Conspiracy and Criminalization of Public and Private Speech

April 24th, 2009

Posted by: Roger Pielke, Jr.

Should private organizations be held criminally responsible for promoting or representing non-consensus views on science?

UPDATE: A commenter writes in with a much better posed question, illustrating why s/he is a lawyer and I am not. Here is that question:

a more appropriate question is “Did the defendants, having in their possession compelling evidence which would have convinced a reasonable person to believe that X was in fact the case, conspire to suppress such evidence and undertake to persuade others that X was not correct, when the defendants knew or should have known that such information was false and misleading, thereby leading others to act on such misleading information, causing harm and damage to the plaintiff?”

According to a complaint for damages filed against a number of energy companies on behalf of the town of Kivalina in Alaska, the answer is “Yes.” The complaint (here in PDF) includes these claims:

Kivalina further asserts claims for civil conspiracy and concert of action for certain defendants’ participation in conspiratorial and other actions intended to further the defendants’ abilities to contribute to global warming. . .

Each of the defendants knew or should have known of the impacts of their emissions on global warming and on particularly vulnerable communities such as coastal Alaskan villages. Despite this knowledge, defendants continued their substantial contributions to global warming. Additionally, some of the defendants, as described below, conspired to create a false scientific debate about global warming in order to deceive the public. . .

Kivalina seeks monetary damages for defendants’ past and ongoing contributions to global warming, a public nuisance, and damages caused by certain defendants’ acts in furthering a conspiracy to suppress the awareness of the link between these emissions and global warming. . .

The Conspiracy Defendants’ overt acts contributed to and caused Plaintiffs’ injuries. The Conspiracy Defendants’ campaign to deceive the public about the science of global warming has caused Plaintiffs’ injuries and/or is a substantial contributing factor.

Some documents from this case were discussed in a front page story in the New York Times today by Andy Revkin, who helpfully makes those documents available here.

Revkin writes:

Environmentalists have long maintained that industry knew early on that the scientific evidence supported a human influence on rising temperatures, but that the evidence was ignored for the sake of companies’ fight against curbs on greenhouse gas emissions. Some environmentalists have compared the tactic to that once used by tobacco companies, which for decades insisted that the science linking cigarette smoking to lung cancer was uncertain. By questioning the science on global warming, these environmentalists say, groups like the Global Climate Coalition were able to sow enough doubt to blunt public concern about a consequential issue and delay government action.

The NYT article repeats claims made in support of allegations found in the Kivalina lawsuit of a civil conspiracy to advance views at odds with the scientific consensus. These arguments begin on p. 47 of the court filing here in PDF. The section of the complaint highlighted in today’s New York Times is discussed on page 50.

On this thread I am not interested in a general debate over climate change science (please). I am interested in the more specific questions related to science in political and public debates.

Should private organizations (in this case energy companies or groups that receive energy company money) be allowed by law to present scientific findings in a manner that differs from a scientific consensus?

Should representations of science that differ from that consensus be [Update] subject to civil or even criminal prosecution (the case above is a civil action but others have suggestion criminal trials)? For private organizations that benefit from the representations? For those that do not? How about for individuals?

44 Responses to “Conspiracy and Criminalization of Public and Private Speech”

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  1. David Bruggeman Says:

    Roger,

    This is a civil, and *not* a criminal case. If the Defendants’ prevail, nobody will go to jail.

    So while you raise a legitimate question about whether the conduct should be criminalized, it is not at issue in this case.

    To push this further, this case is arguing that the representation of non-consensus scientific research contributed to the torts (the civil actions), but is not itself actionable. The case is whether the presentation of this research contributed to the harm(s) alleged.

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  3. MIKE MCHENRY Says:

    Roger

    I don’t think the first admendment has been suspended. If you applied this way of thinking environmental groups could be dragged into court for disseminating information that was outside the scientific concensus”yelling fire in the theater. The language of their suit sounds like the tobacco ones.

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  5. stan Says:

    Make it more interesting. How about academics who publish findings that turn out to be false? Or academics who push for public policy changes on the basis of “science” or studies from other disciplines (e.g. economics) that turn out to be false?

    What standard should be applied? Negligence? Recklessness? Intent? Strict liability?

    Suppose Corp X suffers serious damage as a result of govt regulation (or perhaps negative publicity) due to a study whose findings turn out to be false. Is the scientist liable if his mistake can be construed as negligent? What about the scientist in the same field who relied on the study to advocate for certain govt or public action? If he works in the same field, should he have a duty to investigate the study’s findings to insure accuracy before engaging in advocacy? If he relies on his authority as an “expert” in the field, does he have a duty to replicate the studies he cites? Is he negligent if he doesn’t?

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  7. MIKE MCHENRY Says:

    In the tobacco cases plaintiff’s could show harm had been done. Can you sue on behalf of people that haven’t lived yet? having been through legal proceedings (federal court) several times that hinged on opposing science this could be extremely interesting.

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  9. Maurice Garoutte Says:

    This question goes beyond science. Before we discuss using the law as a tool to enforce consensus opinion, consider the consequences of ignoring our constitution.

    Should the next President put Barack Obama in prison for the release of top secret documents that endangered the public safety?

    Should the next Director of Homeland Security put Janet Napolitano in prison for declaring opponents of large government as threats to the country against the consensus view of the population?

    Should directors of large oil companies be tried for crimes against humanity as James Hanson has suggested?

    Should a commenter on Prometheus be threatened with legal action for saying that the consensus is wrong?

    No, no, a thousand times no. Too many good men and women have died defending the constitution for us to say never mind, just follow whatever Al Gore says is the consensus.

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  11. dean Says:

    Not all “disagreements” with consensus constitute valid skepticism. In some corporate cases involving toxic pollution for example, internal documents have conclusively shown that these industries knew that what they were doing would harm people, and that they did it anyway for their bottom line.

    This level of intentional manipulation is a difficult legal standard to meet, but when it is, it is appropriate that legal penalties should apply.

    I’m not saying that this applies in your test case in Alaska. Just that there is no constitutional right (or scientific basis) to argue that 2+2=5 if it kills people and it can be proven that the people involved knew that 2+2=4.

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  13. jae Says:

    Maurice has it right, IMHO.

    Dean: I agree if it can be proven that there is ample evidence that the party KNEW that grave harm would be done, but ignored it. That’s a very high bar, though, since the scientific proof of harm is seldom crystal clear, especially when you get down to dosage levels. Like asbestos, PCBs, DDT, and maybe even tobacco!

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  15. lgcarey Says:

    I do not believe that you have framed the question in a way that an attorney (I happen to be one) would find relevant. The relevant question for civil liability is not “Should private organizations (in this case energy companies or groups that receive energy company money) be allowed by law to present scientific findings in a manner that differs from a scientific consensus?”

    Rather, a more appropriate question is “Did the defendants, having in their possession compelling evidence which would have convinced a reasonable person to believe that X was in fact the case, conspire to suppress such evidence and undertake to persuade others that X was not correct, when the defendants knew or should have known that such information was false and misleading, thereby leading others to act on such misleading information, causing harm and damage to the plaintiff?” That was essentially the question at the heart of the tobacco litigation, and apparently where climate litigation is going to be headed.

    The legal process in not interested in legitimate debate over science, where one party in good faith thinks a reasonable interpretation of competent research shows X, and another party in good faith thinks it shows Y. The problem comes where all the parties realize that the only reasonable conclusion is that research really shows X, but one party for its own financial gain insists on knowingly suppressing X and leading others to think that actually Y is the case. The question is not over legitimate debate of science – the question is over knowingly suppressing real data, and/or manipulating or manufacturing fake data in a manner which is essentially fraudulent and results in damage to others.

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  17. Craig Loehle Says:

    There should be no such thing as “invalid skepticism” especially when it comes to risk and views of harm because this calls into question the internal mental state. Some people firmly believe that UFOs have visited earth and others firmly believe that all pesticides are bad or that the world is about to end. They would pass a lie detector test when queried about their beliefs. The tobacco company lawsuits should not have been based on “knew or should have known”–this is bad law. Even given this precedent, it is an entirely different matter in the case of climate change. For tobacco or certain toxics like dioxin, you can demonstrate toxicity with a simple statistical test and unambiguous results (though for certain others like Alar and DDT, no such unambiguous results were available…). For climate, there is no experiment, just models. The link to effects is purely hypothetical and involves only increased probabilities of e.g., storm damage to a village in Alaska. Harm can not be demonstrated to be causally connected to climate change which can not be demonstrated to be due to human effects. It is all inference and often of a sloppy kind. If this type of suit becomes popular, all companies will relocate their incorporation offshore.

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  19. Mark Bahner Says:

    “This is a civil, and *not* a criminal case.”

    Yes, it’s very important to recognize this.

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  21. Sylvain Says:

    Roger,

    Such lawsuit is very dangerous to freedom of speech. Worst is that those who make the lawsuit are themselves misleading in their interpretation of the event for example here:

    “189. There has been a long campaign by power, coal, and oil companies to mislead
    the public about the science of global warming. Defendants ExxonMobil, AEP, BP America
    Inc., Chevron Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern
    (“Conspiracy Defendants”) participated in this campaign. Initially, the campaign attempted to
    show that global warming was not occurring. Later, and continuing to the present, it attempts
    to demonstrate that global warming is good for the planet and its inhabitants or that even if
    there may be ill effects, there is not enough scientific certainty to warrant action. The purpose
    of this campaign has been to enable the electric power, coal, oil and other industries to
    continue their conduct contributing to the public nuisance of global warming by convincing
    the public at-large and the victims of global warming that the process is not man-made when
    in fact it is.”

    Up to recently, fossil fuel industries always stood against AGW. To do so, they supported view held by scientist, which in many cases were not paid by them when they emitted their opinion. In many cases they only help propagate their views, which were ignored by the AGW crowd.

    Plus what they present here as a timeline of evolving opinion is not more than the sharing of opinion at the moment they were available. Most if not all of the scientist still old the same view they did 10-20 years ago. I don’t believe that Will Gray changed is opinion that AGW is a hoax, and I don’t believe that Patrick Michaels changed is opinion that AGW is partly caused by human and that it will be beneficial, etc. Roy Spencer once said that when he joined the website, which I believe was TLC (funded by fossil fuel industries), which he got paid to say what he already believed.

    “191. The tactics employed in this campaign include the funding and use of “global
    warming skeptics,” i.e. professional scientific “experts” (many of whom are not atmospheric
    scientists) who regularly publish their marginal views expressing doubts about numerous
    aspects of climate change science in places like the Wall Street Journal editorial page but
    rarely, if ever, in peer-reviewed scientific journals. The skeptics are frequently quoted in
    newspapers such as the Washington Times and are offered up to numerous mainstream,
    unsuspecting, news outlets as scientific experts in order to sow doubt among the public about
    global warming.”

    The claim that sceptics are not atmospheric scientist goes both ways. While the IPCC claim to be the consensus of 2500 scientists, it has been proven that the majority of the consensus are non scientist and that there is about 700 scientist total and most of them are not atmospheric scientist.

    The peer-review argument is also misleading since peer-review is constraint by the belief of the reviewer. Peer-review doesn’t equal replicated, Steve McIntyre clearly showed that many peer-reviewed alarmist paper shouldn’t have been published, but even if they have been proven flawed some paper are still cited.

    These are just few examples. The risk is that such lawsuit could express the dichotomy between doing the right thing for the wrong reason and doing the wrong thing for the right reason. After all no one is against virtue.

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  23. Mark Bahner Says:

    “Should directors of large oil companies be tried for crimes against humanity as James Hanson has suggested?”

    “Should a commenter on Prometheus be threatened with legal action for saying that the consensus is wrong?”

    “No, no, a thousand times no. Too many good men and women have died defending the constitution for us to say never mind, just follow whatever Al Gore says is the consensus.”

    As David Bruggeman pointed out, this is a civil trial, not a criminal trial. No one is going to jail.

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  25. Roger Pielke, Jr. Says:

    -1-Dave

    I updated with a clarification

    -8-lgcarey

    Excellent, thanks I have updated to reflect your question

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  27. bend Says:

    lgcarey’s question is, I believe, a better representation of the legal language of this case. However, I do not think that the asking of such a question is substantially different from the one Roger poses. lgcarey’s question involves judging people not only by what they know or believe, but by what they should believe. This gets back to the scientific consensus. Because X is the belief of a large majority of climate scientists, shouldn’t private entities believe X? And therefore, disseminating views contrary to X would be unlawful, if the facts of X result in harm to the plaintiff.
    For my part, I feel that any legal codification of a particular scientific viewpoint is very Orwellian. We don’t need a Ministry of Truth.

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  29. Craig Loehle Says:

    A civil and not a criminal trial? Are you joking? They are asking for millions of dollars! Companies went out of business over asbestos (a case where all the different minerals called asbestos were lumped even though some are eliminated by the body and cause little harm).

    Roy Spencer has NOT gotten any oil money. Willie Soon got a few thousand. He joked that people must think he is pretty inexpensive if that is all it takes to buy his opinion. The oil companies also give money to WWF and alarmist groups (like they give to both political parties). Are they part of the conspiracy?

    It is now being claimed by advocates that the IPCC reports were too conservative, and things are really much worse. IPCC says 1/2 meter sea level rise by 2100, James Hansen says 20+ feet. If the IPCC is the consensus, are those who are more alarmist to be sued for going beyond it?

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  31. Craig Loehle Says:

    There is also a curious problem with the AGW consensus. Some scientists support the concept but doubt that hurricanes will get much worse or doubt that drought will be a future problem or doubt that it will get as hot as the extreme forecasts. AGW is not a monolithic thing like “is dioxin toxic”. There are hundreds of pieces of the puzzle of which scientists have varying degrees of agreement and faith and of which the public has little idea. It is not a sound bite.

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  33. Roger Pielke, Jr. Says:

    A reader reminds me by email that not long ago we had a lengthy discussion of this topic in relation to the UK Swindle issue:

    http://sciencepolicy.colorado.edu/prometheus/the-swindle-ruling-british-culture-and-freedom-of-expression-4483

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  35. Maurice Garoutte Says:

    The point has often been made here that consensus is not a term of science. Here would be a good place to point out that is not a term of law either. Laws are changed with discrete cases decided on exact dates. Consensus changes too but the change is only recognized after the fact.

    If all corporations are required to advocate the consensus view under the force of law, what happens when the consensus changes? If some corporations advocate the new consensus before others are they liable for lawsuits? Or are the corporations that stick with the old consensus a little too long liable?

    The last three words of the legal view of lgcary were “damage by others”. That is the basis of tort law now and should remain. Speaking heresy should remain free.

    The consensus is wrong and will still be wrong when it changes. My freedom of speech shall not be infringed. My speech may be wrong but that is another story.

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  37. jae Says:

    Ironically, the “consensus” may be opposite of what we keep hearing from the so-called consensus members. It may be that the majority of scientists don’t accept AGW, as suggested by the Oregon Petition Project’s list of 31,000 and Inhofe’s list of 700 +. Poland’s geologists’ society just jumped on this train, too, according to Lubos.

    Hate to be cynical :) , but maybe the “consensus” constitutes only a majority of those who receive funding to study “climate change.”

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  39. Craig Loehle Says:

    Almost every speach/advert about public policy is some distortion of the truth, if even just from brevity. Any comment about gun control or freedom, universal healthcare, school choice, tax policy, anything, is made to influence opinion by favoring the advantages of the proponents views. Negatives are glossed over/dismissed/not mentioned. There is conceivable harm in any public policy change. Gun control could be blamed for not having a weapon to defend your home. Lack of gun control could be blamed for getting gunned down. Should we be able to sue for statements made in favor of these policies?

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  41. dean Says:

    jae – my comment focused on the issue of intent. If we find out that they knew the action could cause harm, and ignored it, I think the bar is met. We can execute people in this country (in some states) by being sure “beyond a reasonable doubt”, so absolute certainly of impact is not an appropriate requirement.

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  43. David Bruggeman Says:

    Another important distinction is that any legal action where the use of scientific research is at issue does not place the information as the source of a crime or a tort (the civil suit), but the act that results from reliance on the information.

    That is reflected in the legal question added toward the top of the post (and in the comments). Roger’s initial question is *fundamentally* different – whether or not the actual research (or its publication) is actionable under the law. Legal precedent says no, and the lawsuit at issue that prompted this post isn’t touching that at all.

    To put a bit of a twist to it, as some commenters have, the question Roger initially raised is something like – can scientific consensus be legally enforced? To my limited knowledge, it has not.

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  45. Roger Pielke, Jr. Says:

    -22-David

    See my link above to the Swindle discussion. The lines are not as sharp as you are drawing them, at least for some folks.

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  47. lgcarey Says:

    I still think a lot of the comments are missing the boat on this issue, as it is the key question here is about fraudulent conduct, not free speech. Free speech does not immunize me from liability for telling the guy who is interested in buying my house that the basement is dry as bone when I know that it leaks like a sieve every time it rains.

    The paradigm for this question is presented by the civil litigation against the tobacco companies — did they have a right to suppress their own research showing a link between smoking and cancer, hire lobbyists to question other research that did show a link, lie about their knowledge, and continue to assure folks that there was no credible evidence that they could be harmed by smoking. The right of free speech does not extend to knowingly lying (or even recklessly guessing by feigning knowledge) in order to make a buck. There is a world of difference between that factual scenario and someone in good faith making an argument in the public policy arena without a profit motive (even an argument that is widely regarded as patently ridiculous or offensive – “the world is flat”, “pigs fly”, etc.).

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  49. Craig Loehle Says:

    Re: 24 lgcarey: The difference here from tobacco is that 1) people who make statements on climate are not necessarily trying to sell you a product that will hurt you and 2) (per the new question statement at the header) reasonable people (such as myself) can and do draw different conclusions from the data in hand wrt future climate. That is, the data is not a slam dunk.

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  51. David Bruggeman Says:

    Roger

    The folks you refer to in 23 are then seeking to create new crimes or torts where none have existed. That they fail to draw the lines that current law does is their problem.

    The OFCAM decision strikes me as an overreach of regulatory authority on par with some of the FCC censorship decisions in the U.S. The better response (IMO) would have been some kind of counterprogramming like the Mythbusters deconstruction of the allegations that the Moon landing was faked.

    Craig,

    The specific wrong alleged is causing a public nuisance, which is not a direct harm in this particular case, but the forced relocation of a village.

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  53. Craig Loehle Says:

    David: the accusation of causing a public nuisance still requires a chain of causation that can be established between the actions of the defendant and the nuisance. This is impossible in the case of climate change.

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  55. Maurice Garoutte Says:

    lgcarey,
    The freedom of speech issue applies if there are no damages, just speech that is counter to the consensus view. I’m typing this comment in my dry basement. The basement drains to daylight. If someone buys my house and claims that a computer simulation from a political organization predicts that the basement may get wet someday, are the predicted future damages grounds for a suit against me?

    My unstated assumption is that the projections from the IPCC GCMs are not reliable.

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  57. michel Says:

    Should private organizations be held criminally responsible for promoting or representing non-consensus views on science?

    No. Nor on anything else. Life is messy. We are a messy species. We try to convince each other of things because its in our interest others believe them, when we know or should know they are not true. Look at the history of religion. Look at the misuse of false or at least misleading histories of countries by nationalists. Look at great myths of the various regime changes. This is normal. Its the way debate is carried on by our species.

    We may wish it were different, but it ain’t, and trying to prosecute or sue people for behaving like people will have the same effects in this area that it did in trying to stop them drinking alcohol, or trying to outlaw fornication. Worse, because at least in those cases the behavior is definable and either has or has not occurred.

    In the present case you will be legislating or suing to bring about rational debating among humans. Forget it.

    The only remedy is Mill’s. Over time, if there is free debate, the truth will emerge. Far faster by debate than by legal action. You can see it happening now with climate – it already happened with tobacco. Years ago it happened with evolution. In the end, as long as debate is kept open, the truth will out.

    The other way, you end up with Lysenkoism and Soviet Realism and all that mess. That said however, we have to recognize that Big Tobacco acted abominably. Typically, but abominably. But the irrationality and self interest and efforts at manipulation – well, that is just our species as social beings. Combat by argument, not by legal action. Because messy as we are, in the end reason does triumph.

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  59. Hans Erren Says:

    Even if all the storm damage in Kivaline were directly caused by oil companies (which is unlikely), the people of Kivalina benefitted also very much from the products of the same oil companies by using the fuel for their transport and heating. Without this fuel they certainly would have died…

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  61. Jean Goodwin Says:

    Knowingly causing harm could be actionable–although of course the evidentiary chain that would connect defendants’ CO2 emissions with the sea level rise at Kivalina is a long, long, long one.

    But where’s the causal chain in the question as Igcarey poses it:
    intentionally suppressing information–>persuading someone of something false (or “suppressing awareness” of something true)–>?????

    If the complainants mean that the defendants persuaded *them* to do something that turned out badly (e.g., not to move sooner?), they might have a case–that is the tobacco analogy, as I understand it.

    But if the complainants mean that the harm was caused by persuading “the public at large” to doubt climate change, thus leading to political inaction (p. 65-6 of the complaint): well, that kind of persuasion lies at the heart of the First Amendment. It’s easy to find eloquent statements of this principle; for example:

    “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”–Justice Jackson, concurring in Thomas v. Collins, 323 U.S. 516 (1945).

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  63. David Bruggeman Says:

    Craig:

    “the accusation of causing a public nuisance still requires a chain of causation that can be established between the actions of the defendant and the nuisance. This is impossible in the case of climate change.”

    That’s up to the court.

    Jean,

    What’s at issue is not the persuasion, but the political inaction. The speech is not alleged as actionable, but the actions taken as a result of the speech are being alleged as actionable. There is no claim for prior restraint of speech, but an argument that there were consequences that need a remedy.

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  65. lgcarey Says:

    Once again, despite all the impassioned discussion of First Amendment rights, the question presented in the post is NOT a First Amendment issue – for the simple reason that the government is not attempting to regulate, punish or suppress speech. In the context of the Kivalina case – a civil litigation alleging bad conduct on the part of the corporate defendants that may have resulted in damages to the plaintiffs – the question boils down to whether some big companies lied, whether the plaintiffs suffered harm as a result thereof, and if so whether the defendants should be liable for damages resulting from their actions. In short, the First Amendment does not protect people from the consequences of lying to make a buck if other people suffer damages because of the lies (assuming one can prove causation, etc.).

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  67. dean Says:

    “Hate to be cynical :) , but maybe the “consensus” constitutes only a majority of those who receive funding to study “climate change.””

    Hardly. Every scientific academy that has stated an opinion supports the IPCC, and not a single one is against it. Most of the people participating in those decisions are not climate scientists.

    See http://en.wikipedia.org/wiki/Scientific_opinion_on_climate_change

    And I’ll start to take those petitions seriously when they agree to remove people who want their names removed. More from wikipedia:

    On April 29, 2008, environmental journalist Richard Littlemore revealed that a list of “500 Scientists with Documented Doubts of Man-Made Global Warming Scares”[36] propagated by the Heartland Institute included at least 45 scientists who neither knew of their inclusion as “coauthors” of the article, nor agreed with its contents.[37] Many of the scientists asked the Heartland Institute to remove their names from the list; for instance, Gregory Cutter from the Old Dominion University was reported by Littlemore as saying,
    “ I have no doubts ..the recent changes in global climate are man-induced. I insist that you immediately remove my name from this list since I did not give you permission to put it there. ”

    However, the Heartland Institute refused to remove any names from the list.

    ==

    I just went to the Heartland Institute’s list, and Cutter’s name is still on it.

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  69. Neil Fisher Says:

    the accusation of causing a public nuisance still requires a chain of causation that can be established between the actions of the defendant and the nuisance.

    Further to the difficulty of showing a causal link, what percentage of the CO2 rise is directly attributable to the defendants? Are coal companies more liable than methane companies? What about portland cement producers? As noted by another poster, there were also direct benefits to the consumers who were “duped” into using the product, so do how do we quantify the level of overall harm or benefit when both appear to be at least somewhat intangable?

    And I’ll start to take those petitions seriously when they agree to remove people who want their names removed.

    IPCC refuses to remove the names of scientists who disagree with IPCC’s “consensus” view as published, so should I also take IPCC’s view seriously?

    the key question here is about fraudulent conduct, not free speech.

    It’s also about knowledge and intent – if our knowledge changes at a later time, so that, for instance, we find that natural variation is sufficient to explain GW, can I get my money back?

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  71. pjk1 Says:

    “Should representations of science that differ from that consensus be [Update] subject to civil or even criminal prosecution (the case above is a civil action but others have suggestion criminal trials)? For private organizations that benefit from the representations? For those that do not? How about for individuals?”

    I really hope you’re joking: do you consider that an open question, in a country with free speech?
    What people determine the “scientific consensus” on an issue? Some of the folks who happen to have PhD’s, plus the scientific illiterates of the news media? We are supposed to be a democracy here! And as an earlier commenter asked: what happens when the great scientific consensus changes– as it does at times.

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  73. Mark Bahner Says:

    “Knowingly causing harm could be actionable–although of course the evidentiary chain that would connect defendants’ CO2 emissions with the sea level rise at Kivalina is a long, long, long one.”

    In fact, most of the defendants’ CO2 emissions are trivially small. For example, an oil or coal company has very small CO2 emissions; it is their customers who burn their products (without capturing the resulting CO2 who are causing the emissions).

    Not to mention the fact that several of the defendants have operations that are predominantly in the U.S. Since U.S. emissions are only 20-25% of worldwide emissions, even if anthropogenic are entirely responsible for all of the sea level rise and warming, U.S. companies wouldn’t be responsible for a majority of the damage.

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  75. michel Says:

    The issue is to what extent you can legally define the difference between over or under enthusiasm about the weight of a case, and lying.

    Take feedback, for instance. Are we really going to say that someone who is perplexed about the extent and nature of feedback must be lying if he says the evidence is not convincing? Are we going to say that someone who finds the PCA methods used by MBH98 less than adequate, and so doubts the conclusion that today’s warming is any greater than that of the MWP, must be lying?

    It is commonly stated by the AGW movement that sincere informed scepticism about the hypothesis is not possible. But look at these two examples, and there are many more, and it obviously is.

    Not that I think, as a matter of public policy, that trying to prosecute people for not professing belief of things they do not wish to profess belief in, is remotely helpful to anything, including the progress of science.

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  77. Jean Goodwin Says:

    Hi, Igcarey: OK, I’m rusty, so I could be missing something. But hasn’t the first amendment been applied in tort (civil) cases such as defamation (e.g., NYT v. Sullivan, most famously) and interference with business (NAACP v. Claiborne Hardware). And a lot of commentators (and at least one concurrring justice) thought it should be applied in NOW v. Scheidler, which like this case was a civil conspiracy claim. Isn’t the “state action” in these cases–like in the Kivalina case–the application of the law by the trial court itself?

    David: You’re right, the lawyers for Kivalina don’t seem to have asked for an injunction to stop the conspiratorial and knowingly false denial of global warming that is continuing to cause public inaction–yet. I hope you didn’t give them any ideas!

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  79. Joe Says:

    Let’s reverse the situation and ask the silly question another way: Should it be determined the making “flux adjustments” half-way through a climate model simulation so it changes direction constitutes interference with the model operation, should those scientists be charged with fraud? Would Al be considered a conspirator? Remember when eugenics was a budding science discipline with direct descendency from Darwin? What if it had been the consensus of the time? (By the way, engineers, not being scientists, know that if their circuit or mechanical model requires flux adjustments, it is pretty much useless.)

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  81. David Bruggeman Says:

    There are specific torts associated with speech – defamation, libel, slander. Critical to these cases is that those charges involve false speech and that it is the speech that caused the harm. Suppression of results may not – at least legally – be considered the same as false speech, so I don’t see the first point as applicable here. As for the second, the speech is not alleged as causing the harm, the actions that resulted from or relied on the speech are what’s alleged as causing the harm.

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  83. Jean Goodwin Says:

    Hi, David: It’s fun to argue these possible free speech issues, although probably it’s not a central interest to others reading this blog.

    My analysis was based on the third claim for relief in the Kivalina complaint, which is the one that states a cause of action for the “knowing misleading” allegations starting at paragraph 189. The complaint doesn’t seem to say that there was a conspiracy *to cause global warming*. Instead, there was a conspiracy to prevent interference (e.g., by public boycotts) with each defendant’s contributions to climate change. To prove conspiracy, the complainants need to show some overt action. The overt action alleged is “mislead[ing] the public with respect to the science of global warming”–”creating unwarranted doubts about the existence of global warming and/or its specific causes among the general public.” In other words, the overt action of the conspiracy was accomplished by persuasive, political speech–rhetoric! No speech, no cause of action.

    You’re right, the claim here is not that the speech itself was harmful. So this case resembles more Claiborne Hardware or Scheidler, where protected speech is the means by which a non-speech (alleged) tort is achieved. Again, I’m rusty: I haven’t taught free speech in half a dozen years, and even back then only to undergraduates, who don’t need more than a good argument. But count 3 still looks to me like it involves a central First Amendment concern. Otherwise, what is your reading of why 189 et seq. is relevant to plaintiff’s recovery?

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  85. bverheggen Says:

    Lgcarey,

    Thank you for your reasoned comments about how to frame this issue. I sincerely hope the free speechers will listen, but most comments so far are not very promising in that respect.

    The issue, as you have stated, is not whether a layperson is liable for expressing a thought that runs counter to the consensus. In complex issues, many people tend to not believe something of which they dislike the perceived consequences (“Back to the stone age!”). It’s unfortunate, but you can hardly put them on trial for that.

    The issue, as you have stated, is whether an entity (person, industry) with a financial interest in the matter, who knowingly distorts the evidence to increase their financial profit, is liable for doing so. To that, the answer is yes.

    The less clear-cut issue is if somebody without direct financial interest knowingly distorts the evidence. E.g because they fear the evidence would drive the government to raise taxes (so there is at least a ‘perceived indirect financial interest’ so to speak). The court analogy may be difficult to apply here. But what would future generations like to say to this particular person? How would what they say change, if the consequences of climate change are not as bad as expected by mainstream science? And how would it change, if the consequences are worse? Those are important questions to ponder.

    Bart

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  87. david_in_ct Says:

    It seems extraordinarily unlikely this case will ever get anywhere due to the impossibility of linking any sort of causal chain from the energy companies to the plaintiffs ‘harms’ and the incredible can of free speech worms that this would open up. Perhaps the most interesting outcome if it were to go forward could be similar suits against ‘environmental’ groups which were quite successful in shutting down nuclear power plant construction over the last 30 years in the US. Since they have an unparalleled end to end safety record in carbon free energy production I would think that Jane Fonda et. al. would be directly in the crosshairs should this type of tort move forward.
    In addition to the liability stemming from the CO2 side, what about all the heavy metals sent into the atmosphere by the burning of coal. The toxicity of these things is undisputed and surely anti-nuke groups should have known of the trade-offs.