THE ATTORNEY GENERAL OF TEXAS
Ken Paxton

AG Paxton: First Amendment Freedoms Must Be Protected

Monday, May 16, 2016 – Austin

While the debate over climate change has been, at times, contentious and even mean-spirited, it’s never been criminalized.

Until now.

Recently, Claude Earl Walker, an attorney general from the U.S. Virgin Islands, issued a criminal subpoena (via a D.C.-based law firm) to ExxonMobil here in Texas. What are they investigating? They’re probing Exxon’s expressed doubts on the issue of climate change.

Now, anyone who has expressed such doubts have increasingly found themselves under vocal assault from politicians, federal funding agencies, universities, professional societies, and journalists.

This marks a quantum leap backward, however, as an elected official is actually using his prosecutorial power to attack a company for nothing more than expressing an opinion that’s unpopular with the environmental left.

My office and the Alabama Attorney General have joined Exxon in the effort to have this abusive and unconstitutional subpoena thrown out of state court.

This is the strongest demonstration yet of the almost-religious zeal with which climate change proponents attack those with whom they disagree, and how little the First Amendment freedoms mean to people with such an agenda.

During a press conference announcing the investigation, Walker – along with a coalition of other environmentally activist AGs – said that his office has launched an investigation into a company whose “product is destroying the earth.” 

Those words betray a great deal, at a minimum communicating to the world that this is not an instance of a neutral party investigating possible wrongdoing, but a zealot on the hunt for a trophy.

Walker is targeting Exxon, but the AG coalition operating alongside him suggests that the campaign for absolute orthodoxy on climate change could go national at any time, and who knows who could be next.

Unlike being criticized in the media or on college campuses, however, this isn’t merely an unfair annoyance. Companies being targeted will have to spend big money to defend themselves, which serves as a massive de facto “fine” before any wrongdoing is even demonstrated. And that’s money that could otherwise go toward paying higher wages, hiring more employees, and investing more in the company. 

In the subpoena, Walker demands four decades worth of Exxon records, which is the very definition of a gross fishing expedition. They’re hoping to bring in as much information as possible so they can pore over it later in the hope of finding somebody at Exxon did something wrong, perhaps as far back as the Ford Administration.

Walker has floated a “theory” that the company’s speech somehow amounted to a criminal racketeering violation. In reality, this is an obvious attempt to criminalize views on one side of a debate, in flagrant disregard of the First Amendment. Such viewpoint discrimination is presumptively invalid and impermissible under the Constitution.

As if this were not enough, Walker has retained Cohen Milstein, a Washington D.C. plaintiff’s firm, to prosecute Exxon allegedly on a contingency fee arrangement, meaning the lawyers going after Exxon have a financial stake in the outcome of the case. Outsourcing criminal investigations to private organizations is an unconstitutional delegation of prosecutorial power.

This firm describes itself as a “pioneer in plaintiff class-action lawsuits” and “the most effective law firm in the United States for lawsuits with a strong social and political component.” Due process of law demands an impartial, neutral prosecutor, not someone who is getting paid based on the prospect of them securing massive monetary fines.

Exxon employs thousands in Texas, and tens of thousands more around the world. Once we cross the line into prosecuting people for what they believe, we’ll lose a lot of what makes us special as Americans.