There’s no climate change exception to free speech

Congress should craft sound climate change policy by encouraging robust debate. But climate change cannot be an excuse for subverting the Constitution. Yet, in a climate change hearing today, energy companies will be interrogated and required to justify their entitlement to First Amendment rights. This is a dangerous path, and not one that will advance any meaningful climate change solutions. 

A Sept. 16, 2021 letter, issued by the chairs of the House Oversight and Reform Committee and Environment Subcommittee, has demanded that various energy sector executives appear before Congress. They’ve been asked to testify and plead for their right to exercise free speech with regard to the industry’s business practices.

The letter effectively maligned these businesses and requested business documents and private communications. The House committee leadership’s objective is to investigate the motivations and sincerity of the free speech these companies conduct in the public square. It is as if individuals now must earn the favor of those in power in order to have the privilege of exercising this constitutional right. 

These companies are being summoned because they are not the right kind of speakers with the right kind of words about climate change, according to the committee leadership. The hearing and heavy-handed requests preceding it are designed to squelch the speech of some citizens. The executives called to testify have opinions that do not align with the pre-determined conclusions and policy preferences of powerful government leaders. Such speech favoritism is precisely what the First Amendment was crafted to protect against.     

Maintaining unencumbered channels of communication is necessary to have all ideas – including those designed to influence the government – compete and for the best policy proposals to win out in the marketplace of ideas. 

The committees also claim authority to scrutinize the speech included in “branding and lobbying.” Suddenly they are the self-appointed arbiters of good lobbying and bad lobbying. Lobbying can have all kinds of flaws, but it is lawful speech and part of the Founders’ design for citizens to have the power to educate their representatives.   

Furthermore, labeling ordinary lobbying or public information material as “disinformation” simply because you disagree with the conclusions does not make that speech any less protected. Otherwise, those in power could just squelch opposing views by ipse dixit. They could simply assert that assessments of law, policy or facts on the ground that conflict with their own are objectively false and thus should not be vetted in the public square. We need to open the doors to debate instead of closing them and allowing only echoes of our own preferences to be heard.   

The committee also claims it is trying to expose that the energy companies didn’t really mean it when they took “public stances in support of climate actions.” It’s audacious for lawmakers to advance this claimed authority to call business executives into a hearing so they can grill them on the sincerity of belief in their speech.   

To add to the First Amendment attack, the Sept. 16 letter assaults companies for speaking through trade associations, something that is also independently protected by the freedom of association in the First Amendment. As Alexis de Tocqueville recognized long ago, the ubiquitous “spirit of association” in America is one engrained in not just the Constitution but also our country’s character.  

Too often, climate change excites passions that puts our fundamental values at risk. Positions on rights should be about principle, not power and politics. Yet, some of the same Democrats making demands of the energy companies and their executives today endorsed the position of a group of scholars in a letter submitted to the House Committee on Science, Space, and Technology back on Sept. 12, 2016. That letter concluded that subpoenas and threats of future sanctions to the Union of Concerned Scientists and other environmental groups “themselves threaten the First Amendment — directly inhibiting the rights of their recipients to speak, to associate and to petition state officials without interference from Congress.”   

It is wrong no matter what party claims to wield such unlawful weaponry of compulsion. The flip here demonstrates how easily we can slip into coercive erosion of individual rights by majorities – no matter what party is in control – if those rights are not vigilantly guarded. Political expediency or the identification of (dis)favored citizens should not be excuses to punish those exercising their rights. 

We have never allowed the government to choose who is worthy to speak and who is not. Climate change can be addressed without subverting the Constitution. And we must tread carefully. Even small alterations to our respect for fundamental rights tend to create permanent chips in the pillars of the foundation of freedom, making it ever less stable. 

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