Amicus Brief in Suncor Energy on the First Amendment and Climate Change Lawsuits
The legal advocacy group Neutral Principles engaged Erik Jaffe and me to draft an amicus brief for them in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County, which will be heard by the Supreme Court in the Fall; I much enjoyed working on it with Erik, and thought I'd pass it along. You can read the PDF, but here are some excerpts from the First Amendment analysis; I'll blog separately about the Foreign Commerce Clause analysis.
SUMMARY OF ARGUMENT
Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed "deception." These "deception"-based claims are still preempted, because they still target emissions by seeking relief for injuries allegedly caused by emissions. But that shift also threatens numerous First Amendment violations and the possibility of conflicting regulations of national speech, association, and petitioning that further support preemption of such local efforts. Climate-change plaintiffs seek to punish energy companies not just for the asserted consequences of emissions, which result from the decisions and actions of millions of other actors and governments, but for the companies' speech about climate change that plaintiffs claim led to such emissions.
This case is an example of this pattern, but it is not an outlier: There are many like it across the country. And there likely will be many more in the field of climate change, with some potentially taking diametrically opposed views of what scientific speech is true or false. This Court should keep the serious First Amendment issues underlying this litigation campaign in mind in deciding this case. The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic.
ARGUMENT
[I.] The First Amendment Protects Advocacy, Petitioning, and Expressive Association Related to Debates About Climate Change.
The speech that forms the basis for alleged liability in this case is core advocacy, petitioning, and expressive association that is protected by the First Amendment. Merely characterizing it as "marketing" does nothing to change its essential nature and its constitutional protection….
[A.] Climate-Change Lawsuit Claims Rest in Part on Defendants' Constitutionally Protected Speech, Petitioning, and Association.
There is no genuine doubt that the recent climate-change lawsuits brought by governments turn on defendants' political advocacy. Notwithstanding the assertion by plaintiffs that they "do not seek to impose liability" based on defendants' "speech," "participat[ion] in public debates," or "lobbying or petitioning." J.A.139, ¶¶ 541-542, that is precisely what they are doing. Plaintiffs expressly "seek to impose liability on Defendants in connection with misrepresentations about the known dangers of their products, in connection with their marketing of those products and in connection with the sale of those products," J.A.139, ¶ 541. But they include all public speech directly or indirectly related to their products and climate change under the rubric of "marketing" and have a boundless conception of what speech is "in connection" with marketing and sales, making their disclaimer meaningless. Other parts of the Amended Complaint show that these supposed misrepresentations do indeed include "participat[ion] in public debates" about climate change….
[B.] The First Amendment Protects Speech on Scientific Questions.
The speech over which climate change plaintiffs routinely sue is fully protected by the First Amendment, because it is advocacy on matters of core public concern and public policy.
In United States v. Alvarez, five members of this Court expressly recognized that the government cannot try to "penalize purportedly false speech" on such matters. 567 U.S. 709, 731 (2012) (Breyer, J., concurring in judgment). Justice Alito, joined by Justices Scalia and Thomas, reasoned:
[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
Id. at 751-752 (Alito, J., dissenting). Justice Breyer, joined by Justice Kagan, expressly echoed this:
As the dissent points out, "there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech." Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny.
Id. at 731-732 (Breyer, J., concurring in the judgment). Justice Kennedy's plurality opinion did not discuss this point, but that was likely because the plurality took an even more speech-protective view than did the concurrence and the dissent, see id. at 726-729, and thus saw no need for focusing specially on these categories of speech.
These opinions specifically refer to "the social sciences," but their logic applies equally to other sciences. There too "it is perilous to permit the state to be the arbiter of truth." There too placing public debate at the mercy of federal, state, and county officials, as well as of judges and jurors, "would present a grave and unacceptable danger of suppressing truthful speech." There too the underlying speech is on matters of the most serious "public concern."
Indeed, this Court has long spoken of broad protection for "scientific expression": "[I]n the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression." Miller v. California, 413 U.S. 15, 22-23 (1973). And that is especially apt in the climate change cases, where the "scientific expression" is intimately tied with "political * * * expression" on difficult public policy questions—such as whether the "downside to [the] consumption [of fossil fuels] is simply outweighed by their utility."
As this Court has recognized in recent years, many questions yield "fierce scientific and policy debates." United States v. Skrmetti, 605 U.S. 495, 525 (2025). See, e.g., Chiles v. Salazar, 146 S. Ct. 1010, 1027-1029 (2026) (discussing both the modern debate about sexual orientation and gender identity conversion therapy, and the past debate about whether homosexuality was a "mental disorder"); Skrmetti, 605 U.S. at 500-505, 523-525 (discussing the debate over youth gender medicine); Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (per curiam) (resolving the Free Exercise Clause question against the backdrop of the debate over COVID-19 lockdowns). Human nature being what it is, the "fierce[ness]" of the debates may manifest through each side feeling so strongly about its own correctness that it does not believe that there is indeed a genuine debate.
Partisans may be confident that the science is settled in their favor, and that only liars would contest that conclusion. Jurors may take the same view. Especially in relatively ideologically homogeneous communities, such jurors may well form the required supermajority for imposing massive liability on those with whom they disagree. In federal courts, civil juries must at least be unanimous. But most state court systems do not require civil jury unanimity.
Yet the supposed "expert consensus" relied on by decision makers—county officials, judges, jurors, and others—is often illusory. And in any event, that consensus cannot be a substitute for the ongoing process of free discussion that the First Amendment prescribes.
"[T]he American people and their representatives are entitled to disagree with those who hold themselves out as experts" in enacting legislation. Skrmetti, 605 U.S. at 530 (Thomas, J., concurring). And they are likewise entitled to hear from those who disagree with the putative experts. Resolving the policy implications of scientific debates is left "to the people, their elected representatives, and the democratic process." Id. at 525 (majority op.). Challenging the conventional wisdom of the day is often the foundation of political, social, and scientific advances. Indeed, such freedom of speech on all questions, including scientific ones, is what allows "the democratic process" to function.
[C.] The First Amendment Protects Speech on Scientific Questions Touching on One's Business.
Just as the First Amendment protects the right of fossil fuel critics to speak about scientific matters, it protects the same right of fossil fuel defenders, including fossil fuel producers. Whatever the justifications and merits of less rigorous protection for commercial advertising under this Court's jurisprudence, e.g., Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65-68 (1983), this Court tolerates such differential treatment precisely because "[a] company has the full panoply of protections available to its direct comments on public issues." Id. at 68.
In Zauderer v. Office of Disciplinary Counsel, this Court concluded that speech about medical matters in a lawyer's commercial advertising was less protected commercial speech in part because "Ohio has placed no general restrictions on appellant's right to publish facts or express opinions regarding Dalkon Shield litigation; Ohio's Disciplinary Rules prevent him only from conveying those facts and opinions in the form of advertisements of his services as an attorney." 471 U.S. 626, 637 n.7 (1985) (quoting the "full panoply of protections available to its direct comments on public issues" statement from Bolger, 463 U.S. at 68). Central Hudson Gas & Electric Corp. v. Public Service Commission likewise distinguished commercial speech from fully protected "direct comments on public issues" by energy companies. 447 U.S. 557, 562 n.5 (1980). Whatever this Court may eventually decide as to reduced protection for commercial speech, any such reduction necessarily depends on businesses retaining the freedom to speak in public debate, even if not in purely commercial advertising.
Indeed, the case that Bolger cited for the "full panoply of protections" proposition—Consolidated Edison Co. v. Public Service Commission of New York, Inc., 447 U.S. 530 (1980)—involved an energy company promoting an environmentally controversial energy source (in that case, nuclear power). See Bolger, 463 U.S. at 68 n.16. And this Court in Consolidated Edison treated such speech as fully protected "participat[ion] in * * * public debate." 447 U.S. at 535.
Furthermore, this Court has long recognized that a company's motivation to protect its own business through its speech does not strip the speech of full protection. "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." Pennington, 381 U.S. at 670.
And while private collusion may be regulated under the antitrust laws, that is so precisely because public speech remains fully protected: Even businesses who seek anticompetitive legislation "can, with full antitrust immunity, engage in concerted efforts to influence * * * governments through direct lobbying, publicity campaigns, and other traditional avenues of political expression." Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 510 (1988). Likewise, businesses can "present[] and vigorously argu[e] accurate scientific evidence before a nonpartisan private standard-setting body." Id. Businesses can surely do the same before the public more generally.
Speech on public issues, even by companies with an economic interest in the outcome, is protected in large part because speech can be valuable to listeners regardless of the speaker's identity. Corporate speech—which will usually be economically self-interested—is protected "based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76, 783 (1978).
Listeners need to be able to hear freely from both sides of the debate. Critics of fossil fuel companies speak prominently and freely, without worry of ruinous liability for statements about broad scientific questions, notwithstanding the varied downstream harms that would occur if they were wrong. For the benefit of listeners, fossil fuel companies must be permitted to engage in public debate without fear of liability or double standards. The government "has no * * * authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).
Justice Breyer's dissent, joined by Justice O'Connor, in Nike, Inc. v. Kasky, 539 U.S. 654 (2003), supports this as well. Justice Breyer reasoned that Nike's public speech responding to criticisms of its production processes was fully protected, because it "appear[ed] outside a traditional advertising format, such as a brief television or newspaper advertisement" and did "not propose the presentation or sale of a product or any other commercial transaction." Id. at 665 (Breyer, J., dissenting). Nike's speech, Justice Breyer noted, sought "to convey information to 'a diverse audience,' including individuals who have 'a general curiosity about, or genuine interest in,' the public controversy surrounding Nike." Ibid. (citations omitted).
And, most importantly, the content of Nike's speech made "clear that, in context, it concerns a matter that is of significant public interest and active controversy, and it describes factual matters related to that subject in detail." Ibid.Nike's speech described "Nike's labor practices" and responded "to criticism of those practices," and did so "because those practices themselves play an important role in an existing public debate" "in which participants advocated, or opposed, public collective action." Ibid."The First Amendment's protections of speech and press were 'fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes.'" Id. at 677-678 (Breyer, J., dissenting) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). This was said about speech discussing a company's labor practices—and the reasoning applies even more to discussions about some of the weightiest scientific and political issues being debated by Americans today.
For more of Part I, focused on the Petition Clause, expressive association, and compelled speech, see the PDF.