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How Big Oil is using friendly judges to muzzle free speech

While free speech is under attack in the U.S., it’s neither the “woke left” nor disinformation researchers leading the charge.

In July 2023, a district court judge in Louisiana granted an injunction against the Biden administration’s efforts to curb disinformation on social media platforms, calling it potentially “the most massive attack against free speech in United States’ history.” Strong words! Earlier this month, the 5th Circuit Court of Appeals — the most conservative court in the countrykept most of that injunction intact, ruling that the Biden administration had violated the First Amendment by encouraging social media platforms to take down false information. 

Conservatives applauded the injunction (which the Supreme Court has temporarily halted for the White House to appeal). The New York Times’ Bret Stephens cautioned that trying to disallow speech we “loathe” was a slippery slope that ends in the erosion of First Amendment rights for all. Rep Jim Jordan, R-Ohio, called it a victory against the “censorship industrial complex,” a term he’s used to describe everything from fact-checking to disinformation research.

What is the First Amendment meant to protect: the right of corporations to lie? Or the rights of citizens to speak truth to power?

But while free speech is under attack in the U.S., it’s neither the “woke left” nor disinformation researchers leading the charge. Nowhere is this more obvious than in the crackdown on climate protests. As we head into a week of planned protests during Climate Week in New York, it’s a good time to look at the real free speech threat and have a conversation about what the First Amendment is meant to protect: The right of corporations to lie? Of pundits to spout misinformation with impunity? Or the rights of citizens to speak truth to power? 

The “threat” in the Louisiana case was the administration’s suggestion that if social media platforms couldn’t get a handle on disinformation, the government would need to figure out a way to regulate it. Not exactly an aggressive attack. The 5th Circuit’s ruling also stated that content moderation policies should be left up to the platforms themselves. Fair enough, except that the same court approved Texas’ new law barring social media platforms from moderating content at all.

This fight is not just playing out in the courts. This summer, House Republicans held a hearing on whether efforts to curb disinformation were actually “censorship.” Jordan demanded that leading disinformation researchers hand over their emails and meet with him to explain their work, the latest in a flurry of records requests, subpoenas and lawsuits designed to harass academics who study disinformation. 

Jordan and his allies are being helped in their crusade by anti-climate-action activists like Michael Shellenberger, a star witness in the March 2023 hearings by Jordan’s House Select Committee on the “Weaponization of the Federal Government.” Shellenberger has had quite the career path: from PR guy for big green groups to “reformed environmentalist” to climate skeptic to, now, “journalist,” who helped Tesla CEO Elon Musk publish the Twitter Files. (In addition to breaking every rule of journalism, the files didn’t actually reveal much, aside from the biases of Musk and those he handed the files to.) In his March testimony to the committee, Shellenberger also complained of the “censorship-industrial complex,” consisting of fact-checking and content moderation, and compared experts critiquing his poorly researched book to George Orwell’s “1984.” 

This sort of thing has been reverberating throughout the American right a lot in recent years, as its crusade against social media moderation has turned into a bizarre attempt to extend First Amendment protections to things like unwanted criticism or fact- checking. Sen. Josh Hawley, R-Mo., claimed his First Amendment rights were being trampled when his book deal was pulled after photos were published of him cheering the Jan 6 attack on the Capitol. When Spotify’s science podcasters asked the app to do something about Joe Rogan’s frequent peddling of inaccurate, anti-science conspiracies, the company hired fact-checkers to look at Rogan’s catalog and wound up pulling 100 episodes that were rife with falsehoods. His fans and fellow conservative pundits cried censorship. 

And it’s not just pundits and politicians. In more than 30 climate cases making their way through the U.S. court system, oil company lawyers argue that the First Amendment gives them the right to say anything they want about climate change, whether or not it’s misleading, so long as it’s in the interest of shaping or blocking policy. Anyone who says otherwise, they argue, is infringing on their free speech rights. 

Meanwhile, a very real free speech threat is spreading through the country like wildfire and none of these supposed free speech warriors seems to have noticed.

Over the past five years, federal and state governments have been quietly and increasingly criminalizing the most basic form of protected speech: protest. That repression has taken many forms, all supported by corporate interests, particularly extractive industries. 

A very real free speech threat is spreading through the country like wildfire.

Earlier this month, some 60 activists were indicted for peacefully occupying a forest near Atlanta to protest a proposed police training facility known as Cop City. Activists were occupying the forest not just to protest over-policing but also the razing of a critical green space considered to be “the lungs of Atlanta,” and the facility’s likely impact on the city’s water supply. The activists were charged under Georgia’s Racketeer Influenced and Corrupt Organizations Act, or RICO. Originally written to deal with drug cartels and the mob, in recent years civil anti-racketeering laws have been weaponized against environmental and social justice activists, and various nonprofit organizations that support protests, turning nonviolent civil disobedience into “organized crime.” 

Georgia’s use of criminal RICO laws is highly unusual, and yet another escalation in a backlash against climate protest that has grown rapidly since the protests against the Dakota Access Pipeline on the Standing Rock Indian Reservation in 2016 and 2017. The pipeline company brought in militarized private security forces and used helicopters, attack dogs and even infiltrators to try to shut down resistance to the pipeline. The company also filed a RICO suit against individual protesters and organizations like Greenpeace for their role in supporting the protest. The defendants in that case are still fighting a version of that suit more than five years later.

Standing Rock also spawned legislation aimed at criminalizing protest. Nearly half of U.S. states have passed so-called “critical infrastructure” laws, which increase the fines and jail time for those charged with trespassing or vandalism near critical infrastructure. Critical infrastructure is defined fairly broadly in these laws and can include roads, bridges, overpasses, railways, refineries, power plants and pipelines. The definition is so wide that it’s tough to figure out where a protest could be held that wouldn’t be near critical infrastructure anymore. In some states, these new laws also enable authorities to fine organizations that support or plan such protests; in others, they can use state RICO laws to go after those organizations in an even bigger way. 

Though these laws differ slightly from state to state, they all read roughly the same. That’s because they all stem from sample legislation, written by the American Fuel and Petrochemicals Manufacturers trade group, and spread by the American Legislative Exchange Council, an organization that connects industry to lawmakers to push business-friendly legislation. The first such law was passed in Oklahoma in 2017, and 20 more states have passed them since. 

Critical infrastructure laws are just one tool being used to suppress climate protest. Labeling environmental activists “domestic terrorists” became more common after 9/11 and the creation of the Department of Homeland Security. As climate protests have ramped up in recent years, DHS routinely describes pipeline protesters as “domestic terrorists,” which carries a sentencing enhancement that can double or triple the amount of jail time. Even protesters not charged as terrorists face wildly disproportionate punishments. For example, activists who used water-soluble finger paint on a display case during a protest at the National Gallery of Art in Washington, D.C., last year were surprised to be indicted under a charge of “conspiring against the U.S. government,” which comes with up to 10 years in prison and a $500,000 fine.

None of these environmentalists, including those deemed “domestic terrorists,” have harmed anything but property. Georgia state troopers, in the meantime, shot Cop City activist Manuel “Tortuguita” Terán 57 times while his hands were raised. Though officers claimed the activist shot first, the DeKalb County Medical Examiner’s autopsy found no gun residue on Tortuguita’s hands, and ruled the shooting a homicide. 

It’s no coincidence that activists’ free speech rights are under attack as the fossil fuel industry argues in court for greater legal protections for misleading corporate speech. And it’s revealing which politicians and pundits are trying to distract by making up threats to the First Amendment. Unless we want to live in a country where protest is banned but corporate fraud is protected, it’s time to take a serious look at what free speech actually is, stop being distracted by manufactured “culture war” nonsense attempting to redefine the First Amendment, and move to protect the real thing.