Why is the attorney general of Massachusetts, Maura Healey, being forced to justify to a Texas judge why and how she is doing her job?

In the latest instance of the corporate takeover of the First Amendment — and other constitutional rights — Exxon Mobil, the world’s largest oil and gas corporation, has invented a constitutional right to obstruct state investigations into allegations of fraud.

Investigations by the Massachusetts and New York attorneys general began late last year after the Los Angeles Times reported that Exxon scientists and executives have known for decades about the connection between fossil fuel consumption and the likelihood of catastrophic changes in the Earth’s atmosphere and climate.

The report alleged that as early as the 1980s, Exxon scientists were warning the company in internal communications that global climate change could "indeed be catastrophic (at least for a substantial fraction of the earth's population)." According to the journalists’ report, Exxon’s internal teams used that information for purposes of assessing the potential for profitable investment in new oil exploration and production. Yet these were the same climate models that Exxon “dismissed as unreliable and based on uncertain science” in statements to investors, consumers, and the general public.

A parallel with investigations of Big Tobacco

The attorneys general embarked on investigations on behalf of their citizens, asking whether Exxon was guilty of selling products and equity while concealing information about their risks.

The similarity of these allegations to the illegal conspiracy of the tobacco industry — a cover-up of internal corporate knowledge about deadly consequences of continued consumption of its products — did not escape notice. In January 2016, the Department of Justice asked the FBI to investigate whether Exxon should be prosecuted under the federal Racketeer Influenced and Corrupt Organizations Act, as the tobacco industry was. The investigations by the Massachusetts and New York attorneys general, focusing on whether Exxon had been forthright in its disclosures to investors, soon followed.

Given identified sources and specific studies cited in news reports, it is not surprising that chief law enforcement officers of federal and state governments would investigate. Indeed, it would be extremely troubling if they did not.

But rather than show that the allegations of investor and consumer fraud are baseless, Exxon Mobil is misusing the Constitution to continue to conceal what it knew about the connection between catastrophic climate change and continued fossil fuel use, and when.

It is not uncommon, of course, for companies to resist subpoenas from attorneys general on a variety of legal grounds. For example, Exxon could have filed a motion in Massachusetts asking a judge to set aside the subpoena on the grounds that it was overly broad, and arguing that the investigation exceeded the jurisdiction of the attorney general. (In fact, Exxon did just that, and lost.)

Until fairly recently, no US court would have entertained free speech claims by a corporation that wanted to strike down regulation

But Exxon has gone much further. It has filed a federal “civil rights” lawsuit in its home court of Texas against the New York and Massachusetts attorneys general. The multibillion-dollar global corporation claims that the state investigations violate a previously unrecognized corporate right under the Constitution both to “speak” and to “not speak” about climate change any way it wants, however deceptive that speech may be.

This is where the Supreme Court’s decision in Citizens United v. Federal Election Commission is taking the country. That 2010 ruling is infamous for opening the floodgates of big, dark money in our elections by deciding that any limits on supposedly “independent” political ads violate the speech rights of corporations, unions, and billionaires. What is less well-known about Citizens United is how radically it empowers corporations to misuse the First Amendment in other ways — ways we now see playing out in the Exxon case, and elsewhere.

Citizens United was the capstone on a remarkable series of cases, dating only to the 1970s, that revolutionized the application of the First Amendment in the corporate context. Very few people realize just how quickly this constitutional revolution has occurred; very few people realize that American corporations thrived for the first two centuries of American history with virtually no First Amendment protections.

In the early 20th century, First Amendment cases involving firms tended to involve media companies, as when Louisiana Gov. Huey Long imposed special taxes on newspapers (a clear attempt to punish them). It was generally assumed that the “speech” of business corporations was no more free from court scrutiny than the language of their contracts or their SEC filings.

After his appointment to the high court in 1971, however, Justice Lewis F. Powell Jr., a former business lawyer who ardently believed that corporate America was being undermined by the public’s support for reformers like Ralph Nader, helped reinvent the Court’s doctrine in this area. In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), the Court said, on First Amendment grounds, that the state could not forbid pharmacists from advertising prescription drug price — a remarkable departure from precedent.

That finding was then broadened and expanded in National Bank of Boston v. Bellotti (1978), which held that corporations can contribute to ballot initiatives, and again in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), which asserted that a utility could run advertisements promoting the use of electricity. Those two cases continue to be cited in almost all commercial speech cases — and they are cited more and more frequently. Citizens United affirmed those cases and extended them to campaign finance laws.

Despite the “free speech” rhetoric, corporations are not simply seeking to offer opinions about public policy issues. They do that all the time, routinely spending millions to fund ads, research, policy papers, and lobbying activities. Today corporations are claiming that their “rights” to speak clash with longstanding forms of regulation of business activity. Whenever they are required to disclose information to consumers, regulators, the public, or enforcement officials, they argue, their First Amendment rights are implicated. Whenever they seek or transmit information, they say, they are “speaking,” and the First Amendment gives them the right to do that without fear of consequences.

A growing number of constitutional challenges to reasonable regulations

In recent years, large corporations have been emboldened to argue that corporate speech rights entitle them to strike down state health care prescription information laws — those forbidding pharmaceutical companies from selling information about the prescribing patterns of individual doctors, for example. They have argued that speech rights forbid certain securities regulations — specifically, those requiring investigation and disclosure of whether a company sells “conflict minerals” from the Democratic Republic of Congo. They have said that the First Amendment gives them a right to decline to say on product labels that the meat they sell comes from foreign countries, or that food products contain genetically modified ingredients.

In a related egregious constitutional expansion, corporations have even attacked minimum wage laws as violating their rights under the 14th Amendment’s equal protection clause — when, as is typical, such laws treat firms differently based on size (or form of organization). The corporate misuse of the First Amendment and the Constitution more broadly, has gone viral. It now might be considered corporate legal malpractice not to take a swing at challenging, on constitutional grounds, any law that gets in the way of the largest corporate profits.

Investigations by public agents, including attorneys general, are a necessary component of law enforcement. Efforts by public agents to ascertain facts in such investigations should not create constitutional controversy, provided the agents respect due process and other constraints on how they perform these duties. If corporations can invoke “free speech” as a way to conceal relevant information about allegedly false statements — if they can effectively create immunity from investigation by playing a constitutional trump card — then we are on a slippery slope to the civic incapacity and relative weakness in both rule of law and economic growth that characterizes Russia and other regimes that collapse the distinction between economic and political power.

That’s why Exxon’s attack on the state investigations says so much about the damage to our constitutional framework wrought by the Supreme Court’s invention of these new corporate rights. In our federal system, attorneys general are the highest law enforcement officers in the state, generally elected directly by people, and charged with protecting the public interest and checking the abuse of corporate power. Yet in the post–Citizens United world, Exxon — with a virtually unlimited budget — can summon any officials with the temerity to do their job into physically distant courts. Trumped-up “civil rights” litigation of this kind has self-evident potential for the harassment and intimidation of would-be investigators.

Even the majority of justices in Citizens United did not argue that corporate speech rights protected fraudulent statements. Yet unless the Court revisits its First Amendment doctrines, Exxon’s attack on efforts by the states to investigate its conduct shows that such nuances may not matter. Whether Exxon wins or loses its “free speech” claims, it has already delivered its real message: Those who stand up for the public interest will face a high cost.

Jeff Clements is the president of American Promise, a national nonpartisan group of American citizen leaders working for the 28th Amendment to secure government of the people, not money. He previously was a partner in a Boston law firm and served as chief of the Public Protection Bureau in the Massachusetts Attorney General’s Office.

John Coates is the John F. Cogan Jr. professor of law and economics, as well as research director of the Center on the Legal Profession, at Harvard Law School. Before joining Harvard, he was a partner at Wachtell, Lipton, Rosen & Katz specializing in financial institutions and mergers and acquisitions.

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