Fighting back: CEI Asks Court To Fine AG Walker Based On Bad Faith And DC Anti-SLAPP Law

Claude E. Walker, Attorney General, Virgin Islands

Claude E. Walker, Attorney General, Virgin Islands

The Competitive Enterprise Institute (CEI) today asked the District of Columbia Superior Court to fine U.S. Virgin Islands Attorney General Claude E. Walker (AG Walker) for violating the organization’s First Amendment rights under the District of Columbia’s Anti-SLAPP law, and for attorneys’ fees and other sanctions. According to an email from AG Walker’s attorney received by CEI late Friday, May 13, AG Walker plans to abandon his D.C. subpoena legal action demanding a decade’s worth of CEI’s work on climate policy within “the next 5 court days,” but also threatens to bring a new lawsuit at any time to enforce the subpoena. This means that regardless of AG Walker’s latest plan, the subpoena still exists. CEI contends that it should never have been issued and the constitutional damage it inflicted needs to be righted.

CEI President Kent Lassman said:

“Mr. Walker’s attempt to silence us and others who share our views is an unconstitutional abomination. CEI will not sit still with this illegal threat hanging over our head, which is why we are asking the court to fine AG Walker and end his abuse of the legal process to intimidate CEI.”

CEI General Counsel Sam Kazman said:

“Attorney General Walker’s subpoena of us is an outrageous violation of our First Amendment rights, and its sole purpose is to shut down debate. Mr. Walker’s statement that he will end his D.C. court action, but may launch a new one whenever the mood strikes him, is the height of arrogance and demonstrates that he still doesn’t recognize the harm he has unlawfully inflicted.”

On April 7, 2016, AG Walker subpoenaed CEI attempting to unearth a decade of the organization’s work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate. On April 20, CEI filed an objection to the subpoena calling it “offensive,” “un-American,” and “unlawful.”

The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information dating from January 1, 1997 to January 1, 2007.

CEI is represented in this matter by attorneys Andrew M. Grossman and David B. Rivkin, Jr., who recently founded the Free Speech in Science Project to defend First Amendment rights against government abuses.

See more from CEI regarding this subpoena, including the motions filed today, here. View the email from AG Walker’s office here.

 

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It is time to start fighting back!

RWturner

They started the fight too, and now it’s time for a game of I’ll show you mine if you show me yours.

TA

AG Walker is already backing down. Just demonstrates that they have NO legal case. It’s a pure, state-sponsored attempt at intimidation of those who do not buy into the CAGW theory.

Moa

This is interesting:
1) The CEI is a private organization and is protected from the State by the First Amendment.
2) The academics of public institutions and these Attorneys General are Government entities so are beholden to the public, so are subject to the FOIA and not protected by the First Amendment.
This is a strength of scientific realists/skeptics and a weakness of the Alarmists/Lysenkoists. We must use and press this advantage !

John Silver

Attack, then relentlessly attack!
Then, attack some more.

I hope it will go better than Mark Steyn’s anti SLAPP motion in the DC courts.

It wasn’t Steyn’s motion. It was the National Review’s. The appellate ruling is long overdue from a judge notorius for lack of productivity.

RD

Justice delayed is justice denied.

Nigel S

Let’s hope for a victory chant like this epic Norwegian football version when both AG Walker and MM get SLAPPed (five years and counting but he’ll have to break cover one day).
“We are the best in the world! We are the best in the world! We have beaten England 2-1 in football!! It is completely unbelievable! We have beaten England! England, birthplace of giants. Lord Nelson, Lord Beaverbrook, Sir Winston Churchill, Sir Anthony Eden, Clement Attlee, Henry Cooper, Lady Diana–we have beaten them all. We have beaten them all. Maggie Thatcher can you hear me? … Your boys took a hell of a beating! Your boys took a hell of a beating!”

brians356

Hmmm, let’s *not* hope for a chant like that one. Lady Diana a “giant”?

Nigel S

brians356 May 16, 2016 at 12:23 pm
You had to be there … I recommend finding it on line. A moment of classic football commentary.

It can work. My company recently won a court-imposed $6MM award against a private fractivist citizen who tried to illegally halt our operations using strong-arm tactics and BIG NGO support. Most others in the industry told me to move on and find another location. I didn’t. We won. They benefit from my perseverance, but the eco-radicals LOST. Go for it CEI, and all the best!!!!

Steve (Paris)

Bravo

Alan Watt, Climate Denialist level 7

You can declare victory when you collect something.

RWturner

I have found it strange how most of the industry has no backbone.
I advocated ignoring all Lesser Prairie Chicken listing rules as they were nothing but government extortion and none of it founded in actual science. Many in the industry forked over $millions to the FWS in mitigation fees, only to have a federal judge halt the FWS LPC regulations within a year. That’s money they will never see back.

Javert Chip

Lesser Prairie Chicken listing rules?

Good on you, Tom G for not backing down. People don’t realize they have to front up to bullies. I hope more show your backbone. I do think they will, people – and businesses – are getting angry now. Reactions are building and will flip the current tide. When it does, it will be a joy to behold (but not for the activists/manipulators). I am looking forward to the day.

Pathway

It’s long past time to start fighting back. CEI rules.

CraigAustin

The alarmists should fear courtrooms and rules of evidence the way vampires fear solariums and garlic.

Mark from the Midwest

I often wondered why I was so drawn to solariums and garlic, but now it makes perfect sense, I have an aversion to vampires

Craig, I think alarmists should fear FOIA. You wail till the new FOIA Reqs get approved/filled and we see the conspiring taking place, not to mention the allmeighty $$$’s effect and the ease in which liberals/alarmists strong-arm, er…… request $$$ in a 1000 different ILLEGEAL ways!! Just sayin it won’t be long now!

Wouldn’t US 18 242 be a more effective action? Sue on the basis of the VI AG violating the civil rights of CEI.

Ben of Houston

I’m not an expert, but I believe that would require them to start a new suit from scratch, with entirely new evidence, discovery, and the inherent delays with such. This way, it is a continuation of the same action with much lower fees and delays.

As one of my favorite bloggers likes to do, in this case quote the present occupant of the White House, “Punch back twice as hard!”
It’s time for these climate activists masquerading as state/federal officials to be put in their place and be reminded that the Bill of Rights is still in existence.

Its 18USC 241, and no because criminal charges need to be brought by a US district attorney.
Been reading about DC AntiSlapp. There are two remedies. 1. Motion to dismiss lawsuit (the Mann v. NR fiasco). 2. Motion to quash a subpoena, the USVI v. CEI case here. Two tests for granting a motion to quash. 1. Matter of public interest. Check. 1. Prima Facie case that the speech was on point to the matter. Check. Only USVI get around is to show would be likely to prevail on the merits. USVI has not even stated what those merits are; presumably ‘Merchants of Doubt’. He would not be able to show that likelihood. Since there is real doubt about many aspects of CAGW, like how much is A and whether there is any C.
Easy move for CEI. And it does not remove their ability to additionally sue for civil damages under 42USC 1983 and/or 1985. Of course, if the motion to quash plus court costs is granted, there aren’t any damages to sue over.

Oldseadog

I am curious as to how the courts in the US Virgin Islands can influence the legal process in the USA.
What is the status of US V I? Is it like Gibraltar or Bermuda with respect to Westminster?
I struggle to find a scenario where the head of justicery in Gibraltar or Bermuda could bring a legal case like this in any British court.
But just asking out of interest, no axe to grind. Mods, delete if inappropriate.

Ben of Houston

The Virgin Islands are a US territory. They are less than a state (they have a single non-voting representative in the House of Representatives), but they are still Americans, and their officials have standing in US court.

USVI is legally a territory. So are, for example, Puerto Rico and Guam. Whatnthis basically means is they are US citizens, get citizens rights like foodstamps, but are not a state. So for most purposes, they are self governing with their own laws. They probably have something on the books Walker thinks he could use to extort money from Exxon. But the subpoena doesn’t say what that something is, whichmis why it is clearly a fishing expedition.
OTOH, NY AG Schneiderman is relying on NY’s 1921 Martin Act, a very broad statute concerning financial misrepresentation that does not require the usual additional indicia for liability: scienter (intent), reliance, damages. His theory is that Exxon misrepresented what it knew about CAGW back when. This likely fails for two reasons. 1. Most of what Exxon ‘knew’ is public record, published papers and such. 2. The statue of limitations under the circumstances is 2 years. Exxon has been advocating for carbon taxes for several. (They aren’t stupid. Carbon taxes hurt coal much more than Exxon’s huge natural gas business.) The double fail just shows how politically motived it all is. Warmunists fantasizing big oil is like big tobacco, and Exxon is like Phillip Morris.

St. Croix (USVI) has faster high-speed internet than say, New York City, because it sits at the junction of the Atlantic fiber optic trunk.
St. Croix is ripe for Silicon Valley VC money in form of data centers and federal tax innovation incentives. Seeing as how Al Gore is at the king of Silicon Valley VC firms, Kleiner Perkins, and they’re also the main driving force of domestic non-gov funds in all things alternative energy… if CEI follows the money trail- there will be not only a massive pot of gold but the whole climate alarmist infrastructure will be exposed for what it really is.

Oldseadog

Thanks for the explanation.

@ ristvan Warmunists fantasizing big oil is like big tobacco, and Exxon is like Phillip Morris.

A big difference is smoking was absolutely associated with numerous deleterious effects on smoker’s health, even smokers realized it, yet solid cause and effect “proof” was challenging; with climate change, the “Proof” that the climate is changing without regard to cause is challenging. The “changes” we’ve seen are as easily explained by unrecognised periodic variations and data biases as they are by any other cause.

Oldseadog – Questions are never inappropriate. Just saying. 🙂

Dear CEI & Exxon,
Start here: Ceres.org
1989 – The NGO started same year as Exxon Valdez. The Coalition for Environmentally Responsible Economies later shortened to CERES, coins the “Valdez Principles.” – https://en.wikipedia.org/wiki/Ceres_%28organization%29#History
2003 – CERES and “Campaign ExxonMobil” draft document to encourage global warming driven activist investors to revolt against Exxon board – http://www.ceres.org/resources/reports/sleeping-tiger-hidden-liabilities-exxonMobil-2003
2003 – CERES asks Senate to consider corporate “Social and Environmental Disclosure” SEC filings guidelines – http://www.socialfunds.com/news/print.cgi?sfArticleId=1170 and http://www.sec.gov/rules/proposed/s71903/ceres122203.htm
2016 – Al Gore and CERES (January) – http://www.ceres.org/investor-network/investor-summit
2016 – Al Gore and CERES (April) UN Paris Agreement Signing Ceremony sponsored by CERES – https://www.unglobalcompact.org/docs/email_downloads/2016-04-18/22_April_Luncheon_Draft_Programme_18-April-2016.pdf and https://www.ceres.org/press/press-releases/ceres-president-mindy-lubber-commends-world-leaders-for-signing-paris-agreement-on-climate-change
2016 – Al Gore and CERES (May) – http://www.aneveningwithceres.org/

David Middleton

So if I read the letter correctly, anytime the government disagrees with what you say, they can call your statements fraudulent and escape the first amendment.

And:
«Spreading false information in and of itself carries no First Amendment privileges.»
So, at Virgin Island the citizens got freedom of speech, but only to speak the orthodoxy dictated by state Attorney General Walker. It seems like Idiocracy has taken seat at Virgin Islands.

simple-touriste

“they can call your statements fraudulent”
…but if they did you could at least defend yourself. They (implicitly) claim they don’t have to prove fraud: any statement of fact is potentially fraudulent, so anyone saying anything can get investigated without a trial or a jury or probable cause.
The legal theory is extraordinary.

TG

Mr. Walker’s statement that he will end his D.C. court action, but may launch a new one whenever the mood strikes him,
Walker is a racketeer cut from the same cloth as Obama and his administration.

Another Scott

So this spate of lawsuits brought forth by anti-CO2 activists are the result of strategies planned at workshops a few years ago (http://www.breitbart.com/big-government/2015/11/05/exposed-green-activists-cooked-rico-conspiracy-big-oil/). I wonder how well the real world results will compare with their legal models? Seems like their models are starting to run a bit hot…..

Those who are sitting still – without lifting a finger – while watching the loss of integrity by The Green 20 state Attorney generals – the loss of respect for United States constitution – those who should have stood up to protect the constitution, are The United States Attorney General Loretta Lynch and President Obama.
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
“Silence is the ultimate weapon of power” – Charles de Gaulle

Johann Wundersamer

According to an email from AG Walker’s attorney received by CEI late Friday, May 13, AG Walker plans to abandon his D.C. subpoena legal action demanding a decade’s worth of CEI’s work on climate policy within “the next 5 court days,” but also threatens to bring a new lawsuit at any time to enforce the subpoena.
_________________________________
Does this mean an Attorney General Walker of VI everytime can anounce his ability to blackmail a legal Person and explain ‘I’ll think about’.

benofhouston

It’s not enough for him to drop it, since there was no trial, there is no protection of double-jeopardy.
That is exactly why the CEI is bringing this counter, to eliminate the possibility of him coming back and to ensure that no one else tries this sort of judicial terrorism.

Streetcred

FOI Walker’s communications for the past 5 years. He’s obviously not smart enough … let’s see who else is behind this attack!

This is the JournoList all over again. This has been a carefully coordinated strategy and they won’t give it up easily. I manage a litigation support document review system and put the George Mason FOIA docs into a training space.
DocID
00000037
EmailFrom
Peter Frumhoff
EmailTo
Edward Maibach
Date
7/31/2015 13:03
Email Subject
FW: Senator Whitehouse’s call for a RICO investigation of the fossil fuel industry
Comments/Summary
OMG! Even the UCS isn’t stupid enough to sign on to this letter! Reading between the lines, Peter Frumhoff is trying to gently persuade Maibach to NOT do this! Obviously a much more politically savvy individual than any of the letter’s co-signers. But he also raises the idea of going the State Attorney General route instead (something that has actually happened). So the UCS hasn’t been sitting idle, they’ve just used a different approach.

I clipped these sections from Dionne’s editorial in today’s Denver Post. I wonder if Obama has in mind the AG’s and RICO plotters who are trying to silence climate change skeptics.
https://www.washingtonpost.com/opinions/obama-didnt-birth-trumps-movement/2016/05/15/438aa786-193a-11e6-924d-838753295f9a_story.html
By E.J. Dionne Jr. Opinion writer May 15
Conservatives worry that liberals, on university campuses and elsewhere, are inclined to shut down speech they disagree with. Well, Obama is worried, too. (Oh, really?)
“There’s been a trend around the country of trying to get colleges to disinvite speakers with a different point of view, or disrupt a politician’s rally,” Obama said. “Don’t do that — no matter how ridiculous or offensive you might find the things that come out of their mouths. . . . If the other side has a point, learn from them. If they’re wrong, rebut them. Teach them. Beat them on the battlefield of ideas.” (Or conspire with AGs to criminalize, harass, and silence them.)
Conservatives regularly criticize self-righteous moralism on the part of progressives. Well, Obama insisted that “change requires more than righteous anger. It requires a program, and it requires organizing. . . . In particular, it requires listening to those with whom you disagree, and being prepared to compromise.”