Is New York’s Climate-Speech Probe Constitutional?

Walter Olson

New York Attorney General Eric Schneiderman's investigation of Exxon Corporation's climate efforts, including donations to think tanks and associations, violates Exxon’s First Amendment rights to engage in scholarship, advocacy, and other forms of protected speech. Hans Bader of the Competitive Enterprise Institute notes federal courts have found, "A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine.” A string of federal court precedents also indicates the constitutional rights Schneiderman is trampling are not just Exxon's but those of the organizations to which it gave donations, if his investigation "causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker."

Prof. Philip Hamburger of Columbia Law School writes Schneiderman's subpoena power under New York's Martin Act is legally problematic: It imperils due process and the separation of powers because it lacks judicial supervision and the normal protection against self-incrimination.....

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