Earlier this month, the Massachusetts Supreme Judicial Court was told that Attorney General Maura Healey’s lawsuit against a major energy company should be thrown out for undermining free speech rights.

In a brief, ExxonMobil asked the highest appellate court in the Commonwealth to review two questions that could implicate the future of the lawsuit. As one of the world’s largest energy companies, the company plays an active role in the public conversation on energy policy. For that reason, statements used by the attorney general as the basis of its lawsuit “were made to influence policymakers and the public on energy policy, and therefore fall within the broad statutory definition of ‘petitioning.” The company continued:

“By premising its claims on ExxonMobil’s advocacy and alleged omissions regarding climate change, the Commonwealth seeks to curtail ExxonMobil’s exercise of its right of petition on this issue.”

While the brief was initially filed last month before the Massachusetts Appeals Court, the Supreme Judicial Court then agreed to take up the case for review following an application from the attorney general’s office.

Recall that Healey’s lawsuit accuses the company of deceiving Massachusetts investors and consumers about climate change-related risks. The company filed a special motion to dismiss the Commonwealth’s lawsuit last year under the state’s anti-SLAPP statute, arguing that the attorney general has obstructed the company’s right to petition policy makers and the general public.

Suffolk Superior Court Justice Karen Green dismissed the company’s anti-SLAPP motion in June after finding not all the statements highlighted in the suit constitute protected speech under anti-SLAPP law. In its appellate brief, however, the company argued that this “all or nothing” approach was made in error:

“The court instead adopted a categorical, ‘all-or-nothing’ approach to evaluating the claims, concluding that only a cause of action based entirely on petitioning activity is subject to dismissal. That was error because it would allow plaintiffs to artfully plead around the anti-SLAPP statute and target protected statements so long as they include a fig leaf unrelated to petitioning activity.”

Furthermore, the company argued, should the appellate court find that the trial court correctly applied the anti-SLAPP statute, it nonetheless erred by failing to partially dismiss the Commonwealth’s claims.

Other courts have also addressed politically motivated efforts to silence the industry’s public advocacy on climate change, as the company argued:

“The Texas Court of Appeals has observed that state attorneys general, including the Attorney General, have ‘promoted regulating the speech of energy companies like Exxon—companies that they perceived as hostile to AGs’ policy responses to climate change.’

… Similarly, in the only case to go to trial against ExxonMobil concerning climate change, Justice Ostrager of the New York Supreme Court ruled in favor of ExxonMobil. …He also explained that the lawsuit originated in ‘politically motivated statements by former New York Attorney General Eric Schneiderman,’ a reference to the ‘AGs United for Clean Power Press Conference’ that the Attorney General also attended.”

The recent filing by ExxonMobil further demonstrates how the Healey’s investigation is a flagrant abuse of power based on a difference of policy opinion. As the company concludes:

“Compelling ExxonMobil to advocate for the Commonwealth’s viewpoints or otherwise expose itself to liability for ‘omissions’ would have a chilling effect on protected petitioning activity.”