A constitutional law expert says using RICO laws to investigate global warming skeptics amounts to an attack on advocacy and free speech.
This month, 20 climate change scientists urged the Obama administration to investigate global warming skeptics using the Racketeer Influenced and Corrupt Organizations Act.
Walter Olson, a RICO expert and senior fellow at the CATO Center for Constitutional Studies, spoke with Watchdog.org to explain what could happen if the federal government investigates advocacy and political speech.
Watchdog: Who came up with the idea to ask the government to prosecute climate change skeptics and opponents of environmental regulation?
Olson: It’s not just one person’s idea, but an idea a lot of people seem to want to get off the ground. The most notable surfacing of it was a few months ago, when Senator Sheldon Whitehouse of Rhode Island wrote an op-ed in the Washington Post proposing a federal RICO investigation.
Watchdog: What’s new in this situation?
Olson: What’s new is a letter was circulated for scientists to sign, and part of the controversy is whether it will chill scientific discussion to expose people to investigation and legal consequences for certain opinions and points of view. I think what surprised people about this is that 20 scientists, mostly with well-known institutions, could be found who were willing to endorse the idea of using the law for scientific disagreements.
Watchdog: What’s the purpose of RICO?
Olson: RICO was passed about a generation ago with the promise it would be a new and effective method for bringing down organized crime of the sort Hollywood used to make movies about. It became an important law, but not because it had an effect on traditional organized crime, which has been largely unscathed by RICO. Instead, it has been used across a range of business disputes and controversies over regulatory issues and family law. RICO has been used for almost everything other than traditional organized crime. In that sense, people are always trying to do new things with RICO and use it against more unexpected targets that Congress might not have had in mind when it passed it.
Watchdog: The 20 climate scientists argue the tobacco company settlement is the precedent for what they are proposing. What happened in that case?
Olson: What this builds on is a precedent I found disturbing at the time, and which was a departure from the usual RICO law. When the federal government announced they were going to throw in racketeering charges in their massive legal struggle against the tobacco industry, people thought, “Oh boy, they’ve tried RICO against a lot of other people, too.” But as the case developed, the supposed racketeering was over that industry’s alleged misconduct in addressing lobbying and public opinion and news management and those sorts of things. The alleged racketeering activity of the tobacco companies included working with scientists to find out what favorable studies might be procured, publicizing the results, and sending packets of favorable op-eds around to Congress. As you go through that list, most of those actions were either speech or petitioning the government for redress. The government’s argument was such actions lost protection because they were false, (and that) no one in good faith would have taken that point of view.
Watchdog: How does this relate to political advocacy?
Olson: We know from cases where courts have ruled on the First Amendment that, in general, advocacy is covered. And in general, advocacy doesn’t have to be true to be covered. If you think about it, a statement that the First Amendment only applied to things you could prove in court were true would not be a terribly robust First Amendment. Lots of things can’t be proven one way or the other to anyone’s satisfaction.
Watchdog: What impact could this have on everyday political speech?
Olson: This came up in the Supreme Court just within the last couple years, in the significant First Amendment decision of Susan B. Anthony List v. Driehaus. That was the campaign regulation case in which someone had criticized an Ohio member of Congress. (Driehaus’) argument was they violated a law, a state statute, purporting to ban false campaign statements. He said, “Something they said against me in their attack material was false, they’ve broken Ohio law. Where’s my legal relief?” The Supreme Court’s general outcome was no, the law cannot regulate campaign speech by giving every candidate a way of legally going after opponents based on whether every statement is true. You would be chilling too much public discussion.
Watchdog: Does speech have to be verifiably true to be protected by law?
Olson: If it is potentially criminal to take an unreasonable point of view, or not have all of your facts straight, or commission a badly lopsided poll or badly lopsided piece of scientific research, then there are going to be a lot of targets for the law. The way controversy is carried forward in Washington is by the use of half truths. The commissioning of unfair scientific studies, and the commissioning of unfair public polls, and the selective sending of only half the story to a member of Congress when trying to persuade them — and all the rest of the ways in which people argue badly and unfairly — is what makes Washington tick.
Watchdog: The researchers are targeting organizations that, they say, use dubious information to advance a cause.
Olson: This is undoubtedly what some of the industries interested in climate change do. It’s also what a dozen other interests do in Washington. It’s what organized labor does, and it’s what organized business does. It’s what importers do and what anti-import domestic trade restriction people do. It’s what hawks do, and it’s what doves do. This is how controversy goes forward in a democratic country.
Watchdog: Should groups that engage in advocacy be concerned by these 20 scientists or Senator Whitehouse?
Olson: If the government takes up this kind of thing as its own cause, the government can apply a lot of pressure against its adversary in litigation. It can threaten to cut off government contracts, and it can threaten unrelated litigation. The tobacco industry — to go back to that example — basically came to a peace settlement with the government, in which it agreed to let the government do various things. It agreed to stop fighting because the government held so many cards that it just couldn’t go on defending itself forever. But if you give the government the means to blow people up for lobbying or advocacy that it considers to be one-sided or misleading, then you’ve given the government power to determine who’s taking part in public debate.
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