by Ronald D. Rotunda • Verdict
In 2009, there was a massive email leak from the Climatic Research Unit (CRU) at the University of East Anglia. Supporters of global warming claimed the disclosures were out of context while opponents claimed they showed efforts to manipulate data. One of the quoted emails, Professor Phil Jones, while discussing paleo-data used to reconstruct past temperatures, says, “I’ve just completed Mike’s Nature trick of adding in the real temps to each series for the last 20 years (ie from 1981 onwards) and from 1961 for Keith’s to hide the decline.” (Emphasis added.) The House of Commons investigated and concluded, “insofar as we have been able to consider accusations of dishonesty—for example, Professor Jones’s alleged attempt to ‘hide the decline’—we consider that there is no case to answer.”
In the 1970s, scientists told us to fear global cooling and warned about the coming ice age. In 1970 alone, the New York Times, the Washington Post, the Boston Globe, and the LA Times all published stories with headlines like “Scientists See Ice Age in the Future.” Time Magazine’s cover story on Jan. 31, 1973, (still posted on the Magazine’s website) was all about “The Big Freeze.” Two years later, Newsweek reported, “There are ominous signs that the earth’s weather patterns have begun to change dramatically and that these changes may portend a drastic decline in food production—with serious political implications.” The problem—warming? No, cooling! The story concluded, “Meteorologists disagree about the cause and extent of the cooling trend,” but “they are almost unanimous in the view that the trend will reduce agricultural productivity for the rest of the century.”
For whatever reasons, polls consistently indicate that many Americans are skeptical that global warming is a serious problem. If it is a problem, many question whether it is a man-made problem. Change is, after all, what the climate does. Americans share their skepticism with most of the rest of the world. One recent poll found only 9.2 percent of Americans rate global warming as their top concern.
What should the government do about this general disbelief about global warming? Normally, one should think that if the government should do anything, it would be to encourage further scientific research and publish the results of that research. If others embrace an incorrect view of the facts, the remedy is more speech (not less) so that all the speech can be tested in the market place of ideas.
Justice Oliver Wendell Holmes, Jr. told us nearly a century ago that the “ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” [Abrams v. United States, 250 U.S. 616,630 (1919) (Holmes, J., dissenting).] Even if the other fellow says something you think is impossible (he claims to have squared the circle), just allow more speech, and others will eventually understand that he is wrong if we protect the free marketplace of ideas.
Or, maybe this free marketplace will allow us to discover that the other fellow is right. It was not until 1985 that scientists discovered physical evidence of the Big Bang. Georges Lemaître, a physicist at the Catholic University of Leuven and a Belgian priest, first proposed the Big Bang in 1927. Einstein rejected Lemaître’s theory, saying, “Your calculations are correct, but your physics is atrocious.”
Although Einstein knew Lemaître was wrong, Einstein did not seek to silence him. In modern times, Lemaître’s theory might bring in some major grant money. Still, in the prior century, no government would sue Lemaître for fraud in propounding his theory—even though the government’s expert witness would be none other than Albert Einstein himself, winner of the Nobel Prize in Physics in 1921.
For most of human history, scientists and philosophes going back to Aristotle believed the universe just is—it was always here. After Lemaître, scientists, and those who funded them, tried to find proof, and the answer they got surprised them: Lemaître was right. Now, most scientists believe that our universe had a beginning, and they debate whether it will have an end.
So, what should we do about those people who are trying to show that global warming is not man-made, that it is not coming as soon as others claim, or that the benefits of warming outweigh the burdens? We could emulate the open debate between Lemaître and Einstein.
Ah, that’s so twentieth century. If the people do not believe something, the government should sue. Litigation is the American way. The Attorney General of California, Kamala D. Harris, is using her power to investigate those who sell fossil fuels. Presidential candidates Hillary Clinton and Bernie Sanders are also calling for criminal investigations.
Attorney General Harris—who is supposed to use her office to protect constitutional rights—is investigating whether companies like Exxon Mobil Corp. lied to the public about global warming, whether that amounts to securities fraud and violations of environmental laws.
Not to be outdone, the New York Attorney General is also investigating. Eighteen other state attorneys general are also exploring alleged crimes. That will teach those who question global warming that the government is not fooling around. Investigations will cost the companies and the scientists a lot of money to answer subpoenas and interrogatories. That is the point of chilling scientific inquiry.
Things could go well beyond that. Search warrants executed at night may be the next step for Harris’s investigation. That’s what she did when whistleblowers released video evidence of Planned Parenthood officials discussing the sale of body parts. The Attorney General’s investigators burst into the home of David Daleiden, the man behind the video release, as if he were a Mexican drug lord kingpin. They seized his laptop and other material and tried to seize his phone while he was using it to talk to his lawyers. However, they “ignored” evidence “in his homethat showed an illegal agreement between StemExpress, a tissue procurement company, and Planned Parenthood.”
Meanwhile, Exxon has “unequivocally” rejected the allegations that it “suppressed climate change research,” given “Exxon Mobil’s nearly 40-year history of climate research that was conducted publicly in conjunction with the Department of Energy, academics and the UN Intergovernmental Panel on Climate Change.“
Let us put to one side an inconvenient truth—Exxon could hardly “suppress” any research given the fact that research warning about global warming has been published continually for many decades.
Another inconvenient truth is that there are still many open questions about global warming that need answers—why has the rate of global warming not followed what most scientific models predicted; are the oceans absorbing substantially more carbon dioxide that anyone expects; should there have been more global warming during WWI and WWII, when the massive bombings unleashed a deluge of carbon dioxide?
We are allowed to dispute other scientific theories. Scientists argue whether man will ever be able to travel faster than light, although Einstein said that is the universal speed limit. Scientists argue whether our universe is the only one or merely one of an infinite number. Some scientists believe that the universe is in a steady state, with the spontaneous creation of matter and energy out of a vacuum.
We develop human knowledge by testing competing theories, not outlawing them. The thought that government authority would investigate those who advocate one position instead of the other is baffling. This is, after all, not the Middle Ages, when people were punished if they did not believe that the earth was the center of the solar system.
Kamala Harris does not use her prosecutorial powers to chill expression about global warming in any principled way. Consider marijuana. For many decades, the government told us that marijuana is a drug, with no legitimate use. During that time, it was not unusual for the federal government to fund research on why marijuana is detrimental. Should the State Attorney General investigate those who received these federal grants and prosecute them for lying about marijuana because they engaged in advocacy research?
The federal government will soon reschedule marijuana. That change will allow researchers to study whether marijuana can be beneficial. Once the federal government reschedules marijuana, will Harris now be investigating those who engage in advocacy research to show the beneficial effects of marijuana?
In 1970 and for years after that, the government urged us to avoid red meat, egg yolks, and whole milk (too much fat). We complied with the food pyramid. From 1970 to 2005, the Department of Agriculture reported, proudly, that consumption of eggs and red meat fell by 17 percent, and whole milk by 73 percent.
We should be glad that there was no ambitious Attorney General Kamala D. Harris around, because she would have tried to prosecute food industry companies if they funded research into the benefits of eggs, meat, and milk. You see, during the same period (1970-2005) where the public followed the Federal Food Pyramid, the incidence of diabetes doubled! Studies now show that people eating dairy products like whole milk have less of a problem with heart disease than those who do not.
In United States v. Alvarez (2012) (6 to 3), the Supreme Court told us that we have a constitutional right to lie about receiving the Congressional Medal of Honor. The Court was not recommending lying, but it recognized that if the government can punish that, we go down a steep slippery slope. Justice Kennedy said that the government cannot “compile a list of subjects about which false statements are punishable.” Justice Breyer defended lying, “even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”
Even the three dissenters in Alvarez would protect lying in matters of science: “Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern” would “present a grave and unacceptable danger of suppressing truthful speech.” Harris and the other Attorneys General should read Alvarez.
The marketplace of ideas, not the subpoena power of government, should decide what is true or false.
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Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Fowler School of Law. He joined the faculty in 2008. Before that, he was University Professor and Professor of Law at George Mason University School of Law. From 2002 to 2006, he was the George Mason University Foundation Professor of Law. Before that, he was the Albert E. Jenner, Jr. Professor of Law, at the University of Illinois.
He is a magna cum laude graduate of Harvard College and a magna cum laude graduate of Harvard Law School, where he was a member of Harvard Law Review. He joined the University of Illinois faculty in 1974 after clerking for Judge Walter R. Mansfield of the United States Court of Appeals for the Second Circuit, practicing law in Washington, D.C., and serving as assistant majority counsel for the Watergate Committee.
He has co-authored the most widely used course book on legal ethics, Problems and Materials on Professional Responsibility (Foundation Press, 11th ed. 2011) and is the author of a leading course book on constitutional law, Modern Constitutional Law (West Publishing Co., 10th ed. 2012). He is the coauthor of, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility (ABA-West Group, St. Paul, Minnesota, 7th ed., 2009) (jointly published by the ABA and West Group, a division of Thompson Publishing) (with John Dzienkowski). Rotunda is also the co-author (with John Nowak) of the six-volume Treatise on Constitutional Law (West Publishing Co., 5th ed. 2012), and a one volume Treatise on Constitutional Law (West Publishing Co., 8th ed. 2010). He is also the author of several other books and more than 300 articles in various law reviews, journals, newspapers, and books in this country and in Europe. His works have been translated into French, German, Romanian, Czech, Russian, Japanese, and Korean. These books and articles have been cited more than 2000 times by law reviews and by state and federal courts at every level, from trial courts to the U.S. Supreme Court. He has been interviewed on radio and television on legal issues, both in this country and abroad. In 1993 he was the Constitutional Law Adviser to the Supreme National Council of Cambodia and assisted that country in writing its first democratic constitution.
He was selected the Best Lawyer in Washington, DC, in 2009 in Ethics and Professional Responsibility Law, as published in November 2008 in the Washington Post in association with the Legal Times. He was also selected as one of the Best Lawyers in Southern California, in 2010, 2011, 2012, 2013, 2014 in Ethics and Professional Responsibility Law as published in the Los Angeles Times, U.S. News, and American Law Media. On June 17, 2009, he became a Commissioner of the Fair Political Practices Commission, a state regulatory agency and California’s independent political watchdog. He served until January 31, 2013, when his term expired. In 2012, he became a Distinguished International Research Fellow at the World Engagement Institute, a non-profit, multidisciplinary and academically-based non-governmental organization with the mission to facilitate professional global engagement for international development and poverty reduction. In 2012, Chapman University honored him with The Chapman University Excellence In Scholarly/Creative Work Award, 2011-2012. Since 2014, he has been a member of the Editorial Board of The International Journal of Sustainable Human Security (IJSHS), a peer-reviewed publication of the World Engagement Institute (WEI). He was rated, in 2014, as one of “The 30 Most Influential Constitutional Law Professors” in the United States.