Does the First Amendment protect fossil fuel companies' public speech

Abstract: Numerous cities, states, and counties have sued fossil fuel companies, with claims based on evidence found in the companies’ own internal documents and statements. These companies have argued their public state￾ments are protected by the First Amendment’s freedom of speech and right to petition clauses. This Article describes the current litigation, discusses the companies’ statements disseminated through various sources, and summarizes U.S. Supreme Court precedent and caselaw on commercial speech. It analyzes (1) whether the fossil fuel companies’ statements should be classified as commercial speech, (2) whether they constitute false and misleading commercial speech, and (3) whether their statements merit First Amendment protection. It concludes that some categories of statements may be found not to rise to the level of protected speech.

Katherine G. Horner
Environmental Law Institute®, Washington, DC