Free Speech in Science Project

Background

Attorneys David B. Rivkin Jr. and Andrew M. Grossman established the Free Speech in Science Project in 2016 to “to defend the kind of open inquiry and debate that are central to scientific advancement and understanding,” they write in The Wall Street Journal.¹

According to their WSJ article, the primary purpose of the Project is to defend victims of a “Climate Inquisition” against global warming skeptics and policy groups. The group arose shortly after investigations began into ExxonMobil’s knowledge and actions relating to climate change.²

Free Speech in Science Project’s “About Us” page adds the following description:³

“The Project will fund legal advice and defense to those who need it, while also executing an offense to turn the tables on abusive officials. Scientists, policy organizations and others should not have to labor under the fear that they will be the next victims of the Climate Inquisition, that they may face punishment and personal ruin for engaging in research and advocating their views.”

Freespeechinscience.org was registered on March 18, 2016 according to WHOIS records.⁴

Defending CEI & Fossil Fuel Companies

David B. Rivkin Jr. and Andrew M. Grossman defended the Competitive Enterprise Institute (CEI)⁵ when Claude Walker, attorney general of the U.S. Virgin Islands, demanded that CEI produce emails and donor lists⁶ as part of a probe into ExxonMobi’s potential climate change denial.⁷

Walker’s investigation was one of several probes into ExxonMobil’s knowledge and denial of climate change including a subpoena filed by New York Attorney General Eric Schneiderman demanding that ExxonMobil Corporation give investigators documents spanning four decades of research findings and communications about climate change,⁸ and another by California Attorney General Kamala D. Harris on whether Exxon lied to shareholders about the risk to its business from climate change.⁹

Harris, Walker, and Schneiderman are among 17 attorneys general who announced a coalition to hold fossil fuel companies accountable for their conduct on climate change.¹⁰

The investigations started in light of a 2015 article by InsideClimateNews¹¹ that suggested Exxon’s own researchers had confirmed fossil fuels’ role in global warming in the late 1970s to early 1980s.¹²

Exxon released a statement within hours of the press conference that launched the coalition: [emphasis added]:

The allegations leveled against ExxonMobil again today are politically motivated and based on discredited reporting funded by activist organizations. We are actively assessing all legal options…

It should come as no surprise that Exxon’s scientists discussed the available scientific research at the time and sought to build upon it through their own studies. This free exchange of ideas is essential to productive scientific inquiry. If such deliberations are subject to legal scrutiny through the lens of later baseless allegations, what incentive do companies have to pursue further research? The investigations targeting our company threaten to have a chilling effect on private sector research.

The allegations repeated today are an attempt to limit free speech and are the antithesis of scientific inquiry. Left unchallenged, they could stifle the search for solutions to the real risks from climate change. ¹³

Exxon’s lawyer, Ted Wells, claimed that the subpoena was an attack on free speech rights: “The chilling effect of this inquiry, which discriminates based on viewpoint to target one side of an ongoing policy debate, strikes at protected speech at the core of the First Amendment,” wrote Wells and the Exxon legal team.¹⁴

The Virgin Islands rebutted Wells and Exxon in an April 25 response.

“Your argument that this investigation targets protected speech mirrors arguments that were decisively rejected in the United States’s case against tobacco, which held tobacco companies financially responsible for and imposed sweeping injunctive relief to address a decades-long scheme by those defendants to misrepresent the scientific facts regarding smoking,” reads the letter signed by Virgin Islands Attorney General Claude Earl Walker. “If ExxonMobil knowingly deceived consumers and investors about climate change, it, too, is not above the law.”¹⁵

The free speech argument was echoed by the Free Speech in Science Project, as well as the Competitive Enterprise Institute¹⁶, the Pacific Legal Foundation¹⁷, and the Heritage Foundation.¹⁸

Stance on Climate Change

“Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted ‘consensus’ view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.” — David B. Rivkin Jr. and Andrew M. Grossman. “Punishing Climate-Change Skeptics,” The Wall Street Journal, March 23, 2016.¹⁹

Funding

The Free Speech in Science Project has not filed as a nonprofit organization, which means its funding is not under public scrutiny. DeSmog will continue to research funding and post relevant updates here.

Key People

David B. Rivkin Jr.

David B. Rivkin is a former U.S. government official who served under Presidents Ronald Reagan and George H. W. Bush. According to his profile at BakerHostetler, he “handled the development and implementation of President George H.W. Bush’s deregulatory initiatives, which entailed review of all existing federal regulatory strictures and the application of a more rigorous cost-effective standard to new regulations. His substantive areas of responsibility included international sanctions, energy, environment, and tax issues.”²³

Andrew M. Grossman

* The Cato Institute has received at least $2,392,500 from Scaife Foundations, $15,439,380 from Koch Foundations, $110,000 from ExxonMobil, and $1,847,540 from the secretive DonorsTrust/Donors Capital Fund, according to Conservative Transparency data.²⁹

** The Heritage Foundation has received at least $28,831,640 from Scaife Foundations, $5,651,845 from Koch Foundations, $585,000 from ExxonMobil, and $404,265 from Donors Trust/Donors Capital Fund.³⁰

***George Mason University and its related institutions have received over $88 million from Koch Foundations, as of 2013, according to publicly available tax records.

****According to Greenpeace, The Federalist Society had received at least $2,426,999 from Koch foundations as of 2011.³¹

Grossman’s profile from the Cato Institute reads as follows:³²

Andrew M. Grossman practices appellate and constitutional litigation in the Washington, D.C., office of BakerHostetler. He has written widely on law and finance, bankruptcy law, national security law, and the constitutional separation of powers and is a frequent adviser to Congress on complex legal and policy issues, particularly concerning constitutional limitations on federal power. He has testified numerous times before both the House and Senate judiciary committees. In addition to articles in journals and professional publications, Grossman’s legal commentary has appeared in dozens of newspapers and periodicals, including the Wall Street Journal, USA Today, the Washington Post, and the Los Angeles Times. He is also a frequent commentator on legal issues on radio and television, having appeared on Fox News Channel, CNN, MSNBC, CNBC, NPR and its affiliates, CBN, and elsewhere. Grossman has written amicus briefs for the Cato Institute in several cases before the U.S. Supreme Court and the federal courts of appeals. Prior to joining Cato as an Adjunct Scholar, he was affiliated for over a decade with the Heritage Foundation, most recently serving as a Legal Fellow in Heritage’s Edwin Meese III Center for Legal and Judicial Studies. Grossman is a graduate of Dartmouth College, the University of Pennsylvania’s Fels Institute of Government, and the George Mason University School of Law. He clerked for Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit.

Actions

April 19, 2016

Andrew Grossman was featured in a video titled “Free Speech and Climate Change“ at the Federalist Society for Law & Public Policy Studies where he “explains the investigation of the fossil fuel industry and public policy groups skeptical of climate change by the Attorneys General of nineteen states.” Video and transcript below.³³

Transcript:

The Attorney General of New York has joined with 19 other State Attorneys’ General to launch a Multi-State criminal investigation focusing on whether ExxonMobil, other petroleum and energy companies as well as public policy institutions and scientists are engaged in some kind of racketeering enterprise to mislead the public on climate change. Most recently, as part of that Multi-State investigation, the Competitive Enterprise Institute received a wide ranging subpoena asking for all of its internal communications and external communications, internal documents, basically everything its ever done on climate change over a period of a decade. The prosecutors involved in this case are drawing on precedent of civil RICO claims that were brought against the tobacco industry in the 90’s and 2000’s. But this is very different. The tobacco industry there is arguably an effort to cover up what were very serious harms and defects with its products that that industry knew about. On the other hand, with climate change you’ve got this enormous, very wide ranging, ongoing decades long debate where the answers are still unclear in terms of exactly how it functions, what the different parameters are, the extent to which human anthropogenic emissions are relevant and the extent to which we might see catastrophic impacts or not and the extent to which we ought to respond preemptively in a policy fashion or not. Being targeted for a subpoena, being the subject of a lawsuit, having that cloud of legal uncertainty floating over your head is enough to intimidate and it’s enough to chill very important speech. Simply put, if we’re going to reach the right solutions for climate change, if we’re going to spend the right amount of money, if we’re going to have the right regulations and if we’re going to reach a policy that people agree is a reasonable and correct policy, the way we’re going to get there is by having a free and open and wide ranging debate, we’re not going to get there by artificially shutting down half the debate, by threatening people with criminal sanctions. This isn’t just about climate change, it’s about the way that we formulate public policy and the way that we participate in politics in the United States of America. We’ve always had the view in America that more speech is better but if you disagree with someone you don’t shut him up, you tell him why he’s wrong and you tell the public why he’s wrong.

March 23, 2016

Founding attorneys David B. Rivkin Jr. and Andrew M. Grossman published an article in The Wall Street Journal titled “Punishing Climate-Change Skeptics” where they claim there is a “Climate Inquisition” against global warming skeptics, and define this as the reason for establishing their Free Speech in Science Project.³⁴

According to Rivkin and Grossman, the “Inquisition” began with a 2012 defamation lawsuit filed by Michael Mann against the Competitive Enterprise Institute (CEI), the latter which the two lawyers represented. They also point to the formal request by Reps. Ted Lieu (D., Calif.) and Mark DeSaulniers (D., Calif.) for the Justice Department to launch an investigation of ExxonMobil’s funding of climate research and policy organizations.³⁵

Rivkin and Grossman argue that “Intimidation is the point of these efforts” and that “Individual scientists, think tanks and private businesses are no match for the vast powers that government officials determined to stifle dissent are able to wield. An onslaught of investigations—with the risk of lawsuits, prosecution and punishment—is more than most can afford to bear.”³⁶

The two lawyers say that someone needs to “[take] on the Climate Inquisition directly,” which is where their Free Speech in Science Project comes in to defend “scientists” and “policy organizations” with a focus on First Amendment rights.³⁷

February 10, 2016

David B. Rivkin Jr. and Andrew M. Grossman co-authored a piece in the Wall Street Journal titled “Pulling the Plug on Obama’s Power Plan,” where they describe the national coal industry as “victims.” They applaud the Supreme Court’s decision to put President Obama’s climate initiative on hold, and suggest that the Clean Power Plan has a “dubious legal premise,” and that the EPA “overstepped its legal authority by using a tortured redefinition of ‘system of emission reduction.’”³⁸

“It’s one thing for a rule to be unlawful—which happens, and rarely merits a stay—but another for it to be lawless. This one was lawless. That is why the court had to act: to reassert the rule of law over an executive who believes himself above it,” Rivkin and Grossman write.

February, 2015

David B. Rivkin, Andrew M. Grossman, and Mark W. DeLaquil authored an article critical of the EPA’s Clean Power Plan in the Federalist Society’s publication Engage.³⁹

The authors argue that “The Environmental Protection Agency’s ‘Clean Power Plan’ (the ‘Proposed Rule’) […] violates the Tenth Amendment and principles of federalism.”⁴⁰

2012

In July 2012, the Competitive Enterprise Institute published an article comparing Michael Mann to a child molester who had “molested and tortured data,” DeSmog summarized.⁴¹

Conservative commentator Mark Steyn, in a blog post for National Review Online, later reproduced some of the CEI’s comments and described Mann’s hockey stick graph as “fraudulent.”⁴² When Mann asked for an apology and a retraction, he was told in a headline to “Get Lost.” In October 2012, Mann issued a defamation lawsuit. Rivkin and Grossman would go on to defend CEI in the Michael Mann v. National Review et al case, working with Baker & Hostetler LLP. ⁴³