WEBVTT - Herb, Ep 3: The Next Citizens United Will Be a Climate Case 0:00:00.760 --> 0:00:05.120 We'll move on to our third argument for today. That 0:00:05.240 --> 0:00:09.640 is City and County of Honolulu versus Snoco LP. Case 0:00:09.720 --> 0:00:12.600 numbers twenty one Dash one five, three one three and 0:00:12.720 --> 0:00:18.040 twenty one Dash one five three one eight And mister 0:00:18.079 --> 0:00:22.160 buttros you're up, Thank. 0:00:22.000 --> 0:00:23.240 You honor, may please the court. 0:00:23.280 --> 0:00:25.520 Theodore butros On behalf of dependance. I'd like to reserve 0:00:25.560 --> 0:00:26.680 three minutes for rebuttal. 0:00:27.360 --> 0:00:30.760 These cases belong in federal court. 0:00:30.120 --> 0:00:34.880 And whenever you're ready, thank your honor, please the court. 0:00:34.960 --> 0:00:38.000 My name is Justin Anderson. I represent Exon Mobile in 0:00:38.080 --> 0:00:38.640 this appeal. 0:00:40.000 --> 0:00:46.199 You're saying, the Attorney General is punishing us for stating 0:00:46.280 --> 0:00:48.559 our position on global warming. 0:00:49.680 --> 0:00:51.479 Right, and so you have a defense. 0:00:51.960 --> 0:00:57.000 Right the government is punishing us for speech. It's the 0:00:57.000 --> 0:01:02.920 first amendment you have in the Constitution, a defense. Why 0:01:02.920 --> 0:01:06.560 would the legislature needed to provide you the Anti slab 0:01:06.600 --> 0:01:08.920 Statute to supplement that defense? 0:01:09.000 --> 0:01:12.640 The Anti Slap Statute provides a mechanism to have a 0:01:12.720 --> 0:01:16.480 case that is brought against someone for petitioning activity dismissed 0:01:16.480 --> 0:01:20.720 at the outset before burdensome discovery is imposed on the party. 0:01:21.240 --> 0:01:24.280 Before we have our executives come in to give testimony. 0:01:24.319 --> 0:01:27.160 And depositions before we're dragged into a courtroom where we 0:01:27.200 --> 0:01:28.840 have to defend ourselves all of this happenings. 0:01:28.880 --> 0:01:33.320 This might sound like boring, droning court tape. Okay, fine, 0:01:33.360 --> 0:01:36.560 it is boring droning court tape. But also there is 0:01:36.600 --> 0:01:39.600 a lot going on here, especially in the context of 0:01:39.640 --> 0:01:43.640 this whole corporate free speech thing we've been tracing throughout 0:01:43.640 --> 0:01:47.800 this mini series, So let's get into it. That was 0:01:47.840 --> 0:01:51.640 Gibson Dunn partner Ted Boutros up top, speaking on behalf 0:01:51.680 --> 0:01:55.080 of his client, Chevron and all of the other oil 0:01:55.080 --> 0:01:57.720 and gas company defendants in the climate case that the 0:01:57.760 --> 0:02:01.360 City and County of Honolulu brought a against them. The 0:02:01.400 --> 0:02:05.120 second person speaking was Justin Anderson from Exxon's law firm 0:02:05.280 --> 0:02:09.480 Paul Weiss, defending his client in a climate fraud case 0:02:09.600 --> 0:02:13.079 brought against it in the state of Massachusetts and whining 0:02:13.160 --> 0:02:17.079 about the company's executives being dragged into court to defend themselves. 0:02:18.760 --> 0:02:21.640 First thing, it's important to note here Boutros has often 0:02:21.639 --> 0:02:25.040 spoken for all of the defendant oil companies in these 0:02:25.080 --> 0:02:30.040 climate liability cases where Chevron is a named defendant, especially 0:02:30.080 --> 0:02:33.320 when issues around free speech come up. There are now 0:02:33.360 --> 0:02:35.840 more than two dozen of those cases in the US. 0:02:36.760 --> 0:02:40.600 That's notable because prior to his involvement in these climate cases, 0:02:40.720 --> 0:02:44.680 Boutros was not known as a liability expert, but he 0:02:44.919 --> 0:02:48.640 is considered one of the country's top First Amendment attorneys. 0:02:49.440 --> 0:02:52.239 You might recognize his name from his defense of CNN's 0:02:52.320 --> 0:02:56.639 Jim Acosta against the Trump administration, which took Acosta's press badge, 0:02:57.200 --> 0:03:00.160 or from his defense of Mary Trump against her uncle 0:03:00.200 --> 0:03:02.720 when he tried to suppress her book. 0:03:02.800 --> 0:03:03.320 Let Me Bring In. 0:03:03.360 --> 0:03:06.200 Mary's attorney, Ted Boutros ted, the book is coming out 0:03:06.240 --> 0:03:06.880 at the end of July. 0:03:07.000 --> 0:03:07.880 Nobody can stop that. 0:03:07.919 --> 0:03:10.320 But Mary is still tied up in court. 0:03:10.639 --> 0:03:15.160 What's the latest. The latest, Brian, is that we filed 0:03:15.639 --> 0:03:20.800 our brief Thursday challenging what remains a prior restraint against Mary. 0:03:20.800 --> 0:03:24.200 Simon and Schuster has been freed by the Appellate Court 0:03:24.240 --> 0:03:26.440 in New York to publish the book. So the book 0:03:26.520 --> 0:03:29.240 is going to come out, but there's still a restraining 0:03:29.320 --> 0:03:33.400 order against Mary Trump that restricts her from publishing. We've 0:03:33.560 --> 0:03:36.560 opposed that the Supreme Court has never upheld a prior 0:03:36.600 --> 0:03:40.520 restraint in any case in history where political speech was involved. 0:03:40.800 --> 0:03:43.080 That's what this is it's an important book about the 0:03:43.080 --> 0:03:44.240 President of the United States. 0:03:45.280 --> 0:03:49.320 Boutros doesn't just defend CNN. He's also a regular guest 0:03:49.720 --> 0:03:54.120 commenting on various First Amendment issues, and Boutros has advised 0:03:54.120 --> 0:03:57.520 lots of other top media outlets too, not just CNN, 0:03:57.600 --> 0:04:01.520 but also The New York Times, Pro Public and Reveal 0:04:01.760 --> 0:04:05.920 at the Center for Investigative Reporting. Here he is receiving 0:04:05.960 --> 0:04:09.160 the Reporter's Committee for Freedom of the Press Award in 0:04:09.280 --> 0:04:10.440 twenty twenty one. 0:04:11.000 --> 0:04:13.400 Thank you Reporters Committee for this award and for all 0:04:13.440 --> 0:04:16.000 you do to defend freedom of the press in this country. 0:04:16.240 --> 0:04:19.960 And congratulations to my fellow honorees. It's truly an honor 0:04:20.040 --> 0:04:23.480 to be in your company. A free and aggressive press 0:04:23.600 --> 0:04:26.839 is vital to ensuring the freedom and self determination of 0:04:26.839 --> 0:04:30.360 individual citizens and as a crucial check on government power. 0:04:33.279 --> 0:04:36.000 To put that award in context, the person who got 0:04:36.080 --> 0:04:39.520 it the year after him was Judy Woodruff, the longtime 0:04:39.560 --> 0:04:43.640 host of PBS News Hour. Lots of really well known 0:04:44.000 --> 0:04:48.440 legendary journalists have received this award. Boutros got it. He 0:04:48.520 --> 0:04:52.520 received it right alongside New Yorker writer Jane Mayer, who's 0:04:52.560 --> 0:04:56.480 perhaps best known for her book Dark Money. About the 0:04:56.600 --> 0:04:59.960 hidden corporate money fueling the rise of a radical righte 0:05:00.200 --> 0:05:05.440 in the US, something made possible by Buttros's firm, Gibson 0:05:05.520 --> 0:05:09.559 Dunn and their work on Citizens United. Despite the fact 0:05:09.560 --> 0:05:13.080 that he represents Chevron, that his firm fought and won 0:05:13.120 --> 0:05:17.080 Citizens United, and that one of his biggest Supreme Court 0:05:17.120 --> 0:05:22.760 wins was helping Walmart crush a labor lawsuit, Boutros has 0:05:22.839 --> 0:05:26.799 managed to become something of a liberal media darling, which 0:05:26.880 --> 0:05:29.920 makes him quite a clever pick as the guide defending 0:05:29.960 --> 0:05:33.159 the oil company's rights to say whatever they'd like about 0:05:33.160 --> 0:05:39.159 climate change. Each of the climate liability cases is slightly different, 0:05:39.440 --> 0:05:42.200 but in broad strokes, they allege that the fossil fuel 0:05:42.279 --> 0:05:46.920 company's decisions to mislead the public on climate change delayed 0:05:46.960 --> 0:05:50.839 action on the problem, which has resulted in exponentially greater 0:05:50.960 --> 0:05:54.840 climate impacts and because of that, greater costs for both 0:05:54.880 --> 0:05:58.880 dealing with and adapting to those impacts. So, for example, 0:05:58.960 --> 0:06:02.000 a coastal county might argue that the ocean has risen 0:06:02.080 --> 0:06:04.800 several inches higher than it would have had the fossil 0:06:04.800 --> 0:06:08.560 fuel companies not blocked climate action in the eighties and nineties. 0:06:09.320 --> 0:06:12.400 That means that their costs for dealing with storm surge 0:06:12.440 --> 0:06:15.760 and storms and building sea walls, maybe moving people to 0:06:15.839 --> 0:06:20.560 higher ground, losing tourism, dollars associated with beaches that are eroding, 0:06:21.120 --> 0:06:24.240 dealing with regular flooding. All of that those costs are 0:06:24.360 --> 0:06:27.240 higher today than they would have been. The municipal and 0:06:27.279 --> 0:06:30.920 state governments bringing these cases want oil and gas companies 0:06:30.960 --> 0:06:34.600 to pay a percentage of those costs equal to their 0:06:34.720 --> 0:06:38.960 role in obstructing action. Sometimes they also include fraud claims, 0:06:39.080 --> 0:06:42.240 and they often include a claim called failure to warn. 0:06:43.080 --> 0:06:46.200 Here's attorney Vic Scher, partner and co founder of the 0:06:46.279 --> 0:06:49.599 law firm Share Edling, which is outside council in a 0:06:49.640 --> 0:06:50.640 lot of these cases. 0:06:51.640 --> 0:06:55.919 One of the fundamental obligations that the law imposes on 0:06:56.200 --> 0:06:59.440 a manufacturer of a product is that if they know 0:06:59.480 --> 0:07:02.279 that there's a danger associated with the use of the product, 0:07:02.760 --> 0:07:04.680 they have to give a warning about it, and that 0:07:04.760 --> 0:07:09.960 warning has to be proportionate to the severity of the 0:07:10.080 --> 0:07:12.680 risk and the injury that they know accompanies it. So 0:07:13.080 --> 0:07:16.840 we're not talking about fine print hidden away where nobody 0:07:16.880 --> 0:07:19.520 will see it. If you know that your product is 0:07:19.560 --> 0:07:22.679 going to destroy the world, you have to be yelling 0:07:22.720 --> 0:07:27.960 that from the mountaintops frequently and constantly. 0:07:27.440 --> 0:07:32.600 Even but Boutros's argument and Justin Anderson's for Exon in 0:07:32.640 --> 0:07:35.840 the few cases where Exon is fighting alone, is that 0:07:36.040 --> 0:07:39.160 everything the oil companies have ever said about climate change 0:07:39.280 --> 0:07:43.520 was in the interest of shaping regulation or blocking regulation. 0:07:44.240 --> 0:07:48.400 That makes it a petitioning activity, which is protected by 0:07:48.440 --> 0:07:52.320 the First Amendment and not subject to fraud laws. The 0:07:52.400 --> 0:07:55.520 key distinction here is whether their speech could be considered 0:07:55.600 --> 0:08:01.080 commercial speech intended for the public or petitioning speech intended 0:08:01.120 --> 0:08:06.440 solely for regulators and policy makers. Here's Anderson again making 0:08:06.480 --> 0:08:10.080 that argument before the Massachusetts State Supreme Court in twenty 0:08:10.160 --> 0:08:10.640 twenty two. 0:08:11.440 --> 0:08:15.160 The alleged misrepresentations are the statements that Exon Mobil has 0:08:15.200 --> 0:08:19.440 made about its views on climate policy, on energy policy 0:08:19.800 --> 0:08:22.400 even today. What Exon Mobil has said is that the 0:08:22.440 --> 0:08:24.600 world is not ready to move away from oil and 0:08:24.720 --> 0:08:27.440 natural gas. And that's what they accuse us of misrepresenting. 0:08:27.480 --> 0:08:30.680 They're saying our petitioning has delayed the transition to clean energy, 0:08:30.960 --> 0:08:35.880 that our speech has quote forestalled a strong policy response 0:08:36.160 --> 0:08:37.280 to climate change. 0:08:37.720 --> 0:08:41.319 And here's Attorney Seth Schofield with the Massachusetts Attorney General's 0:08:41.360 --> 0:08:43.199 Office responding. 0:08:43.120 --> 0:08:45.880 The claims in the complaint. There are three of them 0:08:46.280 --> 0:08:50.440 have nothing to do with Excellon's advocacy on climate change 0:08:50.480 --> 0:08:54.480 policy or energy policy. The purpose of the complaint is 0:08:54.640 --> 0:08:57.439 very clear. It says, i quote, the Commonwealth of Massachusetts, 0:08:57.520 --> 0:09:00.680 through its Attorney General, brings this action to hold Exon 0:09:00.760 --> 0:09:05.640 Mobile accountable for misleading the state's investors and consumers. And 0:09:05.720 --> 0:09:12.920 its reply, Exon points to two incidents where it suggests 0:09:13.000 --> 0:09:17.920 that the Attorney General's two hundred page complaint may refer 0:09:18.080 --> 0:09:23.760 to some activity that constitutes petitioning. But that is a 0:09:23.760 --> 0:09:28.640 far cry from saying somehow Exon can satisfy this court's 0:09:28.760 --> 0:09:33.360 test that the Attorney General's claims are quote, solely based 0:09:33.440 --> 0:09:36.840 on Exxon Mobile's petitioning. 0:09:37.880 --> 0:09:42.120 But it's not just free speech or petitioning speech that 0:09:42.200 --> 0:09:45.720 both Anderson and Boutros have been arguing in these cases. 0:09:46.080 --> 0:09:49.240 It's also the idea that their client's speech is so 0:09:49.400 --> 0:09:53.000 protected that these lawsuits don't just infringe on their First 0:09:53.040 --> 0:09:58.200 Amendment rights, they are actually harassment. The hearing Anderson was 0:09:58.200 --> 0:10:01.000 speaking at was to evaluate x Soon's claim that the 0:10:01.040 --> 0:10:05.400 Massachusetts fraud case against it was actually a slap suit. 0:10:06.559 --> 0:10:12.079 Slap stands for strategic litigation against public participation. It's a 0:10:12.160 --> 0:10:14.360 term that was coined in the nineteen eighties on the 0:10:14.400 --> 0:10:17.640 heels of a whole bunch of lawsuits suing civil society 0:10:17.679 --> 0:10:22.319 groups and media outlets for defamation every time they openly 0:10:22.360 --> 0:10:26.120 criticized a company or executive. In fact, our old friend 0:10:26.120 --> 0:10:29.199 Herb Schmertz was a big fan of these suits. Here 0:10:29.240 --> 0:10:31.719 he is telling Ted Copple in the eighties that they're 0:10:31.760 --> 0:10:34.600 perfectly valid and that if journalists don't want to be sued, 0:10:34.720 --> 0:10:39.000 they could simply stop criticizing companies, which, of course Schmertz 0:10:39.080 --> 0:10:41.360 equates to spreading falsehoods. 0:10:42.280 --> 0:10:44.320 I think you have emerging now or feeling on the 0:10:44.360 --> 0:10:47.000 part of the pros that they're somehow above the law, 0:10:47.080 --> 0:10:49.920 that they can make false statements about people, that they 0:10:49.920 --> 0:10:52.560 can damage people, they don't have to suffer the consequence. 0:10:52.760 --> 0:10:55.480 It just seems to me very simple that I don't 0:10:55.520 --> 0:10:59.600 see how protecting falsehood helps in the search for truth. 0:11:00.200 --> 0:11:03.760 Beginning in the eighties, states started to pass anti slap 0:11:03.840 --> 0:11:07.400 laws intended to help people targeted by these suits get 0:11:07.400 --> 0:11:11.360 them dismissed quickly and cheaply, so that ideally they would 0:11:11.360 --> 0:11:14.800 not have the intended effect of chilling speech and protest. 0:11:15.520 --> 0:11:19.240 In recent years, corporations have begun to avail themselves of 0:11:19.320 --> 0:11:23.239 these laws. Suddenly they are painting themselves as the victims 0:11:23.280 --> 0:11:26.559 of these types of cases rather than the original architects 0:11:26.600 --> 0:11:31.160 of them. In both the Honolulu and Maui cases. In Hawaii, 0:11:31.280 --> 0:11:35.040 Boutros tried to invoke California's anti slap law to get 0:11:35.080 --> 0:11:40.000 climate cases against Chevron dismissed. Anderson was leaning on Massachusetts 0:11:40.080 --> 0:11:43.760 anti slap statute in his defense of Exon as well. 0:11:44.320 --> 0:11:47.640 The idea that the government can be trusted never to 0:11:47.760 --> 0:11:51.240 bring legal action against someone because they disagree with their 0:11:51.280 --> 0:11:57.440 speech runs counter to the fundamental concept and the fundamental 0:11:57.480 --> 0:12:00.760 core principle behind the First Amendment itself. The First Amendment 0:12:00.800 --> 0:12:02.440 protects US from the government. 0:12:03.120 --> 0:12:08.080 Yes, who will protect multinational oil companies from the US government. 0:12:09.280 --> 0:12:11.760 We're going to unpack that a bit and connect Mobile's 0:12:11.800 --> 0:12:14.920 whole history on corporate free speech back up to what's 0:12:15.000 --> 0:12:19.680 happening today after this quick break. I'm Amy Westervelt and 0:12:19.720 --> 0:12:22.959 this is Drilled coming up the final episode in our 0:12:22.960 --> 0:12:36.320 miniseries Herb. In the last two episodes, we followed the 0:12:36.360 --> 0:12:40.080 corporate free speech movement from Balatti in nineteen seventy eight, 0:12:40.360 --> 0:12:46.120 which let corporations advertise policy positions and ballot initiatives. To 0:12:46.320 --> 0:12:51.000 Citizens United in twenty ten, which eliminated any restrictions on 0:12:51.120 --> 0:12:55.679 spending from corporate coffers or spending directly to support a 0:12:55.720 --> 0:12:59.920 particular candidate. We've also followed the fossil fuel industry's role 0:13:00.080 --> 0:13:03.880 in that movement, from pioneering new forms of corporate speech 0:13:04.240 --> 0:13:09.360 to supporting ever broader legal protections for that speech. In 0:13:09.360 --> 0:13:12.440 the years since the Citizens United ruling, several states have 0:13:12.520 --> 0:13:17.120 passed laws that further obscure the funding behind particular initiatives 0:13:17.280 --> 0:13:22.720 or political groups. Others have tried to increase transparency. Meanwhile, 0:13:22.720 --> 0:13:25.800 the Supreme Court has only grown more conservative and more 0:13:25.840 --> 0:13:29.880 supportive of corporations, but it has still stayed away from 0:13:29.880 --> 0:13:32.319 the issue at the heart of that two thousand and 0:13:32.400 --> 0:13:36.320 three Nike versus Caskie case, which asked them to blur 0:13:36.440 --> 0:13:41.160 the line between protected corporate advocacy and fraud. In that case, 0:13:41.280 --> 0:13:44.200 Exonmobil filed a brief in which it made the exact 0:13:44.280 --> 0:13:48.560 same argument that oil company lawyers are making today that 0:13:48.720 --> 0:13:54.040 really everything corporations say about matters of public concern should 0:13:54.120 --> 0:13:59.840 fall into the categories of protected petitioning activity or advocacy 0:14:00.040 --> 0:14:03.800 and his argument for Chevron in the Hawaii cases, Gibson 0:14:03.880 --> 0:14:08.360 Dunn partner Ted Boutrose argued that the Hawaiian municipalities had 0:14:08.400 --> 0:14:12.120 tried to frame their claims as quote based on speech 0:14:12.559 --> 0:14:20.080 rather than petroleum production or emissions, targeting purported misrepresentations or disinformation. 0:14:21.040 --> 0:14:26.760 The speech the complaint targets is almost entirely directed to policymakers, regulators, 0:14:26.880 --> 0:14:31.560 and the public advocating against regulation of the oil and 0:14:31.600 --> 0:14:35.800 gas industry. In other words, Hey, we were just trying 0:14:35.840 --> 0:14:38.600 to block regulation, so we could have said whatever we 0:14:38.720 --> 0:14:43.520 wanted to and it's protected. Here's Vic Cher, who's representing 0:14:43.560 --> 0:14:46.080 the City and County of Honolulu and the County of 0:14:46.120 --> 0:14:47.760 Maui in those cases. 0:14:48.880 --> 0:14:53.240 Well, the First Amendment doesn't protect fraud and deception. That's 0:14:53.320 --> 0:14:57.360 the first point. The second point is that it's an 0:14:57.400 --> 0:15:03.600 industry playbook to try and shift the conversation from culpable 0:15:04.480 --> 0:15:08.800 and liable conduct to something else. And this is part 0:15:08.880 --> 0:15:09.200 of that. 0:15:10.040 --> 0:15:13.800 And here is former Massachusetts Attorney General Mara Healey's take. 0:15:14.320 --> 0:15:18.280 Healey's the one that originally filed the fraud claim against Exxon. 0:15:18.920 --> 0:15:22.040 For far too long these corporations have tried to use 0:15:22.040 --> 0:15:27.680 the First Amendment to shield unlawful activity, activity that sounds 0:15:27.960 --> 0:15:31.440 in serious fraud and misrepresentation both to the investor and 0:15:31.480 --> 0:15:35.200 shareholder public as well as to consumers, which is what 0:15:35.240 --> 0:15:38.800 we alleged that Exxon Mobile did. So we're going to 0:15:38.800 --> 0:15:41.160 continue to fight on and keep beating them every round 0:15:41.200 --> 0:15:44.520 in court. They try to sue us in three different states. 0:15:44.600 --> 0:15:46.920 If you can believe that Excellent Mobile took to the 0:15:46.960 --> 0:15:50.520 pages of the Wall Street Journal and op eds everywhere 0:15:50.600 --> 0:15:52.520 to try to underlign me and the team. 0:15:53.160 --> 0:15:54.239 They also brought. 0:15:54.000 --> 0:15:57.680 Suits against us, including suits against me personally in Texas 0:15:57.680 --> 0:16:00.320 and New York. Here in Massachusetts. We beat them at 0:16:00.320 --> 0:16:03.080 every turn, and now we're onto discovery and I look 0:16:03.160 --> 0:16:05.400 forward to you know, as we did with Purdue of 0:16:05.440 --> 0:16:08.120 the Sacklers. Our job is to have the story be told, 0:16:08.240 --> 0:16:10.120 you know, let it all out there. 0:16:10.680 --> 0:16:13.600 But it's not beyond the realm of possibility that one 0:16:13.640 --> 0:16:16.240 of these cases will be appealed to the Supreme Court, 0:16:16.600 --> 0:16:20.760 and it seems equally possible that they would take it on. Meanwhile, 0:16:20.800 --> 0:16:24.520 these same companies are working to shape free speech in 0:16:24.560 --> 0:16:28.400 another way. 0:16:28.440 --> 0:16:36.560 These fossil fuel infrastructure anti protest bills are currently gaining steam. 0:16:37.000 --> 0:16:41.760 That's Connor Gibson, an independent researcher and former research specialists 0:16:41.800 --> 0:16:46.280 for Greenpeace. He's following the rise of these critical infrastructure 0:16:46.360 --> 0:16:50.040 bills since they first emerged on the scene in twenty seventeen. 0:16:50.880 --> 0:16:54.760 By his count, they've now been passed in twenty one states. 0:16:54.840 --> 0:16:58.840 That's almost half the states. These laws effectively serve to 0:16:59.000 --> 0:17:03.600 criminalize protest. It's a big free speech problem. 0:17:04.119 --> 0:17:08.479 Someone called ted boutros felony level penalties for people who 0:17:08.520 --> 0:17:15.359 are committing nonviolent acts of trespass, coupled with compounded fines 0:17:15.400 --> 0:17:19.679 and jail sentences, often for organizations or individuals who are 0:17:19.680 --> 0:17:22.200 found to be affiliated with those protesters. 0:17:22.359 --> 0:17:24.879 They don't have to have trespassed themselves, they don't have 0:17:24.920 --> 0:17:27.760 to have damaged anything themselves. If they're affiliated with somebody 0:17:27.760 --> 0:17:29.760 that did, they wind up being charged. 0:17:30.520 --> 0:17:33.320 Some states had been toying with laws like these since 0:17:33.359 --> 0:17:36.440 the creation of various domestic terrorism laws in the week 0:17:36.520 --> 0:17:40.240 of nine to eleven, but these critical infrastructure laws started 0:17:40.280 --> 0:17:43.119 to really take off as a direct response to the 0:17:43.160 --> 0:17:47.640 twenty sixteen and twenty seventeen pipeline protests at Standing Rock 0:17:47.960 --> 0:17:51.040 and We know that because Derek Morgan, the former Gibson 0:17:51.080 --> 0:17:54.159 Dunn attorney turned chief lobbyist for the American fuel and 0:17:54.200 --> 0:17:58.840 petrochemical manufacturers who helped to write these bills, said so 0:17:59.200 --> 0:18:02.840 at a conference where he was presenting the idea and. 0:18:03.080 --> 0:18:05.720 Four is really because we have seen that work we 0:18:05.840 --> 0:18:06.480 lived Throughgether. 0:18:07.280 --> 0:18:08.880 We have seen more. 0:18:08.680 --> 0:18:12.480 And more dangerous and instructive tactics going this these introdructure 0:18:12.560 --> 0:18:14.000 projects you're. 0:18:13.880 --> 0:18:16.119 Trying to shut them down on all together. 0:18:16.560 --> 0:18:20.440 We've seen nails, access roads to punch fires. We've seen 0:18:20.480 --> 0:18:27.200 sabotaging engines, heavy machinery. We've seen do devlve turners as well. 0:18:27.400 --> 0:18:28.800 I'm up for datad efforts to. 0:18:28.760 --> 0:18:31.000 Try to stop the development. 0:18:31.640 --> 0:18:33.879 Now, regard that I wrote some pel statistics on that 0:18:34.119 --> 0:18:35.720 the deppol protest. 0:18:35.880 --> 0:18:38.520 His tape is tough to hear, but he said there 0:18:38.600 --> 0:18:42.560 that he's seen more and more dangerous and destructive tactics 0:18:42.720 --> 0:18:48.159 going against these infrastructure projects, including sabotaging engines and heavy 0:18:48.200 --> 0:18:53.520 machinery and valve turners. At the end, you refer specifically 0:18:53.600 --> 0:18:58.320 to the DAPPLE protests. That's short for Dakota Access Pipeline, 0:18:58.440 --> 0:19:01.280 the name of the pipeline that people we're protesting against 0:19:01.560 --> 0:19:06.159 on the Standing Rock Reservation during twenty sixteen and twenty seventeen, 0:19:07.320 --> 0:19:08.520 so between ten and. 0:19:08.560 --> 0:19:14.080 Fifteen dollars protesters seven hundred and sixty one arrests, ninety 0:19:14.080 --> 0:19:16.440 four percent of those from out of state, is gone 0:19:16.440 --> 0:19:21.080 from com Lakota, and a third relate about that happened 0:19:21.200 --> 0:19:22.159 for criminal rares. 0:19:24.520 --> 0:19:28.119 It's not uncommon for protesters to come from out of 0:19:28.200 --> 0:19:32.639 state for actions against a major pipeline. And it's worth 0:19:32.720 --> 0:19:37.440 noting here that the Standing Rock Reservation itself runs across 0:19:37.480 --> 0:19:40.359 the border between North and South Dakota, so quite a 0:19:40.359 --> 0:19:44.119 few Standing Rock residents would technically be considered out of 0:19:44.240 --> 0:19:48.440 state in North Dakota. But framing it this way makes 0:19:48.480 --> 0:19:53.040 protests sound scary and criminal. If you can paint protesters 0:19:53.080 --> 0:19:56.040 as radicals and criminals, it's a whole lot easier to 0:19:56.320 --> 0:20:00.960 justify stripping their First Amendment rights to Derek Morgan, is 0:20:01.000 --> 0:20:04.960 the executive vice president of the Heritage Foundation, which lobbies 0:20:05.000 --> 0:20:09.400 against climate policy. We also know Critical Infrastructure Bills were 0:20:09.400 --> 0:20:12.760 a reaction to Standing Rock because when Oklahoma State Rep. 0:20:12.800 --> 0:20:15.960 Scott Biggs introduced the first of these bills back in 0:20:16.000 --> 0:20:18.680 twenty seventeen, he said so too. 0:20:19.560 --> 0:20:21.399 I'm pretty sure they did a whole lot of damage 0:20:21.440 --> 0:20:24.160 to property in North Dakota. If you want to learn more, 0:20:24.200 --> 0:20:27.480 we actually have a meeting here at four o'clock today 0:20:27.480 --> 0:20:30.720 with some individuals from North Dakota that are here to 0:20:30.760 --> 0:20:34.200 talk to us, talk to the industry about what they're 0:20:34.240 --> 0:20:37.720 having to deal with the aftermath of those protesters up there. 0:20:37.960 --> 0:20:40.159 But yes, that is the main reason behind this. 0:20:41.240 --> 0:20:45.080 When I asked Professor Kerr, the journalism professor from University 0:20:45.080 --> 0:20:48.280 of Oklahoma who's been studying the corporate free speech movement 0:20:48.359 --> 0:20:51.400 for more than twenty years, what he thought about all 0:20:51.400 --> 0:20:54.840 this that the same industry pushing to expand corporate free 0:20:54.840 --> 0:20:59.320 speech was now looking to criminalize individual free speech, he 0:20:59.520 --> 0:21:00.720 was not surprised. 0:21:02.240 --> 0:21:07.080 It's probably inevitable, because you know, if you're in that camp, 0:21:07.160 --> 0:21:11.399 not only do you want corporate spending or corporate speech 0:21:11.560 --> 0:21:14.600 to have a louder voice, you want your opponent, if 0:21:14.640 --> 0:21:19.560 you can, to have a smaller voice. And I would 0:21:19.600 --> 0:21:25.840 say that's a that can be seen as another manifestation 0:21:26.000 --> 0:21:31.760 of why many people have always argued against this trend 0:21:31.840 --> 0:21:36.520 to give First Amendment protection to corporate political spending, media spending, 0:21:36.840 --> 0:21:42.400 all kinds is that the financial resources are so disproportionate. 0:21:42.640 --> 0:21:46.960 I mean, for a long time, courts protected individuals and 0:21:47.040 --> 0:21:50.160 small groups that wanted to speak out their right to speak, 0:21:50.720 --> 0:21:52.760 and there are a lot of cases down through the years, 0:21:53.480 --> 0:21:57.920 especially the twentieth century, on protecting that right to speak. 0:21:57.960 --> 0:22:00.560 It didn't mean you're guaranteed to win. At least you're 0:22:00.640 --> 0:22:03.720 right to speak was protected in a lot of ways. 0:22:04.800 --> 0:22:08.040 But those people, if they don't have the court on 0:22:08.119 --> 0:22:12.560 their side, they're not going to have generally the financial resources. 0:22:12.840 --> 0:22:16.520 If these kind of laws and legal actions are successful, 0:22:18.160 --> 0:22:24.920 it really chills and probably silences a lot of individuals 0:22:24.960 --> 0:22:29.520 and small groups that just want to make their views known. 0:22:29.960 --> 0:22:34.439 I would say it completely inverts the fundamental idea of 0:22:34.480 --> 0:22:39.400 what a lot of people think American democracy was intended 0:22:39.440 --> 0:22:44.280 to be that whatever else happened, every individual, every group 0:22:44.280 --> 0:22:50.200 of individuals could speak as freely as the most powerful, 0:22:50.320 --> 0:22:54.159 the wealthiest, and it really just undermines that concept. 0:22:55.800 --> 0:22:58.440 Starting next month and through the end of this year, 0:22:58.840 --> 0:23:01.840 maybe even beyond, we're going to be bringing you that 0:23:02.080 --> 0:23:06.159 side of this story, working with reporters all over the world, 0:23:06.359 --> 0:23:10.720 will be digging into the increasing criminalization of climate protest. 0:23:11.359 --> 0:23:14.919 We'll look at the industries, companies and groups behind that trend, 0:23:15.520 --> 0:23:18.600 what tactics are being used, what can be done about it, 0:23:18.800 --> 0:23:21.720 and what it all means. In the meantime, we'll continue 0:23:21.720 --> 0:23:25.240 to follow the climate cases and this argument in particular. 0:23:26.000 --> 0:23:30.240 It is entirely possible that the next Citizens United will 0:23:30.280 --> 0:23:33.040 be one of these climate cases, and it would be 0:23:33.040 --> 0:23:36.359 great if folks could start thinking now about how to 0:23:36.480 --> 0:23:40.639 avoid that outcome. For me, the two sides of this coin, 0:23:40.840 --> 0:23:43.879 the tug of war over free speech, may just be 0:23:44.040 --> 0:23:49.040 the most important climate issue today. Without democracy, the only 0:23:49.080 --> 0:23:53.359 climate solution we're likely to see is eco fascism, and no, 0:23:54.040 --> 0:23:58.240 it's not any better than the non eco variety. Make 0:23:58.280 --> 0:24:00.920 sure you're subscribed so you get those episodes as soon 0:24:00.960 --> 0:24:04.800 as they start to drop. That's it for this series 0:24:05.040 --> 0:24:08.720 and this week. Thanks for listening, and see you again soon. 0:24:13.080 --> 0:24:17.000 Drilled is an original Critical Frequency production. This season is 0:24:17.040 --> 0:24:20.560 produced and sound designed by Martin Zaltz Austwick. Our sound 0:24:20.600 --> 0:24:25.480 engineer is Peter Duff. Additional reporting by Julia Manipela, fact 0:24:25.520 --> 0:24:29.720 checking by Woodan Yan. Our First Amendment attorney is James Wheaton. 0:24:30.240 --> 0:24:34.080 Marketing is handled by Maggie Taylor. Our artwork is by 0:24:34.119 --> 0:24:37.359 Matt Fleming. The show is written and reported by me 0:24:37.600 --> 0:24:41.960 Amy Westervelt. 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