Second Class Speakers: A Proposal to Free Protected Corporate Speech from Tort Liability
![handle is hein.journals/upitt70 and id is 563 raw text is: SECOND CLASS SPEAKERS: A PROPOSAL TO FREE PROTECTED
CORPORATE SPEECH FROM TORT LIABILITY
Charles H. Moellenberg, Jr.* and Leon F. DeJulius, Jr.**
In Summer 2008, James Hansen, the Chief Scientist for NASA,
proclaimed in a speech before Congress that executives at large oil companies
should be placed on trial for spread[ing] doubt about global warming.'
According to Mr. Hansen, When you are in that kind of position, as the CEO
of one [of] the primary players who have been putting out misinformation
even via organisations that affect what gets into school textbooks, then I think
that's a crime.2 His solution is to try the executives for crimes against nature
and humanity because they have failed to force their corporations to accede
to those scientific studies attesting to corporate contributions to global
warming.
Mr. Hansen's speech, thankfully, is political theatre and not legal
scholarship. Although corporations are at times vilified and often viewed
skeptically because of their wealth of resources and supposed influence, any
liability, whether criminal or civil, founded on expressing one's ideas,
particularly on matters of public concern, is an insidious form of censorship.
To protect our liberty, the Supreme Court has held that corporations and their
executives have the First Amendment right to speak on commercial and public
issues of interest to them, to join together in associations to advocate their
views, to petition the government-to lobby-for favorable laws and
* Partner, Jones Day. Adjunct Professor of Law, University of Pittsburgh School of Law. B.A.
1974, Denison University; M.P.A. 1997, Princeton University; J.D. 1978, Columbia University. Law Clerk
to Chief Judge Frank J. Battisti, United States District Court, Northern District of Ohio, 1978-1979; Law
Clerk to Judge Nathaniel R. Jones, United States Court of Appeals, Sixth Circuit, 1979-1980.
** Associate, Jones Day. Adjunct Professor of Law, University of Pittsburgh School of Law. BSBA
1998, St. Louis University; J.D. 2002, Notre Dame Law School. Law Clerk to Judge Diarmuid F.
O'Scannlain, United States Court of Appeals, Ninth Circuit, 2002-2003; Law Clerk to the Honorable
William H. Rehnquist, Supreme Court of the United States, October Term 2003.
The authors thank Aleksandra Jurewicz for her excellent research of case law commentary. All errors
and omissions remain those of the authors. The opinions in this article are those of the authors alone and
do not represent the views of Jones Day or any of its clients.
1. The Climate Threat to the Planet: Briefing Before the H. Select Comm. on Energy
Independence and Global Warming, 110th Cong. (2008) (statement of James Hansen, Chief Scientist,
NASA).
2. Brian Beutler, Confusing Politics with Science, GUARD1AN.CO.uK, June 24, 2008, http:/
www.guardian.co.uklcommentisfree72008/jun/24/climatechange.environment.](ViewImageLocal?handle=hein.journals/upitt70&div=25&collection=&method=preview&ext=.png&size=3)
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Second Class Speakers: A Proposal to Free Protected Corporate Speech from Tort Liability
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