Speaker 1: We'll move on to our third argument for today. That
Speaker 1: is City and County of Honolulu versus Snoco LP. Case
Speaker 1: numbers twenty one Dash one five, three one three and
Speaker 1: twenty one Dash one five three one eight And mister
Speaker 1: buttros you're up, Thank.
Speaker 2: You honor, may please the court.
Speaker 3: Theodore butros On behalf of dependance. I'd like to reserve
Speaker 3: three minutes for rebuttal.
Speaker 2: These cases belong in federal court.
Speaker 4: And whenever you're ready, thank your honor, please the court.
Speaker 4: My name is Justin Anderson. I represent Exon Mobile in
Speaker 4: this appeal.
Speaker 5: You're saying, the Attorney General is punishing us for stating
Speaker 5: our position on global warming.
Speaker 6: Right, and so you have a defense.
Speaker 5: Right the government is punishing us for speech. It's the
Speaker 5: first amendment you have in the Constitution, a defense. Why
Speaker 5: would the legislature needed to provide you the Anti slab
Speaker 5: Statute to supplement that defense?
Speaker 4: The Anti Slap Statute provides a mechanism to have a
Speaker 4: case that is brought against someone for petitioning activity dismissed
Speaker 4: at the outset before burdensome discovery is imposed on the party.
Speaker 4: Before we have our executives come in to give testimony.
Speaker 4: And depositions before we're dragged into a courtroom where we
Speaker 4: have to defend ourselves all of this happenings.
Speaker 6: This might sound like boring, droning court tape. Okay, fine,
Speaker 6: it is boring droning court tape. But also there is
Speaker 6: a lot going on here, especially in the context of
Speaker 6: this whole corporate free speech thing we've been tracing throughout
Speaker 6: this mini series, So let's get into it. That was
Speaker 6: Gibson Dunn partner Ted Boutros up top, speaking on behalf
Speaker 6: of his client, Chevron and all of the other oil
Speaker 6: and gas company defendants in the climate case that the
Speaker 6: City and County of Honolulu brought a against them. The
Speaker 6: second person speaking was Justin Anderson from Exxon's law firm
Speaker 6: Paul Weiss, defending his client in a climate fraud case
Speaker 6: brought against it in the state of Massachusetts and whining
Speaker 6: about the company's executives being dragged into court to defend themselves.
Speaker 6: First thing, it's important to note here Boutros has often
Speaker 6: spoken for all of the defendant oil companies in these
Speaker 6: climate liability cases where Chevron is a named defendant, especially
Speaker 6: when issues around free speech come up. There are now
Speaker 6: more than two dozen of those cases in the US.
Speaker 6: That's notable because prior to his involvement in these climate cases,
Speaker 6: Boutros was not known as a liability expert, but he
Speaker 6: is considered one of the country's top First Amendment attorneys.
Speaker 6: You might recognize his name from his defense of CNN's
Speaker 6: Jim Acosta against the Trump administration, which took Acosta's press badge,
Speaker 6: or from his defense of Mary Trump against her uncle
Speaker 6: when he tried to suppress her book.
Speaker 2: Let Me Bring In.
Speaker 7: Mary's attorney, Ted Boutros ted, the book is coming out
Speaker 7: at the end of July.
Speaker 2: Nobody can stop that.
Speaker 6: But Mary is still tied up in court.
Speaker 2: What's the latest. The latest, Brian, is that we filed
Speaker 2: our brief Thursday challenging what remains a prior restraint against Mary.
Speaker 2: Simon and Schuster has been freed by the Appellate Court
Speaker 2: in New York to publish the book. So the book
Speaker 2: is going to come out, but there's still a restraining
Speaker 2: order against Mary Trump that restricts her from publishing. We've
Speaker 2: opposed that the Supreme Court has never upheld a prior
Speaker 2: restraint in any case in history where political speech was involved.
Speaker 2: That's what this is it's an important book about the
Speaker 2: President of the United States.
Speaker 6: Boutros doesn't just defend CNN. He's also a regular guest
Speaker 6: commenting on various First Amendment issues, and Boutros has advised
Speaker 6: lots of other top media outlets too, not just CNN,
Speaker 6: but also The New York Times, Pro Public and Reveal
Speaker 6: at the Center for Investigative Reporting. Here he is receiving
Speaker 6: the Reporter's Committee for Freedom of the Press Award in
Speaker 6: twenty twenty one.
Speaker 3: Thank you Reporters Committee for this award and for all
Speaker 3: you do to defend freedom of the press in this country.
Speaker 3: And congratulations to my fellow honorees. It's truly an honor
Speaker 3: to be in your company. A free and aggressive press
Speaker 3: is vital to ensuring the freedom and self determination of
Speaker 3: individual citizens and as a crucial check on government power.
Speaker 6: To put that award in context, the person who got
Speaker 6: it the year after him was Judy Woodruff, the longtime
Speaker 6: host of PBS News Hour. Lots of really well known
Speaker 6: legendary journalists have received this award. Boutros got it. He
Speaker 6: received it right alongside New Yorker writer Jane Mayer, who's
Speaker 6: perhaps best known for her book Dark Money. About the
Speaker 6: hidden corporate money fueling the rise of a radical righte
Speaker 6: in the US, something made possible by Buttros's firm, Gibson
Speaker 6: Dunn and their work on Citizens United. Despite the fact
Speaker 6: that he represents Chevron, that his firm fought and won
Speaker 6: Citizens United, and that one of his biggest Supreme Court
Speaker 6: wins was helping Walmart crush a labor lawsuit, Boutros has
Speaker 6: managed to become something of a liberal media darling, which
Speaker 6: makes him quite a clever pick as the guide defending
Speaker 6: the oil company's rights to say whatever they'd like about
Speaker 6: climate change. Each of the climate liability cases is slightly different,
Speaker 6: but in broad strokes, they allege that the fossil fuel
Speaker 6: company's decisions to mislead the public on climate change delayed
Speaker 6: action on the problem, which has resulted in exponentially greater
Speaker 6: climate impacts and because of that, greater costs for both
Speaker 6: dealing with and adapting to those impacts. So, for example,
Speaker 6: a coastal county might argue that the ocean has risen
Speaker 6: several inches higher than it would have had the fossil
Speaker 6: fuel companies not blocked climate action in the eighties and nineties.
Speaker 6: That means that their costs for dealing with storm surge
Speaker 6: and storms and building sea walls, maybe moving people to
Speaker 6: higher ground, losing tourism, dollars associated with beaches that are eroding,
Speaker 6: dealing with regular flooding. All of that those costs are
Speaker 6: higher today than they would have been. The municipal and
Speaker 6: state governments bringing these cases want oil and gas companies
Speaker 6: to pay a percentage of those costs equal to their
Speaker 6: role in obstructing action. Sometimes they also include fraud claims,
Speaker 6: and they often include a claim called failure to warn.
Speaker 6: Here's attorney Vic Scher, partner and co founder of the
Speaker 6: law firm Share Edling, which is outside council in a
Speaker 6: lot of these cases.
Speaker 8: One of the fundamental obligations that the law imposes on
Speaker 8: a manufacturer of a product is that if they know
Speaker 8: that there's a danger associated with the use of the product,
Speaker 8: they have to give a warning about it, and that
Speaker 8: warning has to be proportionate to the severity of the
Speaker 8: risk and the injury that they know accompanies it. So
Speaker 8: we're not talking about fine print hidden away where nobody
Speaker 8: will see it. If you know that your product is
Speaker 8: going to destroy the world, you have to be yelling
Speaker 8: that from the mountaintops frequently and constantly.
Speaker 6: Even but Boutros's argument and Justin Anderson's for Exon in
Speaker 6: the few cases where Exon is fighting alone, is that
Speaker 6: everything the oil companies have ever said about climate change
Speaker 6: was in the interest of shaping regulation or blocking regulation.
Speaker 6: That makes it a petitioning activity, which is protected by
Speaker 6: the First Amendment and not subject to fraud laws. The
Speaker 6: key distinction here is whether their speech could be considered
Speaker 6: commercial speech intended for the public or petitioning speech intended
Speaker 6: solely for regulators and policy makers. Here's Anderson again making
Speaker 6: that argument before the Massachusetts State Supreme Court in twenty
Speaker 6: twenty two.
Speaker 4: The alleged misrepresentations are the statements that Exon Mobil has
Speaker 4: made about its views on climate policy, on energy policy
Speaker 4: even today. What Exon Mobil has said is that the
Speaker 4: world is not ready to move away from oil and
Speaker 4: natural gas. And that's what they accuse us of misrepresenting.
Speaker 4: They're saying our petitioning has delayed the transition to clean energy,
Speaker 4: that our speech has quote forestalled a strong policy response
Speaker 4: to climate change.
Speaker 6: And here's Attorney Seth Schofield with the Massachusetts Attorney General's
Speaker 6: Office responding.
Speaker 9: The claims in the complaint. There are three of them
Speaker 9: have nothing to do with Excellon's advocacy on climate change
Speaker 9: policy or energy policy. The purpose of the complaint is
Speaker 9: very clear. It says, i quote, the Commonwealth of Massachusetts,
Speaker 9: through its Attorney General, brings this action to hold Exon
Speaker 9: Mobile accountable for misleading the state's investors and consumers. And
Speaker 9: its reply, Exon points to two incidents where it suggests
Speaker 9: that the Attorney General's two hundred page complaint may refer
Speaker 9: to some activity that constitutes petitioning. But that is a
Speaker 9: far cry from saying somehow Exon can satisfy this court's
Speaker 9: test that the Attorney General's claims are quote, solely based
Speaker 9: on Exxon Mobile's petitioning.
Speaker 6: But it's not just free speech or petitioning speech that
Speaker 6: both Anderson and Boutros have been arguing in these cases.
Speaker 6: It's also the idea that their client's speech is so
Speaker 6: protected that these lawsuits don't just infringe on their First
Speaker 6: Amendment rights, they are actually harassment. The hearing Anderson was
Speaker 6: speaking at was to evaluate x Soon's claim that the
Speaker 6: Massachusetts fraud case against it was actually a slap suit.
Speaker 6: Slap stands for strategic litigation against public participation. It's a
Speaker 6: term that was coined in the nineteen eighties on the
Speaker 6: heels of a whole bunch of lawsuits suing civil society
Speaker 6: groups and media outlets for defamation every time they openly
Speaker 6: criticized a company or executive. In fact, our old friend
Speaker 6: Herb Schmertz was a big fan of these suits. Here
Speaker 6: he is telling Ted Copple in the eighties that they're
Speaker 6: perfectly valid and that if journalists don't want to be sued,
Speaker 6: they could simply stop criticizing companies, which, of course Schmertz
Speaker 6: equates to spreading falsehoods.
Speaker 7: I think you have emerging now or feeling on the
Speaker 7: part of the pros that they're somehow above the law,
Speaker 7: that they can make false statements about people, that they
Speaker 7: can damage people, they don't have to suffer the consequence.
Speaker 7: It just seems to me very simple that I don't
Speaker 7: see how protecting falsehood helps in the search for truth.
Speaker 6: Beginning in the eighties, states started to pass anti slap
Speaker 6: laws intended to help people targeted by these suits get
Speaker 6: them dismissed quickly and cheaply, so that ideally they would
Speaker 6: not have the intended effect of chilling speech and protest.
Speaker 6: In recent years, corporations have begun to avail themselves of
Speaker 6: these laws. Suddenly they are painting themselves as the victims
Speaker 6: of these types of cases rather than the original architects
Speaker 6: of them. In both the Honolulu and Maui cases. In Hawaii,
Speaker 6: Boutros tried to invoke California's anti slap law to get
Speaker 6: climate cases against Chevron dismissed. Anderson was leaning on Massachusetts
Speaker 6: anti slap statute in his defense of Exon as well.
Speaker 4: The idea that the government can be trusted never to
Speaker 4: bring legal action against someone because they disagree with their
Speaker 4: speech runs counter to the fundamental concept and the fundamental
Speaker 4: core principle behind the First Amendment itself. The First Amendment
Speaker 4: protects US from the government.
Speaker 6: Yes, who will protect multinational oil companies from the US government.
Speaker 6: We're going to unpack that a bit and connect Mobile's
Speaker 6: whole history on corporate free speech back up to what's
Speaker 6: happening today after this quick break. I'm Amy Westervelt and
Speaker 6: this is Drilled coming up the final episode in our
Speaker 6: miniseries Herb. In the last two episodes, we followed the
Speaker 6: corporate free speech movement from Balatti in nineteen seventy eight,
Speaker 6: which let corporations advertise policy positions and ballot initiatives. To
Speaker 6: Citizens United in twenty ten, which eliminated any restrictions on
Speaker 6: spending from corporate coffers or spending directly to support a
Speaker 6: particular candidate. We've also followed the fossil fuel industry's role
Speaker 6: in that movement, from pioneering new forms of corporate speech
Speaker 6: to supporting ever broader legal protections for that speech. In
Speaker 6: the years since the Citizens United ruling, several states have
Speaker 6: passed laws that further obscure the funding behind particular initiatives
Speaker 6: or political groups. Others have tried to increase transparency. Meanwhile,
Speaker 6: the Supreme Court has only grown more conservative and more
Speaker 6: supportive of corporations, but it has still stayed away from
Speaker 6: the issue at the heart of that two thousand and
Speaker 6: three Nike versus Caskie case, which asked them to blur
Speaker 6: the line between protected corporate advocacy and fraud. In that case,
Speaker 6: Exonmobil filed a brief in which it made the exact
Speaker 6: same argument that oil company lawyers are making today that
Speaker 6: really everything corporations say about matters of public concern should
Speaker 6: fall into the categories of protected petitioning activity or advocacy
Speaker 6: and his argument for Chevron in the Hawaii cases, Gibson
Speaker 6: Dunn partner Ted Boutrose argued that the Hawaiian municipalities had
Speaker 6: tried to frame their claims as quote based on speech
Speaker 6: rather than petroleum production or emissions, targeting purported misrepresentations or disinformation.
Speaker 6: The speech the complaint targets is almost entirely directed to policymakers, regulators,
Speaker 6: and the public advocating against regulation of the oil and
Speaker 6: gas industry. In other words, Hey, we were just trying
Speaker 6: to block regulation, so we could have said whatever we
Speaker 6: wanted to and it's protected. Here's Vic Cher, who's representing
Speaker 6: the City and County of Honolulu and the County of
Speaker 6: Maui in those cases.
Speaker 8: Well, the First Amendment doesn't protect fraud and deception. That's
Speaker 8: the first point. The second point is that it's an
Speaker 8: industry playbook to try and shift the conversation from culpable
Speaker 8: and liable conduct to something else. And this is part
Speaker 8: of that.
Speaker 6: And here is former Massachusetts Attorney General Mara Healey's take.
Speaker 6: Healey's the one that originally filed the fraud claim against Exxon.
Speaker 10: For far too long these corporations have tried to use
Speaker 10: the First Amendment to shield unlawful activity, activity that sounds
Speaker 10: in serious fraud and misrepresentation both to the investor and
Speaker 10: shareholder public as well as to consumers, which is what
Speaker 10: we alleged that Exxon Mobile did. So we're going to
Speaker 10: continue to fight on and keep beating them every round
Speaker 10: in court. They try to sue us in three different states.
Speaker 10: If you can believe that Excellent Mobile took to the
Speaker 10: pages of the Wall Street Journal and op eds everywhere
Speaker 10: to try to underlign me and the team.
Speaker 6: They also brought.
Speaker 10: Suits against us, including suits against me personally in Texas
Speaker 10: and New York. Here in Massachusetts. We beat them at
Speaker 10: every turn, and now we're onto discovery and I look
Speaker 10: forward to you know, as we did with Purdue of
Speaker 10: the Sacklers. Our job is to have the story be told,
Speaker 10: you know, let it all out there.
Speaker 6: But it's not beyond the realm of possibility that one
Speaker 6: of these cases will be appealed to the Supreme Court,
Speaker 6: and it seems equally possible that they would take it on. Meanwhile,
Speaker 6: these same companies are working to shape free speech in
Speaker 6: another way.
Speaker 11: These fossil fuel infrastructure anti protest bills are currently gaining steam.
Speaker 6: That's Connor Gibson, an independent researcher and former research specialists
Speaker 6: for Greenpeace. He's following the rise of these critical infrastructure
Speaker 6: bills since they first emerged on the scene in twenty seventeen.
Speaker 6: By his count, they've now been passed in twenty one states.
Speaker 6: That's almost half the states. These laws effectively serve to
Speaker 6: criminalize protest. It's a big free speech problem.
Speaker 12: Someone called ted boutros felony level penalties for people who
Speaker 12: are committing nonviolent acts of trespass, coupled with compounded fines
Speaker 12: and jail sentences, often for organizations or individuals who are
Speaker 12: found to be affiliated with those protesters.
Speaker 11: They don't have to have trespassed themselves, they don't have
Speaker 11: to have damaged anything themselves. If they're affiliated with somebody
Speaker 11: that did, they wind up being charged.
Speaker 6: Some states had been toying with laws like these since
Speaker 6: the creation of various domestic terrorism laws in the week
Speaker 6: of nine to eleven, but these critical infrastructure laws started
Speaker 6: to really take off as a direct response to the
Speaker 6: twenty sixteen and twenty seventeen pipeline protests at Standing Rock
Speaker 6: and We know that because Derek Morgan, the former Gibson
Speaker 6: Dunn attorney turned chief lobbyist for the American fuel and
Speaker 6: petrochemical manufacturers who helped to write these bills, said so
Speaker 6: at a conference where he was presenting the idea and.
Speaker 13: Four is really because we have seen that work we
Speaker 13: lived Throughgether.
Speaker 6: We have seen more.
Speaker 13: And more dangerous and instructive tactics going this these introdructure
Speaker 13: projects you're.
Speaker 14: Trying to shut them down on all together.
Speaker 13: We've seen nails, access roads to punch fires. We've seen
Speaker 13: sabotaging engines, heavy machinery. We've seen do devlve turners as well.
Speaker 9: I'm up for datad efforts to.
Speaker 14: Try to stop the development.
Speaker 13: Now, regard that I wrote some pel statistics on that
Speaker 13: the deppol protest.
Speaker 6: His tape is tough to hear, but he said there
Speaker 6: that he's seen more and more dangerous and destructive tactics
Speaker 6: going against these infrastructure projects, including sabotaging engines and heavy
Speaker 6: machinery and valve turners. At the end, you refer specifically
Speaker 6: to the DAPPLE protests. That's short for Dakota Access Pipeline,
Speaker 6: the name of the pipeline that people we're protesting against
Speaker 6: on the Standing Rock Reservation during twenty sixteen and twenty seventeen,
Speaker 6: so between ten and.
Speaker 13: Fifteen dollars protesters seven hundred and sixty one arrests, ninety
Speaker 13: four percent of those from out of state, is gone
Speaker 13: from com Lakota, and a third relate about that happened
Speaker 13: for criminal rares.
Speaker 6: It's not uncommon for protesters to come from out of
Speaker 6: state for actions against a major pipeline. And it's worth
Speaker 6: noting here that the Standing Rock Reservation itself runs across
Speaker 6: the border between North and South Dakota, so quite a
Speaker 6: few Standing Rock residents would technically be considered out of
Speaker 6: state in North Dakota. But framing it this way makes
Speaker 6: protests sound scary and criminal. If you can paint protesters
Speaker 6: as radicals and criminals, it's a whole lot easier to
Speaker 6: justify stripping their First Amendment rights to Derek Morgan, is
Speaker 6: the executive vice president of the Heritage Foundation, which lobbies
Speaker 6: against climate policy. We also know Critical Infrastructure Bills were
Speaker 6: a reaction to Standing Rock because when Oklahoma State Rep.
Speaker 6: Scott Biggs introduced the first of these bills back in
Speaker 6: twenty seventeen, he said so too.
Speaker 15: I'm pretty sure they did a whole lot of damage
Speaker 15: to property in North Dakota. If you want to learn more,
Speaker 15: we actually have a meeting here at four o'clock today
Speaker 15: with some individuals from North Dakota that are here to
Speaker 15: talk to us, talk to the industry about what they're
Speaker 15: having to deal with the aftermath of those protesters up there.
Speaker 15: But yes, that is the main reason behind this.
Speaker 6: When I asked Professor Kerr, the journalism professor from University
Speaker 6: of Oklahoma who's been studying the corporate free speech movement
Speaker 6: for more than twenty years, what he thought about all
Speaker 6: this that the same industry pushing to expand corporate free
Speaker 6: speech was now looking to criminalize individual free speech, he
Speaker 6: was not surprised.
Speaker 14: It's probably inevitable, because you know, if you're in that camp,
Speaker 14: not only do you want corporate spending or corporate speech
Speaker 14: to have a louder voice, you want your opponent, if
Speaker 14: you can, to have a smaller voice. And I would
Speaker 14: say that's a that can be seen as another manifestation
Speaker 14: of why many people have always argued against this trend
Speaker 14: to give First Amendment protection to corporate political spending, media spending,
Speaker 14: all kinds is that the financial resources are so disproportionate.
Speaker 14: I mean, for a long time, courts protected individuals and
Speaker 14: small groups that wanted to speak out their right to speak,
Speaker 14: and there are a lot of cases down through the years,
Speaker 14: especially the twentieth century, on protecting that right to speak.
Speaker 14: It didn't mean you're guaranteed to win. At least you're
Speaker 14: right to speak was protected in a lot of ways.
Speaker 14: But those people, if they don't have the court on
Speaker 14: their side, they're not going to have generally the financial resources.
Speaker 14: If these kind of laws and legal actions are successful,
Speaker 14: it really chills and probably silences a lot of individuals
Speaker 14: and small groups that just want to make their views known.
Speaker 14: I would say it completely inverts the fundamental idea of
Speaker 14: what a lot of people think American democracy was intended
Speaker 14: to be that whatever else happened, every individual, every group
Speaker 14: of individuals could speak as freely as the most powerful,
Speaker 14: the wealthiest, and it really just undermines that concept.
Speaker 6: Starting next month and through the end of this year,
Speaker 6: maybe even beyond, we're going to be bringing you that
Speaker 6: side of this story, working with reporters all over the world,
Speaker 6: will be digging into the increasing criminalization of climate protest.
Speaker 6: We'll look at the industries, companies and groups behind that trend,
Speaker 6: what tactics are being used, what can be done about it,
Speaker 6: and what it all means. In the meantime, we'll continue
Speaker 6: to follow the climate cases and this argument in particular.
Speaker 6: It is entirely possible that the next Citizens United will
Speaker 6: be one of these climate cases, and it would be
Speaker 6: great if folks could start thinking now about how to
Speaker 6: avoid that outcome. For me, the two sides of this coin,
Speaker 6: the tug of war over free speech, may just be
Speaker 6: the most important climate issue today. Without democracy, the only
Speaker 6: climate solution we're likely to see is eco fascism, and no,
Speaker 6: it's not any better than the non eco variety. Make
Speaker 6: sure you're subscribed so you get those episodes as soon
Speaker 6: as they start to drop. That's it for this series
Speaker 6: and this week. Thanks for listening, and see you again soon.
Speaker 6: Drilled is an original Critical Frequency production. This season is
Speaker 6: produced and sound designed by Martin Zaltz Austwick. Our sound
Speaker 6: engineer is Peter Duff. Additional reporting by Julia Manipela, fact
Speaker 6: checking by Woodan Yan. Our First Amendment attorney is James Wheaton.
Speaker 6: Marketing is handled by Maggie Taylor. Our artwork is by
Speaker 6: Matt Fleming. The show is written and reported by me
Speaker 6: Amy Westervelt. Primary documents and additional information related to this
Speaker 6: series are available on our website at Drilled dot media.
Speaker 6: You can also sign up for our weekly newsletter there.
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