We'll move on to our third argument for today. That is City and County of Honolulu versus Snoco LP. Case numbers twenty one Dash one five, three one three and twenty one Dash one five three one eight And mister buttros you're up, Thank.
You honor, may please the court.
Theodore butros On behalf of dependance. I'd like to reserve three minutes for rebuttal.
These cases belong in federal court.
And whenever you're ready, thank your honor, please the court. My name is Justin Anderson. I represent Exon Mobile in this appeal.
You're saying, the Attorney General is punishing us for stating our position on global warming.
Right, and so you have a defense.
Right the government is punishing us for speech. It's the first amendment you have in the Constitution, a defense. Why would the legislature needed to provide you the Anti slab Statute to supplement that defense?
The Anti Slap Statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset before burdensome discovery is imposed on the party. Before we have our executives come in to give testimony. And depositions before we're dragged into a courtroom where we have to defend ourselves all of this happenings.
This might sound like boring, droning court tape. Okay, fine, it is boring droning court tape. But also there is a lot going on here, especially in the context of this whole corporate free speech thing we've been tracing throughout this mini series, So let's get into it. That was Gibson Dunn partner Ted Boutros up top, speaking on behalf of his client, Chevron and all of the other oil and gas company defendants in the climate case that the
City and County of Honolulu brought a against them. The second person speaking was Justin Anderson from Exxon's law firm Paul Weiss, defending his client in a climate fraud case brought against it in the state of Massachusetts and whining about the company's executives being dragged into court to defend themselves.
First thing, it's important to note here Boutros has often spoken for all of the defendant oil companies in these climate liability cases where Chevron is a named defendant, especially when issues around free speech come up. There are now more than two dozen of those cases in the US. That's notable because prior to his involvement in these climate cases, Boutros was not known as a liability expert, but he is considered one of the country's top First Amendment attorneys.
You might recognize his name from his defense of CNN's Jim Acosta against the Trump administration, which took Acosta's press badge, or from his defense of Mary Trump against her uncle when he tried to suppress her book.
Let Me Bring In.
Mary's attorney, Ted Boutros ted, the book is coming out at the end of July.
Nobody can stop that.
But Mary is still tied up in court.
What's the latest. The latest, Brian, is that we filed our brief Thursday challenging what remains a prior restraint against Mary. Simon and Schuster has been freed by the Appellate Court in New York to publish the book. So the book is going to come out, but there's still a restraining order against Mary Trump that restricts her from publishing. We've opposed that the Supreme Court has never upheld a prior restraint in any case in history where political speech was involved.
That's what this is it's an important book about the President of the United States.
Boutros doesn't just defend CNN. He's also a regular guest commenting on various First Amendment issues, and Boutros has advised lots of other top media outlets too, not just CNN, but also The New York Times, Pro Public and Reveal at the Center for Investigative Reporting. Here he is receiving the Reporter's Committee for Freedom of the Press Award in twenty twenty one.
Thank you Reporters Committee for this award and for all you do to defend freedom of the press in this country. And congratulations to my fellow honorees. It's truly an honor to be in your company. A free and aggressive press is vital to ensuring the freedom and self determination of individual citizens and as a crucial check on government power.
To put that award in context, the person who got it the year after him was Judy Woodruff, the longtime host of PBS News Hour. Lots of really well known legendary journalists have received this award. Boutros got it. He received it right alongside New Yorker writer Jane Mayer, who's perhaps best known for her book Dark Money. About the hidden corporate money fueling the rise of a radical righte in the US, something made possible by Buttros's firm, Gibson
Dunn and their work on Citizens United. Despite the fact that he represents Chevron, that his firm fought and won Citizens United, and that one of his biggest Supreme Court wins was helping Walmart crush a labor lawsuit, Boutros has managed to become something of a liberal media darling, which makes him quite a clever pick as the guide defending the oil company's rights to say whatever they'd like about
climate change. Each of the climate liability cases is slightly different, but in broad strokes, they allege that the fossil fuel company's decisions to mislead the public on climate change delayed action on the problem, which has resulted in exponentially greater climate impacts and because of that, greater costs for both
dealing with and adapting to those impacts. So, for example, a coastal county might argue that the ocean has risen several inches higher than it would have had the fossil fuel companies not blocked climate action in the eighties and nineties. That means that their costs for dealing with storm surge and storms and building sea walls, maybe moving people to higher ground, losing tourism, dollars associated with beaches that are eroding, dealing with regular flooding. All of that those costs are
higher today than they would have been. The municipal and state governments bringing these cases want oil and gas companies to pay a percentage of those costs equal to their role in obstructing action. Sometimes they also include fraud claims, and they often include a claim called failure to warn. Here's attorney Vic Scher, partner and co founder of the law firm Share Edling, which is outside council in a lot of these cases.
One of the fundamental obligations that the law imposes on a manufacturer of a product is that if they know that there's a danger associated with the use of the product, they have to give a warning about it, and that warning has to be proportionate to the severity of the risk and the injury that they know accompanies it. So we're not talking about fine print hidden away where nobody
will see it. If you know that your product is going to destroy the world, you have to be yelling that from the mountaintops frequently and constantly.
Even but Boutros's argument and Justin Anderson's for Exon in the few cases where Exon is fighting alone, is that everything the oil companies have ever said about climate change was in the interest of shaping regulation or blocking regulation. That makes it a petitioning activity, which is protected by the First Amendment and not subject to fraud laws. The key distinction here is whether their speech could be considered commercial speech intended for the public or petitioning speech intended
solely for regulators and policy makers. Here's Anderson again making that argument before the Massachusetts State Supreme Court in twenty twenty two.
The alleged misrepresentations are the statements that Exon Mobil has made about its views on climate policy, on energy policy even today. What Exon Mobil has said is that the world is not ready to move away from oil and natural gas. And that's what they accuse us of misrepresenting. They're saying our petitioning has delayed the transition to clean energy, that our speech has quote forestalled a strong policy response to climate change.
And here's Attorney Seth Schofield with the Massachusetts Attorney General's Office responding.
The claims in the complaint. There are three of them have nothing to do with Excellon's advocacy on climate change policy or energy policy. The purpose of the complaint is very clear. It says, i quote, the Commonwealth of Massachusetts, through its Attorney General, brings this action to hold Exon Mobile accountable for misleading the state's investors and consumers. And its reply, Exon points to two incidents where it suggests that the Attorney General's two hundred page complaint may refer
to some activity that constitutes petitioning. But that is a far cry from saying somehow Exon can satisfy this court's test that the Attorney General's claims are quote, solely based on Exxon Mobile's petitioning.
But it's not just free speech or petitioning speech that both Anderson and Boutros have been arguing in these cases. It's also the idea that their client's speech is so protected that these lawsuits don't just infringe on their First Amendment rights, they are actually harassment. The hearing Anderson was speaking at was to evaluate x Soon's claim that the Massachusetts fraud case against it was actually a slap suit.
Slap stands for strategic litigation against public participation. It's a term that was coined in the nineteen eighties on the heels of a whole bunch of lawsuits suing civil society groups and media outlets for defamation every time they openly criticized a company or executive. In fact, our old friend
Herb Schmertz was a big fan of these suits. Here he is telling Ted Copple in the eighties that they're perfectly valid and that if journalists don't want to be sued, they could simply stop criticizing companies, which, of course Schmertz equates to spreading falsehoods.
I think you have emerging now or feeling on the part of the pros that they're somehow above the law, that they can make false statements about people, that they can damage people, they don't have to suffer the consequence. It just seems to me very simple that I don't see how protecting falsehood helps in the search for truth.
Beginning in the eighties, states started to pass anti slap laws intended to help people targeted by these suits get them dismissed quickly and cheaply, so that ideally they would not have the intended effect of chilling speech and protest. In recent years, corporations have begun to avail themselves of these laws. Suddenly they are painting themselves as the victims of these types of cases rather than the original architects
of them. In both the Honolulu and Maui cases. In Hawaii, Boutros tried to invoke California's anti slap law to get climate cases against Chevron dismissed. Anderson was leaning on Massachusetts anti slap statute in his defense of Exon as well.
The idea that the government can be trusted never to bring legal action against someone because they disagree with their speech runs counter to the fundamental concept and the fundamental core principle behind the First Amendment itself. The First Amendment protects US from the government.
Yes, who will protect multinational oil companies from the US government. We're going to unpack that a bit and connect Mobile's whole history on corporate free speech back up to what's happening today after this quick break. I'm Amy Westervelt and this is Drilled coming up the final episode in our miniseries Herb. In the last two episodes, we followed the corporate free speech movement from Balatti in nineteen seventy eight,
which let corporations advertise policy positions and ballot initiatives. To Citizens United in twenty ten, which eliminated any restrictions on spending from corporate coffers or spending directly to support a particular candidate. We've also followed the fossil fuel industry's role in that movement, from pioneering new forms of corporate speech
to supporting ever broader legal protections for that speech. In the years since the Citizens United ruling, several states have passed laws that further obscure the funding behind particular initiatives
or political groups. Others have tried to increase transparency. Meanwhile, the Supreme Court has only grown more conservative and more supportive of corporations, but it has still stayed away from the issue at the heart of that two thousand and three Nike versus Caskie case, which asked them to blur
the line between protected corporate advocacy and fraud. In that case, Exonmobil filed a brief in which it made the exact same argument that oil company lawyers are making today that really everything corporations say about matters of public concern should fall into the categories of protected petitioning activity or advocacy and his argument for Chevron in the Hawaii cases, Gibson Dunn partner Ted Boutrose argued that the Hawaiian municipalities had
tried to frame their claims as quote based on speech rather than petroleum production or emissions, targeting purported misrepresentations or disinformation. The speech the complaint targets is almost entirely directed to policymakers, regulators, and the public advocating against regulation of the oil and gas industry. In other words, Hey, we were just trying to block regulation, so we could have said whatever we
wanted to and it's protected. Here's Vic Cher, who's representing the City and County of Honolulu and the County of Maui in those cases.
Well, the First Amendment doesn't protect fraud and deception. That's the first point. The second point is that it's an industry playbook to try and shift the conversation from culpable and liable conduct to something else. And this is part of that.
And here is former Massachusetts Attorney General Mara Healey's take. Healey's the one that originally filed the fraud claim against Exxon.
For far too long these corporations have tried to use the First Amendment to shield unlawful activity, activity that sounds in serious fraud and misrepresentation both to the investor and shareholder public as well as to consumers, which is what we alleged that Exxon Mobile did. So we're going to continue to fight on and keep beating them every round in court. They try to sue us in three different states.
If you can believe that Excellent Mobile took to the pages of the Wall Street Journal and op eds everywhere to try to underlign me and the team.
They also brought.
Suits against us, including suits against me personally in Texas and New York. Here in Massachusetts. We beat them at every turn, and now we're onto discovery and I look forward to you know, as we did with Purdue of the Sacklers. Our job is to have the story be told, you know, let it all out there.
But it's not beyond the realm of possibility that one of these cases will be appealed to the Supreme Court, and it seems equally possible that they would take it on. Meanwhile, these same companies are working to shape free speech in another way.
These fossil fuel infrastructure anti protest bills are currently gaining steam.
That's Connor Gibson, an independent researcher and former research specialists for Greenpeace. He's following the rise of these critical infrastructure bills since they first emerged on the scene in twenty seventeen. By his count, they've now been passed in twenty one states. That's almost half the states. These laws effectively serve to criminalize protest. It's a big free speech problem.
Someone called ted boutros felony level penalties for people who are committing nonviolent acts of trespass, coupled with compounded fines and jail sentences, often for organizations or individuals who are found to be affiliated with those protesters.
They don't have to have trespassed themselves, they don't have to have damaged anything themselves. If they're affiliated with somebody that did, they wind up being charged.
Some states had been toying with laws like these since the creation of various domestic terrorism laws in the week of nine to eleven, but these critical infrastructure laws started to really take off as a direct response to the twenty sixteen and twenty seventeen pipeline protests at Standing Rock and We know that because Derek Morgan, the former Gibson Dunn attorney turned chief lobbyist for the American fuel and petrochemical manufacturers who helped to write these bills, said so
at a conference where he was presenting the idea and.
Four is really because we have seen that work we lived Throughgether.
We have seen more.
And more dangerous and instructive tactics going this these introdructure projects you're.
Trying to shut them down on all together.
We've seen nails, access roads to punch fires. We've seen sabotaging engines, heavy machinery. We've seen do devlve turners as well.
I'm up for datad efforts to.
Try to stop the development.
Now, regard that I wrote some pel statistics on that the deppol protest.
His tape is tough to hear, but he said there that he's seen more and more dangerous and destructive tactics going against these infrastructure projects, including sabotaging engines and heavy machinery and valve turners. At the end, you refer specifically to the DAPPLE protests. That's short for Dakota Access Pipeline, the name of the pipeline that people we're protesting against on the Standing Rock Reservation during twenty sixteen and twenty seventeen, so between ten and.
Fifteen dollars protesters seven hundred and sixty one arrests, ninety four percent of those from out of state, is gone from com Lakota, and a third relate about that happened for criminal rares.
It's not uncommon for protesters to come from out of state for actions against a major pipeline. And it's worth noting here that the Standing Rock Reservation itself runs across the border between North and South Dakota, so quite a few Standing Rock residents would technically be considered out of state in North Dakota. But framing it this way makes
protests sound scary and criminal. If you can paint protesters as radicals and criminals, it's a whole lot easier to justify stripping their First Amendment rights to Derek Morgan, is the executive vice president of the Heritage Foundation, which lobbies against climate policy. We also know Critical Infrastructure Bills were a reaction to Standing Rock because when Oklahoma State Rep. Scott Biggs introduced the first of these bills back in twenty seventeen, he said so too.
I'm pretty sure they did a whole lot of damage to property in North Dakota. If you want to learn more, we actually have a meeting here at four o'clock today with some individuals from North Dakota that are here to talk to us, talk to the industry about what they're having to deal with the aftermath of those protesters up there. But yes, that is the main reason behind this.
When I asked Professor Kerr, the journalism professor from University of Oklahoma who's been studying the corporate free speech movement for more than twenty years, what he thought about all this that the same industry pushing to expand corporate free speech was now looking to criminalize individual free speech, he was not surprised.
It's probably inevitable, because you know, if you're in that camp, not only do you want corporate spending or corporate speech to have a louder voice, you want your opponent, if you can, to have a smaller voice. And I would say that's a that can be seen as another manifestation of why many people have always argued against this trend to give First Amendment protection to corporate political spending, media spending, all kinds is that the financial resources are so disproportionate.
I mean, for a long time, courts protected individuals and small groups that wanted to speak out their right to speak, and there are a lot of cases down through the years, especially the twentieth century, on protecting that right to speak. It didn't mean you're guaranteed to win. At least you're right to speak was protected in a lot of ways. But those people, if they don't have the court on their side, they're not going to have generally the financial resources.
If these kind of laws and legal actions are successful, it really chills and probably silences a lot of individuals and small groups that just want to make their views known. I would say it completely inverts the fundamental idea of what a lot of people think American democracy was intended to be that whatever else happened, every individual, every group of individuals could speak as freely as the most powerful, the wealthiest, and it really just undermines that concept.
Starting next month and through the end of this year, maybe even beyond, we're going to be bringing you that side of this story, working with reporters all over the world, will be digging into the increasing criminalization of climate protest. We'll look at the industries, companies and groups behind that trend, what tactics are being used, what can be done about it, and what it all means. In the meantime, we'll continue to follow the climate cases and this argument in particular.
It is entirely possible that the next Citizens United will be one of these climate cases, and it would be great if folks could start thinking now about how to avoid that outcome. For me, the two sides of this coin, the tug of war over free speech, may just be the most important climate issue today. Without democracy, the only climate solution we're likely to see is eco fascism, and no, it's not any better than the non eco variety. Make sure you're subscribed so you get those episodes as soon
as they start to drop. That's it for this series and this week. Thanks for listening, and see you again soon. Drilled is an original Critical Frequency production. This season is produced and sound designed by Martin Zaltz Austwick. Our sound engineer is Peter Duff. Additional reporting by Julia Manipela, fact checking by Woodan Yan. Our First Amendment attorney is James Wheaton. Marketing is handled by Maggie Taylor. Our artwork is by Matt Fleming. The show is written and reported by me
Amy Westervelt. Primary documents and additional information related to this series are available on our website at Drilled dot media. You can also sign up for our weekly newsletter there. If you'd like to support our work, you can upgrade to a paid subscription to the newsletter, or subscribe on Patreon or Apple for early and ad free episodes plus bonus content. There are lots of ways to support us for free too. You can share the show. You can leave us a rating or a review. That really helps
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