David R. Henderson  

Schneiderman as Lebron, Kazman as Ayesha

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Eric Schneiderman, Attorney General of New York state, accuses companies that defend their right to free speech of engaging in "First Amendment opportunism." Somehow, probably because tonight's basketball game is on mind, that reminds me of Lebron James's comment that "it's so hard to take the high road." With Lebron, the "high road" happened after he stood over Draymond Green on the basketball court in Cleveland on Friday night and Draymond retaliated. With Schneiderman, he went after not only companies that defend their free speech rights but also think tanks that disagree with his views.

The best comeback to Lebron was from Steph Curry's wife, Ayesha, who said:

High Road. invisible bridge used to step over said person when open floor is available left to right.

Just as Lebron had Ayesha, Schneiderman has Sam Kazman, general counsel of the Competitive Enterprise Institute. Kazman replied to Schneiderman:
Schneiderman characterized the statements of the energy industry, and those of global warming skeptics generally, as fraud. When you hear a government official complain about fraud in a policy debate, he's got his sights set on censorship, plain and simple. And in the context of global warming, his goal is not to win that debate through evidence, but by shutting one side down through "law enforcement."

Not as punchy as Ayesha, but, hey, she was limited to 140 characters. [Disclosure: Sam Kazman and I have been friends since September 1975, when he was a law student at SUNY Buffalo and I was an assistant professor at the University of Rochester.]

Interestingly, at the 9:00 point of his speech, Schneiderman goes beyond his claim that companies don't have the right to use free speech for fraud to the really scary claim, quoting Justice Rehnquist, that corporations don't have the right to engage in political activity, even if not fraudulent. Schneiderman uses his own words but he correctly states the gist of Rehnquist's point. Rehnquist wrote:

I can see no basis for concluding that the liberty of a corporation to engage in political activity with regard to matters having no material effect on its business is necessarily incidental to the purposes for which the Commonwealth permitted these corporations to be organized or admitted within its boundaries.

Here's what Schneiderman doesn't tell his audience, but, to their credit, the Wall Street Journal's editors caught it: Rehnquist's statement was part of a dissent. The Supreme Court found by a 5-4 vote that corporations do have free speech rights. Hmmm. Not telling that part of the truth to the audience. Is Schneiderman a fraud? At least, he seems like a denier.


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CATEGORIES: Business Economics




COMMENTS (14 to date)
BorrowedUsername writes:

I'm not an expert on the details of this claim, but my understanding (feel free to correct it) is that Exxon did research and concluded that theory A was confirmed and then lobbied that theory A was false and unconfirmed even though they knew otherwise. Isn't that fraud? Or is it not fraud because they'd really like theory A to be false?

I know some libertarians don't agree that fraud should be prosecuted at all since fraud is just part of free speech, but is that your position here?

David R. Henderson writes:

@BorrowedUsername,
I'm not an expert on the details of this claim,
I’m not either.
That’s why I focused on his quoting Rehnquist’s view that even honest exercise of free speech can be regulated.
I know some libertarians don't agree that fraud should be prosecuted at all since fraud is just part of free speech, but is that your position here?
No.

David R. Henderson writes:

@BorrowedUsername,
I have a question for you. I know some people don’t agree that fraud should be prosecuted at since since fraud is just part of free speech, but do you think it shouldn’t? And, if you think it shouldn’t, do you think government officials who commit fraud should be prosecuted?

Radford Neal writes:

@BorrowedUsername: "my understanding (feel free to correct it) is that Exxon did research and concluded that theory A was confirmed and then lobbied that theory A was false and unconfirmed even though they knew otherwise"

I think you have a serious misunderstanding of the context. First, governments have spent billions of dollars on climate research since the time in question, and the magnitude of the effect of CO2 is still highly uncertain. It is ridiculous to think that Exxon had it all figured out years ago. And my understanding is that actually Exxon did no original research at all. Rather, somebody in the company wrote a memo reviewing other people's published research. So all the information was already public. I don't see why Exxon management would be obliged to accept some random employee's interpretation of public information, and change the whole company's strategic direction as a result.

jon writes:

I know some libertarians don't agree that fraud should be prosecuted at all since fraud is just part of free speech
Which is exactly why, as I explained in another thread, Libertarianism is and always will be a fringe political party.You can't espouse massively unpopular views and then expect to win people over with your "tight logic."

Joseph Porter writes:

If I understand it correctly, that Rehnquist quotation is scary. If exercise of our rights (such as the right to incorporate) is restricted by the purposes for which the government "permits" those rights, then we're in serious trouble.

Seems to me that the 10th Amendment spirit is the exact opposite: It's the restrictions of our rights that have to be spelled out in order to be justified.

TMC writes:

David, you are doing no favors to your friend Kazman by comparing him to Ayesha. Lebron was commenting on Green's overall behavior. Green should have gotten a harsher response than the 'disrespect' Lebron gave him there. In basketball, especially with a below the belt hitter (literally) like Green, Lebron did take the high road.

Green and Curry are great players, but they should look to Lebron to see what class looks like.

Chris Wegener writes:

@Radford Neal

First, governments have spent billions of dollars on climate research since the time in question, and the magnitude of the effect of CO2 is still highly uncertain.

This is no more true than when tobacco companies claimed that smoking was not dangerous and did not cause cancer. Simply pointing to an individual who smoked for many years and not contracted cancer does not raise uncertainty about the dangers of smoking.

Throwing snow balls in the Senate does not raise uncertainty about the effects of the massive increases in CO2.

Tobacco companies are being held liable for their contribution to the cost of health care, so to should Fossil Fuel companies be held responsible for the cost of the externalities of fossil fuel production.

Funding "climate change skeptic" groups as well as presenting information that they know to be false to impede policy choices as well as bribing elected officials to protect their profits (campaign contributions) should be actionable by the state.

As long as "persons" in the form of corporation do not fulfill all of the responsibilities of citizenship they forgo the First Amendments rights accorded to individuals.

Radford Neal writes:

@Chris Wegener:

You are wrong. The effects of CO2 are far from being well established. I assume you are not yourself a scoundrel, but have instead been lied to. You should be investigating whoever has been lying to you rather than supporting the suppression of free speech that is the only way that liers can be exposed.

Now, I expect that you are about to dismiss my claim as more fossil-fuel-company-funded propaganda. Before you do, you might want to look at some numbers from the IPCC reports, which are the "official" reviews of the literature.

The central issue in the whole debate is the value for the "equilibrium climate sensitivity (ECS)" - how much warming would result in the long run from doubling CO2. Here are the "likely" ranges for ECS (in degrees Celcius) from successive IPCC reports:

1st (1990): 1.5 to 4.5 C

2nd (1996): 1.5 to 4.5 C

3rd (2001): 1.5 to 4.5 C

4th (2007): 2.0 to 4.5 C

5th (2014): 1.5 to 4.5 C

First, one might note that absolutely stunning lack of any progress in narrowing down this range in the last 26 years. But more to the point, you should note that the low end of the range corresponds to a level of warming that is probably not serious enough to warrant drastic reductions in the use of fossil fuels, which inevitably will increase world poverty, which in turn is certain to lead to millions of additional deaths.

David R. Henderson writes:

@Chris Wegener,
As long as "persons" in the form of corporation do not fulfill all of the responsibilities of citizenship they forgo the First Amendments rights accorded to individuals.
Would you apply that reasoning to stories printed by the corporation called the New York Times?

MikeP writes:

Funding "climate change skeptic" groups as well as presenting information that they know to be false to impede policy choices as well as bribing elected officials to protect their profits (campaign contributions) should be actionable by the state.

As long as "persons" in the form of corporation do not fulfill all of the responsibilities of citizenship they forgo the First Amendments rights accorded to individuals.

If I, as a person and citizen, read this correctly, you seem to assert that the state can prosecute me because I donate money to "climate change skeptic" groups and present information I believe to be true, but you or some New York Attorney General somehow know to be false, in blog comments such as these.

By failing in this responsibility of citizenship, I lose my First Amendment rights? Or do I also have to donate to campaigns?

Michael Rulle writes:

[Comment removed. Please consult our comment policies and check your email for explanation.--Econlib Ed.]

Chris Wegener writes:

@Ranford Neil
Modeling climate is difficult and it is certainly hard to calculate to narrow bands. However it is impossible to deny that CO2 has been increasing in the atmosphere and overall temperatures are rising. The continuation of the dumping of CO2 into the atmosphere by humans is certain to continue the increase in global temperature. To believe otherwise is foolhardy and no matter how you cherry pick the data an untenable position to hold.

@David R. Henderson
If someone can show that the New York Times is lying to change policy from which it would profit, yes.

@MikeP
We are discussing the behavior of corporations. They are consider "persons" to allow them to hold property and be held liable. To also provide them with free speech rights is in my opinion wrong. (I point to advertising of pharmaceuticals as an example of the fallacy of this approach.)

An individual is fully vested with first amendment rights up to and including lying about any subject they want. Corporations should not be allowed to support groups that provide misinformation to policy makers to promote policies that allow the corporation to damaging the environment purely for profit.

Radford Neal writes:

@Chris Wegener

You seem to not appreciate two things:

1) Limiting fossil fuel use to an extent that will substantially reduce CO2 emissions is not a cost-free policy. It will in fact cause millions of deaths. You might argue that it will save even more lives by avoiding bad climatic effects, but that is by no means certain, because the magnitude of the warming effect of CO2 may well be rather modest.

2) Shutting down debate about this highly contentious issue by threatening prosecution of organizations who have argued for positions that you don't like is a retreat to the days before the Enlightenment, when the Church was so certain that they knew how to save souls that they were quite willing to kill anyone who disagreed - it was for the greater good, after all.

Though actually, many of the advocates for censorship, then and now, aren't so concerned about the greater welfare as they are about maintaining their privileged position. Are you really so sure that you haven't been deceived by some of those?

And do you really think that prosecuting corporations for not having said certain things decades ago is going to be the end of it, that free speech for individuals will remain sacrosanct? If so, I think you are incredibly naive. This and other attempts to limit free speech are the death of freedom, if they are not vigorously resisted.

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