ALEC, a Climate-Change Skeptic, Threatens Untenable Law Suits

WASHINGTON - April 7, 2015 - PRLog -- WASHINGTON, D.C. (April 7, 2015): The American Legislative Exchange Council [ALEC] has threatened to sue Common Cause and the League of Conservation Voters for allegedly claiming that ALEC is a climate-change denier, but success is about as likely as a sudden new ice age, says public interest law professor John Banzhaf.

        However, the mere filing of law suits against organizations and even individuals who criticize ALEX could have a chilling effect on those who have a different view on the climate issue, says Banzhaf, and that would be very unfortunate.

        The remedy for "bad" or "incorrect" speech, especially on issues of public importance, is not suppression of such speech by the threat of law suits, but robust debate so that "good" speech can overwhelm "bad" speech, notes Banzhaf.

        Fortunately, these legal actions by ALEC in defamation (libel and slander) are very unlikely to succeed in these situations for several reasons.

        First, to be classified as defamatory, the allegation concerning the plaintiff must be so serious and severe as to give rise to ridicule, hatred, scorn, or contempt of the plaintiff, not just be embarrassing or distasteful.  Calling a Liberal a Conservative, of visa versa, isn’t serious enough to be defamatory.

        Simply saying that someone doesn't share a common belief - whether that's in evolution, that men have gone to the moon, etc. - may label people as eccentric or even uneducated, but it’s far short of what is likely to cause people to hate or scorn them.

        Second, since ALEC has taken a major role in the public debate about climate, it would b classified as a "public figure."

        Public figures must show that the defendant went far beyond mere negligence in making a mistaken statement; it must show that the defendant acted with knowledge that the statement was wrong, or with reckless disregard of the truth.

        This is a very difficult standard to meet, even if the statement was clearly incorrect and the defendant acted negligently.

        Finally, it's not even clear that the statement is incorrect, because the term climate-change denier does not have a clear fixed meaning.  It can mean someone who denies that the earth is getting warmer, or that a primary cause is mankind, etc., and there is also not a clear fine line between a denier and a mere skeptic.

        For all these reasons, defamation actions would have virtually no chance of succeeding.

        Unfortunately, defamation suits are sometimes brought even when unwarranted, merely to pressure critics to remain silent. Fortunately the law increasingly recognizes this abuse of the legal process, one which interferes with freedom of speech, and has adopted special statutes to deal with it.

        To deal with such vexatious litigation, many jurisdictions have adopted laws to make SLAPP [Strategic Lawsuit Against Public Participation] legal actions much more difficult to win, and imposing penalties on those who bring them.

        This may well be the fate of the ALEC law suits if they are ever filed, says Banzhaf, because debate on important public issues should be open and robust, not limited to those who can afford to defend frivolous law suits.

        It is interesting that there are other legal actions which ALEC might bring which have a slightly better chance of being successful, says Banzhaf, whose ability to discover or create new legal theories and causes of action have earned him a variety of accolades, including: "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," "the Fastest Legal Gun in the East," the "Dean of Public Interest Lawyers," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," and a "Man Who Lives by his Writs."

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf