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Monday, September 12, 2016

Abrams Institute Letter Objects to Science Advocacy Organization Subpoenas

On Monday, September 12, 2016, The Abrams Institute for Freedom of Expression at Yale Law School submitted a letter to the Chairman of the House Committee on Science, Space & Technology, Rep. Lamar Smith (R-TX), sharply criticizing subpoenas issued to nine science advocacy organizations. The subpoenas demand disclosure of the organizations’ communications with state prosecutors concerning the possibility that fossil fuel companies misled the public about climate change science. The letter was signed by preeminent constitutional law scholars, advocacy organizations, and litigators from across the country, who object that the Committee’s subpoenas violate the First Amendment rights of the advocacy groups, the constitutional separation of powers, and fundamental principles of federalism.

The disputed subpoenas were issued in July by Rep. Smith as part of his effort to investigate whether science advocacy organizations are conspiring with New York Attorney General Eric Schneiderman and other state prosecutors to deprive ExxonMobil of its First Amendment rights. The subpoenas broadly demand the organizations to hand over four years of communications with each other and with state law enforcement officials concerning any potential investigation “related to the issue of climate change.” The organizations thus far have refused to comply with the subpoenas, and Rep. Smith has scheduled hearings on whether to enforce them for later this week, Wednesday, September 14.

This controversy arose when a number of state prosecutors last March announced investigations into possible violations of state securities, business and consumer fraud laws. These investigations followed reports published last year that ExxonMobil and other energy companies became aware of the serious risks of climate change in the 1970s, but publicly denied or minimized the known risks for decades while they secretly funded contrarian climate research.

This letter from constitutional law experts accuses Rep. Smith of exceeding his authority and violating the First Amendment by directly inhibiting the rights of the advocacy groups “to speak, to associate and to petition state officials without interference from Congress.”

According to these experts, Smith’s subpoenas transgress a number of Supreme Court rulings that reigned in the abuse of the congressional subpoena power by the House Committee on Un-American Activities power during the Cold War. The letter contends that Smith and his committee “failed to learn the lessons of the McCarthy era, which taught us that suspicions of illegal activity can too easily provide a basis to use the subpoena power improperly to investigate political opponents and suppress First Amendment rights.”

The coalition of scholars and advocates urges Representative Smith to withdraw his subpoenasand end a misguided assault on the constitutional rights of the science advocacy organizations. 

Read the full letter here

The Floyd Abrams Institute for Freedom of Expression at Yale Law School promotes freedom of speech, freedom of the press, and access to information as informed by the values of democracy and human freedom.