Al Gore, Global Warming, and the Semmelweis Reflex: How Climate Lawsuits Threaten Free Speech

Suncor Energy v. Boulder County

PHOTO: Former Vice-President of the United States, Al Gore. CREDIT: World Economic Forum

​Al Gore wrote in 1992 about predictions that within the next few decades “up to 60 percent of the present population of Florida may have to be relocated” due to rising seas caused by global warming.

Kyle Smith, a columnist for The Wall Street Journal, noted that far from shrinking, Florida’s population has grown from 13 million in 1992 to 23 million today. Should Al Gore be liable for a multibillion-dollar judgment in a lawsuit for getting the science wrong?

If the answer is no, then the same principle should apply when states and localities sue fossil fuel companies not merely for what they produce, but for the scientific claims they’ve made about this highly contested issue of global warming.

Others have focused on the issue of whether the city and county of Boulder, Colorado, should be able to launch a lawsuit that effectively drives policy for other states and the nation. Protect The 1st is weighing in with an amicus brief before the U.S. Supreme Court that details the First Amendment principles at stake in Suncor v. Boulder County.

One problem with punishing scientific claims is that the history of science is replete with loudly dismissed claims later proved to be right.

Our brief tells the story of the 19th-century Hungarian physician Ignaz Semmelweis, whose advocacy of handwashing dramatically reduced maternal deaths. But Dr. Semmelweis’s theory was harshly rejected by much of the medical establishment because of its “inclination to adhere to established norms and resist new ideas that challenge them,” a tendency in science now known as the “Semmelweis reflex.” The brief asks readers to imagine a world in which Semmelweis or Joseph Lister, who advanced the understanding of the importance of sterile conditions for surgery, had been sued for questioning the scientific orthodoxy of their times.

Our brief tells the Court that “if history teaches anything, it is that today’s consensus may be tomorrow’s cautionary tale.”

While the Suncor case is often framed as a dispute over environmental policy, we are telling the Court that such lawsuits pose a much broader threat to free speech and open scientific inquiry.

After all, the First Amendment does not permit government officials or private litigants to use lawsuits to penalize speakers for expressing views on matters of public concern. Nor does it allow government officials to favor one side of a debate while burdening the other.

The danger in such climate lawsuits is that they target particular speakers because of who they are. “These theories are dripping with textbook speaker-based discrimination,” we wrote. “Respondents have singled out Petitioners – fossil-fuel producers and sellers – and seek to impose on them special burdens that no other industry, environmental group, or renewable-energy advocate faces.”

Would a climate-change NGO be held liable for prompting a community to build a seawall it doesn’t need? The brief warns that such selective targeting undermines a core constitutional principle. As Justice Neil Gorsuch has observed, “the First Amendment does its real work in giving voice to those a majority would silence.”

Likewise, the brief notes that our scientific understanding of climate issues is still evolving. Although the plaintiffs contend that catastrophic climate consequences of greenhouse gases (GHGs) were known decades ago, our brief points out that in 2001 the Environmental Protection Agency still stated that “a [causal] linkage between the buildup of [GHGs] in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established.”
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Just a few days ago, the United Nations removed the worst-case scenario from its global warming predictions. Who knows which directions the science will go in the future? The lesson is that scientific inquiry should remain free and unpunished.

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