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Exxon Mobil fights to shield climate disinformation as free speech

Seeking to dismiss suit accusing it of a decades-long fraud, oil & gas company urged court to give it carte blanche for rhetoric about fossil fuels

One of the world’s biggest oil and gas companies appeared to be running on fumes Wednesday in its bid to avert liability for publicly downplaying both the risks of climate change and how its business contributes to global warming.

The steady disintegration of the appeal began only moments into oral arguments at the Supreme Judicial Court of Massachusetts considers Exxon Mobil's attempt to shield itself under a law that protects people or organizations from being sued for making statements in the public interest.

Anti-SLAPP laws, short for strategic lawsuits against public participation, are common in the U.S., though more commonly applied to newspapers, television reporters and other news media organizations.

ExxonMobil has argued in briefing that the law applies to it because its views on energy policy and climate change are at odds with those of the Massachusetts attorney general who hit it with a 211-page fraud complaint in 2019.

Associate Justice Dalila Wendlandt noted Wednesday that anti-SLAPP protections are meant to prevent private parties from “using the court system in order to punish petitioning activity.”

“I'm wondering whether you think that that makes any sense to shut down enforcement actions on behalf of the people of the Commonwealth against fraudulent activity by using the anti-SLAPP statute,” Wendlandt asked Exxon Mobil's attorney Justin Anderson.

Anderson said the company was merely using a procedure authorized by the Massachusetts Legislature.

“The idea that the government can be trusted never to bring legal action against someone because they disagree with their speech runs counter to the fundamental concept and the fundamental core principle behind the First Amendment itself,” Anderson said.

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Later in the hearing, Associate Justice Scott Kafker questioned if there is any distinction between ExxonMobil’s comments and the old claims by Big Tobacco that cigarettes did not cause cancer.

Kafker also highlighted how invoking anti-SLAPP protections can delay litigation.

“We end up fighting the anti-SLAPP cases for years, and don't get to the merits. Is that happening here or not?” Kafker asked Seth Schofield of the Massachusetts Attorney General’s Office.

Schofield said ExxonMobil’s anti-SLAPP petition was “absolutely a monkey wrench in this case,” largely shutting down the discovery process.

Arguing that Massachusetts lawmakers did not intend for anti-SLAPP to stifle the commonwealth’s attorney general, Schofield quoted a section of the statute that authorizes the attorney general to step into a case and support litigants who file anti-SLAPP petitions.

“There's absolutely nothing in the legislative history that suggests the legislature had a concern about government misuse of lawsuits,” Schofield said.

The seven-justice court did not indicate when it would rule.

Ahead of Wednesday’s arguments, five former attorneys general of Massachusetts noted in an amicus brief how, over their time in office, they have filed dozens or hundreds of cases on behalf of their clients — the people of the commonwealth — involving consumer protection and antitrust issues, among other matters.

“Exxon Mobil’s overly expansive reading … would turn the anti-SLAPP statute on its head, making it a weapon, rather than a shield. It would also encourage meritless arguments, rather than weed them out,” the former attorneys general wrote.

Prior to its 2019 lawsuit against Exxon Mobil, the Massachusetts attorney general launched an investigation in 2016 into whether the company had suppressed research going back to the 1970s about the effects of climate change. Exxon turned to the courts to block the investigation. In April 2018, however, the commonwealth’s highest court said the company had to comply with the investigation.

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In New York, where there has been similar litigation, Exxon Mobil recently appealed to the Second Circuit to reinstate a discrimination suit it filed against the state after a judge found no evidence the company deceived its investors about climate change.

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Screenshot via Courthouse News

Justin Anderson argues before the Massachusetts Supreme Judicial Court on March 9, 2022, in a bid to dismiss the commonwealth's lawsuit against Exxon Mobil under anti-SLAPP statute.