S9, Ep3 | The Next Citizens United Will Be a Climate Case

[00:00:00] Honolulu hearing: We'll move on to our third argument for today. That is City and County of Honolulu versus Sunoco LP. Case numbers 21 15313 and 21 15318. And Mr. Boutrous, you're up. Thank you, Your Honor. May it please the Court, Theodore Boutrous, on behalf of the defendants, I'd like to reserve three minutes for rebuttal. These cases belong in federal court.

[00:00:30] Massachusett court archival: Whenever you're ready. Thank you, your honor. And may it please the court. My name is Justin Anderson. I represent Exxon Mobil in this appeal. You're saying, uh, the attorney general is punishing us for stating our position on global warming, right? And so you have a defense, right?

The government is punishing us for speech. That's the first amendment. You have, in the Constitution, a defense. Why would the legislature need to provide you the anti SLAPP statute to supplement that defense? The anti SLAPP statute provides a mechanism to have a case that is brought against… Someone for petitioning activity dismissed at the outset before burdensome discovery is imposed on the party before we have our executives come in to give testimony and depositions before we're dragged into a courtroom where we have to defend ourselves.

All of this happened. This might sound like boring droning court tape. Okay, fine. It is boring droning court tape, but also. There is a lot going on here, especially in the context of this whole corporate free speech thing we've been tracing throughout this mini series. So let's get into it. That was Gibson Dunn partner Ted Boutros up top speaking on behalf of his client Chevron And all of the other oil and gas company defendants in the climate case that the city and county of Honolulu brought against them.

The second person speaking was Justin Anderson from Exxon's law firm, Paul Weiss, defending his client in a climate fraud case brought against it in the state of Massachusetts. And whining about the company's executives being dragged into court to defend themselves. First thing it's important to note here, Boutros has often spoken for all of the defendant oil companies in these climate liability cases where Chevron is a named defendant, especially when issues around free speech come up.

There are now more than two dozen of those cases in the U S. That's notable because prior to his involvement in these climate cases, Boutros was not known as a liability expert. But he is considered one of the country's top First Amendment attorneys. You might recognize his name from his defense of CNN's Jim Acosta against the Trump administration, which took Acosta's press badge, or from his defense of Mary Trump against her uncle when he tried to suppress her book.

Let me bring in Mary's attorney, Ted Boutros. Ted, the book is coming out at the end of July, nobody can stop that, but Mary is still tied up in court. Uh, what's the latest? The latest, Brian, is that we filed our brief Thursday challenging what remains a prior restraint against Mary. Simon Schuster has been freed by the appellate court in New York to publish the book.

So the book is going to come out, but there's still a restraining order against Mary Trump. That restricts her from publishing. We've opposed that. The Supreme Court has never upheld a prior restraint in any case in history where political speech was involved. That's what this is. It's an important book about the President of the United States.

Boutros doesn't just defend CNN. He's also a regular guest. Commenting on various First Amendment issues and Boutros has advised lots of other top media outlets to not just CNN, but also the New York Times, ProPublica and Reveal at the Center for Investigative Reporting. Here he is receiving the Reporters Committee for Freedom of the Press Award in 2021.

Thank you, Reporters Committee for this award and for all you do to defend freedom of the press in this country and congratulations to my fellow honorees. It's truly an honor to be in your company. A free and aggressive press is vital to ensuring the freedom and self determination of individual citizens and is a crucial check on government power.

To put that award in context, the person who got it the year after him was Judy Woodruff, the longtime host of PBS NewsHour. Lots of really well known, legendary journalists have received this award. The year Boutros got it, he received it right alongside New Yorker writer Jane Mayer, who's perhaps best known for her book, Dark Money, about the hidden…

Corporate money fueling the rise of a radical right in the U. S., something made possible by Boutros firm, Gibson Dunn, and their work on Citizens United. Despite the fact that he represents Chevron, that his firm fought and won Citizens United, and that one of his biggest Supreme Court wins was helping Walmart crush a labor lawsuit, Boutros has managed to become something of a liberal media darling.

Which makes him quite a clever pick as the guy defending the oil company's rights to say whatever they like about climate change. Each of the climate liability cases is slightly different, but in broad strokes they allege that the fossil fuel company's decisions to mislead the public on climate change delayed action on the problem.

which has resulted in exponentially greater climate impacts and because of that, greater costs for both dealing with and adapting to those impacts. So for example, a coastal county might argue that the ocean has risen several inches higher than it would have had the fossil fuel companies not blocked climate action in the eighties and nineties.

That means that their costs for dealing with storm surge and storms and building seawalls, maybe moving people to higher ground, losing tourism dollars associated with beaches that are eroding, dealing with regular flooding, all of that, those costs are higher today than they would have been. The municipal and state governments bringing these cases want oil and gas companies to pay a percentage of those costs equal to their role in obstructing action.

Sometimes they also include fraud claims, and they often include a claim called failure to warn. Here's attorney Vic Cher, partner and co founder of the law firm Cher Edling, which is outside counsel in a lot of these cases. One of the fundamental obligations that the law imposes on a manufacturer of a product is that if they know that there's a danger associated with the use of the product, they have to give a warning about it.

And that warning has to be proportionate to the severity of the risk and the injury that they know accompanies it. So, we're not talking about Find, print, hidden away where nobody will see it. If you know that your product is going to destroy the world, you have to be yelling that from the mountaintops, uh, frequently and constantly even.

But Boutros argument, and Justin Anderson's for Exxon, in the few cases where Exxon is fighting alone, is that everything the oil companies have ever said about climate change was in the interest of shaping regulation, or blocking regulation. That makes it a petitioning activity, which is protected by the First Amendment and not subject to fraud laws.

The key distinction here is whether their speech could be considered commercial speech intended for the public or petitioning speech intended solely for regulators and policy makers. Here's Anderson again, making that argument before the Massachusetts State Supreme Court in 2022. The alleged misrepresentations are the statements that ExxonMobil has made about its views on climate policy, on energy policy.

Even today. What, what ExxonMobil has said is that the world is not ready to move away from oil and natural gas, and that's what they accuse us of misrepresenting. They're saying our petitioning has delayed the transition to clean energy that our speech has, quote forestalled a strong policy response to climate change.

And here's attorney Seth Schofield with the Massachusetts Attorney General's office responding. The claims in the complaint, there are three of them, have nothing to do with Exxon's advocacy on climate change policy or energy policy. The purpose of the complaint is very clear. It says, I quote, the Commonwealth of Massachusetts through its attorney general brings this action to hold ExxonMobil accountable for misleading the state's investors and consumers.

In its reply, Exxon points to two incidents. Where it's, it suggests that the, the attorney general's 200 page complaint may refer to some activity that constitutes petitioning, but that is a far cry from saying somehow Exxon can satisfy this court's test that the attorney general's claims are quote solely based on Exxon Mobil's claims.

Petitioning. But it's not just free speech, or petitioning speech, that both Anderson and Boutros have been arguing in these cases. It's also the idea that their client's speech is so protected that these lawsuits don't just infringe on their First Amendment rights, they are actually harassment. The hearing Anderson was speaking at was to evaluate Exxon's claim that the Massachusetts fraud case against it was actually a slapsuit.

SLAP stands for Strategic Litigation Against Public Participation. It's a term that was coined in the 1980s on the heels of a whole bunch of lawsuits suing civil society groups and media outlets for defamation every time they openly criticized a company or executive. In fact, our old friend Herb Schmertz was a big fan of these suits.

Here he is telling Ted Koppel in the 80s that they're perfectly valid and that if journalists don't want to be sued, they could simply stop criticizing companies, which of course, schmertz equates to spreading falsehoods. I think you have emerging now a feeling on the part of the press that they're somehow above the law, that they can make false statements about people, that they can damage people and they don't have to suffer the consequences.

It just seems to me very simple that, uh, I don't see how protecting falsehood. Uh, helps in the search for truth. Beginning in the 80s, states started to pass anti slap laws intended to help people targeted by these suits get them dismissed quickly and cheaply so that ideally they would not have the intended effect of chilling speech and protest.

In recent years, corporations have begun to avail themselves of these laws. Suddenly they are painting themselves as the victims of these types of cases rather than the original architects of them. In both the Honolulu and Maui cases in Hawaii, Boutros tried to invoke California's anti SLAPP law to get climate cases against Chevron dismissed.

Anderson was leaning on Massachusetts anti SLAPP statute in his defense of Exxon as well. The idea that the government can be trusted. Never to bring legal action against someone because they disagree with their speech runs counter to the fundamental concept and the fundamental core principle behind the First Amendment itself.

The First Amendment protects us from the government. Yes. Who will protect multinational oil companies from the U. S. government? We're going to unpack that a bit and connect Mobil's whole history on corporate free speech back up to what's happening today. After this quick break, I'm Amy Westervelt, and this is drilled coming up the final episode in our mini series herb

in the last two episodes, we followed the corporate free speech movement from Baladi in 1978, which let corporations advertise policy positions and ballot initiatives Thank you for tuning in. to Citizens United in 2010, which eliminated any restrictions on spending from corporate coffers or spending directly to support a particular candidate.

We've also followed the fossil fuel industry's role in that movement, from pioneering new forms of corporate speech to supporting ever broader legal protections. for that speech. In the years since the Citizens United ruling, several states have passed laws that further obscure the funding behind particular initiatives or political groups.

Others have tried to increase transparency. Meanwhile, the Supreme Court has only grown more conservative and more supportive of corporations. But it has still stayed away from the issue at the heart of that 2003 Nike versus Kasky case, which asked them to blur the line between protected corporate advocacy and fraud.

In that case, ExxonMobil filed a brief in which it made the exact same argument that oil company lawyers are making today. That really everything corporations say about matters of public concern should fall into the categories of protected petitioning activity or advocacy. In his argument for Chevron in the Hawaii cases, Gibson Dunn partner Ted Boutros argued that the Hawaiian municipalities had tried to frame their claims as quote, based on speech rather than petroleum production or emissions targeting purported.

misrepresentations or disinformation. The speech, the complaint targets is almost entirely directed to policymakers, regulators, and the public advocating against regulation of the oil and gas industry. In other words, hey, we were just trying to block regulation, so we could have said whatever we wanted to, and it's protected.

Here's Vic Cher, who's representing the city and county of Honolulu and the county of Maui in those cases. Well, the First Amendment doesn't protect fraud and deception. That's the first point. The second point is that it's an industry playbook to try and shift the conversation from culpable and liable conduct to something else.

And this is part of that. And here is former Massachusetts Attorney General Mara Healy's take. Healy's the one that originally filed the fraud claim against Exxon. For far too long, these, these corporations have tried to use the First Amendment to shield unlawful Activity activity that that sounds in in serious fraud and misrepresentation both to the investor and shareholder public as well as to consumers, which is, you know, what we allege that Exxon Mobil did.

So we're going to continue to fight on and keep beating them every round in court. They tried to sue. Us in three different states. If you can believe it, ExxonMobil took to the pages of the Wall Street Journal and op eds everywhere to try to malign me and the team. They also brought suits against us, including suits against me personally in Texas and New York here in Massachusetts.

We beat them at every turn. And now we're on to Discovery. And I look forward to, you know, as we did with Purdue and the Sacklers, our job is to have the story be told. You know, let it all, let it all out there. But it's not beyond the realm of possibility that one of these cases will be appealed to the Supreme Court, and it seems equally possible that they would take it on.

Meanwhile, these same companies are working to shape free speech in another way. These fossil fuel infrastructure anti protest bills are currently, um, gaining steam. That's Connor Gibson, an independent researcher and former research specialist for Greenpeace. He's been following the rise of these critical infrastructure bills since they first emerged on the scene in 2017.

By his count, they've now been passed in 21 states. That's almost half the states. These laws effectively serve to criminalize protest. It's a big free speech problem. Someone called Ted Boutros. Felony level penalties for people who are committing non violent acts of trespass, coupled with, uh, compounded fines and jail sentences often, for organizations or individuals who are found to be affiliated with those protesters.

They don't have to have trespassed themselves, they don't have to have damaged anything themselves, if they're affiliated with somebody that did. They wind up being charged. Some states had been toying with laws like these since the creation of various domestic terrorism laws in the wake of 9 11. But these critical infrastructure laws started to really take off as a direct response to the 2016 and 2017 bombings.

pipeline protests at Standing Rock. And we know that because Derek Morgan, the former Gibson Dunn attorney turned chief lobbyist for the American fuel and petrochemical manufacturers who helped to write these bills, said so at a conference where he was presenting the idea. The need for it is really because we have seen that work, as you alluded to, Jeff.

Uh, we have seen, uh, more and more dangerous and destructive tactics going against these infrastructure projects. Uh, you know, trying to, to shut them down, uh, altogether. And we've seen nails spread on access roads that puncture tires. Uh, we've seen sabotaging engines and heavy machinery. Uh, we've seen, uh, you know, doing valve turners as well.

Talking about coordinated efforts to try to stop, uh, development. uh,

protest. This tape is tough to hear, but he said there that he's seen more and more dangerous and destructive tactics going against these infrastructure projects, including sabotaging engines and heavy machinery and valve turners. At the end, he refers specifically to the DAPL protests. That's short for Dakota Access Pipeline.

The name of the pipeline that people were protesting against. on the Standing Rock Reservation during 2016 and 2017. So between 10 to 15, 000 protesters, about 761 arrests, 94% of those were from out of state, but not from the public code. Uh, and about a third, or roughly about that, had prior criminal records.

It's not uncommon for protesters to come from out of state for actions against a major pipeline, and it's worth noting here that the Standing Rock Reservation itself runs across the border between North and South Dakota, so quite a few Standing Rock residents would technically be considered out of state in North Dakota.

But framing it this way makes protest sound scary and criminal. If you can paint protesters as radicals and criminals, it's a whole lot easier to justify stripping their First Amendment rights. Today, Derek Morgan is the Executive Vice President of the Heritage Foundation, which lobbies against climate policy.

We also know critical infrastructure bills were a reaction to Standing Rock, because when Oklahoma State Rep. Scott 2017, he said so too. I'm pretty sure they did a whole lot of damage to property in North Dakota. If you want to learn more, we actually have a meeting here at four o'clock today with some individuals from North Dakota that are here to talk to us, talk to the industry about what they're having to deal with the aftermath of those protesters up there.

But yes, that is the main reason behind this. When I asked Professor Kerr, the journalism professor from University of Oklahoma, who's been studying the corporate free speech movement for more than 20 years, what he thought about all this, that the same industry pushing to expand corporate free speech was now looking to criminalize individual free speech, he was not surprised.

It's probably inevitable because, you know, if you're in that camp, not only do you want Corporate spending or corporate speech to have a louder voice. You want your opponent to if you can to have a smaller voice, um, and I would say if that's a that can be seen as Another manifestation of why many people have always argued against this trend to give First Amendment protection to corporate political spending, media spending, all kinds, is that the financial resources are so disproportionate.

I mean, for a long time, courts protected individuals and small groups that wanted to speak out, their right to speak. And there are a lot of cases down through the years, especially in the 20th century on protecting that right to speak. It didn't mean you're guaranteed to win, but at least your right to speak was protected in a lot of ways.

But those people, if they don't have the court on their side, they're not going to have, generally, the financial resources. If these kind of laws and legal actions… are successful, it really chills and probably silences a lot of, you know, individuals and small groups that just want to make their views known.

I would say it completely inverts the fundamental idea of what a lot of people think American democracy was intended to be. That whatever else happened, every individual, every group of individuals could speak. As freely as the most powerful, the wealthiest, and it really just undermines that concept.

Starting next month and through the end of this year, maybe even beyond, we're going to be bringing you that side of this story. Working with reporters all over the world, we'll be digging into the increasing criminalization of climate protest. We'll look at the industries, companies, and groups behind that trend, what tactics are being used, what can be done about it, and what it all means.

In the meantime, we'll continue to follow the climate cases and this argument in particular. It is entirely possible that the next Citizens United will be one of these. climate cases. And it would be great if folks could start thinking now about how to avoid that outcome. For me, the two sides of this coin, the tug of war over free speech, may just be the most important climate issue today.

Without democracy, the only climate solution we're likely to see is ecofascism. And no, it's not any better than the non eco variety. Make sure you're subscribed so you get those episodes as soon as they start to drop. That's it for this series and this week. Thanks for listening and we'll see you again soon.

Drilled is an original Critical Frequency production. This season is produced and sound designed by Martin Zaltz Ostwick. Our sound engineer is Peter Doff. Additional reporting by Julia Manapella. Fact checking by Wudan Yan. Our First Amendment attorney is James Wheaton. Marketing is handled by Maggie Taylor.

Our artwork is by Matt Fleming. The show is written and reported by me, Amy Westervelt. Primary documents and additional information related to this series are available on our website at drilled. media. You can also sign up for our weekly newsletter there. If you'd like to support our work, you can upgrade to a paid subscription to the newsletter or subscribe on Patreon or Apple for early and ad free episodes plus bonus content.

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