The Progressive


A project of Common Dreams

For Immediate Release

Exxon is Misusing the Constitution, Law Professors Say in Brief Defending Massachusetts and New York Attorneys General

Free Speech For People files friend-of-the-court on behalf of constitutional law professors in Exxon Mobil v. Healey

Boston, MA

Free Speech For People filed a friend-of-the-court brief Friday on behalf of ten constitutional law professors in the U.S. Court of Appeals for the Second Circuit in Exxon Mobil Corp. v. Healey, Exxon's federal lawsuit against the Massachusetts and New York attorneys general. The oil company's lawsuit seeks to block the state attorneys general from investigating what Exxon knew about the impact of burning fossil fuels on climate change and whether it misled investors and consumers. The law professors' brief argues that Exxon's statements to investors and the public do not merit First Amendment protection because the First Amendment does not protect false and misleading commercial communications, even if they touch on a matter of political controversy.

"Climate change is not on trial here" said Shanna Cleveland, Senior Counsel for Free Speech For People. "What's at stake is a dangerous and unprecedented attempt to abuse the First Amendment to prevent investigations into consumer and investor fraud."

"Exxon has no First Amendment right to mislead consumers and investors," said co-counsel Professor Steven Shiffrin of Cornell Law School.

The brief states:

At its core, this case is about whether Exxon--a publicly traded for-profit corporation--qualifies for the freedom of expression protections it claims for its potentially misleading and fraudulent speech about the risks that climate change and its impacts pose to the company's business. Exxon instead tries to deflect the court towards the irrelevant question of whether the attorneys general disagree with Exxon's views on climate policy. This desperate tactic to wield the First Amendment as a sword against statutorily authorized investigations into investor and consumer fraud should be denied.

Professor Steven Shiffrin of Cornell Law School joined Free Speech For People as co-counsel on the brief, and the law professor amici include: Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School; Daniel J.H. Greenwood, Professor of Law, Deane School of Law, Hofstra University; Steven Heyman, Professor of Law, Chicago-Kent College of Law; Robert Kerr, Edith Kinney Gaylord Presidential Professor, Gaylord College, University of Oklahoma; Douglas Kysar, Deputy Dean and Joseph M. Field '55 Professor of Law, Yale Law School; Helen Norton, Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law, University of Colorado School of Law; Tamara R. Piety, Professor of Law, University of Tulsa, College of Law; Frank Pasquale, Professor of Law, University of Maryland; Catherine J. Ross, Fred C. Stevenson Research Professor, George Washington University Law School; and Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School.

Read our amicus brief on behalf of a group of law professors in Exxon Mobil Corp. v. Healey.

Free Speech For People is a national non-partisan non-profit organization founded on the day of the U.S. Supreme Court's ruling in Citizens United v. FEC that works to defend our democracy and our Constitution.