Whenever anyone dares to suggest that disinformation is bad, one of the most common knee-jerk reactions is to cry, 'The First Amendment protects freedom of speech!'
But the fossil fuel industry's false advertising isn't protected by the First Amendment, and you don't have to take our word for it.
"Corporations should not be able to use the First Amendment as a get-out-of-jail-free card," Katherine Horner, New York County Supreme Court attorney, told ExxonKnews. Horner recently published a paper in the Environmental Law Reporter (hosted free on Horner's LinkedIn) that examines Big Oil's free speech defense, and she did not find it convincing!
Horner explains that, just like the tobacco companies before them, who "were made to account for their actions following the disclosure of internal documents chronicling the scheme to deceive the public," fossil fuel companies "have followed suit, arguing their public statements are protected by the First Amendment's freedom of speech and right to petition clauses."
Horner’s richly cited, 35-page paper "seeks to determine whether their argument holds any water" and finds that for the most part, it does not.
It's not just that incorrect statements aren't protected speech, though. To justify government intervention, the Supreme Court precedent is that the speech must also present a "legally cognizable harm," like in cases of fraud or defamation. Clearly, climate disinformation rises to that level of harm.
Horner traces the history of the Supreme Court's commercial speech decisions, outlining the various legal tests for whether or not commercial speech is protected by the First Amendment, and applies these tests to the fossil fuel industry's communications.
She ultimately determines that most of Big Oil's public communications on climate consist of false advertisements that aren't protected by the First Amendment. (The exception is "speech specifically directed to legislative or executive action," because companies are still allowed to petition the government.)
But corporate advertisements "should be classified as false and misleading commercial speech that does not warrant First Amendment protection" and they "should not be rewarded for the skill with which they distort the truth and disguise their deceit."
We couldn't have said it better ourselves (and over the years, we've certainly tried)!