How ExxonMobil and Airbnb Are Using the First Amendment to Fight Regulation
Activists The Yes Men Andy Bichlbaum and Mike Bonanno pose as ExxonMobil executives. Image: Tavis/Wikipedia

FYI.

This story is over 5 years old.

Tech

How ExxonMobil and Airbnb Are Using the First Amendment to Fight Regulation

Corporations are arguing that government regulations and even fraud investigations violate their right to free expression.

ExxonMobil's use of the First Amendment to fight against government regulation is just the latest example of what some law enforcement officials and legal experts are calling an escalating trend of US corporations 'abusing' free speech rights to battle the government in the wake of the Supreme Court's 2010 Citizens United decision.

In 2011, the tobacco industry successfully claimed that on-package cancer warnings violated the industry's free speech. In 2013, the broadband industry, led by Verizon, cited the First Amendment to fight against federal rules protecting net neutrality, the principle that all internet content should be equally accessible, saying the agency's ruling "violates the First Amendment by stripping them of control over the transmission of speech on their networks." (That argument ultimately failed.)

Advertisement

And just this week, Airbnb invoked the First Amendment in its fight against San Francisco rules requiring the company's renters register with the city. Such rules would be "a content-based restriction on advertising rental listings, which is speech," according to the lawsuit filed by Airbnb.

"We are witnessing an increasing tendency to use the First Amendment to unravel ordinary business regulations."

Each of these free speech arguments is unique—but what ties them together is the use of the First Amendment by corporations to push back against government regulation.

The intensifying frequency of these battles between US corporations and the government highlights the escalating conflict over the scope and limits of First Amendment protections in the wake of the Supreme Court's Citizens United decision, which extended free speech rights to corporations.

"We are witnessing an increasing tendency to use the First Amendment to unravel ordinary business regulations," Robert Post, the Dean of Yale Law School, wrote in a recent Washington Post opinion piece.

Perhaps the highest-profile example of this trend is ExxonMobil, which invoked its right to free speech to oppose an investigation into whether it misled investors and regulators about the dangers of climate change.

Exxon's critics say the company is abusing one of the US Constitution's most celebrated protections in an attempt to shield itself from blame over what could turn out to be years of fraudulent conduct. Exxon has ridiculed that claim, and suggested that its pursuers are the ones opposed to free speech.

Advertisement

Late last year, InsideClimate News published a blockbuster investigation revealing how Exxon allegedly downplayed its own scientists' research showing the dangerous connection between the burning of fossil fuels and climate change, and instead used its political clout to support a generation's worth of climate denialism.

That report provoked a wave of fury from environmental protection advocates. It also prompted an ongoing investigation and subpoena by New York State attorney general Eric T. Schneiderman into whether Exxon defrauded investors and consumers by misrepresenting its knowledge about the connection between fossil fuels and climate change.

Exxon is now arguing that the New York state subpoena violates the First Amendment because it "burdens" the company's political speech. The oil and gas giant vigorously denies that it misled anyone about climate change, and has marshalled its own coalition of allies to fight back against what it calls an "inaccurate and deliberately misleading" campaign by "anti-oil and gas activists" to stifle debate and demonize it for exercising its free speech rights.

In a corporate blog post, Exxon's Vice President of Public and Government Affairs Suzanne McCarron wrote that the petroleum giant's critics are seeking "to stifle free speech and limit scientific inquiry while painting a false picture of ExxonMobil."

The fundamental legal question is whether Exxon committed fraud. The second and more immediate question is whether the company can rightly make a First Amendment argument against law enforcement attempts to gather information about that potential fraud.

"If ExxonMobil has committed fraud, its speech would not merit First Amendment protection," wrote Post. "But the company nevertheless invokes the First Amendment to suppress a subpoena designed to produce the information necessary to determine whether ExxonMobil has committed fraud."

Exxon's free speech argument is getting traction with some members of Congress, however.

In a letter to Schneiderman, 13 House Republicans demanded documents related to "coordinated efforts to deprive companies, nonprofit organizations, scientists and scholars of their First Amendment rights and their ability to fund and conduct scientific research free from intimidation and threats of prosecution."

Meanwhile, the argument that corporations have free speech rights will continue to be used until the Supreme Court revisits the Citizens United decision, which solidified the legal concept of "corporate personhood." But for now, it's still illegal for a corporation to lie to consumers, investors, or regulators. And there is still no First Amendment defense against fraud.