How oil companies rebranded deceptive climate ads as ‘free speech’
On 24 October 2019, Maura Healey, the attorney general of Massachusetts, sued ExxonMobil for “deceptive advertising” and for “misleading Massachusetts investors about the risks to Exxon’s business posed by fossil fueldriven climate change”. It was the culmination of an investigation Healey had launched in 2016 looking into how Exxon allegedly misled the public about climate, decades after its own scientists had briefed the company on the realities of the issue.
This week, the Massachusetts supreme court is hearing arguments related to that case – but not about Exxon’s actions decades earlier. Instead, the oil company wants the courts to decide whether Healey violated its first amendment rights by bringing the suit in the first place.
With all of its other legal options exhausted, Exxon’s efforts to stop this case hinge on the one last complaint: invoking Massachusetts’ anti-Slapp statute. Slapp stands for Strategic Lawsuits Against Public Participation, and statutes against such legal claims originated out of efforts to protect the press and civil society groups from corporations that wanted to silence critics. In recent years, however, it’s become increasingly common for corporations to invoke anti-Slapp laws instead to protect their first amendment rights.
The anti-Slapp argument has become a go-to strategy in US climate litigation. In some two dozen climate liability cases, in which counties, cities and states are asking oil companies to pay their share of climate adaptation costs, the oil company defendants have argued that their public statements about climate change were not “deceptive” so much as persuasive. They describe their ads, opeds and public appearances discouraging climate action as “petitioning” statements, turning them into political speech that is protected by the first amendment.
Never before published internal documents from Mobil Oil reveal that company executives created the framework of corporate free speech back in the late 1960s and early 1970s. The argument arose out of a situation not unlike the one playing out today, with war driving up prices at the pump and oil companies wanting desperately to change the public’s perception of their industry.
The longtime Mobil VP of public affairs, Herbert Schmertz, and then CEO, Rawleigh Warner, came up with an idea to help them wrestle back control of the narrative and win over the public: using Mobil’s PR and advertising budget, they would create “idea advertising”, also known as “issue” or “advocacy” advertising, to push the company’s take on key issues of the day and to create the sense of Mobil as a citizen, with a distinct personality.
In a 1971 strategy document explaining the reasons for this approach, Schmertz wrote: “We expect consumers increasingly to factor their notions of a company’s social responsiveness into their decisions about buying its products and stock.” In an interview about the strategy a few years later Schmertz explained, “Legislation does not develop in a vacuum. It grows out of public attitudes and mirrors public beliefs. When it comes to matters of energy, the oil industry tends to be viewed as the villain.”
By 1970, Mobil began running weekly advertorials in the New York Times presenting the company’s point of view and, as Schmertz put it, “trying to explain the energy industry to the American people”. But the ads weren’t just policy stances – Mobil also used the space to develop what Schmertz called its “corporate persona”, where the company openly supported everything from public transit to the arts and educational programs.
At the same time, Mobil began funding programming on PBS, starting with the extremely popular Masterpiece Theater. Within just a couple of years, the company was running polls that showed consumers were starting to think of Mobil as the “thinking man’s oil company”.
The company had less success, however, in convincing network TV stations. CBS and ABC refused to run visual versions of Mobil’s advertorials, saying they preferred to let their journalists cover issues of importance to the public. That response prompted Schmertz and Warner to go on a yearslong campaign pushing the idea of corporate free speech and the need to protect it. In letters to TV executives and to newspaper editors, and speeches to various pro-business clubs, all obtained by the Guardian, the two oil executives make the argument repeatedly that protecting corporate free speech is tantamount to protecting democracy.
Warner blamed environmentalists for the industry’s woes, and their need to speak out, in speeches to the Economic Clubs of Chicago and Detroit too.
“We contend that the inherent limitations of broadcast news, especially time constraints, lack of expertise in energy, and programming formats, act against accurate and in-depth coverage of energy, and other complex, major issues,” Schmertz wrote to the CBS president, Arthur Taylor, in 1974. “The obligations of network news to the public go beyond fairness and objectivity. They should promote a free flow of information and opinion on major issues to the public.”
The same year, in a talk at the annual convention of the Edison Electric Institute, which would go on to be a major purveyor of climate denial in the 1980s, Warner warned: “We are in no sense eager to stifle those who oppose us. On the contrary. We just want to be heard, too.”
Robert Kerr, media law professor at the University of Oklahoma’s Gaylord College of Journalism and Mass Communication, has researched corporate free speech and Mobil’s role in crafting the idea for decades. “This whole argument that the corporate voice was being silenced is just the opposite of the truth,” he said. Kerr adds that by virtue of having more time, people and funding than any individual and most groups, corporations “could always get their views out better than the average person by manyfold”.
Nonetheless, Schmertz and Warner sensed a threat in the 1970s. While Mobil never filed a case of its own to defend its “free speech” rights, it did begin filing amicus briefs in other corporate speech cases, and encouraging other pro-business advocates, like the US Chamber of Commerce, to do the same. The company also continued to regularly make the case in the court of public opinion via its weekly advertorials in the New York Times and its executives’ regular appearances on radio and TV.
The work Mobil did to rile the business community up about corporate free speech in the 1970s culminated in the first big supreme court case on the matter, the precursor to Citizens United, First National Bank v Bellotti. The case became a precursor to the controversial Citizens United ruling in 2010, which opened the floodgates on corporate spending. In 1978, the court ruled that corporations could spend whatever money they wanted to in an effort to influence politics, overruling a Massachusetts statute that said otherwise. In the ruling, Justice Lewis A Powell said, “If the restricted view of corporate speech taken by the Massachusetts court were accepted, government would have the power to deprive society of the views of corporations.”
Citizens United blurred the line between commercial speech – a marketing message from a company to the public – and political speech, which up until Citizens United was connected only to funding or speech backing a particular candidate or policy. Oil companies have been trying to obliterate that line for years, and their arguments in the current batch of climate cases are the latest effort.
In Massachusetts this week, attorney Justin Anderson, a partner with Paul, Weiss, ExxonMobil’s law firm, argued that the state attorney general’s fraud complaint against Exxon was not valid because the company’s public statements on climate policy should be considered as political opinion, not misleading advertising – even when Exxon falsely claimed that climate change isn’t real.
When asked why they would opt to file an anti-Slapp complaint rather than make a direct first amendment argument in court, Anderson made it clear that the point is to avoid discovery – the period of time in a civil case when corporations are asked to hand over files and make their executives available for depositions. “The anti-Slapp statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset before burdensome discovery is imposed on the party,” he argued.
Legal observers believe that the oil companies’ response to the climate cases tees up the likelihood of the next big supreme court case on corporate first amendment rights.
“They will try to defend their misinformation efforts as political speech covered by the first amendment and not subject to false advertising laws,” says Robert Brulle, an environmental sociologist who has coauthored briefs in some of these cases.
Kerr agrees, although he notes that to side with the oil companies’ arguments in these cases, the supreme court would have to turn its back on about a century’s worth of legal precedent. “It’s really deeply established even by some of the members of the current supreme court, that the first amendment will never protect expression that is fraud,” he said. “The worry now is that with this court there seems to be a majority that wants to say yes to almost any question the corporate interests raise. And I hope I’m wrong about that. I hope this is a line they won’t cross.”