on human-caused global warming, there has been no shortage of voices against the subpoenas on constitutional grounds.
Naturally, Exxon has been engaged in full defense, claiming that the AGs are seeking to “cleanse the public forum” of “disfavored speech.” The company pointed to the fact that Ms. Healey said her goal was to “reshape public perception” on climate change to accelerate legislative action on issues she is personally pushing in Massachusetts. Therefore, the company claims, Healey’s actions stemmed from her effort to advance a political agenda, not ferret out wrongdoing.
While the motivations of the subpoenas are a debate of politics, there is a concurrent debate about the legality of the subpoenas in the first place. Exxon was quick to point out that Massachusetts had no jurisdiction over the case since Exxon is based in Texas and its products are sold in other states by independent operators. Perhaps the most important legal question, however, is whether subpoenas should be used in the way the Green 20 is using them.
The state of Texas and 10 other states filed an amicus brief arguing that Ms. Healy grossly misused her subpoena power. Texas Attorney General Ken Paxton said “[Healey’s subpoena] is an overt use of governmental power to shut down particular viewpoints is a blatant violation of the Constitution.” While Paxton affirmed that state AGs have sovereign authority to investigate violations of law through the use of subpoenas, he argued that “this power does not include the right to engage in unrestrained, investigative excursions to promulgate a social ideology, or chill the expression of points of view in international policy debates.” The amicus brief further argued that the First Amendment exists in part to prevent government from restricting speech merely because it disapproves of the ideas expressed and that the Fourth Amendment requires such subpoenas to be precise and used with “scrupulous exactitude.” To this point, a spokesperson for Ms. Healey responded saying, “the First Amendment does not protect false and misleading statements in the marketplace.”
The subpoenas and the amici brief filed by the states both bring up interesting questions about our rights to speech. Exxon’s public records show that the company did indeed acknowledge climate change and warned shareholders about its potential effects on Exxon’s businesses. But if Exxon publicly denied climate change, would this be grounds for a lawsuit? If a lawsuit argued that Exxon sold products that indirectly harmed consumers’ health, how culpable would Exxon be for its contributions to climate change? And, overall, what power do courts have in actively seeking to regulate opinions? It will be interesting to see for how long this fight goes on, especially considering that in June Exxon successfully fought off a subpoena filed by the Virgin Islands Attorney General, who dropped his demand for internal company communications regarding climate change. In the meantime, the private and public sector alike will keep a close eye on the legal precedents being set by the Green 20’s subpoenas.