Drilled Down: The Fossil Fuel Roots of the Corporate Free Speech Movement
On October 24, 2019 Maura Healey, the Attorney General of Massachusetts, sued ExxonMobil for "deceptive advertising to Massachusetts consumers and for misleading Massachusetts investors about the risks to Exxon's business posed by fossil fuel-driven climate change." It was the culmination of an investigation Healey had launched in 2016 looking into the way Exxon had talked to the public about climate decades after its own scientists had briefed the company on the realities of the issue. Last week, the Massachusetts Supreme Court heard arguments related to that case—not about what Exxon was doing back in the 90s, but about whether or not Healey violated Exxon's First Amendment rights by bringing this suit in the first place.
With all of its other motions to dismiss exhausted, Exxon's efforts to stop this case hinge on this one last complaint, invoking Massachusetts' anti-SLAPP statute. SLAPP stands for Strategic Lawsuits Against Public Participation, and anti-SLAPP statutes originated out of efforts to protect the press and civil society groups from unwarranted lawsuits from from the legal claims of corporations that wanted to silence critics. In recent years, it's become increasingly common for corporations to invoke them to swat away accountability lawsuits.
The anti-SLAPP argument has become a go-to strategy in U.S. climate litigation. In some two dozen climate liability cases, in which counties, cities and states are asking oil companies to pay their share of climate adaptation costs, the oil company defendants all have different lawyers, but only one speaks for them, both in the court and to the press: Ted Boutrous, a legendary First Amendment attorney who works with the firm Gibson, Dunn & Crutcher. That's important because Gibson, Dunn & Crutcher is the firm that argued, and won, the landmark 2010 Citizens United case, in which the Supreme Court greatly expanded corporate First Amendment rights, including the right to donate money anonymously to any political cause, a ruling that ushered in an unprecedented era of dark money in politics.
A darling of the liberal press, Boutrous consults for The New York Times and sits on the advisory boards of Reveal and the International Women's Media Foundation, and the steering committee for the Reporters Committee for Freedom of the Press. He defended CNN journalist Jim Acosta from harassment at the hands of the Trump administration and ensured that Mary Trump could publish a tell-all book about her uncle, the former president. In 2018, when Boutrous emerged as the spokesperson for the oil companies in their climate liability cases it was clear that the industry would be leaning on a First Amendment defense when it came to accusations of climate denial. But how?
Never-before-published internal documents from Mobil Oil reveal that the whole idea of corporate free speech that underpins the industry's arguments about climate today was actually created by the fossil fuel industry, specifically by Mobil executives back in the late 1960s and early 1970s.
