No Truce With Kings

Last week, Megan McArdle wrote about a group of attorneys general and about one in particular, who had served a subpoena to the Competitive Enterprise Institute.

Subpoenaed Into Silence on Global Warming

The Competitive Enterprise Institute is getting subpoenaed by the attorney general of the U.S. Virgin Islands to cough up its communications regarding climate change. The scope of the subpoena is quite broad, covering the period from 1997 to 2007, and includes, according to CEI, “a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information.”

My first reaction to this news was “Um, wut?” CEI has long denied humans’ role in global warming, and I have fairly substantial disagreements with CEI on the issue. However, when last I checked, it was not a criminal matter to disagree with me. It’s a pity, I grant you, but there it is; the law’s the law. […]

Speaking of the law, why on earth is CEI getting subpoenaed? The attorney general, Claude Earl Walker, explains: “We are committed to ensuring a fair and transparent market where consumers can make informed choices about what they buy and from whom. If ExxonMobil has tried to cloud their judgment, we are determined to hold the company accountable.”

That wasn’t much of an explanation. It doesn’t mention any law that ExxonMobil may have broken. It is also borderline delusional, if Walker believes that ExxonMobil’s statements or non-statements about climate change during the period 1997 to 2007 appreciably affected consumer propensity to stop at a Mobil station, rather than tootling down the road to Shell or Chevron, or giving up their car in favor of walking to work.

State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.” […]

No matter how likely you may think catastrophic global warming might be (and Ms McArdle thinks it more likely than I), I’m hoping you’ll think this move by the group of A.G.s sets a bad precedent. And that’s a point McArdle makes later in her column.

And it’s a bad precedent regardless of your opinion about the CEI. Say that you think the CEI is a tool of greedy oil companies; it’s still true that the antidote to "bad speech" is free speech and not censorship.

Today, I ran across Glenn Reynolds’ column on the same topic. He puts a much finer point on the A.Gs’ actions and press conference.

Dear attorneys general, conspiring against free speech is a crime

Federal law makes it a felony “for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).”

I wonder if U.S. Virgin Islands Attorney General Claude Walker, or California Attorney General Kamala Harris, or New York Attorney General Eric Schneiderman have read this federal statute. Because what they’re doing looks like a concerted scheme to restrict the First Amendment free speech rights of people they don’t agree with. They should look up 18 U.S.C. Sec. 241, I am sure they each have it somewhere in their offices.

Here’s what’s happened so far. First, Schneiderman and reportedly Harris sought to investigate Exxon in part for making donations to groups and funding research by individuals who think “climate change” is either a hoax, or not a problem to the extent that people like Harris and Schneiderman say it is.

This investigation, which smacks of Wisconsin’s discredited Putin-style legal assault on conservative groups and their contributors, was denounced by the Competitive Enterprise Institute’s Hans Bader as unconstitutional. Bader wrote:

Should government officials be able to cut off donations to groups because they employ people disparaged as “climate change deniers?” … Only a single-issue zealot with ideological blinders and a contempt for the First Amendment would think so. …

The First Amendment has long been interpreted as protecting corporate lobbying and donations, even to groups that allegedly deceive the public about important issues. … So even if being a “climate denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a non-profit that employs such a person would not be.

Nope, but conspiring to deprive “deniers” of their free speech rights would be. […]

But here’s what happened next: After Bader’s critique, Walker, the U.S. Virgin Islands attorney general, subpoenaed the Competitive Enterprise Institute’s donor lists. The purpose of this subpoena is, it seems quite clear, to punish CEI by making people less willing to donate.

This all takes place in the context of an unprecedented meeting by 20 state attorneys general aimed, environmental news site EcoWatch reports, at targeting entities that have “stymied attempts to combat global warming.” You don’t have to be paranoid to see a conspiracy here.

Not everyone believes that the planet is warming; not everyone who thinks that it is warming agrees on how much; not everyone who thinks that it is warming even believes that laws or regulation can make a difference. Yet the goal of these state attorneys general seems to be to treat disagreement as something more or less criminal. That’s wrong. As the Supreme Court wrote in West Virginia Board of Education v. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” […]

If there was ever an example of a Chilling Effect, this is one on steroids.