Harvard Law and Policy Review: Exposing Exxon’s Ham-Fisted Attempts to Wield a Weaponized First Amendment

In an article for Harvard Law and Policy Review, Free Speech For People Senior Counsel, Shanna Cleveland, details Exxon’s misuse of the First Amendment, and fabricated claim of corporate constitutional rights, to evade accountability for potentially misleading statements made by the corporation regarding the impact of fossil fuels on climate change. Exxon’s claims of free speech rights come in response to an investigation by Massachusetts and New York Attorneys General for the dramatic differences between the company’s internal knowledge and assessments of climate change versus how it has communicated that information to investors, consumers, and the public at large.

On October 12, 2018, Free Speech For People filed a friend-of-the-court brief on behalf of a group of law professors to argue that Exxon’s statements to investors and the public do not merit First Amendment protection because the First Amendment does not protect false and misleading commercial communications, even if they touch on a matter of political controversy.

As noted in the Harvard Law and Policy Review:

Courts have roundly rejected Exxon’s attempts to cloak its commercial speech in the cloth of the First Amendment, but with annual revenues exceeding those of nations like IndiaSwitzerland, and Norway, Exxon has continued to pay white shoe law firms to press its frivolous claims all the way to the Supreme Court.

Despite the legal infirmities of its case, Exxon has been emboldened by what Justice Kagan described as the “weaponization of the First Amendment” by the most corporate-friendly makeup of the Court since the Gilded Age.

If Exxon gets its way, as Justice Kagan warned, it will “unleash judges, now and in the future to intervene in economic and regulatory policy,” allowing “black-robed rulers” to override democratically enacted protections for citizens like securities laws and consumer protection laws.

To read the full article in the Harvard Law and Policy Review, click here.

To learn more about how Free Speech For People is challenging Exxon’s misuse of the Constitution, click here.

Photo Courtesy of airguy1988. 

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