The following article, written by student reporters, is part of a series of reflections from the Climate Constitutionalism Conference, hosted by Elisabeth Haub School of Law at Pace University and Widener University Delaware Law School, and co-chaired by Distinguished Professor Katy Kuh (Haub Law) and Distinguished Professor James R. May (Delaware Law), on March 29, 2024. The event brought together legal scholars, activists, and students for a series of discussions on major environmental constitutional issues. Visit the GreenLaw homepage for links to other articles in the series.


On March 29, 2024, scholars, practitioners, students, and policymakers convened at the Climate Constitutionalism conference at Pace University to consider the role of constitutions in achieving the mitigation necessary to avoid climate catastrophe. Over lunch, conference attendees participated in round-table discussions. Student reporters Alan James Hitchner and Dohee Kim prepared this edited summary of the round-table discussion that featured the Assistant Professor of Legal Studies & Business Ethics and Wolpow Family Faculty Scholar of the Wharton School, Professor Amanda Shanor, and legal fellow Katie Horner, Esq. of Waterkeeper Alliance. Ms. Horner participated in her individual capacity and not on behalf of her employer.

The topic of discussion was democratic mobilization in the face of deliberate efforts to misinform the voting population and manipulate voters into electing officials who did not pursue policies in the public interest. The conversation covered a variety of areas where misinformation created disharmony between fact and public opinion. The purpose of this summary is to apply the various areas of discussion to the climate context and suggest potential solutions for this pervasive problem in the fight against climate change.

First Amendment Protections and the “Marketplace of Ideas”

The Supreme Court of the United States has held that the cure for false speech is true speech. The “. The following argument addresses whether this assertion practically can be followed in an age of unchecked influence by corporate lobbyists. Could a convincing argument be made that carbon majors have an outsized influence in the marketplace of ideas? Further, given this outsized influence, should more be done to keep these majors in check when they attempt to spread falsehoods about something as critically important as the nature and extent to which the climate is being threatened? There are many who believe so. Perhaps one day decisions like Citizens United v. FEC and its predecessors will be revisited by a Supreme Court more conscious of the imbalance between corporate voices and those of ordinary citizens. The current Supreme Court is unlikely to take on such a review.

Despite the obstacles, climate advocates must not only “talk the talk;” they must also “walk the walk.” This means pushing for policies that re-purpose existing jobs in the fossil fuel industry to roles in the production of renewable energy sources.  For example, people living near the Gulf of Mexico are deeply concerned about their well-paying jobs as fossil fuel engineers or oil rig workers. To gain support for a climate-friendly future from such groups, policies that promote retrofitting oil platforms to capture geothermal energy must be developed.

Part of this strategy includes recruiting political candidates who support the promotion and development of renewable energy jobs. Two examples of government policies that were successfully implemented were passed during the Obama and Biden Administrations. Both administrations authorized expansion for oil production while at the same time promoting green jobs.

Climate advocates have reason to criticize both President Obama and President Biden for allowing greater oil production because they enabled more CO2 to be pumped into the atmosphere. While certainly a valid criticism, it must be made with the understanding that these actions are undertaken to ease the transition away from fossil fuels. Contrast this to the Trump Administration, whom was responsible for a similar level of increased fossil fuel production yet did nearly nothing to further the transition away from the unchecked burning of fossil fuels. Even so, there are people on both the right and the left who believe the Biden Administration is no better than its immediate predecessor on the issue of climate change.

While it is true that oil drilling has increased under President Biden, one must bear in mind that Russian oil reserves are no longer available for import because of sanctions put in place following the Russian Federation’s invasion of Ukraine. “The main driver of the production surge is a delayed response to the Russian invasion of Ukraine in February 2022, which sent the price of oil to well over $100 a barrel for the first time in nearly a decade.” While it would be preferable to lessen oil production overall, the reality of continued demand places the Biden Administration in a politically precarious position. If President Biden is to retain the presidency in 2024, he must continue the unenviable task of weighing the need for a stable economy against the long-term need for reduced fossil fuel emissions. Thus, climate advocates must realize that, while the Biden Administration’s policies regarding oil production are far from ideal, the danger posed by a second Trump Administration to both the long-term health of the climate and to democracy cannot be overstated. Two-party systems such as the United States have their limitations, so climate advocates must often choose the least onerous option when casting their vote. When considering specific issues, advocates must choose the presidential candidate who is committed to progressing policies advocates care most about, while also considering the health of our democracy as a whole.

“Greenwashing” and Commercial Speech

Greenwashing is an ‘umbrella’ category that includes numerous different forms of ‘misleading environmental communications.’” “Firms can engage in greenwashing at both the level of products and services a firm offers for sale to consumers and at the level of the firm itself.” “[R]ecent scholarship has expanded the definition of greenwashing to include symbolic speech, visual imagery, and actions. Thus, greenwashing may include misleading or deceptive use of symbols or images in product advertising or advertising about the firm’s environmental practices.”

Today, it is well established that political speech is entitled to the most forceful First Amendment protection. From the Court’s earliest free speech opinions, it has observed this fundamental point: “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”[1]

Commercial speech, unlike other types of speech, receives a lower form of scrutiny than other content-based restrictions on speech. A government restraint on speech that is commercial in nature will be held to be constitutional if it is substantially related to an important government interest. This lack of scrutiny might be thought to suggest that greenwashing can be easier to curtail than other forms of misinformation. Given its commercial nature (attempting to convince consumers to use fossil fuel products), greenwashing stands to receive less protection than other types of speech. However, due to the out-sized influence of fossil fuel corporations, this assumption can be claimed to conflict with a foundational principle of First Amendment jurisprudence; that political speech receives the greatest protection of any type of speech. Because of the politically charged nature of climate policy, fossil fuel corporations have a credible argument that speech encouraging fossil fuel production is political in nature.

As previously stated, political speech is at the core of First Amendment-protected speech, and any regulation targeting such speech for espousing a particular viewpoint or general content will only be upheld if the regulation can be shown to be narrowly tailored to fulfill a compelling government interest. “Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential right. Laws of this sort pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion. These restrictions ‘rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.’” However, it is important to note that false or misleading commercial speech receives no First Amendment Protection at all.[2]

Need for a Coalition of Voting Rights and Climate Advocates

Advocates can and will do everything in their power to martial political support for climate-friendly programs and policies that enable the United States to transition away from unchecked burning of fossil fuels. Even so, all the political support in the world will not have much weight if our nation’s democratic functions cease to operate. Many states recently enacted stricter voting laws that threaten access to the polls for millions of Americans. If political movements to push for climate-friendly policies are to succeed, the results of elections must reflect the will of the People. Climate and voting rights advocates must form coalitions to mobilize their vote, and elect candidates who support initiatives to benefit all Americans, present and future.

Considering continued efforts to suppress voter participation, it may also be necessary to seek intervention from the judiciary and legislature to level the playing field. A form of intervention could be providing private statutory causes of action that allow an individual to sue a media company or carbon majors for leading them to believe and rely on harmful misinformation. In theory, it would be possible to hold malicious actors liable for spreading misinformation, so long as the misleading statement was made with knowledge or reckless disregard as to its falsity. This would have to be a statutory cause of action because it is a fusion of two different common law causes of action from different areas of law. Such a statute would have to take elements of common law defamation and common law breach of contract and combine them to create a new statutory tort for which a class of individuals could recover damages. If such a claim were made without such a statute, it would be destined to fail. “[F]alsity alone will not suffice to remove constitutional protection from challenged speech. The speech must be sufficiently egregious to satisfy the requirements of a ‘legally cognizable harm’ –like fraud or defamation–for the U.S. Constitution to afford no protection from liability. ” If there is no statutory right in place, the claim of detrimental reliance on misinformation will not be actionable because of First Amendment protections for freedom of speech.

As statutory cause of action could withstand First Amendment scrutiny if it provides a cause of action specifically for fraudulent or misleading commercial speech. While there may not necessarily be a cause of action against carbon majors for their political advocacy, there could be one for misleading consumers about the dangers associated with using their products. A clever lawyer might come up with a creative argument based on existing common law principles, but the more reliable course of action would be for the legislature to enact a statute creating a new cause of action that combines tort and contract law to allow consumers to sue for misleading statements that caused them to unwittingly endanger their environment and the climate.


Under the current model of Supreme Court First Amendment jurisprudence, it is imperative that all people who wish to advocate for a stable climate, organize with climate advocacy groups. These groups, made up of like-minded individuals, help ensure that the public has an accurate view of climate policy and the importance of those policies receiving continued financial and political support from Congress and state legislatures. It is also imperative that the average voter be made aware of what they stand to gain from electing officials who support climate-friendly policies and programs. Climate policy advocates must organize to ensure that voters elect candidates who are looking out for their best interests. That means educating people on the benefits of renewable energy resource development and its resulting green jobs. It also means communicating the short-term and long-term benefits of a sustainable energy infrastructure while persuading those voters that moving towards carbon neutrality is in their best economic interest.



[1] Shanor et al., supra at 2082; citing Stromberg v. California, 283 U.S. 359, 369 (1931); see also, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010) (“Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.”).

[2] See Central Hudson, 447 U.S. at 563-64 (“[T]here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.”).