On October 24, 2019 Maura Healey, the Attorney General of Massachusetts, sued ExxonMobil for "deceptive advertising to Massachusetts consumers and for misleading Massachusetts investors about the risks to Exxon's business posed by fossil fuel-driven climate change." It was the culmination of an investigation Healey had launched in 2016 looking into the way Exxon had talked to the public about climate decades after its own scientists had briefed the company on the realities of the issue. Last week, the Massachusetts Supreme Court heard arguments related to that case—not about what Exxon was doing back in the 90s, but about whether or not Healey violated Exxon's First Amendment rights by bringing this suit in the first place.

With all of its other motions to dismiss exhausted, Exxon's efforts to stop this case hinge on this one last complaint, invoking Massachusetts' anti-SLAPP statute.   SLAPP stands for Strategic Lawsuits Against Public Participation, and anti-SLAPP statutes originated out of efforts to protect the press and civil society groups from unwarranted lawsuits from from the legal claims of corporations that wanted to silence critics. In recent years, it's become increasingly common for corporations to invoke them to swat away accountability lawsuits.

The anti-SLAPP argument has become a go-to strategy in U.S. climate litigation. In some two dozen climate liability cases, in which counties, cities and states are asking oil companies to pay their share of climate adaptation costs, the oil company defendants all have different lawyers, but only one speaks for them, both in the court and to the press: Ted Boutrous, a legendary First Amendment attorney who works with the firm Gibson, Dunn & Crutcher. That's important because Gibson, Dunn & Crutcher is the firm that argued, and won, the landmark 2010 Citizens United case, in which the Supreme Court greatly expanded corporate First Amendment rights, including the right to donate money anonymously to any political cause, a ruling that ushered in an unprecedented era of dark money in politics.

A darling of the liberal press, Boutrous consults for The New York Times and sits on the advisory boards of Reveal and the International Women's Media Foundation, and the steering committee for the Reporters Committee for Freedom of the Press. He defended CNN journalist Jim Acosta from harassment at the hands of the Trump administration and ensured that Mary Trump could publish a tell-all book about her uncle, the former president. In 2018, when Boutrous emerged as the spokesperson for the oil companies in their climate liability cases it was clear that the industry would be leaning on a First Amendment defense when it came to accusations of climate denial. But how?

Never-before-published internal documents from Mobil Oil reveal that the whole idea of corporate free speech that underpins the industry's arguments about climate today was actually created by the fossil fuel industry, specifically by Mobil executives back in the late 1960s and early 1970s. The idea arose out of a situation not unlike the one we find ourselves in today, with war driving up prices at the pump and oil companies wanting desperately to change the public's perception of their industry. It was longtime Mobil VP of Public Affairs Herbert Schmertz and then-CEO Rawleigh Warner who came up with an idea to help them wrestle back control of the narrative and win over the public: what they called alternately "idea advertising", "issue advertising", and "advocacy advertising," using Mobil's PR and advertising budget to push the company's take on key issues of the day and to create the sense of Mobil as a citizen, with a distinct personality.

In a 1971 strategy document explaining the reasons for this approach, Schmertz wrote, "As you know, the API [American Petroleum Institute] is trying, with direct advertising, to tell oil's side of the story. It is clear that it will take a very long time to see results from that effort—and if they did occur, they would not give Mobil a competitive advantage. There were and are reasons, pressing reasons, for our efforts to change public attitudes. Especially toward Mobil."

Schmertz goes on to outline those reasons: First, restraints on product advertising, legal and otherwise, during the gas shortage. "Second, we expect consumers increasingly to factor their notion's of a company's social responsiveness into their decisions about buying its products and stock." In an interview about the strategy a few years later Schmertz explained, "Legislation does not develop in a vacuum. It grows out of public attitudes and mirrors public beliefs. When it comes to matters of energy, the oil industry tends to be viewed as the villain."

So it was that in 1970, Mobil began running weekly advertorials in The New York Times explaining its position on things and, as Schmertz put it, "trying to explain the energy industry to the American people." But these weren't just policy pieces, Mobil also used the space to develop what Schmertz called its "corporate persona." Citizen Mobil didn't just care about regulation, no! It supported public transit, it was a great patron of the arts, and it supported educational programs. At the same time, Mobil began funding programming on PBS, starting with the extremely popular Masterpiece Theater. Within just a couple of years, the company was running polls that showed consumers were starting to think of Mobil as the "thinking man's oil company."

Everything was working as planned. Until the company tried to approach network TV with a visual version of its New York Times' advertorials. CBS and ABC refused to run them, saying they preferred to let their journalists cover issues of importance to the public. That response prompted Schmertz and Warner to go on a years' long campaign pushing the idea of corporate free speech and the need to protect it. In letters to TV executives and to newspaper editors, and speeches to various pro-business clubs that I found in Mobil's corporate archive, the two make the argument repeatedly that protecting corporate free speech is tantamount to protecting democracy.

Warner blamed environmentalists for the industry's woes, and their need to speak out, in speeches to the Economic Clubs of Chicago and Detroit too. In most of their external communications, though, Schmertz and Warner emphasized three key things: the right of the public to hear about energy issues from the oil industry's point of view, the incompetence of the media to properly cover such a complex issue as energy, and the rights of corporations to have their ideas heard just like everybody else.

"We contend that the inherent limitations of broadcast news, especially time constraints, lack of expertise in energy, and programming formats, act against accurate and in-depth coverage of energy, and other complex, major issues," Schmertz wrote to CBS President Arthur Taylor in 1974. "The obligations of network news to the public go beyond fairness and objectivity. They should promote a free flow of information and opinion on major issues to the public."

Three years later, Mobil was still banging this drum. In a 1977 speech to the Economic Club of Chicago, Warner said: "We believe we have a responsibility to inform both the press and the public in areas where we think either of them is uninformed or, worse, misinformed [emphasis his]. In our view, we have no practical alternative to speaking up publicly. We think it is no great exaggeration to say we have to publish or perish, and we do not intend to perish if we can help it."

The same year, in a talk at the annual convention of the Edison Electric Institute, which would go on to be a major purveyor of climate denial in the 1980s, Warner warned: "We believe the continued viability of our open society depends heavily on robust debate and controversy in the marketplace of ideas. We are in no sense eager to stifle those who oppose us. On the contrary. We just want to be heard, too."

Robert Kerr, journalism area head at the University of Oklahoma's Gaylord College of Journalism and Mass Communication, has researched corporate free speech, and Mobil's role in crafting the idea, for decades. "This whole argument that the corporate voice was being silenced is just the opposite of the truth," he says. Kerr adds that by virtue of having more time, people, and funding than any individual and most groups, corporations "could always get their views out better than the average person, you know, by manyfold."

Nonetheless, Schmertz and Warner sensed a threat in the 1970s. The rejections from CBS and ABC were not just a problem because those particular ads couldn't reach those particular audiences; they posed a threat to the entire issue advertising endeavor. That's how Warner and Schmertz took it, and they responded in kind. While Mobil never filed a case of its own to defend its "free speech" rights, it did begin filing amicus briefs in other corporate speech cases, and encouraging other pro-business advocates, like the U.S. Chamber of Commerce, to do the same. And of course, the company continued to regularly make the case in the court of public opinion via its weekly advertorials in The New York Times and its executives' regular appearances on radio and TV.

In 1978 they celebrated a victory in the fight for corporate speech when the Supreme Court ruled in the landmark First National Bank v Bellotti case that corporate funding of any sort of campaign meant to influence political decisions was a form of free speech, protected by the First Amendment. It was the precursor to Citizens United, and it had Mobil's fingerprints all over it. In the ruling, Justice Lewis A. Powell said, "The first Amendment's primary concern, and therefore the Court's concern always has been the preservation of free and uninhibited dissemination of information and ideas. If the restricted view of corporate speech taken by the Massachusetts court were accepted, government would have the power to deprive society of the views of corporations."

Mobil tracked the case closely, as evidenced by newspaper clippings in its corporate archive, and underlined portions of Powell's ruling that echoed their own arguments. Although Mobil did not file a brief in the case, the U.S. Chamber did, echoing many of the arguments Schmertz and Warner had been making in the years leading up to the case. In its brief, the Chamber declared the speech of an “incorporated enterprise” as equally vital to “the free, frank, and robust expression of public opinion” the First Amendment was intended to protect as any other type of speech. By way of comparison, the same year Schmertz put it thusly in a speech to the American Management Associations: "Individuals have the right of free speech; so do groups of individuals. If these individuals are banded together in a membership corporation and find that they can be more effectively heard when they speak through the corporate voice, then this too is their Constitutional right.”

Kerr says if there's any doubt about the straight line between Bellotti and Citizens United, one need only look at the ruling penned by Justice Kennedy in Citizens United. "When it got to Citizens United. Justice Kennedy kind of ignores the overall body of case law, and he goes back to Belotti twenty four times. It's really unusual to cite one case twenty four times," he says.

In his book, The Corporate Free Speech Movement, Kerr looks at another big corporate free speech case that made its way to the Supreme Court—Nike, Inc v. Kasky, in 2003—where once again Mobil (now as part of ExxonMobil) appeared. Nike was being sued for false advertising around its treatment of foreign workers. Not something that would seem to immediately involve ExxonMobil, except that Nike was making a key corporate speech argument: if a company is using commercial speech—in other words an ad or press release or marketing material of some kind—to make a political argument then it is transformed into political speech covered by the First Amendment, not commercial speech that might be subject to consumer fraud protections. In its brief, ExxonMobil argued that “Nike’s speech and speech by corporations on other matters of public concern . . . merits the highest level of First Amendment protection and is entitled to the same ‘breathing space’ as speech on matters of public concern by other speakers."

The Supreme Court ultimately decided not to rule on that case, so the line between political speech and commercial speech remained in tact. But Kerr says Citizens United blurred that line beyond recognition. "Justice Kennedy's opinion in Citizens United, to me, is a really sloppy opinion, and it just  leaves a lot of leeway for not just corporations, but moneyed interests in general to bring all kinds of First Amendment arguments to the court, and if they get to the Supreme Court, they almost always win now," he says.

The argument used in that 2003 Nike case is the precise one Exxon is making this week in Massachusetts Supreme Court, and that Ted Boutrous made on behalf of Chevron in the climate liability case the city of Honolulu has brought against it and seven other oil majors (including ExxonMobil, Shell, and BP). In both cases, the oil company plaintiffs invoked states' anti-SLAPP laws to argue that the suits against them constitute an effort to undermine their First Amendment rights. Last month, a Hawaii state court rejected Boutrous's argument, but it's entirely possible that decision will be appealed.

In Massachusetts this week, attorney Justin Anderson, a partner with Paul, Weiss, ExxonMobil's law firm, argued that the state attorney general's fraud complaint against Exxon was not valid because the company's public statements on climate policy should be considered as political opinion, not misleading advertising — even when Exxon falsely claimed that climate change isn’t real. When asked why they would opt to file an anti-SLAPP complaint rather than make a direct First Amendment argument in court, Anderson made it clear that the point is to avoid discovery—the period of time in a civil case when corporations are asked to hand over files and make their executives available for depositions. "The anti-SLAPP statute provides a mechanism to have a case that is brought against someone for petitioning activity dismissed at the outset before burdensome discovery is imposed on the party," he argued.

Either of these anti-SLAPP arguments could make their way to the Supreme Court, and if not one of these, then it seems likely that one of the other two dozen climate cases is destined to become the next big corporate free speech case.

"They will try to defend their misinformation efforts as political speech covered by the First Amendment and not subject to false advertising laws," says Robert Brulle, an environmental sociologist who has co-authored briefs in some of these cases.

Kerr agrees, although he notes that to side with the oil companies' arguments in these cases the Supreme Court would have to turn its back on about a century's worth of legal precedent. "It's really deeply established even by some of the members of the current Supreme Court, that the First Amendment will never protect expression that is fraud," he says. "The worry now, besides the fossil fuel industry having excellent representation, is that with this court there seems to be a majority that wants to say yes to almost any question the corporate interests raise. And I hope I'm wrong about that. I hope there's some line they won't cross."