1 00:00:00,120 --> 00:00:02,720 Speaker 1: Spderboard said, Look, we're gonna here's what we're gonna do. 2 00:00:02,759 --> 00:00:06,680 Speaker 1: We're gonna say that if you want to put out 3 00:00:06,680 --> 00:00:11,440 Speaker 1: an ad or spend money that's about an issue, it's 4 00:00:11,440 --> 00:00:13,800 Speaker 1: not about a candidate, then then you should be allowed 5 00:00:13,840 --> 00:00:16,240 Speaker 1: to do that, because that's just talking to the public, 6 00:00:16,400 --> 00:00:19,400 Speaker 1: engaging in free speech rights. So the Spring Court issued 7 00:00:19,400 --> 00:00:22,320 Speaker 1: that decision, and that put caps on what he could 8 00:00:22,360 --> 00:00:26,640 Speaker 1: attribute to a candidate or a political party, but left 9 00:00:26,760 --> 00:00:30,920 Speaker 1: open the possibility that issue ads really couldn't be capped 10 00:00:30,960 --> 00:00:32,960 Speaker 1: in terms of how much money. 11 00:00:33,040 --> 00:00:33,640 Speaker 2: You could spect. 12 00:00:47,360 --> 00:00:51,840 Speaker 3: That was Ben Foyer, chairman of the California Appellate Law Group, 13 00:00:52,240 --> 00:00:55,760 Speaker 3: talking about a Supreme Court case that's mostly been overshadowed 14 00:00:55,760 --> 00:00:59,040 Speaker 3: by Citizens United, but really lead the groundwork for the 15 00:00:59,120 --> 00:01:03,480 Speaker 3: expansion of corporate personhood. Buckley v. Valeout came out in 16 00:01:03,560 --> 00:01:06,280 Speaker 3: the wake of the Watergate scandal. In the course of 17 00:01:06,280 --> 00:01:10,319 Speaker 3: investigating Nixon in the early nineteen seventies, prosecutors had discovered 18 00:01:10,360 --> 00:01:13,399 Speaker 3: that various company executives and trade groups had been in 19 00:01:13,440 --> 00:01:16,480 Speaker 3: the habit of essentially paying Nixon to grease the wheels 20 00:01:16,480 --> 00:01:17,080 Speaker 3: of government. 21 00:01:17,520 --> 00:01:19,400 Speaker 1: Some of the documents that came out of water He 22 00:01:20,200 --> 00:01:23,240 Speaker 1: turned up evidence that Nixon and his team had taken 23 00:01:23,959 --> 00:01:29,959 Speaker 1: huge amounts of money in briefcases and safety positive bosses, 24 00:01:30,000 --> 00:01:33,120 Speaker 1: how hused the lot of Safety Positive box of two 25 00:01:33,200 --> 00:01:36,720 Speaker 1: hundred thousand dollars that Nixon's stabbers had. 26 00:01:36,560 --> 00:01:41,200 Speaker 3: Access to briefcases full of cash. Yeah. So, in nineteen 27 00:01:41,240 --> 00:01:44,399 Speaker 3: seventy one, Congress decided it needed to crack down on 28 00:01:44,520 --> 00:01:48,760 Speaker 3: corporate and trade group contributions to political campaigns. It enacted 29 00:01:48,800 --> 00:01:52,720 Speaker 3: the Federal Election Campaign Act of nineteen seventy one, which 30 00:01:52,720 --> 00:01:55,200 Speaker 3: set limits on the amount of money an individual could 31 00:01:55,200 --> 00:01:59,520 Speaker 3: contribute to a single campaign and required reporting of contributions 32 00:01:59,520 --> 00:02:03,520 Speaker 3: above US certain threshold amount. It also established the Federal 33 00:02:03,560 --> 00:02:07,720 Speaker 3: Election Commission to enforce the law. In January nineteen seventy five, 34 00:02:07,920 --> 00:02:11,359 Speaker 3: a coalition of plaintiffs that included Senator James L. Buckley 35 00:02:11,360 --> 00:02:14,720 Speaker 3: of New York filed suit in US District Court, alleging, 36 00:02:14,800 --> 00:02:18,760 Speaker 3: among other things, that the contribution and expenditure limits violated 37 00:02:18,760 --> 00:02:23,200 Speaker 3: the First Amendment. SCOTUS upheld the limits for campaign contributions, 38 00:02:23,320 --> 00:02:25,800 Speaker 3: but not for political speech in general. 39 00:02:26,600 --> 00:02:30,880 Speaker 1: The Supreme Court said, Look, Congress has an important interest 40 00:02:30,919 --> 00:02:34,679 Speaker 1: in protecting against corruption and an appearance of crush, but 41 00:02:34,840 --> 00:02:39,400 Speaker 1: there's no fundamental interest, at least to the Constitution that 42 00:02:39,560 --> 00:02:45,720 Speaker 1: says that Congress can equalize the power of different speakers, 43 00:02:45,840 --> 00:02:50,640 Speaker 1: or that Congress has the ability to limit speech to say, Hey, 44 00:02:50,720 --> 00:02:53,919 Speaker 1: you can't talk as much as you want with your 45 00:02:53,960 --> 00:02:58,360 Speaker 1: own money. You can't spread your ideas because we think 46 00:02:58,480 --> 00:03:00,480 Speaker 1: too many people are going to hear them. I just 47 00:03:00,760 --> 00:03:03,800 Speaker 1: believe your idea of the knowledge to other ideas, that's 48 00:03:03,840 --> 00:03:09,360 Speaker 1: not within Congress's power. So the limits on advocating for 49 00:03:09,480 --> 00:03:13,280 Speaker 1: issues and the cats on the amount of money that 50 00:03:13,440 --> 00:03:17,360 Speaker 1: individuals were allowed to spend or contribute sort went away. 51 00:03:17,480 --> 00:03:20,160 Speaker 3: So why are we talking about a nineteen seventy six 52 00:03:20,400 --> 00:03:24,440 Speaker 3: First Amendment decision Because it began a decade's long effort 53 00:03:24,560 --> 00:03:27,880 Speaker 3: by some of the country's most powerful companies and industries 54 00:03:28,080 --> 00:03:31,480 Speaker 3: to whittle away at the distinction between individual rights and 55 00:03:31,600 --> 00:03:34,720 Speaker 3: corporate rights. This was the beginning of the idea that 56 00:03:34,840 --> 00:03:38,160 Speaker 3: money equals speech and is therefore protected by the First 57 00:03:38,200 --> 00:03:41,720 Speaker 3: Amendment basically as long as that speech is not explicitly 58 00:03:41,840 --> 00:03:45,800 Speaker 3: endorsing a political candidate. Now, the idea that corporations have 59 00:03:45,920 --> 00:03:49,160 Speaker 3: free speech rights to say whatever they want has extended 60 00:03:49,160 --> 00:03:53,120 Speaker 3: to climate change. This idea is at the core of 61 00:03:53,200 --> 00:03:57,600 Speaker 3: Exxon's defense against securities and consumer fraud cases brought against 62 00:03:57,640 --> 00:04:00,800 Speaker 3: the company by the New York and Massachusetts attorneys general, 63 00:04:01,000 --> 00:04:03,880 Speaker 3: and if cases currently being brought against it by several 64 00:04:03,920 --> 00:04:06,960 Speaker 3: cities counties in the state of Rhode Island to recover 65 00:04:07,040 --> 00:04:09,720 Speaker 3: the costs of dealing with climate change make it to trial, 66 00:04:09,960 --> 00:04:12,440 Speaker 3: we should expect to see more of this free speech 67 00:04:12,480 --> 00:04:13,440 Speaker 3: defense there too. 68 00:04:13,520 --> 00:04:15,760 Speaker 1: By the time two thousands rolled around and the election 69 00:04:15,840 --> 00:04:21,080 Speaker 1: of two thousand, what was happening was there were extraordinary 70 00:04:21,400 --> 00:04:25,240 Speaker 1: amounts of money that were called soft money that we're 71 00:04:25,400 --> 00:04:30,400 Speaker 1: going to groups that weren't disclosing where they were getting 72 00:04:30,440 --> 00:04:34,480 Speaker 1: the money from, and they were spending their money very 73 00:04:34,520 --> 00:04:40,120 Speaker 1: cleverly to essentially advocate for individuals to be elected, but 74 00:04:40,200 --> 00:04:43,920 Speaker 1: without using what the court and bucklee've bet had identified 75 00:04:43,920 --> 00:04:48,159 Speaker 1: as special magic words that really trigger the kind of 76 00:04:48,200 --> 00:04:52,279 Speaker 1: regulation and show that you're expressly advocating for a candidate, 77 00:04:52,600 --> 00:04:55,320 Speaker 1: not an issue. So Buckly being LEO said that if 78 00:04:55,360 --> 00:04:58,640 Speaker 1: you use words like vote for, or elect or defeat, 79 00:04:58,800 --> 00:05:02,520 Speaker 1: those are the words that indicate that, hey, this is 80 00:05:03,120 --> 00:05:05,480 Speaker 1: it's an expenditure, but we're going to treat it kind 81 00:05:05,480 --> 00:05:08,560 Speaker 1: of life a contribution because you're really advocating for this 82 00:05:08,680 --> 00:05:11,279 Speaker 1: exact candidate, and you're not really talking about an issue. 83 00:05:11,320 --> 00:05:13,960 Speaker 1: There were these independent groups that were taking huge amounts 84 00:05:13,960 --> 00:05:17,120 Speaker 1: of money and either doing other things with them, like 85 00:05:17,600 --> 00:05:21,680 Speaker 1: voting drives or paying for administrative costs rather than speech 86 00:05:22,080 --> 00:05:25,080 Speaker 1: or putting out ads. For example, there was an ad 87 00:05:25,080 --> 00:05:27,880 Speaker 1: in the two thousand election put out by a group 88 00:05:27,920 --> 00:05:32,880 Speaker 1: that was favoring George Bush that said don't get Gord 89 00:05:32,960 --> 00:05:35,040 Speaker 1: at the gas book. So they didn't use any didn't 90 00:05:35,040 --> 00:05:37,800 Speaker 1: say vote against Gore, defeat Gore, or vote for Bush. 91 00:05:37,839 --> 00:05:39,880 Speaker 1: They just said don't get Gord at the gas monk. 92 00:05:39,960 --> 00:05:42,520 Speaker 1: That allowed them to then pay for this ad with 93 00:05:43,040 --> 00:05:45,200 Speaker 1: contribution with money from anywhere. 94 00:05:45,680 --> 00:05:48,720 Speaker 3: So Buckley Vivalo said, spending money in support of a 95 00:05:48,760 --> 00:05:53,120 Speaker 3: particular political idea is a form of protected free speech 96 00:05:53,440 --> 00:05:55,919 Speaker 3: no matter who's doing it. And the US courts have 97 00:05:56,120 --> 00:05:59,840 Speaker 3: for a really long time said that corporations are essentially 98 00:05:59,880 --> 00:06:04,000 Speaker 3: just groups of people and therefore do have constitutional rights. 99 00:06:04,520 --> 00:06:07,919 Speaker 3: The courts decided that as early as the late eighteen hundreds, 100 00:06:08,560 --> 00:06:13,080 Speaker 3: and more recent cases have only handed more rights to corporations. Now, 101 00:06:13,200 --> 00:06:17,279 Speaker 3: forty years after the Buckley v. Valeo decision exonmobil is 102 00:06:17,320 --> 00:06:21,080 Speaker 3: even alleging that investigations by the New York and Massachusetts 103 00:06:21,080 --> 00:06:25,159 Speaker 3: ags and the sixteen cost recovery cases filed against it 104 00:06:25,320 --> 00:06:30,200 Speaker 3: are a conspiracy to quash its First Amendment rights, specifically 105 00:06:30,240 --> 00:06:33,159 Speaker 3: to stop it from saying whatever it likes about climate change, 106 00:06:33,520 --> 00:06:36,760 Speaker 3: even if that includes undercutting science it knows to be true. 107 00:06:37,279 --> 00:06:39,440 Speaker 3: One of the things this podcast tries to do is 108 00:06:39,560 --> 00:06:43,159 Speaker 3: unpack the history and complexities of how we understand climate 109 00:06:43,240 --> 00:06:45,599 Speaker 3: change today and how we got to where we are. 110 00:06:45,680 --> 00:06:47,640 Speaker 3: And this is a key part of it. So we're 111 00:06:47,640 --> 00:06:50,000 Speaker 3: going to do a deep dive into how exactly we 112 00:06:50,080 --> 00:06:53,160 Speaker 3: got to the point where free speech could feasibly extend 113 00:06:53,320 --> 00:06:57,080 Speaker 3: to climate denial. It's complicated and a little dense. So 114 00:06:57,120 --> 00:06:59,800 Speaker 3: if you have questions or anything else to add, to 115 00:07:00,080 --> 00:07:03,159 Speaker 3: Drilled podcast dot com and drop us a line, or 116 00:07:03,200 --> 00:07:05,960 Speaker 3: you can tweet at me at Amy Westervelt. Okay, here 117 00:07:06,040 --> 00:07:09,520 Speaker 3: we go, Hi, Amy Westervelt, And this is Drilled. 118 00:07:17,400 --> 00:07:20,800 Speaker 4: This is something that I think Americans generally need to 119 00:07:20,800 --> 00:07:24,720 Speaker 4: be concerned about the acts of a big corporation seeking 120 00:07:24,760 --> 00:07:27,560 Speaker 4: to stomp out or stamp out the efforts of one 121 00:07:27,840 --> 00:07:30,520 Speaker 4: little attorney general from asking questions. It's as simple as 122 00:07:30,560 --> 00:07:33,840 Speaker 4: that Exon itself has taken the step rather extraordinary of 123 00:07:33,880 --> 00:07:37,280 Speaker 4: filing an action against me to say that I don't 124 00:07:37,360 --> 00:07:40,000 Speaker 4: have the authority to ask questions the day that happens. 125 00:07:40,120 --> 00:07:42,520 Speaker 4: That in this country, that's a serious problem. So you 126 00:07:42,520 --> 00:07:45,200 Speaker 4: know what's really galling you love this, Exxon's using the 127 00:07:45,200 --> 00:07:48,240 Speaker 4: First Amendment that we are that I am interfering with 128 00:07:48,320 --> 00:07:51,320 Speaker 4: Exxon's First Amendment right. I don't know how they get there, 129 00:07:51,360 --> 00:07:54,000 Speaker 4: but that's what they've articulated, and they're coming at us. 130 00:07:54,320 --> 00:07:58,520 Speaker 3: That's Massachusetts Attorney General maur Healy talking about Exon's First 131 00:07:58,520 --> 00:08:02,200 Speaker 3: Amendment suit against her last year. The company alleged that 132 00:08:02,280 --> 00:08:05,520 Speaker 3: the state's fraud probe against it infringed on its First 133 00:08:05,560 --> 00:08:09,880 Speaker 3: Amendment rights. The Massachusetts court affirmed Healey's right to investigate Exon, 134 00:08:10,080 --> 00:08:12,840 Speaker 3: and Exon appealed that decision to the Supreme Court, which 135 00:08:12,880 --> 00:08:15,800 Speaker 3: declined to hear the case. But Exon has filed multiple 136 00:08:15,800 --> 00:08:20,160 Speaker 3: other complaints along First Amendment grounds. Here's Michael Berger, executive 137 00:08:20,200 --> 00:08:23,840 Speaker 3: director of Columbia University's Saban Center for Climate Change Law, 138 00:08:24,000 --> 00:08:25,760 Speaker 3: explaining where we are right now. 139 00:08:26,200 --> 00:08:30,640 Speaker 5: Exon has filed a number of different challenges to the 140 00:08:30,720 --> 00:08:35,360 Speaker 5: investigations undertaken by the Massachusetts and New York state attorneys 141 00:08:35,400 --> 00:08:38,760 Speaker 5: General in a number of different courts. They filed challenges 142 00:08:38,800 --> 00:08:43,240 Speaker 5: in the Federal District Court in Texas, they filed lawsuit 143 00:08:43,480 --> 00:08:48,400 Speaker 5: in New York State in Federal District Court in New York, 144 00:08:48,440 --> 00:08:52,400 Speaker 5: and had filed another case in Massachusetts. The Supreme Court 145 00:08:52,880 --> 00:09:00,400 Speaker 5: denied cert without comment of Exon's requests to appeal decision 146 00:09:00,400 --> 00:09:02,400 Speaker 5: that came out of the Massachusetts court system. 147 00:09:02,720 --> 00:09:04,920 Speaker 3: Since a lot of these suits are still active, it's 148 00:09:04,960 --> 00:09:07,960 Speaker 3: important to understand the recent history of these sorts of 149 00:09:08,040 --> 00:09:12,000 Speaker 3: cases where corporations invoke the First Amendment. Buckley v. Valeo 150 00:09:12,160 --> 00:09:15,920 Speaker 3: was important, but this idea didn't necessarily start or end 151 00:09:16,000 --> 00:09:20,720 Speaker 3: with that case. John Enton is a constitutional law expert 152 00:09:20,760 --> 00:09:23,880 Speaker 3: and a professor at Case Western Reserve University Law School. 153 00:09:24,200 --> 00:09:26,320 Speaker 3: He was a law clerk to then Judge Ruth Pieter 154 00:09:26,400 --> 00:09:28,880 Speaker 3: Ginsberg when she was on the US Court of Appeals 155 00:09:28,880 --> 00:09:30,480 Speaker 3: for the District of Columbia Circuit. 156 00:09:31,040 --> 00:09:36,160 Speaker 2: The basic question is though corporations have legal rights? And 157 00:09:36,240 --> 00:09:41,880 Speaker 2: the answer is yes. The Supreme Court has said for 158 00:09:41,920 --> 00:09:47,640 Speaker 2: a long time that corporations are legal persons, and think 159 00:09:48,280 --> 00:09:50,760 Speaker 2: the big case on that was in the eighteen eighties, 160 00:09:50,920 --> 00:09:54,680 Speaker 2: there were some earlier cases that sort of hinted at that, 161 00:09:55,440 --> 00:10:02,680 Speaker 2: and so the main modern cases on corporate speech rights 162 00:10:02,720 --> 00:10:07,559 Speaker 2: have come, I think in the advertising and the commercial 163 00:10:07,600 --> 00:10:11,640 Speaker 2: speech area. In those cases, the Supreme Court has said 164 00:10:12,240 --> 00:10:18,000 Speaker 2: that commercial speech advertising enjoys and here's where things get 165 00:10:18,000 --> 00:10:21,520 Speaker 2: a little fuzzy. The Court back in the nineteen seventies 166 00:10:21,520 --> 00:10:27,319 Speaker 2: said that commercial speech enjoyed qualified First Amendment protection, and 167 00:10:27,480 --> 00:10:31,319 Speaker 2: in more recent cases, the Court has suggested that maybe 168 00:10:31,360 --> 00:10:35,640 Speaker 2: commercial speech should get more than qualified protection, maybe even 169 00:10:35,840 --> 00:10:38,400 Speaker 2: as much protection as core political speech. 170 00:10:38,679 --> 00:10:42,079 Speaker 3: Okay, so the court draws a distinction between commercial speech 171 00:10:42,280 --> 00:10:46,480 Speaker 3: and political speech, and political speech is actually granted more rights, 172 00:10:46,720 --> 00:10:48,800 Speaker 3: remember that, But in. 173 00:10:48,760 --> 00:10:52,920 Speaker 2: The commercial speech area generally, the Supreme Court has said 174 00:10:53,720 --> 00:10:58,640 Speaker 2: that false more misleading speech is not protected. 175 00:10:59,200 --> 00:11:01,720 Speaker 3: Of course, the First Amendment was also invoked in the 176 00:11:01,760 --> 00:11:04,840 Speaker 3: Hobby Lobby case when Hobby Lobby wanted to opt out 177 00:11:04,880 --> 00:11:07,720 Speaker 3: of the federal mandate that health insurance needed to include 178 00:11:07,760 --> 00:11:11,960 Speaker 3: coverage for contraceptives. They cited religious reasons, and the Supreme 179 00:11:12,040 --> 00:11:13,520 Speaker 3: Court ruled in their favor. 180 00:11:13,960 --> 00:11:17,640 Speaker 2: So there may be a question about how far the 181 00:11:18,240 --> 00:11:22,000 Speaker 2: reasoning in Hobby Lobby might apply, say to a publicly 182 00:11:22,040 --> 00:11:26,280 Speaker 2: traded corporation, and the issue there was religious rights, not 183 00:11:28,559 --> 00:11:32,760 Speaker 2: more general speech rights. But the Supreme Court said that 184 00:11:32,760 --> 00:11:37,320 Speaker 2: the hobby lobby is a closely health corporation, was entitled 185 00:11:37,360 --> 00:11:40,320 Speaker 2: to invoke religious rights free exercise. 186 00:11:40,520 --> 00:11:43,319 Speaker 3: Why are we talking about the hobby lobby birth control case? 187 00:11:43,480 --> 00:11:46,320 Speaker 3: What could freedom of religion possibly have to do with 188 00:11:46,440 --> 00:11:49,680 Speaker 3: climate change? Allow me to remind you of our friend 189 00:11:49,880 --> 00:11:52,600 Speaker 3: cole lobbyist Fred Palmer from season one. 190 00:11:55,400 --> 00:11:58,719 Speaker 1: You're doing God's work every time you turn your car 191 00:11:58,800 --> 00:12:01,400 Speaker 1: on and you burn fuels and you put CO two 192 00:12:01,440 --> 00:12:03,280 Speaker 1: in the ear, You're doing the work the Lord. 193 00:12:03,440 --> 00:12:05,080 Speaker 6: Absolutely, that's the system. 194 00:12:05,160 --> 00:12:07,160 Speaker 1: That's the ecological system we live in. 195 00:12:08,840 --> 00:12:11,360 Speaker 3: Okay. So it's a huge stretch and no one is 196 00:12:11,400 --> 00:12:14,240 Speaker 3: making a religious claim yet. Plus if they did, there's 197 00:12:14,280 --> 00:12:16,760 Speaker 3: an equal claim to be made for the religious mandate 198 00:12:16,760 --> 00:12:19,760 Speaker 3: to be stewards of the earth. But the point here 199 00:12:19,880 --> 00:12:22,319 Speaker 3: is that the First Amendment can be invoked in lots 200 00:12:22,320 --> 00:12:25,600 Speaker 3: of different ways, and every case sets some sort of 201 00:12:25,600 --> 00:12:42,440 Speaker 3: precedent for future cases. Hate Drilled listeners taking a quick 202 00:12:42,559 --> 00:12:44,440 Speaker 3: break here to let you know a little bit more 203 00:12:44,480 --> 00:12:47,400 Speaker 3: about our membership program. We do get some amount of 204 00:12:47,440 --> 00:12:50,320 Speaker 3: grant funding to keep Drilled going, but your support would 205 00:12:50,320 --> 00:12:54,679 Speaker 3: allow us to do more reporting, more collaborations, more investigative series, 206 00:12:54,800 --> 00:12:57,440 Speaker 3: all that stuff. To join the membership program, go to 207 00:12:57,480 --> 00:13:01,560 Speaker 3: Critical Frequency dot org slash Joe. It's four ninety nine 208 00:13:01,600 --> 00:13:04,559 Speaker 3: a month and that gets you access to bonus content, 209 00:13:04,640 --> 00:13:07,720 Speaker 3: sneak previews. You'll get an ad free feed, which might 210 00:13:07,760 --> 00:13:10,840 Speaker 3: not always be the case here unfortunately, and you'll get 211 00:13:10,880 --> 00:13:13,200 Speaker 3: access to all the other shows on the Critical Frequency 212 00:13:13,240 --> 00:13:17,480 Speaker 3: Network too. Next week's bonus episode features Brian mcinernie, who 213 00:13:17,480 --> 00:13:19,640 Speaker 3: you heard from a tiny bit in season one. 214 00:13:19,800 --> 00:13:22,040 Speaker 7: When I first started doing this and I would talk 215 00:13:22,080 --> 00:13:26,680 Speaker 7: about climate change, it was like another subject like geology, hydrology, meteorology, 216 00:13:26,840 --> 00:13:29,520 Speaker 7: and it was well received and then at some point 217 00:13:29,559 --> 00:13:30,600 Speaker 7: it got politicized. 218 00:13:30,720 --> 00:13:34,000 Speaker 3: He's a hydrologist in Utah who speaks candidly about what 219 00:13:34,240 --> 00:13:37,680 Speaker 3: happened when climate change started to get political. It's really 220 00:13:37,720 --> 00:13:39,920 Speaker 3: interesting and I think you'll like it, so again, to 221 00:13:39,920 --> 00:13:43,320 Speaker 3: sign up, go to Critical Frequency dot org slash join. 222 00:13:43,760 --> 00:13:46,120 Speaker 3: Thanks for your support, it really means a lot. Okay, 223 00:13:46,120 --> 00:14:01,000 Speaker 3: back to the show. 224 00:13:57,120 --> 00:14:01,200 Speaker 8: Mister Olson, Are you taking in the position that there 225 00:14:01,320 --> 00:14:05,319 Speaker 8: is no difference in the First Amendment rights of an 226 00:14:05,320 --> 00:14:11,680 Speaker 8: individual a corporation? After all? Is not endowed by its 227 00:14:11,679 --> 00:14:19,240 Speaker 8: creator with inalienable rights. So is there any distinction that 228 00:14:19,360 --> 00:14:26,640 Speaker 8: Congress could draw between corporations and natural human beings full 229 00:14:26,680 --> 00:14:28,520 Speaker 8: purposes of campaign finance. 230 00:14:28,760 --> 00:14:31,480 Speaker 6: What the Court has said in the First Amendment context 231 00:14:32,080 --> 00:14:36,280 Speaker 6: New York Times versus Sullivan, Gross Chain versus Associated Press, 232 00:14:36,680 --> 00:14:40,479 Speaker 6: and over and over again is that corporations are persons 233 00:14:41,000 --> 00:14:43,120 Speaker 6: entitled to protection under the First Amendment. 234 00:14:43,560 --> 00:14:46,880 Speaker 3: The best known case around this idea of corporate First 235 00:14:46,920 --> 00:14:51,000 Speaker 3: Amendment rights is, of course, Citizens United, which undoubtedly also 236 00:14:51,120 --> 00:14:53,600 Speaker 3: helped the Hobby Lovy case. If you don't know the story, 237 00:14:53,640 --> 00:14:56,960 Speaker 3: here's a quick summary. In the early two thousands, Congress 238 00:14:56,960 --> 00:15:00,000 Speaker 3: passed the McCain Fine Gold Act, which basically tightened up 239 00:15:00,080 --> 00:15:04,120 Speaker 3: election law again and cracked down on political contributions. Then, 240 00:15:04,360 --> 00:15:07,480 Speaker 3: during the two thousand and eight primaries, Citizens United was 241 00:15:07,520 --> 00:15:10,000 Speaker 3: a group that was against Hillary Clinton, and they made 242 00:15:10,000 --> 00:15:14,320 Speaker 3: a whole crooked Hillary movie. Who is Hillary Clinton? 243 00:15:15,880 --> 00:15:20,240 Speaker 6: She's continually trying to redefine herself and figure out who 244 00:15:20,280 --> 00:15:20,640 Speaker 6: she is. 245 00:15:22,840 --> 00:15:24,680 Speaker 3: At least with Phil Clinton, he was just in a 246 00:15:24,680 --> 00:15:25,160 Speaker 3: good time. 247 00:15:25,280 --> 00:15:25,880 Speaker 1: Charlie. 248 00:15:26,040 --> 00:15:28,000 Speaker 3: Hillary's gotten a genuine. 249 00:15:29,240 --> 00:15:31,880 Speaker 1: Hillary is really the closest thing we have in America 250 00:15:32,000 --> 00:15:33,720 Speaker 1: to a European socialist. 251 00:15:33,880 --> 00:15:37,160 Speaker 3: If you thought you knew everything about Hillary Clinton, wait 252 00:15:37,240 --> 00:15:41,400 Speaker 3: till you see the movie Hillary, the movie on DVD. Now, 253 00:15:42,080 --> 00:15:45,880 Speaker 3: the Federal Election Commission said this movie violated election law. 254 00:15:46,080 --> 00:15:48,960 Speaker 1: There's this McCain fible provision that says you can't do 255 00:15:49,040 --> 00:15:52,160 Speaker 1: that as a corporation, and that that's how the lossit 256 00:15:52,240 --> 00:15:52,480 Speaker 1: came to. 257 00:15:52,480 --> 00:15:52,520 Speaker 2: That. 258 00:15:52,720 --> 00:15:56,320 Speaker 1: So when up the Supreme Court, as the Supreme Court said, look, 259 00:15:56,920 --> 00:16:02,440 Speaker 1: that kind of limitation doesn't work. If the corporation or 260 00:16:02,600 --> 00:16:05,800 Speaker 1: union or any other grouping of people that get together 261 00:16:05,880 --> 00:16:10,440 Speaker 1: to do something, those groupings, those are associations, have First 262 00:16:10,440 --> 00:16:14,160 Speaker 1: Amendment rights just like they always have and other kind 263 00:16:14,200 --> 00:16:17,800 Speaker 1: of constitutional rights because they're just groups of the people. 264 00:16:17,840 --> 00:16:22,560 Speaker 1: And people don't lose those rights simply because they decide 265 00:16:22,600 --> 00:16:26,760 Speaker 1: to act together as a corporation or as a partnership 266 00:16:26,920 --> 00:16:29,200 Speaker 1: or as a union, which is just in many ways 267 00:16:29,200 --> 00:16:30,120 Speaker 1: in theory. 268 00:16:29,800 --> 00:16:31,040 Speaker 2: Of groop betting of employees. 269 00:16:31,400 --> 00:16:35,960 Speaker 1: As long as the corporation or union isn't coordinating with 270 00:16:36,040 --> 00:16:39,400 Speaker 1: the candidate, that is, as long as it's an independent 271 00:16:39,480 --> 00:16:44,280 Speaker 1: group and not working with the candidate, then it's just 272 00:16:44,720 --> 00:16:48,160 Speaker 1: like any other person is just engaged in spending expenditures 273 00:16:48,480 --> 00:16:50,120 Speaker 1: and that's protected activity. 274 00:16:50,240 --> 00:16:54,720 Speaker 3: Despite this history of steadily expanding corporation's First Amendment rights, 275 00:16:54,800 --> 00:16:58,640 Speaker 3: a distinction still remains between political speech and commercial speech, 276 00:16:58,880 --> 00:17:02,440 Speaker 3: in between any sort of protected speech and fraud. Should 277 00:17:02,480 --> 00:17:05,200 Speaker 3: any of Exxon's claims actually make it to the Supreme Court, 278 00:17:05,440 --> 00:17:06,879 Speaker 3: that will be the key question. 279 00:17:07,160 --> 00:17:11,200 Speaker 2: So there's a whole series of areas in which corporations 280 00:17:11,359 --> 00:17:14,159 Speaker 2: or have had their First Amendment rights recognized. That doesn't 281 00:17:14,200 --> 00:17:19,760 Speaker 2: necessarily tell us, however, the circumstances in which the corporation 282 00:17:19,800 --> 00:17:23,399 Speaker 2: can be held liable for false or mason these speech, 283 00:17:23,680 --> 00:17:28,680 Speaker 2: particularly if the argument they're going to make in these 284 00:17:28,720 --> 00:17:31,639 Speaker 2: cases almost certainly is we're not engaged in commercial speech 285 00:17:31,640 --> 00:17:34,119 Speaker 2: in the sense that we're not advertising and we're not 286 00:17:34,119 --> 00:17:37,560 Speaker 2: proposing a commercial transaction. The Supreme Court has generally not 287 00:17:37,920 --> 00:17:41,680 Speaker 2: said that you have to show an actual victim of decession. 288 00:17:41,840 --> 00:17:45,120 Speaker 2: I mean, I think in this situation, and the States 289 00:17:45,800 --> 00:17:48,440 Speaker 2: are going to say, look, at least some of these 290 00:17:48,440 --> 00:17:51,280 Speaker 2: companies knew what they were saying was not true, and 291 00:17:51,359 --> 00:17:54,040 Speaker 2: that we know that they knew that because we have 292 00:17:55,359 --> 00:17:59,120 Speaker 2: obtained information about what they knew at the time that 293 00:17:59,160 --> 00:18:02,520 Speaker 2: they were making various sorts of sentence, and so I 294 00:18:02,520 --> 00:18:05,159 Speaker 2: think the case. You know, these cases are likely to 295 00:18:05,200 --> 00:18:06,920 Speaker 2: turn on pandual evidence. 296 00:18:07,240 --> 00:18:10,040 Speaker 3: Slawyer says. There was one recent case where the Supreme 297 00:18:10,080 --> 00:18:14,360 Speaker 3: Court validated a person's right to lie under the First Amendment. 298 00:18:14,440 --> 00:18:20,679 Speaker 1: An individual was wearing medals, military medals that he didn't earn, 299 00:18:21,800 --> 00:18:23,760 Speaker 1: and a Congress that had passed a law saying, hey, 300 00:18:23,760 --> 00:18:27,040 Speaker 1: it's a crime to wear military medals that you didn't earn, 301 00:18:27,160 --> 00:18:30,680 Speaker 1: also to claimed want of military honors that he didn't earn, 302 00:18:31,560 --> 00:18:35,240 Speaker 1: and the Supreme Court said, no, you have a free 303 00:18:35,280 --> 00:18:38,720 Speaker 1: speech right to lie. So in terms of what would 304 00:18:38,760 --> 00:18:43,240 Speaker 1: happen in this kind of Exxon situation, you know, there's 305 00:18:43,280 --> 00:18:46,639 Speaker 1: an a tension between the at least an individual that 306 00:18:46,680 --> 00:18:50,360 Speaker 1: was an individual wearing medals, individual's First Amendment right to lie, 307 00:18:50,440 --> 00:18:55,399 Speaker 1: and a corporation's First Amendment right to defraud people. But 308 00:18:55,480 --> 00:18:59,280 Speaker 1: that is a pretty big difference. The Court often looks 309 00:18:59,320 --> 00:19:02,840 Speaker 1: to history when determining if there are going to be 310 00:19:02,960 --> 00:19:07,480 Speaker 1: limits on First seven right. Historical common law the law 311 00:19:07,560 --> 00:19:10,320 Speaker 1: of England at the time the United States was founded 312 00:19:10,400 --> 00:19:13,840 Speaker 1: in the eighteenth century, and a common law there were 313 00:19:14,000 --> 00:19:19,440 Speaker 1: certainly limits on speech related to fraud. You couldn't defraud 314 00:19:19,480 --> 00:19:21,840 Speaker 1: people you couldn't lie to people and then get them 315 00:19:21,920 --> 00:19:26,320 Speaker 1: to buy their product. That could absolutely be prosecuted or prevented. 316 00:19:26,520 --> 00:19:29,399 Speaker 1: So it seems to likely you never know, but it 317 00:19:29,440 --> 00:19:32,760 Speaker 1: seems to me likely that there is a court would 318 00:19:32,760 --> 00:19:37,160 Speaker 1: find that there's a pretty big difference between allowing somebody 319 00:19:37,200 --> 00:19:41,120 Speaker 1: to lie about military honors he personally won and allowing 320 00:19:41,240 --> 00:19:46,040 Speaker 1: businesses to simply lie about their products in a way 321 00:19:46,119 --> 00:19:47,280 Speaker 1: that is frauding. 322 00:19:47,400 --> 00:19:47,600 Speaker 2: You know. 323 00:19:47,640 --> 00:19:54,600 Speaker 1: Look, the reality is, if Exxon knew about harm caused 324 00:19:54,640 --> 00:19:59,879 Speaker 1: by its products and didn't disclose that harm to people, 325 00:20:00,200 --> 00:20:06,680 Speaker 1: or made affirmative statements that lied about what that harm is, 326 00:20:07,240 --> 00:20:10,280 Speaker 1: that's really no different than any other situation in which 327 00:20:10,480 --> 00:20:14,439 Speaker 1: a manufacturer has a predate that closes injury and the 328 00:20:14,480 --> 00:20:19,320 Speaker 1: manufacturer lies or covers up the injury caused by the 329 00:20:19,359 --> 00:20:23,280 Speaker 1: product that the manufacturer knew about it or had reason 330 00:20:23,359 --> 00:20:25,960 Speaker 1: to know about it. Generally speaking, the manufacturer is going 331 00:20:26,000 --> 00:20:27,480 Speaker 1: to be able to be held liable for it. 332 00:20:27,560 --> 00:20:30,080 Speaker 3: The fact that the Supreme Court declined to hear the 333 00:20:30,119 --> 00:20:33,840 Speaker 3: first of Exxon's countersuits could mean something about their view 334 00:20:33,880 --> 00:20:37,240 Speaker 3: of Exxon's First Amendment defense, or it could mean nothing. 335 00:20:37,359 --> 00:20:40,280 Speaker 1: There's nothing in the person thatent forasy of being probed, 336 00:20:41,160 --> 00:20:45,520 Speaker 1: you know, or destigated entity, so that that could have 337 00:20:45,560 --> 00:20:46,800 Speaker 1: a lot to do with it as well. 338 00:20:47,040 --> 00:20:49,400 Speaker 3: Entin says the fact that the lower courts have all 339 00:20:49,440 --> 00:20:52,360 Speaker 3: rejected these claims so far could also play into it. 340 00:20:52,480 --> 00:20:54,399 Speaker 2: I mean, you don't have to have a conflict in 341 00:20:54,720 --> 00:20:56,680 Speaker 2: the lower course for the Supreme Court to take but 342 00:20:56,720 --> 00:20:59,480 Speaker 2: it certainly helps make the case scene or make the 343 00:20:59,480 --> 00:21:02,720 Speaker 2: issue seem more worthy of Supreme Court review. 344 00:21:02,920 --> 00:21:05,520 Speaker 3: And Burger thinks we may well see a Supreme Court 345 00:21:05,560 --> 00:21:06,920 Speaker 3: case out of these claims. 346 00:21:07,119 --> 00:21:10,320 Speaker 5: So this court issue that Exon is raising in all. 347 00:21:10,240 --> 00:21:12,640 Speaker 9: Of these cases, whether the investigations by the. 348 00:21:12,600 --> 00:21:17,520 Speaker 5: Attorney's General violate their constitutional rights and that it's all 349 00:21:17,600 --> 00:21:22,440 Speaker 5: part of this political conspiracy to quash their pre speech 350 00:21:22,920 --> 00:21:25,560 Speaker 5: may yet make it to the Supreme Court. Are at 351 00:21:25,600 --> 00:21:29,719 Speaker 5: the very least Exon, assuming it loses at the Second Circuit, 352 00:21:29,760 --> 00:21:32,639 Speaker 5: will have the opportunity to petition the Supreme Court again, 353 00:21:33,240 --> 00:21:35,920 Speaker 5: and that time the petition would be on the substance 354 00:21:35,920 --> 00:21:36,320 Speaker 5: of issues. 355 00:21:36,400 --> 00:21:38,399 Speaker 3: Even if it makes it that far. Though it's not 356 00:21:38,480 --> 00:21:39,920 Speaker 3: a slam dunk for Exxon. 357 00:21:40,280 --> 00:21:46,159 Speaker 9: The First Amendment does not protect corporations who are committing fraud, 358 00:21:46,640 --> 00:21:51,640 Speaker 9: doesn't protect corporations who are committing security fraud, and those 359 00:21:51,680 --> 00:21:54,040 Speaker 9: are the that's the nature of these investigations. 360 00:21:54,240 --> 00:21:58,040 Speaker 3: The underlying question, then, is where the line between political 361 00:21:58,080 --> 00:22:02,200 Speaker 3: speech and deception lies and just how much proof attorneys 362 00:22:02,200 --> 00:22:05,200 Speaker 3: would need to show that Exxon was not in fact 363 00:22:05,520 --> 00:22:09,240 Speaker 3: sharing opinions or political ideas, but telling the public and 364 00:22:09,320 --> 00:22:13,200 Speaker 3: investors an entirely different story than the one it knew 365 00:22:13,240 --> 00:22:30,200 Speaker 3: to be true. And there you have it, the weird 366 00:22:30,240 --> 00:22:34,520 Speaker 3: and wild history of Dollars's speech fraud as political expression 367 00:22:34,880 --> 00:22:38,760 Speaker 3: and are always evolving understanding of the First Amendment. One 368 00:22:38,920 --> 00:22:42,120 Speaker 3: interesting thing to add is that the Chevron attorney who's 369 00:22:42,160 --> 00:22:44,760 Speaker 3: been speaking on behalf of all the oil companies as 370 00:22:44,800 --> 00:22:48,280 Speaker 3: these cost recovery cases go to court is Ted Boutros, 371 00:22:48,560 --> 00:22:53,480 Speaker 3: whose specialty is the First Amendment and free speech. He's 372 00:22:53,520 --> 00:22:56,720 Speaker 3: even the guy defending CNN against the White House on 373 00:22:56,840 --> 00:23:07,760 Speaker 3: First Amendment grounds. That's it for this time. We'll see 374 00:23:07,800 --> 00:23:10,520 Speaker 3: you in two weeks with another episode, and next month 375 00:23:10,560 --> 00:23:13,520 Speaker 3: we'll have a whole new series for you. Thanks for listening, 376 00:23:13,640 --> 00:23:30,119 Speaker 3: see you next time. Drilled is produced and distributed by 377 00:23:30,160 --> 00:23:34,159 Speaker 3: Critical Frequency. Reporting is done by me. Our story consultant 378 00:23:34,200 --> 00:23:37,880 Speaker 3: is Rika Murphy. Our theme music is by Martin Wissenberg. 379 00:23:38,080 --> 00:23:41,320 Speaker 3: Additional music in this episode is by David Whited and 380 00:23:41,400 --> 00:23:45,440 Speaker 3: Damien Verrett. Mixing is done by Elliott Peltzman. Our cover 381 00:23:45,600 --> 00:23:49,119 Speaker 3: art is by Lucas Lisakowski. Drilled is made possible in 382 00:23:49,160 --> 00:23:52,240 Speaker 3: part by a generous grant from the Institute for Governance 383 00:23:52,320 --> 00:23:56,080 Speaker 3: and Sustainable Development. We really appreciate. There's a board you 384 00:23:56,119 --> 00:23:59,080 Speaker 3: can find Drilled wherever you get your podcasts. Please remember 385 00:23:59,160 --> 00:24:01,879 Speaker 3: to rate and re view the podcast. It helps us 386 00:24:01,880 --> 00:24:05,880 Speaker 3: find new listeners and fight climate deniers. Thanks a lot, 387 00:24:05,880 --> 00:24:06,640 Speaker 3: to see you next time.