Exxon Mobil Corp. v. Healey

In 2015 and 2016, Exxon came under investigation by the attorneys general of Massachusetts and New York for potential consumer and securities fraud. There is evidence that Exxon ran campaigns casting doubt on the science of global warming, despite having long-standing scientific evidence that global warming is real and escalated by burning fossil fuels. The evidence showed Exxon had data proving global warming existed, yet still spent over $30 million promoting the denial of global warming for its own economic benefit. In response to this investigation, Exxon filed counter-suits in both federal and state court claiming, among other things, that the attorneys general were violating its First, Fourth, and Fourteenth amendment rights simply by investigating potential fraud.

Exxon’s counter-suit claimed the attorneys general investigations on consumer and securities fraud violated its First Amendment rights. Specifically, Exxon alleged that the attorneys general were targeting only one side of the political debate, thus having a chilling effect on Exxon’s “free speech” rights. Exxon continues to cast its funding of climate misinformation as well as its own conflicting statements about the science of climate change as an issue of free speech, without acknowledging that the First Amendment provides no refuge from either the long-standing legal restrictions on misleading investors at the federal and state levels or consumer protection laws. (Exxon also sued the Massachusetts Attorney General in Massachusetts state court, challenging the state’s “personal” jurisdiction over Exxon. On April 13, 2018, the Massachusetts Supreme Judicial Court rejected Exxon’s claim. On September 10, 2018, Exxon petitioned the Supreme Court for review of that decision.)

The federal district court in New York ruled in favor of the attorneys general on a motion to dismiss. Exxon appealed. On October 12, 2018, we filed an amicus brief in the U.S. Court of Appeals for the Second Circuit on behalf of a group of law professors with expertise and interest in the First Amendment. As our brief explains, the investigation does not implicate any First Amendment rights, and the First Amendment does not protect false or misleading commercial communications.