Can trial lawyers dictate what private companies are allowed to say? In light of the First Amendment, the obvious answer is “no”—nobody can control another’s speech. But an upcoming Supreme Court case could upend that Constitutional protection if the decision goes the wrong way.
Next month, the Court will hear oral arguments in Suncor Energy Inc. v. County Commissioners of Boulder County. The case stems from an earlier state-level lawsuit in which Boulder County claimed the energy industry lied about the global-warming potential of its oil and gas products. Because the industry allegedly suppressed evidence that its fossil fuels heat up the atmosphere, it owes the county (and several dozen other jurisdictions that filed copycat lawsuits) billions of dollars in damages for mitigating the harmful effects of climate change.
The case isn’t primarily a free-speech dispute, but the litigation centers the First Amendment in the way it mirrors the argument 46 states made against the tobacco industry in the 1990s. Not only is Boulder demanding a massive payout, as those earlier plaintiffs did, the county claims the energy industry’s mistake was disputing the inevitability of catastrophic climate change.
As it turns out, the industry was largely correct: human greenhouse emissions are shifting global temperatures, but experts now say the predictions of an imminent climate collapse were fatally flawed. That technical question aside, the case invites severe restrictions on free speech and threatens to hamper scientific progress by effectively punishing one side in a scientific debate—if the Court fails to protect the First Amendment.
Disagreement prohibited
Strip away the tort labels and Boulder’s theory boils down to one fundamental claim. The involved companies lose their free-speech protection the moment they take a side Boulder doesn’t like. An amicus brief from the Protect the First Foundation makes the point bluntly, noting that Boulder never sued renewable-energy advocates or climate nonprofits that made their own aggressive claims about warming—just the companies that disagreed with them. That’s viewpoint discrimination, a category the Court has long treated as “presumptively unconstitutional,” dressed up as consumer protection.
Boulder’s certainty is also doing work it hasn’t earned. The complaint leans on a “worst-case” emissions scenario the UN’s own climate panel has since retired as implausible, and the panel admits only “low confidence” that human activity drives many specific weather patterns Boulder blames on the industry.
This is a familiar problem to free-speech advocates since history is full of penalized dissenters, particularly in the sciences, who turned out to be right. Alfred Wegener, for example, was ridiculed for correctly proposing that continents drift, while two Australian researchers proved bacteria, not stress, cause most ulcers. Letting the courts silence the minority view in those instances would have protected the wrong answer at the expense of the right one, and the same applies to the present case. Governments simply can’t be trusted to pick the correct conclusion in a scientific dispute, which is why our First Amendment prohibits it.
Conflicting free speech restrictions
Boulder isn’t the only jurisdiction running this playbook. Several dozen states, cities and counties have filed nearly identical suits, and nothing requires any of them to agree on what counts as climate “misinformation.” An amicus brief from the legal group Neutral Principles warns that these cases could eventually produce diametrically opposed verdicts on the same scientific speech—one county’s jury punishing a statement that another county’s jury treats as accurate.
That’s not a hypothetical concern, as the COVID-era “misinformation” enforcement regime demonstrated. Official consensus shifted abruptly as claims that got social media posts labeled false—the lab-leak theory and natural immunity’s protective value among them—were later acknowledged as credible by the same authorities that had dismissed them. A patchwork of state juries empowered to punish speech about an unsettled scientific question guarantees the same whiplash, just with billion-dollar verdicts instead of a flagged tweet.
Compelling future speech
Other plaintiffs in this same wave of suits haven’t left the remedy in doubt. Minnesota and Connecticut each asked courts to order Exxon to fund a “corrective public education campaign” on climate change, run by an independent third party.
Boulder’s complaint doesn’t spell that out, but its catch-all demand for “abatement of the hazards” of climate change “by any other practical means” leaves the door open to similar court-ordered speech affirming the government’s preferred narrative on a contested scientific question. That’s compelled speech, and the Court has never treated it lightly. Since West Virginia v. Barnette, government cannot force citizens to espouse an official orthodoxy.
Conclusion: Stifling scientific progress
Science thrives on free inquiry and open dispute. Without this exchange of ideas and the peer review it entails, research progress grinds to a halt. The greatest scientific discoveries in history required challenging consensus.
As Supreme Court Justice Alito has observed, Americans debate the causes, extent and proper policy response to climate change every day, and the whole point of the First Amendment is to make sure every side of that debate gets heard. Boulder’s lawsuit inverts that principle: it treats one side’s advocacy as a tort simply because a jury might find it unpersuasive in hindsight.
If the Supreme Court lets that theory stand, it will hand every state and local government a template for punishing whichever side of a scientific argument currently displeases them. Companies, researchers and critics alike will learn to keep their doubts to themselves.