CIR is assisting the Competitive Enterprise Institute (CEI) in its fight against the Attorney General of the Virgin Islands and his effort to issue a subpoena on CEI demanding that it produce a decade’s worth of communications, statements, and documents related to CEI’s work on climate change from 1997-2007. After several rounds of letters and motions that imposed significant costs on CEI, the AG withdrew his subpoena. CIR filed an amicus brief in support of CEI’s claim that the broad speech protections afforded under DC’s Anti-SLAPP statute require the Attorney General to pay for the legal costs imposed on CEI.
Silencing Political Speech
This crusade against speech began in March of 2016, when a conference of seventeen state Attorney Generals agreed to use their offices to open investigations against companies and organizations who question climate change. New York, California, and the Virgin Islands subsequently launched investigations against ExxonMobil, alleging the company funded research promoting climate-change skepticism. The Virgin Islands AG alleged in his investigation that funding such research would put ExxonMobil in violation of the Criminally Influenced and Corrupt Organizations Act.
Pursuant to his investigation of ExxonMobil, the Attorney General of the Virgin Islands issued a subpoena to the Competitive Enterprise Institute. The subpoena asks CEI to produce a decade’s worth of documents from the time period between 1997 and 2007, some of which are over twenty years old.
CEI objected to the subpoena, first by letter to the Virgin Island’s Department of Justice. When that was rejected, CEI filed an objection in the Superior Court for the District of Columbia and a Motion to Dismiss under DC’s Anti-SLAPP Act. CEI maintained that the subpoena was illegal because the subpoena was issued by an Attorney General, instead of a court, and was done with the intent to intimidate CEI. Before the court could consider these filings, the Attorney General voluntarily withdrew his subpoena.
Can the Government Get Away With Threatening Speech?
While the withdrawal was a victory for CEI, the significant legal costs imposed will have a chilling effect on CEI and similarly situated organizations. As CEI explained,
“A perpetrator could launch an action subject to the act, force its target to incur significant legal expenses to hire counsel and assess its rights, and then avoid having to reimburse those expenses by dropping the action at the last minute – after the damage has been done.”
To eliminate this kind of aggressive use of the legal system to chill speech, CEI requested the Attorney General pay the attorney fees incurred as a result of the subpoena. CEI filed a motion under DC’s Ant-SLAPP act requesting an award of fees and costs.
CIR has successfully worked in the past to strengthen the speech protections offered under the DC Anti-SLAPP Act. CIR filed an amicus brief in support of CEI’s request for attorney’s fees, arguing that the Anti-SLAPP Act authorizes a court to award attorney fees to a party who successfully obtains a judgment in its favor. In this case, CEI’s motion acted as the catalyst for ending the illegal subpoena. As CIR’s brief explained,
“The costs imposed on parties against whom SLAPP claims are made, as well as the chilling effect those claims have on free expression, exist regardless of whether the claim is withdrawn just before a court can act.”
CIR argues that CEI’s resistance to the AG was the catalyst for ending the AG’s assault on free speech. Thus, CEI should be considered a prevailing party and compensated for its effort in resisting and ending the AG’s frivolous case. An award would not only be equitable in compensating CEI for its expenses, but also act as a deterrent against any future attempts by the AG to target speech.