New York Attorney General Eric Schneiderman counters Exxon's First Amendment argumentNew York Attorney General Eric Schneiderman has a new argument against Exxon's First Amendment claims against his climate fraud probe. Photo credit: Spencer Platt/Getty Images

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By Karen Savage

New York Attorney General Eric Schneiderman is arguing that a recent ruling by the Second Circuit Court of Appeals upholds his contention that Exxon cannot use a First Amendment claim to squelch climate fraud probes by NewYork and Massachusetts.

That ruling, announced on February 15, dismissed a Citizens United suit against Schneiderman that, similar to Exxon’s suit, alleged Schneiderman’s office violated its First Amendment rights. Judges in that case wrote, “The First Amendment does not prevent anti-fraud enforcement.”

Because that decision was issued after the last round of briefings to Judge Valerie Caproni on the Exxon suit, New York Assistant Solicitor General Eric Del Pozo wrote a letter to Caproni calling her attention to it. He said the decision provides “yet more authority foreclosing Exxon’s attempt to use the First Amendment as a shield.”

Exxon claims that investigations by Schneiderman and Massachusetts Attorney General Maura Healey into possible deception by the company on climate change represent an abuse of their political positions and violate the oil giant’s First, Fourth and Fourteenth amendment rights. The case was first filed by Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since been transferred to New York.

According to David Schultz, a lecturer at Yale Law School and director of the Media Freedom and Information Access Clinic, the ruling supports “ Schneiderman’s position that of course a prosecutor has to have the ability to investigate and simply alleging the violation of First Amendment rights is not enough to shut down a criminal investigation.”

In his own letter to the judge, Exxon attorney Justin Anderson said the attorneys general discriminated against his client by issuing requests for documents, statements made to the public, in closed-door meetings and through other communications.

Anderson said those actions demonstrated “plausible and factual allegations of the Attorney General’s intent to engage in viewpoint discrimination”.

In a January filing, attorneys for Exxon said the attorneys general are targeting Exxon with “burdensome” and “harassing” investigations because of the company’s views on climate change.

While Exxon hopes to end the climate fraud investigations, Catherine Ross, a law professor George Washington University Law School, said more information—and likely more investigating—is needed before Exxon’s First Amendment claims can be evaluated.

“Whether they were keeping fraudulent books and saying fraudulent things is going to be quite important in whether there were any First Amendment rights that were violated,” said Ross.

Schneiderman’s office said it has found evidence Exxon potentially defrauded investors by using two different accounting methods to project climate change-related risks.

“When they talk about having two sets of records, that’s highly suggestive that they have something that they don’t want out there,” she said.

“So, to now come out and say ‘we’re just voicing our views on a major issue of the day and they don’t like our views’ I think is really a gross oversimplification of what might be going on here.”

Schultz too, said ExxonMobil is facing an uphill battle and will likely have a hard time persuading the judge its rights have been violated.

“Lawyers for ExxonMobil try to get around that by claiming that they have done much more than just assert a violation of rights, but that they have alleged a series of specific facts that show that this is politically motivated,” said Schultz. “But the fact that a prosecutor—who after all is a politician, who is politically elected—has certain political views or objectives isn’t the controlling question, the question is, is he fairly applying the law.”

In his letter, Del Pozo drew further parallels with the recent decision, saying that Citizens United, like Exxon, attempted to compare its “plight to that of the organization under state investigation in NAACP V. State of Alabama ex rel. Patterson.”  

In Patterson, a civil rights-era case, the Supreme Court ruled that the release of an NAACP membership roster would violate the due process rights of its membership as guaranteed by the Fourteenth Amendment.

Exxon cited the Patterson case in previous filings to bolster its allegations that Healey and Schneiderman are abusing their subpoena powers and violating its First, Fourth and Fourteenth Amendment rights. Eleven Republican attorneys general cited the case in a brief in support of Exxon.

The Second Circuit said it had “no problem” recognizing that the allegations described by Citizens United were “a far cry from the clear and present danger that white supremacist vigilantes and their abettors in the Alabama state government presented to members of the NAACP in the 1950s”

Exxon could find itself in a similarly unsympathetic position.

“I find it very difficult to imagine a scenario in which Exxon could claim that it resembled the members of the NAACP in that case, whose lives were at stake,” said Ross.

“We’re talking Klan, we’re talking murdering civil rights workers, shooting them and dumping them in waterways. Exxon is not in that position,” she said. “That is not the kind of cover most individuals can claim and certainly not most major international corporations.”