In a time where Americans don’t seem to agree about anything, it is no surprise that some people do not believe in global warming. Some argue that publicly questioning the severity or even existence of global warming is dangerous—that such behavior influences those who might not know any better. But should questioning climate change be illegal?
A bill introduced by California Senator Ben Allen, D-Santa Monica, called for the prosecution of climate change dissenters, making global warming denial a business fraud. Although the bill ultimately did not pass, its introduction drew outrage from some who called it an overreach of government control as well as an attack on First Amendment rights to free speech and free press.
What Did Senate Bill 1161 Cover?
Senate Bill 1161, also known as the California Climate Science Truth and Accountability Act of 2016, would have allowed prosecutors to sue fossil fuel companies, think tanks and others who have questioned global warming under the principle that information disseminated by these groups has “led to confusion, disagreement, and unnecessary controversy over the causes of climate change.”
According to the bill, there is no room for disagreement on the global warming issue as: “There is broad scientific consensus that anthropogenic global warming is occurring and changing the world’s climate patterns, and that the primary cause is the emission of greenhouse gases from the production and combustion of fossil fuels, such as coal, oil, and natural gas.”
Furthermore, Senate Bill 1161 positions itself as necessary for the public good, declares that misinformation about climate change has “confused and polarized the public on the need to aggressively reduce emissions to limit risks from climate change.”
How Can Climate Denial Be Considered Fraud?
California’s Senate Rules Committee noted that Senate Bill 1161 allows district attorneys and the Attorney General to use California’s unfair competition law to allege that a “business has directly or indirectly engaged in unfair competition with respect to scientific evidence regarding the existence, extent or current or future impact of anthropogenic induced climate change.”
The unfair competition law referenced in the Senate Rules Committee’s analysis is a reference to legislation (in particular, the Unfair Competition Act section 17200) that makes it illegal for a California business to engage in any “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” In other words, a corporation or person alleged to have spread misinformation about climate change could be charged under the principle that they were engaging in unfair business practices.
Interestingly, while the statute of limitations under the Unfair Competition Law is now four years, climate “fraud” lawsuits pursued under Senate Bill 1161 would have no statute of limitations. In other words, if Senate Bill 1161 had passed, there would have been no limit on how far back people or corporations could be sued on climate “fraud” claims.
Senate Bill 1161 and the First Amendment
In a June 6th letter to California Attorney General Kamala Harris (a Senate Bill 1161 supporter), nineteen California lawmakers wrote that, in their view, freedom of speech “is not designed to protect fraud and deceit” of those (such as oil company ExxonMobil) who have doubted climate change. In contrast, Stephen Frank, editor of the California Political Review, called Senate Bill 1161 a “totalitarian statement by Democrats that the First Amendment is now dead.”
So would Senate Bill 1161 have violated the First Amendment? The Supreme Court has held that restrictions on speech based on its content usually violate the First Amendment. However, the Court has ruled that certain types of speech are of “low” First Amendment value, including: defamation (false statements that damage a person’s reputation), threats to commit a crime, “fighting words” (face-to-face personal insults), obscenity (like hard-core pornography), child pornography, and commercial advertising (speech advertising a product or service is constitutionally protected, but not as much as other speech). It is unclear how opinions about global warming fits into these “low” First Amendment value categories.
When you consider that the right to freedom of speech guaranteed by the First Amendment allows people to express themselves without interference from the government, Senate Bill 1161 starts to sound less like a measure to help the environment, and more like a way for those with dissenting opinions to be silenced.
As Texas Attorney General Ken Paxton said of the controversy, “They have every right to have their opinions on climate change. In my opinion, you cross the line when you start prosecuting individuals for disagreeing with you.”
Authored by Andrea Babinec, LegalMatch Legal Writer