Prosecuting Climate Dissent Runs Up Against The First Amendment

There are few more rewarding sights than a bully scorned, so let’s hear it for the recent laments of Attorneys General Claude Walker (Virgin Islands) and Eric Schneiderman (New York), two ringleaders of the harassment campaign against Exxon and free-market think tanks over climate change.

Consider Mr. Walker’s recent retreat in District of Columbia superior court. In April he issued a sweeping subpoena to the Competitive Enterprise Institute, demanding a decade of emails, policy work and donor names. The goal is to intimidate anyone who raises doubts about climate science or the policy responses.

CEI fought back. It ran a full-page newspaper ad highlighting the Walker-Schneiderman effort to criminalize speech, and it counter-sued the Virgin Islands, demanding sanctions and attorneys fees.

The District of Columbia has a statute to deter what is known as a Strategic Lawsuit Against Public Participation (SLAPP). The law exists to curb malicious lawsuits that are designed solely to chill speech, and they put the burden on filers like Mr. Walker to show why their actions are likely to succeed.

Mr. Walker quietly withdrew his subpoena on May 20 (though retaining the right to reinstate it). CEI is pressing ahead with its suit anyway, and in an extraordinary filing on June 2 Mr. Walker essentially said “never mind.” He asked the court to dismiss CEI’s motion for sanctions and fees, writing that the think tank had “wasted enough of [his office’s] and the Court’s limited time and resources with its frivolous Anti-SLAPP motion.”

So Having violated CEI’s First Amendment rights, subjected the group to public abuse and legal costs, and threatened its donors, Mr. Walker blames CEI for burdening the courts.

Mr. Schneiderman is also on defense for his subpoena barrage and claim that Exxon is guilty of fraud on grounds that it supposedly hid the truth about global warming from the public. The AG felt compelled to devote an entire speech at a legal conference to justify his actions. He accused Exxon and outside groups of engaging in “First Amendment opportunism,” which he said was a “dangerous new threat” to the state’s ability to protect its citizens. So exercising free speech to question government officials who threaten free speech is a threat to free speech.

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