DC Court Tries Using Climate Change to Police Corporate Speech

The District of Columbia Superior Court took a dangerous turn away from the core of the First Amendment when it embraced a new strategy by climate change advocates that would use the rhetoric of a climate crisis to turn the courts into speech police.

States, counties, and municipalities such as DC have filed climate change lawsuits of one kind or another across the country against fossil fuel companies and their trade associations.

Many of these lawsuits include claims that energy producers either have said too little about climate change or have said too much about their own efforts to operate more responsively to climate change concerns.

By seeking damages for speech—or for failure to speak—these lawsuits, if successful, are akin to punishing companies and their trade associations for engaging in lawful, constitutionally protected First Amendment rights.

The basic claim in the lawsuit brought by DC is that energy companies have for decades deceived consumers by not speaking openly enough. In essence, the lawsuits ask for a duty to engage in compelled speech.

Energy companies are being faulted for not spending considerable time explaining to consumers the trade-offs that exist between energy consumption and environmental purity. The odd claim is that consumers were somehow left uninformed about pollution because energy companies weren’t disclosing it, despite it being a regular focus of media attention and green interest group public relations.

The second sin? Energy companies engaged in speech that should be prohibited, despite the free speech clause in the Constitution.

The plaintiffs find fault in the energy companies having the audacity to advertise the positive changes they have made to embrace more environmentally sensitive technologies, and the strides made to respond to consumer pressures and preferences. This too, the plaintiffs declare, is consumer deception because the ad campaigns supposedly duped consumers into buying oil and other fossil fuels that they wouldn’t have bought otherwise by making them feel like fueling the necessities of life was trade-off free.

Both claims paint the American consumer as lacking common sense.

In addition to the incredulousness of these claims, they’re also a direct assault on free speech.

It’s a fundamental principle of the First Amendment that no one, including businesses, can be compelled to speak. And that doesn’t change by selling a product with potential side effects, unless the seller has some monopoly on that information and seeks to prevent its consumers from learning about it. No such claims are sustainable under the facts of energy consumption across the past decades implicated in these lawsuits.

Businesses should be permitted to use metrics of progress in advertising their products. Far from the pejorative “greenwashing” characterization, companies explaining their efforts to adopt greener technologies or processes should be permitted to speak about their efforts just like any politician should be allowed to talk about environmental bills that they sign as a statement of progress without it being assumed that they are secretly signaling the bill cures all environmental problems. No one would be deceived, yet the plaintiffs here claim similar actions by a corporation stating their efforts should be deemed deceptive by the courts.

Similarly, an environmental group that advertised it held a successful environmental cleanup weekend of a local river during a public relations and fundraising campaign wouldn’t be perceived as deceiving their donors into believing they made the river clear as snow. Is that deceptive enough it should be made the subject of legal liability for damages—essentially declaring such speech should be prohibited?

Under the court’s theory, objectively applied, both the politician and the environmental group above should have their speech curtailed. But that isn’t and shouldn’t be our First Amendment standard. We should adopt commonsense approaches to how consumers hear things and give their basic intelligence a little more credit.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Donald Kochan is professor of law and executive director of the Law and Economics Center at George Mason University Antonin Scalia Law School.

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