September 18, 2015

Should we send dissenters to jail?

By James S. Burling Vice President for Litigation

Is it time to jail dissent?  When faced with an existential crisis, the needs of society may outweigh the rights of individuals, right?  Under that theory, of course, it was perfectly acceptable for the politicians in charge of the early Republic to pass the Alien and Sedition Acts, making it a crime to criticize the President and the government.  And who could argue with the internment of the Japanese during World War II — an action upheld by the Supreme Court in Korematsu v. United StatesAnd wasn’t there some justification for the implementation of the then orthodox science of eugenics through forced sterilization by Justice “three generations of imbeciles are enough” Holmes in Buck v. Bell in 1927? The same Justice Holmes who wrote a few years earlier in Pennsylvania Coal v Mahon that a “strong desire to improve the public condition” does not justify a short-cut around the Constitution.  In hindsight, one hopes, most of us find these sordid examples of government coercion to be appalling and in stark contrast to the more noble principles that are supposed to animate our legal system.

So what are we to make of the 20 climate scientists calling for an investigation under the Racketeer Influenced and Corrupt Organizations Act (RICO) of entities who insist on casting doubt on the science of anthropogenic global warming — our most current existential crisis? In this letter to the President and Attorney General Lynch among others, that’s exactly what the scientists are calling for, an “investigation” of the “misdeeds” of those arguing against orthodox science.

We at Pacific Legal Foundation fully recognize our limitations: we’re lawyers, not climate scientists. We have not, and will not wade into the debate over global warming, or even the question of whether the debate is legitimate or not.  We’re perfectly happy to let folks far more qualified than us deal with that.  And so, if the American people and their representatives deem global warming to be a crisis, then so be it.  We insist only that the Constitution and individual rights not be trampled in the process of saving the Earth.  Environmental protection and fidelity to the Constitution are not mutually exclusive.  Thus, we’re perfectly happy to argue that California’s cap and trade program, as presently constituted and by raising billions in new revenues, is being implemented in a manner that is an illegal end-run around California’s constitutional limitations on raising taxes.  But we’re not going to argue that the premise underlying the program is wrong.

So where does the prosecution of entities that promote an alternative reality in climate science fit? It isn’t surprising when we hear politicians making outlandish statements.  For them it’s all about bluster and grabbing headlines. And so it fits that a politician, Rhode Island Senator Sheldon Whitehouse, came up with the idea in this Washington Post op-ed of bringing RICO investigations against the purveyors of global warming skepticism.  But while it’s one thing for a politician to make outrageous statements in order to score media points, what do 20 otherwise sober climate scientists think they’re doing by calling for criminalizing dissent?  If their case for anthropogenic global warming as strong as most people think it is, do they really need to go after the dissenters?  Are they doing their cause any favors by creating instant martyrs?  Already, the skeptics are gloating over the notoriety brought by the letter. The Alien and Sedition Acts and their drafters’ intent to quash dissent were a very bad idea.  In fact, most instinctual reactions to existential crises turn out to be very ill-advised.  For a liberty-loving nation, “investigating” allegedly bad science for potential criminal prosecution is equally disturbing.

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