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The First Amendment Freeze Attempt Against Manufacturers

The freedom to express our opinions and openly debate public policies free from government retaliation is enshrined in our Constitution. But what happens when a few state attorneys general use the power of their office to chill those cherished First Amendment rights? It’s currently happening right now in ongoing investigations against manufacturers in New York and Massachusetts.

The role of a state attorney general is to serve as the chief legal advisor and law enforcement officer for his or her state government. In short, attorneys general are elected to impartially represent the state and its citizens, not to target industries because they happen to disagree with their public policy positions. New York Attorney General Barbara Underwood, who replaced former Attorney General Eric Schneiderman, and Massachusetts Attorney General Maura Healey are acting contrary to their duties of their office by launching dubious legal investigations against  manufacturers over differing views on climate change policy in an attempt to silence them—a violation of their First Amendment rights.

Twelve state attorneys general agree, writing in an amicus brief, “Alongside their oaths to uphold the Constitution, state attorneys general have a constitutional duty to act dispassionately. . . . Here, the New York and Massachusetts Attorneys General are not using their power in an impartial manner. Rather, they are embracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints.”

They acknowledge the investigative power of the office but note, “This power, however, does not include the right to engage in unrestrained investigative excursions based on pretext to promote one side of an international public policy debate, or chill the expression of viewpoints in those debates.”

Manufacturers agree that climate change and climate policy are important issues, writing in a recent court filing that, “They are matters of significant public concern that elicit viewpoints from diverse speakers in political, academic, non-profit, religious, and business communities . . . The First Amendment, which contemplates that those viewpoints will often be at odds with one another, ensures that the public can consider all viewpoints and make informed choices about public policy.”

The National Association of Manufacturers (NAM) also filed a brief in support of manufacturers’ rights to actively participate in public policy debates without fear of reprisal from politically-motivated public officials. The NAM’s brief illustrates corporations’ contribution to important policy discussions involving economic, scientific, and other issues of public concern. It urges the court to closely scrutinize expansive government investigations that could chill corporations’ valuable contributions to the marketplace of ideas.

No industry should be targeted by state officials based on their viewpoint.  It is a slippery slope and only hurts our legal system. Rather than undermining the Constitution, public officials should speak out against this effort to suppress free speech.