A May 2015 op-ed in the Washington Post by Sen. Sheldon Whitehouse (D. RI) accused the fossil fuel industry of funding a campaign to mislead Americans about the environmental harm caused by carbon pollution. The Attorney Generals of New York and Massachusetts began investigating Exxon Mobil. We look at these two investigations through the lenses of the federal mail and wire fraud statutes (at issue in the racketeering case against big tobacco), and the First Amendment.

We analyze the difficulty of prosecuting someone under the federal mail and wire fraud statutes for expressing an opinion, and discuss why scientific statements are more akin to opinions than statements of fact. We consider a related view, expressed by some courts, that complex scientific or academic matters are unsuited for resolution by a court of law. We conclude that a case can be made against the Exxon chairmen only if the chairmen did not actually believe the opinions they uttered. Holding the chairmen to the standard of an expert, their opinions entail liability only if the opinions lacked a reasonable basis, or if the chairmen knew material facts, unknown to the public, which make it unreasonable to hold such opinions.

Even if the case could be made that the Exxon statements were not true, climate change is a matter of public concern and active public debate, so that even if the statements could be categorized as a form of commercial speech, the First Amendment would allow only counter speech as a remedy. We conclude that Sen. Whitehouse’s analogy to the tobacco case was misconceived, that it is highly unlikely that the Exxon statements can lead to RICO liability, or fraud liability of any kind, that there is no probable cause to believe that an offense has been committed, and that the AGs’ investigations are misconceived.