1 00:00:00,760 --> 00:00:05,120 Speaker 1: We'll move on to our third argument for today. That 2 00:00:05,240 --> 00:00:09,640 Speaker 1: is City and County of Honolulu versus Snoco LP. Case 3 00:00:09,720 --> 00:00:12,600 Speaker 1: numbers twenty one Dash one five, three one three and 4 00:00:12,720 --> 00:00:18,040 Speaker 1: twenty one Dash one five three one eight And mister 5 00:00:18,079 --> 00:00:22,160 Speaker 1: buttros you're up, Thank. 6 00:00:22,000 --> 00:00:23,240 Speaker 2: You honor, may please the court. 7 00:00:23,280 --> 00:00:25,520 Speaker 3: Theodore butros On behalf of dependance. I'd like to reserve 8 00:00:25,560 --> 00:00:26,680 Speaker 3: three minutes for rebuttal. 9 00:00:27,360 --> 00:00:30,760 Speaker 2: These cases belong in federal court. 10 00:00:30,120 --> 00:00:34,880 Speaker 4: And whenever you're ready, thank your honor, please the court. 11 00:00:34,960 --> 00:00:38,000 Speaker 4: My name is Justin Anderson. I represent Exon Mobile in 12 00:00:38,080 --> 00:00:38,640 Speaker 4: this appeal. 13 00:00:40,000 --> 00:00:46,199 Speaker 5: You're saying, the Attorney General is punishing us for stating 14 00:00:46,280 --> 00:00:48,559 Speaker 5: our position on global warming. 15 00:00:49,680 --> 00:00:51,479 Speaker 6: Right, and so you have a defense. 16 00:00:51,960 --> 00:00:57,000 Speaker 5: Right the government is punishing us for speech. It's the 17 00:00:57,000 --> 00:01:02,920 Speaker 5: first amendment you have in the Constitution, a defense. Why 18 00:01:02,920 --> 00:01:06,560 Speaker 5: would the legislature needed to provide you the Anti slab 19 00:01:06,600 --> 00:01:08,920 Speaker 5: Statute to supplement that defense? 20 00:01:09,000 --> 00:01:12,640 Speaker 4: The Anti Slap Statute provides a mechanism to have a 21 00:01:12,720 --> 00:01:16,480 Speaker 4: case that is brought against someone for petitioning activity dismissed 22 00:01:16,480 --> 00:01:20,720 Speaker 4: at the outset before burdensome discovery is imposed on the party. 23 00:01:21,240 --> 00:01:24,280 Speaker 4: Before we have our executives come in to give testimony. 24 00:01:24,319 --> 00:01:27,160 Speaker 4: And depositions before we're dragged into a courtroom where we 25 00:01:27,200 --> 00:01:28,840 Speaker 4: have to defend ourselves all of this happenings. 26 00:01:28,880 --> 00:01:33,320 Speaker 6: This might sound like boring, droning court tape. Okay, fine, 27 00:01:33,360 --> 00:01:36,560 Speaker 6: it is boring droning court tape. But also there is 28 00:01:36,600 --> 00:01:39,600 Speaker 6: a lot going on here, especially in the context of 29 00:01:39,640 --> 00:01:43,640 Speaker 6: this whole corporate free speech thing we've been tracing throughout 30 00:01:43,640 --> 00:01:47,800 Speaker 6: this mini series, So let's get into it. That was 31 00:01:47,840 --> 00:01:51,640 Speaker 6: Gibson Dunn partner Ted Boutros up top, speaking on behalf 32 00:01:51,680 --> 00:01:55,080 Speaker 6: of his client, Chevron and all of the other oil 33 00:01:55,080 --> 00:01:57,720 Speaker 6: and gas company defendants in the climate case that the 34 00:01:57,760 --> 00:02:01,360 Speaker 6: City and County of Honolulu brought a against them. The 35 00:02:01,400 --> 00:02:05,120 Speaker 6: second person speaking was Justin Anderson from Exxon's law firm 36 00:02:05,280 --> 00:02:09,480 Speaker 6: Paul Weiss, defending his client in a climate fraud case 37 00:02:09,600 --> 00:02:13,079 Speaker 6: brought against it in the state of Massachusetts and whining 38 00:02:13,160 --> 00:02:17,079 Speaker 6: about the company's executives being dragged into court to defend themselves. 39 00:02:18,760 --> 00:02:21,640 Speaker 6: First thing, it's important to note here Boutros has often 40 00:02:21,639 --> 00:02:25,040 Speaker 6: spoken for all of the defendant oil companies in these 41 00:02:25,080 --> 00:02:30,040 Speaker 6: climate liability cases where Chevron is a named defendant, especially 42 00:02:30,080 --> 00:02:33,320 Speaker 6: when issues around free speech come up. There are now 43 00:02:33,360 --> 00:02:35,840 Speaker 6: more than two dozen of those cases in the US. 44 00:02:36,760 --> 00:02:40,600 Speaker 6: That's notable because prior to his involvement in these climate cases, 45 00:02:40,720 --> 00:02:44,680 Speaker 6: Boutros was not known as a liability expert, but he 46 00:02:44,919 --> 00:02:48,640 Speaker 6: is considered one of the country's top First Amendment attorneys. 47 00:02:49,440 --> 00:02:52,239 Speaker 6: You might recognize his name from his defense of CNN's 48 00:02:52,320 --> 00:02:56,639 Speaker 6: Jim Acosta against the Trump administration, which took Acosta's press badge, 49 00:02:57,200 --> 00:03:00,160 Speaker 6: or from his defense of Mary Trump against her uncle 50 00:03:00,200 --> 00:03:02,720 Speaker 6: when he tried to suppress her book. 51 00:03:02,800 --> 00:03:03,320 Speaker 2: Let Me Bring In. 52 00:03:03,360 --> 00:03:06,200 Speaker 7: Mary's attorney, Ted Boutros ted, the book is coming out 53 00:03:06,240 --> 00:03:06,880 Speaker 7: at the end of July. 54 00:03:07,000 --> 00:03:07,880 Speaker 2: Nobody can stop that. 55 00:03:07,919 --> 00:03:10,320 Speaker 6: But Mary is still tied up in court. 56 00:03:10,639 --> 00:03:15,160 Speaker 2: What's the latest. The latest, Brian, is that we filed 57 00:03:15,639 --> 00:03:20,800 Speaker 2: our brief Thursday challenging what remains a prior restraint against Mary. 58 00:03:20,800 --> 00:03:24,200 Speaker 2: Simon and Schuster has been freed by the Appellate Court 59 00:03:24,240 --> 00:03:26,440 Speaker 2: in New York to publish the book. So the book 60 00:03:26,520 --> 00:03:29,240 Speaker 2: is going to come out, but there's still a restraining 61 00:03:29,320 --> 00:03:33,400 Speaker 2: order against Mary Trump that restricts her from publishing. We've 62 00:03:33,560 --> 00:03:36,560 Speaker 2: opposed that the Supreme Court has never upheld a prior 63 00:03:36,600 --> 00:03:40,520 Speaker 2: restraint in any case in history where political speech was involved. 64 00:03:40,800 --> 00:03:43,080 Speaker 2: That's what this is it's an important book about the 65 00:03:43,080 --> 00:03:44,240 Speaker 2: President of the United States. 66 00:03:45,280 --> 00:03:49,320 Speaker 6: Boutros doesn't just defend CNN. He's also a regular guest 67 00:03:49,720 --> 00:03:54,120 Speaker 6: commenting on various First Amendment issues, and Boutros has advised 68 00:03:54,120 --> 00:03:57,520 Speaker 6: lots of other top media outlets too, not just CNN, 69 00:03:57,600 --> 00:04:01,520 Speaker 6: but also The New York Times, Pro Public and Reveal 70 00:04:01,760 --> 00:04:05,920 Speaker 6: at the Center for Investigative Reporting. Here he is receiving 71 00:04:05,960 --> 00:04:09,160 Speaker 6: the Reporter's Committee for Freedom of the Press Award in 72 00:04:09,280 --> 00:04:10,440 Speaker 6: twenty twenty one. 73 00:04:11,000 --> 00:04:13,400 Speaker 3: Thank you Reporters Committee for this award and for all 74 00:04:13,440 --> 00:04:16,000 Speaker 3: you do to defend freedom of the press in this country. 75 00:04:16,240 --> 00:04:19,960 Speaker 3: And congratulations to my fellow honorees. It's truly an honor 76 00:04:20,040 --> 00:04:23,480 Speaker 3: to be in your company. A free and aggressive press 77 00:04:23,600 --> 00:04:26,839 Speaker 3: is vital to ensuring the freedom and self determination of 78 00:04:26,839 --> 00:04:30,360 Speaker 3: individual citizens and as a crucial check on government power. 79 00:04:33,279 --> 00:04:36,000 Speaker 6: To put that award in context, the person who got 80 00:04:36,080 --> 00:04:39,520 Speaker 6: it the year after him was Judy Woodruff, the longtime 81 00:04:39,560 --> 00:04:43,640 Speaker 6: host of PBS News Hour. Lots of really well known 82 00:04:44,000 --> 00:04:48,440 Speaker 6: legendary journalists have received this award. Boutros got it. He 83 00:04:48,520 --> 00:04:52,520 Speaker 6: received it right alongside New Yorker writer Jane Mayer, who's 84 00:04:52,560 --> 00:04:56,480 Speaker 6: perhaps best known for her book Dark Money. About the 85 00:04:56,600 --> 00:04:59,960 Speaker 6: hidden corporate money fueling the rise of a radical righte 86 00:05:00,200 --> 00:05:05,440 Speaker 6: in the US, something made possible by Buttros's firm, Gibson 87 00:05:05,520 --> 00:05:09,559 Speaker 6: Dunn and their work on Citizens United. Despite the fact 88 00:05:09,560 --> 00:05:13,080 Speaker 6: that he represents Chevron, that his firm fought and won 89 00:05:13,120 --> 00:05:17,080 Speaker 6: Citizens United, and that one of his biggest Supreme Court 90 00:05:17,120 --> 00:05:22,760 Speaker 6: wins was helping Walmart crush a labor lawsuit, Boutros has 91 00:05:22,839 --> 00:05:26,799 Speaker 6: managed to become something of a liberal media darling, which 92 00:05:26,880 --> 00:05:29,920 Speaker 6: makes him quite a clever pick as the guide defending 93 00:05:29,960 --> 00:05:33,159 Speaker 6: the oil company's rights to say whatever they'd like about 94 00:05:33,160 --> 00:05:39,159 Speaker 6: climate change. Each of the climate liability cases is slightly different, 95 00:05:39,440 --> 00:05:42,200 Speaker 6: but in broad strokes, they allege that the fossil fuel 96 00:05:42,279 --> 00:05:46,920 Speaker 6: company's decisions to mislead the public on climate change delayed 97 00:05:46,960 --> 00:05:50,839 Speaker 6: action on the problem, which has resulted in exponentially greater 98 00:05:50,960 --> 00:05:54,840 Speaker 6: climate impacts and because of that, greater costs for both 99 00:05:54,880 --> 00:05:58,880 Speaker 6: dealing with and adapting to those impacts. So, for example, 100 00:05:58,960 --> 00:06:02,000 Speaker 6: a coastal county might argue that the ocean has risen 101 00:06:02,080 --> 00:06:04,800 Speaker 6: several inches higher than it would have had the fossil 102 00:06:04,800 --> 00:06:08,560 Speaker 6: fuel companies not blocked climate action in the eighties and nineties. 103 00:06:09,320 --> 00:06:12,400 Speaker 6: That means that their costs for dealing with storm surge 104 00:06:12,440 --> 00:06:15,760 Speaker 6: and storms and building sea walls, maybe moving people to 105 00:06:15,839 --> 00:06:20,560 Speaker 6: higher ground, losing tourism, dollars associated with beaches that are eroding, 106 00:06:21,120 --> 00:06:24,240 Speaker 6: dealing with regular flooding. All of that those costs are 107 00:06:24,360 --> 00:06:27,240 Speaker 6: higher today than they would have been. The municipal and 108 00:06:27,279 --> 00:06:30,920 Speaker 6: state governments bringing these cases want oil and gas companies 109 00:06:30,960 --> 00:06:34,600 Speaker 6: to pay a percentage of those costs equal to their 110 00:06:34,720 --> 00:06:38,960 Speaker 6: role in obstructing action. Sometimes they also include fraud claims, 111 00:06:39,080 --> 00:06:42,240 Speaker 6: and they often include a claim called failure to warn. 112 00:06:43,080 --> 00:06:46,200 Speaker 6: Here's attorney Vic Scher, partner and co founder of the 113 00:06:46,279 --> 00:06:49,599 Speaker 6: law firm Share Edling, which is outside council in a 114 00:06:49,640 --> 00:06:50,640 Speaker 6: lot of these cases. 115 00:06:51,640 --> 00:06:55,919 Speaker 8: One of the fundamental obligations that the law imposes on 116 00:06:56,200 --> 00:06:59,440 Speaker 8: a manufacturer of a product is that if they know 117 00:06:59,480 --> 00:07:02,279 Speaker 8: that there's a danger associated with the use of the product, 118 00:07:02,760 --> 00:07:04,680 Speaker 8: they have to give a warning about it, and that 119 00:07:04,760 --> 00:07:09,960 Speaker 8: warning has to be proportionate to the severity of the 120 00:07:10,080 --> 00:07:12,680 Speaker 8: risk and the injury that they know accompanies it. So 121 00:07:13,080 --> 00:07:16,840 Speaker 8: we're not talking about fine print hidden away where nobody 122 00:07:16,880 --> 00:07:19,520 Speaker 8: will see it. If you know that your product is 123 00:07:19,560 --> 00:07:22,679 Speaker 8: going to destroy the world, you have to be yelling 124 00:07:22,720 --> 00:07:27,960 Speaker 8: that from the mountaintops frequently and constantly. 125 00:07:27,440 --> 00:07:32,600 Speaker 6: Even but Boutros's argument and Justin Anderson's for Exon in 126 00:07:32,640 --> 00:07:35,840 Speaker 6: the few cases where Exon is fighting alone, is that 127 00:07:36,040 --> 00:07:39,160 Speaker 6: everything the oil companies have ever said about climate change 128 00:07:39,280 --> 00:07:43,520 Speaker 6: was in the interest of shaping regulation or blocking regulation. 129 00:07:44,240 --> 00:07:48,400 Speaker 6: That makes it a petitioning activity, which is protected by 130 00:07:48,440 --> 00:07:52,320 Speaker 6: the First Amendment and not subject to fraud laws. The 131 00:07:52,400 --> 00:07:55,520 Speaker 6: key distinction here is whether their speech could be considered 132 00:07:55,600 --> 00:08:01,080 Speaker 6: commercial speech intended for the public or petitioning speech intended 133 00:08:01,120 --> 00:08:06,440 Speaker 6: solely for regulators and policy makers. Here's Anderson again making 134 00:08:06,480 --> 00:08:10,080 Speaker 6: that argument before the Massachusetts State Supreme Court in twenty 135 00:08:10,160 --> 00:08:10,640 Speaker 6: twenty two. 136 00:08:11,440 --> 00:08:15,160 Speaker 4: The alleged misrepresentations are the statements that Exon Mobil has 137 00:08:15,200 --> 00:08:19,440 Speaker 4: made about its views on climate policy, on energy policy 138 00:08:19,800 --> 00:08:22,400 Speaker 4: even today. What Exon Mobil has said is that the 139 00:08:22,440 --> 00:08:24,600 Speaker 4: world is not ready to move away from oil and 140 00:08:24,720 --> 00:08:27,440 Speaker 4: natural gas. And that's what they accuse us of misrepresenting. 141 00:08:27,480 --> 00:08:30,680 Speaker 4: They're saying our petitioning has delayed the transition to clean energy, 142 00:08:30,960 --> 00:08:35,880 Speaker 4: that our speech has quote forestalled a strong policy response 143 00:08:36,160 --> 00:08:37,280 Speaker 4: to climate change. 144 00:08:37,720 --> 00:08:41,319 Speaker 6: And here's Attorney Seth Schofield with the Massachusetts Attorney General's 145 00:08:41,360 --> 00:08:43,199 Speaker 6: Office responding. 146 00:08:43,120 --> 00:08:45,880 Speaker 9: The claims in the complaint. There are three of them 147 00:08:46,280 --> 00:08:50,440 Speaker 9: have nothing to do with Excellon's advocacy on climate change 148 00:08:50,480 --> 00:08:54,480 Speaker 9: policy or energy policy. The purpose of the complaint is 149 00:08:54,640 --> 00:08:57,439 Speaker 9: very clear. It says, i quote, the Commonwealth of Massachusetts, 150 00:08:57,520 --> 00:09:00,680 Speaker 9: through its Attorney General, brings this action to hold Exon 151 00:09:00,760 --> 00:09:05,640 Speaker 9: Mobile accountable for misleading the state's investors and consumers. And 152 00:09:05,720 --> 00:09:12,920 Speaker 9: its reply, Exon points to two incidents where it suggests 153 00:09:13,000 --> 00:09:17,920 Speaker 9: that the Attorney General's two hundred page complaint may refer 154 00:09:18,080 --> 00:09:23,760 Speaker 9: to some activity that constitutes petitioning. But that is a 155 00:09:23,760 --> 00:09:28,640 Speaker 9: far cry from saying somehow Exon can satisfy this court's 156 00:09:28,760 --> 00:09:33,360 Speaker 9: test that the Attorney General's claims are quote, solely based 157 00:09:33,440 --> 00:09:36,840 Speaker 9: on Exxon Mobile's petitioning. 158 00:09:37,880 --> 00:09:42,120 Speaker 6: But it's not just free speech or petitioning speech that 159 00:09:42,200 --> 00:09:45,720 Speaker 6: both Anderson and Boutros have been arguing in these cases. 160 00:09:46,080 --> 00:09:49,240 Speaker 6: It's also the idea that their client's speech is so 161 00:09:49,400 --> 00:09:53,000 Speaker 6: protected that these lawsuits don't just infringe on their First 162 00:09:53,040 --> 00:09:58,200 Speaker 6: Amendment rights, they are actually harassment. The hearing Anderson was 163 00:09:58,200 --> 00:10:01,000 Speaker 6: speaking at was to evaluate x Soon's claim that the 164 00:10:01,040 --> 00:10:05,400 Speaker 6: Massachusetts fraud case against it was actually a slap suit. 165 00:10:06,559 --> 00:10:12,079 Speaker 6: Slap stands for strategic litigation against public participation. It's a 166 00:10:12,160 --> 00:10:14,360 Speaker 6: term that was coined in the nineteen eighties on the 167 00:10:14,400 --> 00:10:17,640 Speaker 6: heels of a whole bunch of lawsuits suing civil society 168 00:10:17,679 --> 00:10:22,319 Speaker 6: groups and media outlets for defamation every time they openly 169 00:10:22,360 --> 00:10:26,120 Speaker 6: criticized a company or executive. In fact, our old friend 170 00:10:26,120 --> 00:10:29,199 Speaker 6: Herb Schmertz was a big fan of these suits. Here 171 00:10:29,240 --> 00:10:31,719 Speaker 6: he is telling Ted Copple in the eighties that they're 172 00:10:31,760 --> 00:10:34,600 Speaker 6: perfectly valid and that if journalists don't want to be sued, 173 00:10:34,720 --> 00:10:39,000 Speaker 6: they could simply stop criticizing companies, which, of course Schmertz 174 00:10:39,080 --> 00:10:41,360 Speaker 6: equates to spreading falsehoods. 175 00:10:42,280 --> 00:10:44,320 Speaker 7: I think you have emerging now or feeling on the 176 00:10:44,360 --> 00:10:47,000 Speaker 7: part of the pros that they're somehow above the law, 177 00:10:47,080 --> 00:10:49,920 Speaker 7: that they can make false statements about people, that they 178 00:10:49,920 --> 00:10:52,560 Speaker 7: can damage people, they don't have to suffer the consequence. 179 00:10:52,760 --> 00:10:55,480 Speaker 7: It just seems to me very simple that I don't 180 00:10:55,520 --> 00:10:59,600 Speaker 7: see how protecting falsehood helps in the search for truth. 181 00:11:00,200 --> 00:11:03,760 Speaker 6: Beginning in the eighties, states started to pass anti slap 182 00:11:03,840 --> 00:11:07,400 Speaker 6: laws intended to help people targeted by these suits get 183 00:11:07,400 --> 00:11:11,360 Speaker 6: them dismissed quickly and cheaply, so that ideally they would 184 00:11:11,360 --> 00:11:14,800 Speaker 6: not have the intended effect of chilling speech and protest. 185 00:11:15,520 --> 00:11:19,240 Speaker 6: In recent years, corporations have begun to avail themselves of 186 00:11:19,320 --> 00:11:23,239 Speaker 6: these laws. Suddenly they are painting themselves as the victims 187 00:11:23,280 --> 00:11:26,559 Speaker 6: of these types of cases rather than the original architects 188 00:11:26,600 --> 00:11:31,160 Speaker 6: of them. In both the Honolulu and Maui cases. In Hawaii, 189 00:11:31,280 --> 00:11:35,040 Speaker 6: Boutros tried to invoke California's anti slap law to get 190 00:11:35,080 --> 00:11:40,000 Speaker 6: climate cases against Chevron dismissed. Anderson was leaning on Massachusetts 191 00:11:40,080 --> 00:11:43,760 Speaker 6: anti slap statute in his defense of Exon as well. 192 00:11:44,320 --> 00:11:47,640 Speaker 4: The idea that the government can be trusted never to 193 00:11:47,760 --> 00:11:51,240 Speaker 4: bring legal action against someone because they disagree with their 194 00:11:51,280 --> 00:11:57,440 Speaker 4: speech runs counter to the fundamental concept and the fundamental 195 00:11:57,480 --> 00:12:00,760 Speaker 4: core principle behind the First Amendment itself. The First Amendment 196 00:12:00,800 --> 00:12:02,440 Speaker 4: protects US from the government. 197 00:12:03,120 --> 00:12:08,080 Speaker 6: Yes, who will protect multinational oil companies from the US government. 198 00:12:09,280 --> 00:12:11,760 Speaker 6: We're going to unpack that a bit and connect Mobile's 199 00:12:11,800 --> 00:12:14,920 Speaker 6: whole history on corporate free speech back up to what's 200 00:12:15,000 --> 00:12:19,680 Speaker 6: happening today after this quick break. I'm Amy Westervelt and 201 00:12:19,720 --> 00:12:22,959 Speaker 6: this is Drilled coming up the final episode in our 202 00:12:22,960 --> 00:12:36,320 Speaker 6: miniseries Herb. In the last two episodes, we followed the 203 00:12:36,360 --> 00:12:40,080 Speaker 6: corporate free speech movement from Balatti in nineteen seventy eight, 204 00:12:40,360 --> 00:12:46,120 Speaker 6: which let corporations advertise policy positions and ballot initiatives. To 205 00:12:46,320 --> 00:12:51,000 Speaker 6: Citizens United in twenty ten, which eliminated any restrictions on 206 00:12:51,120 --> 00:12:55,679 Speaker 6: spending from corporate coffers or spending directly to support a 207 00:12:55,720 --> 00:12:59,920 Speaker 6: particular candidate. We've also followed the fossil fuel industry's role 208 00:13:00,080 --> 00:13:03,880 Speaker 6: in that movement, from pioneering new forms of corporate speech 209 00:13:04,240 --> 00:13:09,360 Speaker 6: to supporting ever broader legal protections for that speech. In 210 00:13:09,360 --> 00:13:12,440 Speaker 6: the years since the Citizens United ruling, several states have 211 00:13:12,520 --> 00:13:17,120 Speaker 6: passed laws that further obscure the funding behind particular initiatives 212 00:13:17,280 --> 00:13:22,720 Speaker 6: or political groups. Others have tried to increase transparency. Meanwhile, 213 00:13:22,720 --> 00:13:25,800 Speaker 6: the Supreme Court has only grown more conservative and more 214 00:13:25,840 --> 00:13:29,880 Speaker 6: supportive of corporations, but it has still stayed away from 215 00:13:29,880 --> 00:13:32,319 Speaker 6: the issue at the heart of that two thousand and 216 00:13:32,400 --> 00:13:36,320 Speaker 6: three Nike versus Caskie case, which asked them to blur 217 00:13:36,440 --> 00:13:41,160 Speaker 6: the line between protected corporate advocacy and fraud. In that case, 218 00:13:41,280 --> 00:13:44,200 Speaker 6: Exonmobil filed a brief in which it made the exact 219 00:13:44,280 --> 00:13:48,560 Speaker 6: same argument that oil company lawyers are making today that 220 00:13:48,720 --> 00:13:54,040 Speaker 6: really everything corporations say about matters of public concern should 221 00:13:54,120 --> 00:13:59,840 Speaker 6: fall into the categories of protected petitioning activity or advocacy 222 00:14:00,040 --> 00:14:03,800 Speaker 6: and his argument for Chevron in the Hawaii cases, Gibson 223 00:14:03,880 --> 00:14:08,360 Speaker 6: Dunn partner Ted Boutrose argued that the Hawaiian municipalities had 224 00:14:08,400 --> 00:14:12,120 Speaker 6: tried to frame their claims as quote based on speech 225 00:14:12,559 --> 00:14:20,080 Speaker 6: rather than petroleum production or emissions, targeting purported misrepresentations or disinformation. 226 00:14:21,040 --> 00:14:26,760 Speaker 6: The speech the complaint targets is almost entirely directed to policymakers, regulators, 227 00:14:26,880 --> 00:14:31,560 Speaker 6: and the public advocating against regulation of the oil and 228 00:14:31,600 --> 00:14:35,800 Speaker 6: gas industry. In other words, Hey, we were just trying 229 00:14:35,840 --> 00:14:38,600 Speaker 6: to block regulation, so we could have said whatever we 230 00:14:38,720 --> 00:14:43,520 Speaker 6: wanted to and it's protected. Here's Vic Cher, who's representing 231 00:14:43,560 --> 00:14:46,080 Speaker 6: the City and County of Honolulu and the County of 232 00:14:46,120 --> 00:14:47,760 Speaker 6: Maui in those cases. 233 00:14:48,880 --> 00:14:53,240 Speaker 8: Well, the First Amendment doesn't protect fraud and deception. That's 234 00:14:53,320 --> 00:14:57,360 Speaker 8: the first point. The second point is that it's an 235 00:14:57,400 --> 00:15:03,600 Speaker 8: industry playbook to try and shift the conversation from culpable 236 00:15:04,480 --> 00:15:08,800 Speaker 8: and liable conduct to something else. And this is part 237 00:15:08,880 --> 00:15:09,200 Speaker 8: of that. 238 00:15:10,040 --> 00:15:13,800 Speaker 6: And here is former Massachusetts Attorney General Mara Healey's take. 239 00:15:14,320 --> 00:15:18,280 Speaker 6: Healey's the one that originally filed the fraud claim against Exxon. 240 00:15:18,920 --> 00:15:22,040 Speaker 10: For far too long these corporations have tried to use 241 00:15:22,040 --> 00:15:27,680 Speaker 10: the First Amendment to shield unlawful activity, activity that sounds 242 00:15:27,960 --> 00:15:31,440 Speaker 10: in serious fraud and misrepresentation both to the investor and 243 00:15:31,480 --> 00:15:35,200 Speaker 10: shareholder public as well as to consumers, which is what 244 00:15:35,240 --> 00:15:38,800 Speaker 10: we alleged that Exxon Mobile did. So we're going to 245 00:15:38,800 --> 00:15:41,160 Speaker 10: continue to fight on and keep beating them every round 246 00:15:41,200 --> 00:15:44,520 Speaker 10: in court. They try to sue us in three different states. 247 00:15:44,600 --> 00:15:46,920 Speaker 10: If you can believe that Excellent Mobile took to the 248 00:15:46,960 --> 00:15:50,520 Speaker 10: pages of the Wall Street Journal and op eds everywhere 249 00:15:50,600 --> 00:15:52,520 Speaker 10: to try to underlign me and the team. 250 00:15:53,160 --> 00:15:54,239 Speaker 6: They also brought. 251 00:15:54,000 --> 00:15:57,680 Speaker 10: Suits against us, including suits against me personally in Texas 252 00:15:57,680 --> 00:16:00,320 Speaker 10: and New York. Here in Massachusetts. We beat them at 253 00:16:00,320 --> 00:16:03,080 Speaker 10: every turn, and now we're onto discovery and I look 254 00:16:03,160 --> 00:16:05,400 Speaker 10: forward to you know, as we did with Purdue of 255 00:16:05,440 --> 00:16:08,120 Speaker 10: the Sacklers. Our job is to have the story be told, 256 00:16:08,240 --> 00:16:10,120 Speaker 10: you know, let it all out there. 257 00:16:10,680 --> 00:16:13,600 Speaker 6: But it's not beyond the realm of possibility that one 258 00:16:13,640 --> 00:16:16,240 Speaker 6: of these cases will be appealed to the Supreme Court, 259 00:16:16,600 --> 00:16:20,760 Speaker 6: and it seems equally possible that they would take it on. Meanwhile, 260 00:16:20,800 --> 00:16:24,520 Speaker 6: these same companies are working to shape free speech in 261 00:16:24,560 --> 00:16:28,400 Speaker 6: another way. 262 00:16:28,440 --> 00:16:36,560 Speaker 11: These fossil fuel infrastructure anti protest bills are currently gaining steam. 263 00:16:37,000 --> 00:16:41,760 Speaker 6: That's Connor Gibson, an independent researcher and former research specialists 264 00:16:41,800 --> 00:16:46,280 Speaker 6: for Greenpeace. He's following the rise of these critical infrastructure 265 00:16:46,360 --> 00:16:50,040 Speaker 6: bills since they first emerged on the scene in twenty seventeen. 266 00:16:50,880 --> 00:16:54,760 Speaker 6: By his count, they've now been passed in twenty one states. 267 00:16:54,840 --> 00:16:58,840 Speaker 6: That's almost half the states. These laws effectively serve to 268 00:16:59,000 --> 00:17:03,600 Speaker 6: criminalize protest. It's a big free speech problem. 269 00:17:04,119 --> 00:17:08,479 Speaker 12: Someone called ted boutros felony level penalties for people who 270 00:17:08,520 --> 00:17:15,359 Speaker 12: are committing nonviolent acts of trespass, coupled with compounded fines 271 00:17:15,400 --> 00:17:19,679 Speaker 12: and jail sentences, often for organizations or individuals who are 272 00:17:19,680 --> 00:17:22,200 Speaker 12: found to be affiliated with those protesters. 273 00:17:22,359 --> 00:17:24,879 Speaker 11: They don't have to have trespassed themselves, they don't have 274 00:17:24,920 --> 00:17:27,760 Speaker 11: to have damaged anything themselves. If they're affiliated with somebody 275 00:17:27,760 --> 00:17:29,760 Speaker 11: that did, they wind up being charged. 276 00:17:30,520 --> 00:17:33,320 Speaker 6: Some states had been toying with laws like these since 277 00:17:33,359 --> 00:17:36,440 Speaker 6: the creation of various domestic terrorism laws in the week 278 00:17:36,520 --> 00:17:40,240 Speaker 6: of nine to eleven, but these critical infrastructure laws started 279 00:17:40,280 --> 00:17:43,119 Speaker 6: to really take off as a direct response to the 280 00:17:43,160 --> 00:17:47,640 Speaker 6: twenty sixteen and twenty seventeen pipeline protests at Standing Rock 281 00:17:47,960 --> 00:17:51,040 Speaker 6: and We know that because Derek Morgan, the former Gibson 282 00:17:51,080 --> 00:17:54,159 Speaker 6: Dunn attorney turned chief lobbyist for the American fuel and 283 00:17:54,200 --> 00:17:58,840 Speaker 6: petrochemical manufacturers who helped to write these bills, said so 284 00:17:59,200 --> 00:18:02,840 Speaker 6: at a conference where he was presenting the idea and. 285 00:18:03,080 --> 00:18:05,720 Speaker 13: Four is really because we have seen that work we 286 00:18:05,840 --> 00:18:06,480 Speaker 13: lived Throughgether. 287 00:18:07,280 --> 00:18:08,880 Speaker 6: We have seen more. 288 00:18:08,680 --> 00:18:12,480 Speaker 13: And more dangerous and instructive tactics going this these introdructure 289 00:18:12,560 --> 00:18:14,000 Speaker 13: projects you're. 290 00:18:13,880 --> 00:18:16,119 Speaker 14: Trying to shut them down on all together. 291 00:18:16,560 --> 00:18:20,440 Speaker 13: We've seen nails, access roads to punch fires. We've seen 292 00:18:20,480 --> 00:18:27,200 Speaker 13: sabotaging engines, heavy machinery. We've seen do devlve turners as well. 293 00:18:27,400 --> 00:18:28,800 Speaker 9: I'm up for datad efforts to. 294 00:18:28,760 --> 00:18:31,000 Speaker 14: Try to stop the development. 295 00:18:31,640 --> 00:18:33,879 Speaker 13: Now, regard that I wrote some pel statistics on that 296 00:18:34,119 --> 00:18:35,720 Speaker 13: the deppol protest. 297 00:18:35,880 --> 00:18:38,520 Speaker 6: His tape is tough to hear, but he said there 298 00:18:38,600 --> 00:18:42,560 Speaker 6: that he's seen more and more dangerous and destructive tactics 299 00:18:42,720 --> 00:18:48,159 Speaker 6: going against these infrastructure projects, including sabotaging engines and heavy 300 00:18:48,200 --> 00:18:53,520 Speaker 6: machinery and valve turners. At the end, you refer specifically 301 00:18:53,600 --> 00:18:58,320 Speaker 6: to the DAPPLE protests. That's short for Dakota Access Pipeline, 302 00:18:58,440 --> 00:19:01,280 Speaker 6: the name of the pipeline that people we're protesting against 303 00:19:01,560 --> 00:19:06,159 Speaker 6: on the Standing Rock Reservation during twenty sixteen and twenty seventeen, 304 00:19:07,320 --> 00:19:08,520 Speaker 6: so between ten and. 305 00:19:08,560 --> 00:19:14,080 Speaker 13: Fifteen dollars protesters seven hundred and sixty one arrests, ninety 306 00:19:14,080 --> 00:19:16,440 Speaker 13: four percent of those from out of state, is gone 307 00:19:16,440 --> 00:19:21,080 Speaker 13: from com Lakota, and a third relate about that happened 308 00:19:21,200 --> 00:19:22,159 Speaker 13: for criminal rares. 309 00:19:24,520 --> 00:19:28,119 Speaker 6: It's not uncommon for protesters to come from out of 310 00:19:28,200 --> 00:19:32,639 Speaker 6: state for actions against a major pipeline. And it's worth 311 00:19:32,720 --> 00:19:37,440 Speaker 6: noting here that the Standing Rock Reservation itself runs across 312 00:19:37,480 --> 00:19:40,359 Speaker 6: the border between North and South Dakota, so quite a 313 00:19:40,359 --> 00:19:44,119 Speaker 6: few Standing Rock residents would technically be considered out of 314 00:19:44,240 --> 00:19:48,440 Speaker 6: state in North Dakota. But framing it this way makes 315 00:19:48,480 --> 00:19:53,040 Speaker 6: protests sound scary and criminal. If you can paint protesters 316 00:19:53,080 --> 00:19:56,040 Speaker 6: as radicals and criminals, it's a whole lot easier to 317 00:19:56,320 --> 00:20:00,960 Speaker 6: justify stripping their First Amendment rights to Derek Morgan, is 318 00:20:01,000 --> 00:20:04,960 Speaker 6: the executive vice president of the Heritage Foundation, which lobbies 319 00:20:05,000 --> 00:20:09,400 Speaker 6: against climate policy. We also know Critical Infrastructure Bills were 320 00:20:09,400 --> 00:20:12,760 Speaker 6: a reaction to Standing Rock because when Oklahoma State Rep. 321 00:20:12,800 --> 00:20:15,960 Speaker 6: Scott Biggs introduced the first of these bills back in 322 00:20:16,000 --> 00:20:18,680 Speaker 6: twenty seventeen, he said so too. 323 00:20:19,560 --> 00:20:21,399 Speaker 15: I'm pretty sure they did a whole lot of damage 324 00:20:21,440 --> 00:20:24,160 Speaker 15: to property in North Dakota. If you want to learn more, 325 00:20:24,200 --> 00:20:27,480 Speaker 15: we actually have a meeting here at four o'clock today 326 00:20:27,480 --> 00:20:30,720 Speaker 15: with some individuals from North Dakota that are here to 327 00:20:30,760 --> 00:20:34,200 Speaker 15: talk to us, talk to the industry about what they're 328 00:20:34,240 --> 00:20:37,720 Speaker 15: having to deal with the aftermath of those protesters up there. 329 00:20:37,960 --> 00:20:40,159 Speaker 15: But yes, that is the main reason behind this. 330 00:20:41,240 --> 00:20:45,080 Speaker 6: When I asked Professor Kerr, the journalism professor from University 331 00:20:45,080 --> 00:20:48,280 Speaker 6: of Oklahoma who's been studying the corporate free speech movement 332 00:20:48,359 --> 00:20:51,400 Speaker 6: for more than twenty years, what he thought about all 333 00:20:51,400 --> 00:20:54,840 Speaker 6: this that the same industry pushing to expand corporate free 334 00:20:54,840 --> 00:20:59,320 Speaker 6: speech was now looking to criminalize individual free speech, he 335 00:20:59,520 --> 00:21:00,720 Speaker 6: was not surprised. 336 00:21:02,240 --> 00:21:07,080 Speaker 14: It's probably inevitable, because you know, if you're in that camp, 337 00:21:07,160 --> 00:21:11,399 Speaker 14: not only do you want corporate spending or corporate speech 338 00:21:11,560 --> 00:21:14,600 Speaker 14: to have a louder voice, you want your opponent, if 339 00:21:14,640 --> 00:21:19,560 Speaker 14: you can, to have a smaller voice. And I would 340 00:21:19,600 --> 00:21:25,840 Speaker 14: say that's a that can be seen as another manifestation 341 00:21:26,000 --> 00:21:31,760 Speaker 14: of why many people have always argued against this trend 342 00:21:31,840 --> 00:21:36,520 Speaker 14: to give First Amendment protection to corporate political spending, media spending, 343 00:21:36,840 --> 00:21:42,400 Speaker 14: all kinds is that the financial resources are so disproportionate. 344 00:21:42,640 --> 00:21:46,960 Speaker 14: I mean, for a long time, courts protected individuals and 345 00:21:47,040 --> 00:21:50,160 Speaker 14: small groups that wanted to speak out their right to speak, 346 00:21:50,720 --> 00:21:52,760 Speaker 14: and there are a lot of cases down through the years, 347 00:21:53,480 --> 00:21:57,920 Speaker 14: especially the twentieth century, on protecting that right to speak. 348 00:21:57,960 --> 00:22:00,560 Speaker 14: It didn't mean you're guaranteed to win. At least you're 349 00:22:00,640 --> 00:22:03,720 Speaker 14: right to speak was protected in a lot of ways. 350 00:22:04,800 --> 00:22:08,040 Speaker 14: But those people, if they don't have the court on 351 00:22:08,119 --> 00:22:12,560 Speaker 14: their side, they're not going to have generally the financial resources. 352 00:22:12,840 --> 00:22:16,520 Speaker 14: If these kind of laws and legal actions are successful, 353 00:22:18,160 --> 00:22:24,920 Speaker 14: it really chills and probably silences a lot of individuals 354 00:22:24,960 --> 00:22:29,520 Speaker 14: and small groups that just want to make their views known. 355 00:22:29,960 --> 00:22:34,439 Speaker 14: I would say it completely inverts the fundamental idea of 356 00:22:34,480 --> 00:22:39,400 Speaker 14: what a lot of people think American democracy was intended 357 00:22:39,440 --> 00:22:44,280 Speaker 14: to be that whatever else happened, every individual, every group 358 00:22:44,280 --> 00:22:50,200 Speaker 14: of individuals could speak as freely as the most powerful, 359 00:22:50,320 --> 00:22:54,159 Speaker 14: the wealthiest, and it really just undermines that concept. 360 00:22:55,800 --> 00:22:58,440 Speaker 6: Starting next month and through the end of this year, 361 00:22:58,840 --> 00:23:01,840 Speaker 6: maybe even beyond, we're going to be bringing you that 362 00:23:02,080 --> 00:23:06,159 Speaker 6: side of this story, working with reporters all over the world, 363 00:23:06,359 --> 00:23:10,720 Speaker 6: will be digging into the increasing criminalization of climate protest. 364 00:23:11,359 --> 00:23:14,919 Speaker 6: We'll look at the industries, companies and groups behind that trend, 365 00:23:15,520 --> 00:23:18,600 Speaker 6: what tactics are being used, what can be done about it, 366 00:23:18,800 --> 00:23:21,720 Speaker 6: and what it all means. In the meantime, we'll continue 367 00:23:21,720 --> 00:23:25,240 Speaker 6: to follow the climate cases and this argument in particular. 368 00:23:26,000 --> 00:23:30,240 Speaker 6: It is entirely possible that the next Citizens United will 369 00:23:30,280 --> 00:23:33,040 Speaker 6: be one of these climate cases, and it would be 370 00:23:33,040 --> 00:23:36,359 Speaker 6: great if folks could start thinking now about how to 371 00:23:36,480 --> 00:23:40,639 Speaker 6: avoid that outcome. For me, the two sides of this coin, 372 00:23:40,840 --> 00:23:43,879 Speaker 6: the tug of war over free speech, may just be 373 00:23:44,040 --> 00:23:49,040 Speaker 6: the most important climate issue today. Without democracy, the only 374 00:23:49,080 --> 00:23:53,359 Speaker 6: climate solution we're likely to see is eco fascism, and no, 375 00:23:54,040 --> 00:23:58,240 Speaker 6: it's not any better than the non eco variety. Make 376 00:23:58,280 --> 00:24:00,920 Speaker 6: sure you're subscribed so you get those episodes as soon 377 00:24:00,960 --> 00:24:04,800 Speaker 6: as they start to drop. That's it for this series 378 00:24:05,040 --> 00:24:08,720 Speaker 6: and this week. Thanks for listening, and see you again soon. 379 00:24:13,080 --> 00:24:17,000 Speaker 6: Drilled is an original Critical Frequency production. This season is 380 00:24:17,040 --> 00:24:20,560 Speaker 6: produced and sound designed by Martin Zaltz Austwick. Our sound 381 00:24:20,600 --> 00:24:25,480 Speaker 6: engineer is Peter Duff. Additional reporting by Julia Manipela, fact 382 00:24:25,520 --> 00:24:29,720 Speaker 6: checking by Woodan Yan. Our First Amendment attorney is James Wheaton. 383 00:24:30,240 --> 00:24:34,080 Speaker 6: Marketing is handled by Maggie Taylor. Our artwork is by 384 00:24:34,119 --> 00:24:37,359 Speaker 6: Matt Fleming. The show is written and reported by me 385 00:24:37,600 --> 00:24:41,960 Speaker 6: Amy Westervelt. Primary documents and additional information related to this 386 00:24:42,080 --> 00:24:45,719 Speaker 6: series are available on our website at Drilled dot media. 387 00:24:45,920 --> 00:24:48,359 Speaker 6: You can also sign up for our weekly newsletter there. 388 00:24:48,880 --> 00:24:51,320 Speaker 6: If you'd like to support our work, you can upgrade 389 00:24:51,359 --> 00:24:54,320 Speaker 6: to a paid subscription to the newsletter, or subscribe on 390 00:24:54,440 --> 00:24:58,400 Speaker 6: Patreon or Apple for early and ad free episodes plus 391 00:24:58,440 --> 00:25:02,400 Speaker 6: bonus content. There are lots of ways to support us 392 00:25:02,400 --> 00:25:05,040 Speaker 6: for free too. You can share the show. You can 393 00:25:05,119 --> 00:25:07,520 Speaker 6: leave us a rating or a review. That really helps 394 00:25:07,600 --> 00:25:10,159 Speaker 6: us find new listeners. Linking to the show on social 395 00:25:10,160 --> 00:25:13,680 Speaker 6: media is great too. Thanks for listening and supporting us. 396 00:25:14,000 --> 00:25:14,840 Speaker 6: We'll see you next time.