Climate Change Denial and Commercial Speech

So there’s this: U.S. Senator Sheldon Whitehouse, along with a bunch of concerned climate scientists, wants to pursue RICO charges against “corporations and other organizations that have knowingly deceived the American people about the risks of climate change.”

As Walter Olson explains, policy debates move forward through a process of forceful advocacy, and having the government put its thumb on the scales via threat of criminal sanctions for advocacy is a horribly misguided idea:

If it is potentially criminal to take an unreasonable point of view, or not have all of your facts straight, or commission a badly lopsided poll or badly lopsided piece of scientific research, then there are going to be a lot of targets for the law.

Besides being a really bad idea, it would seem that such a move would clearly violate free speech rights. As we’ve seen in the Alvarez and Dreihaus cases, the First Amendment provides wide latitude to lie. 1

But we also know that the First Amendment doesn’t protect lies in commercial speech. The RICO-agitating climate scientists aren’t targeting individuals, but rather corporate and organizational interests. Could the commercial speech doctrine provide a path forward?

Ordinarily, I would say “not a chance.” The test for commercial speech in a setting that is not obviously advertising isn’t met here – advocacy and lobbying are not advertising formats, and “climate change denialism” is a far cry from referencing a specific product.

So it would be ridiculous to claim that advocacy and lobbying should be subsumed within commercial speech, right?

Right?

Maybe these folks should look at filing something in California . . .

Notes:

  1. Or, more accurately, it protects the right to not face the risk, uncertainty, and cost of legal proceedings to establish that you’re not lying.

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