ExxonMobil is now asking a federal appeals court for relief from a never ending and overreaching investigation led by Massachusetts Attorney General Maura Healey and New York Attorney General Barbara Underwood, who accuse the company of misleading investors on the risks of climate change. The investigation was initiated several years ago, directly after the Attorneys General met with anti-fossil fuel activists whose goal is to “delegitimize Exxon as a political actor.”
In its latest filing, ExxonMobil shows how the investigation has implications for every company’s ability to speak freely without retribution from politically motivated government investigations.
To recap, the investigation has been ongoing for years and has only resulted in Exxon turning over a pile of documents as high as the Empire State building. Despite significant access to the company’s internal documents, the AGs have consistently failed to prove their claims. However, instead of terminating their groundless investigation when reaching a dead-end, the AGs have changed the legal theory that underpins the investigation on four separate occasions.
For these reasons, Exxon is pointing out that the only plausible reason for this investigation is an abuse of the AGs’ offices to stifle speech:
“The Attorneys General targeted ExxonMobil with burdensome investigations because they do not agree with its public statements about climate policy and hope to curtail its speech and participation in public discourse on that issue. The Attorneys General might believe they are on the right side of the issue, but the ‘government, even with the purest of motives, may not substitute its judgement as to how best to for that of speakers and listeners; free and robust debate cannot thrive if directed by the government. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 791 (1988).” (emphasis added)
The National Association of Manufacturers and U.S. Chamber of Commerce have weighed in to support Exxon, due to the broader implications this case has for the business community:
“The AGs’ actions implicated the First Amendment Speech and Petition Clauses. In addition to targeting Exxon for its viewpoints, the AGs sought Exxon’s communications with twelve organizations, pejoratively labeled ‘climate deniers,’ including think-tanks associated with two universities. Subpoenaing a company’s communications with third-party organizations not only can chill the company’s speech, but also may have a pernicious effect on those with whom the company interacts.” (emphasis added)
Exxon also references a 2016 press conference that included Healey and then-New York Attorney General Eric Schneiderman, as well as former Vice President Al Gore. During that event, the AGs alleged that Exxon’s speech created “misperceptions in the eyes of the American public.” Exxon responds:
“They pledged to ‘clear  up’ that public perception, using the coercive force of their investigative authority to silence perceived opponents and promote their preferred climate policies… ‘But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction.’ Sorrell v. IMS Health Inc., 564 U.S. 552,578-79 (2011). Using state power in this manner violates the First Amendment.” (emphasis added)
The documents requested by the AGs further prove the misguided intent of their investigation: to harass the company because they disagree with Exxon’s policy preferences:
“Many of those requests go so far as to target the precise viewpoint the Attorneys General oppose, asking ExxonMobil, for example, to provide documentary support for its policy suggestion that ‘issues such as global poverty [are] more pressing than climate change.’”
Instead of addressing Exxon’s arguments about free speech, Healey and Underwood have simply restated the obvious in a desperate attempt to distract from the issue and keep the racket going, as Exxon’s filing further illuminates:
“Rather than engage the factual allegations set forth in the Compliant, the Attorneys General attempt to confuse the issues. They open by arguing that investigative tools like subpoenas and CIDs [civil investigative demand] do not directly regulate speech. ExxonMobil agrees that there is nothing inherent in an investigative tool that violates free speech, just as there is nothing inherent in a black marker that constitutes censorship or an officer’s baton that constitutes police brutality. But innocuous tools, when improperly deployed, can violate constitutional rights.” (emphasis added)
The recent filing by Exxon further demonstrates how the #ExxonKnew investigation is a flagrant abuse of power. Instead devoting their resources and power to enforce the law, Healey and Underwood are engaged in a political effort to delegitimize a private company solely because they disagree with their statements on an issue.