New York's attorney general has sustained an embarrassing defeat in the state's securities-fraud case against Exxon Mobil over its communications on climate change, a case that never should have been brought.
The case got off on the wrong foot from the start when since-disgraced NY AG Eric Schneiderman signaled that he wanted to use it as a vehicle against wrongful advocacy of bad public policy positions. I and others strongly criticized his moves to use subpoenas for that purpose, and editors at places like USA Today and the Washington Post were troubled by the likely chilling effects such tactics would have on advocacy, and the First Amendment implications of that.
At the last minute Schneiderman's successor as New York attorney general, Letitia James, dropped two counts that would have required a showing of intent by the oil company. That still left the state's elastic, ultra-broad Martin Act, which any defendant would have to fear: it gives the state's AG unusual powers that are hard to square with due process protection.