The End of the Free-Speech Consensus
Steven Greenhut
by

Sacramento

What happens when the consensus for free speech evaporates and those with political power become willing to use any means necessary to silence people who hold unpopular views? We’ll probably soon receive the answer in California, as the state’s dominant Democrats set the stage for prosecutors to take action against climate-change “deniers.”

“A landmark California bill… would make it illegal to engage in climate-change dissent clearing the way for lawsuits against fossil-fuel companies, think tanks and others that have ‘deceived or misled the public on the risks of climate change,’” explains a Washington Times report. The bill, S.B. 1161, passed through two committees but ultimately was shelved. But like most “landmark” bills, this one will keep coming back until it passes. The bill even comes with an Orwellian name, “The California Climate Science Truth and Accountability Act.”

This is a frightening development — even more frightening when one considers the history of outrageously partisan decision-making by California Attorney General Kamala Harris. Most recently, she was slapped down by a federal court for demanding that a prominent conservative foundation provide its donor lists if it wants to operate in the state. Can you imagine how “fairly” a law such as this one will be implemented?

Harris is one of 17 state attorneys general who are part of “Attorneys General United for Clean Power,” which would be better called “AGs United to Prosecute Thought Crimes.” This is creepy stuff. This is from New York Attorney General Eric Schneiderman’s statement: “Climate Change Is The Most Consequential Issue Of Our Time. This Unprecedented State-To-State Coordination Will Use All The Tools At Our Disposal To Fight For Climate Progress.”

The statement further detailed what “all the tools at our disposal” means: “The participating states are exploring working together on key climate change-related initiatives, such as ongoing and potential investigations into whether fossil fuel companies misled investors and the public on the impact of climate change on their businesses.” In other words, state officials — and the Obama administration is promising similar actions — want to deem legitimate differences of opinion as a governmental matter and then file lawsuits against dissenters from the approved position.

California’s “first in the nation” bill would provide the tools and the template to do this. Because some critics may have slightly overstated what the bill would do (e.g., lead to jail time), some analysts have downplayed its ill intent.

The self-proclaimed truth checker, Snopes, explained: “Despite the misleading statements or implications of some headlines and articles on this subject, S.B. 1161 didn’t apply to private individuals, nor did it specify that criminal penalties (including imprisonment) should be applied to climate-change deniers.” It said the bill modifies state law “to allow the government to pursue civil claims under California’s Unfair Competition Law against businesses and organizations that have disseminated misinformation about anthropogenic-induced climate change.”

Frankly, perhaps it would be better if state AGs and local prosecutors tried to imprison heretics rather than bankrupt them and the organizations they work for. In reality, AGs and even local prosecutors will drag foundations and businesses through years of litigation, seeking millions of dollars in fines and settlements. If you deviate from the currently approved opinion about climate change, then you could receive a subpoena from your friendly headline-seeking state attorney general.

I work for a think tank that believes the climate is warming because of human activity, but opposes many of the “solutions” (and all of the hysteria) that surround the issue. But we’re outraged at this effort. Practically speaking, what exactly will constitute unfairness under the state’s Unfair Competition Law? Which opinions are legit and which ones aren’t?

Will a slightly divergent opinion qualify, such as questioning the state’s cap-and-trade system? Is it OK to ask whether the costs (loss of businesses and jobs) are worth the benefits? There is no clear answer. S.B. 1161 “authorizes the attorney general, district attorneys, county counsels and city attorneys to file lawsuits on behalf of injured citizens,” according to the official bill analysis. It defines unfair competition broadly. So it will be litigated case by case.

State attorneys-general have deep taxpayer pockets. The fear of such lawsuits will do as intended — and impose fear and loathing on any group that might utter an unapproved word on this subject. Only the naïve would believe it won’t expand to include individuals, especially in a state where the right to dissent is quickly evaporating.

Last year, Gov. Jerry Brown signed a law that forces privately funded pro-life counseling centers to counsel pregnant women on where they can get an abortion. The Legislature and the governor have no problem forcing you to take positions at odds with your deepest-held beliefs — provided the beliefs you hold are not acceptable in polite, liberal company.

This attitude appears to be spreading, even on the political right. The presumptive Republican presidential nominee has talked about easing libel laws to make it easier to for politicians to sue their critics. But in California the attacks are coming almost entirely from the Left. And some proponents of these totalitarian measures are remarkably forthright about their goals.

“Recent reports by Inside Climate News and the Los Angeles Times show that by the 1980s the fossil fuel industry was well aware of the emerging scientific consensus that emissions from the burning of fossil fuels were increasing global temperature,” wrote Jason Barbose, with the Union of Concerned Scientists, which sponsored the California bill. “There should be consequences any time a company lies to the public, but particularly for deceiving the public systematically for decades about an issue as serious and consequential as global warming.”

Don’t worry, though. The bill isn’t judging whether companies broke the law. That’s “something for the courts to decide,” he argued. “What S.B. 1161 is doing is giving law enforcement the opportunity to ensure that justice is served for the full weight of any violations that may have been committed.”

So if news reports point to a scientific consensus, and your company or foundation disagrees with that consensus, it could become a law-enforcement matter.

“According to Mill’s utilitarian justification of free speech, even untrue opinions are valuable in society’s pursuit of more truth,” argues philosophy professor Trygve Lavik of the University of Bergen. “Consequently, one might think that Mill’s philosophy would justify climate denialists’ right to free speech. A major section of the paper argues against that view.… Climate denialism is not beneficial because its main goal is to produce doubt, and not truth.”

In the United States, legislators and attorneys general dress up their attacks on free speech in the name of “unfair business practices,” but the goal is the same. California’s Democratic politicians love to bloviate about the cutting edge legislation they pass. Watch carefully, as they lead a national effort to destroy the First Amendment.

Steven Greenhut
Steven Greenhut
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Steven Greenhut is a senior fellow and Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.
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