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Exxon's free speech defense just got eviscerated in court
Following a series of losses for Big Oil’s corporate free speech argument in climate liability cases, two justices on the Massachusetts Supreme Court smoked out Exxon’s deception.
Emily Sanders is the Center for Climate Integrity’s editorial lead. Catch up with her on Twitter here.
In courts across the country, oil companies have tried to dodge accountability for their climate lies and deception by arguing that lawsuits calling out those lies actually violate their constitutionally-protected right to free speech. 🥴
But yesterday, two justices on the Massachusetts Supreme Court poked gaping holes in that argument. And it was extremely satisfying to watch.
Last year, a Massachusetts court ruled that Attorney General Maura Healey’s climate fraud lawsuit, which seeks to hold Exxon accountable for defrauding investors and residents, could go forward in state court, rejecting several motions the company brought to dismiss the case. Yesterday, Exxon’s attorneys asked the Massachusetts Supreme Court to overturn one of those rulings and agree that Healey’s lawsuit is actually a conspiracy to censor Exxon’s positions on climate. It did not seem to go well for them.
Right out of the gate, two of the court’s justices put Exxon in its place.
Exxon’s attorney — Justin Anderson, of the firm Paul, Weiss — claimed the Commonwealth’s case violated a state law preventing lawsuits that seek to silence public advocacy, known as an anti-SLAPP statute.
Justice Dalila Wendlandt noted that Massachusetts' complaint “alleges that ExxonMobil committed fraud against its investors and against the Massachusetts public, by engaging in a forty year lie as to its future prospects and as to what its products contributed in terms of the degradation of our atmosphere.
“I’m wondering why the anti-SLAPP statute is even available to you or your client to shut down an enforcement action by the attorney general in that circumstance,” she said. 🔥
To be clear, Exxon’s use of an anti-SLAPP law to defend its lies is ridiculous, and even dangerous. This statute is meant to protect people from the deep-pocketed companies that can sue opponents into silence. The statute was not enacted for a company like Exxon to use as a means of escaping an enforcement action brought by the state’s attorney general.
Justice Scott Kafker pointed out that the company had been using the argument for years as a tactic to stall Massachusetts’ ability to look into, and expose, its deceptive practices. “Do you think the legislature meant for you to use this procedural device as a way of preventing discovery, investigation?” he asked. “You’re not even getting to the merits. You’re shutting this process down prematurely. It seems to me it may even raise constitutional questions about the ability of the AG’s office to do investigations in general.”
One justice compared Exxon’s deception to Big Tobacco’s.
At one point, Justice Kafker interrupted Anderson, Exxon’s attorney, to compare the company’s actions to those of the tobacco industry, which similarly deceived consumers and the public about the dangers its products would cause — and faced accountability in court.
“I think the tobacco companies were doing something very similar. They said cigarettes didn’t cause cancer. And using our low-tar cigarettes is a good thing. The AG’s [tobacco] investigation showed that was factually inaccurate and knowingly factually inaccurate,” Kafker said. “Are you saying they also had anti-SLAPP protections?”
Big Oil has played, and lost, this game before.
As of yet, the oil industry has not been able to convince the courts that the First Amendment protects their ability to mislead the public about the climate damages caused by their products.
Just a few weeks ago, the Texas Supreme Court delivered Exxon an embarrassing defeat, shutting down Exxon’s counterattack against public officials who have brought climate damages suits on behalf of California municipalities. Not surprisingly, Exxon raised its First Amendment argument to no avail.
Exxon and other oil companies also lost that argument in Hawaiʻi state court — one in a series of rulings to allow Honolulu’s climate damages lawsuit to move closer to trial.
These corporate polluters are terrified that their lies will be put on full display as these cases make their way toward discovery and trial. We hope they’re beginning to figure out that their deceptive tactics don’t work quite as well when tested in a court of law.
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