Climate change consumer deception lawsuits threaten free speech. Will the Supreme Court take note?

Courts are increasingly taking a close look at the validity of climate change lawsuits against oil producers. And for good reason: These cases severely test the boundaries of court jurisdiction, the breadth of tort law, the protections of due process and even the sanctity of free speech. 

As one example of this scrutiny, last Oct. 3, the U.S. Supreme Court signaled a serious interest in the proper forum and scope for climate change litigation.   

In Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, the Supreme Court invited the solicitor general of the United States to weigh in, even though the United States is not a party to the litigation. The federal government is invited to file a brief with an official legal opinion of the federal government about the questions presented regarding the role of federal and state courts and the scope of federal and state common law for evaluating lawsuits alleging climate change injuries from fossil fuel production and consumption. These invitations are rare.   

All of the cases similar to Suncor percolating across the country are focused on suing companies for the effects of climate change. Yet, each of these lawsuits also tack on “consumer deception” and related “greenwashing” claims. Both categories get a lot of attention, but the latter deserves special inspection. 

These so-called deception claims sometimes allege that the companies downplayed the impacts of climate change despite that there is no affirmative duty to share everything you know, especially when consumers in the market have access to the same information.   

Other times the greenwashing claims allege that the companies should not have been allowed to advertise about efforts they are making toward developing cleaner energy because these efforts were not as robust as the plaintiffs would have liked. Indeed, in several cases, the plaintiffs have essentially stated that these companies should not have been allowed to speak about their environmental successes because the only clean fossil fuel is no fossil fuel.   

These consumer deception lawsuits are direct attacks on rights to speak and the corollary rights to not be compelled to speak. But there should be no climate change exception to free speech. 

In 2019, Justice Samuel Alito penned an important dissenting opinion from a decision by the Supreme Court not to hear an appeal in National Review, Inc. v. Mann. He saw the denial as a lost opportunity to underscore that traditional and ordinary principles protecting free speech to promote discourse should apply within climate change discussions specifically.   

Justice Alito noted that “To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scruti­nize any restrictions on the statements that can be made on important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views.”   

Efforts to restrict how one speaks about climate change are precisely such “immensely important” cases where close scrutiny should apply. Justice Alito observed that “Climate change has staked a place at the very center of this Nation’s public discourse. Politicians, journalists, academics, and ordinary Americans discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.” These viewpoints are prescient in light of the climate deception and greenwashing allegations in front of the court today. 

Advertising itself has a long history as protected and beneficial speech. It is seen as critical to providing information to the market. It helps consumers make intelligent and well-informed decisions. It is not misleading to say that an attribute of a product is that it is better or cleaner today than it was yesterday. 

Furthermore, if we were to say that companies are prohibited from advertising that they’ve improved simply because they have not eliminated all harmful aspects of their products, we would disincentivize the very improvements that those fighting to combat climate change wish to see. Advertising lets one benefit from the investment they make in improving a product, which in turn incentivizes the investment.   

Thus, if these deception claims are successful in court, shutting down speech because the quality is not perfect in the eyes of some advocates becomes the enemy of the good.   

Free speech is an invaluable thing with a fragility that counsels constant vigilance for its protection. Against those truths, we should be concerned when the very court system entrusted to protect speech is at risk of instead becoming weaponized to punish or chill it.  

Donald J. Kochan is a professor of law and the executive director of the Law & Economics Center at George Mason University’s Antonin Scalia Law School.