Volume 106

Evaluating Corporate Speech About Science

by Shannon M. Roesler

How should courts evaluate the truth or falsity of corporate speech about science? This question is critical to antifraud actions like the ongoing state investigations into whether ExxonMobil misrepresented scientific knowledge regarding global climate change. ExxonMobil claims that these investigations chill scientific inquiry and burden speech on a matter of public concern in violation of the First Amendment. Of course, the notion that scientific progress depends on the free exchange of ideas is not controversial. But even if the free-market approach to scientific discourse has firm foundations, this Article suggests that it is a misguided approach to the question of when corporate speech about science is misleading.

Too often, courts and commentators assume the truth of corporate speech about science, an assumption that inevitably results in First Amendment scrutiny. The reluctance to analyze the truth of such speech is understandable given the nature of scientific knowledge itself. Scientific knowledge is not easily described in terms of truth or falsity. But corporate speech that uses the inherent uncertainty of scientific inquiry to mischaracterize scientific knowledge is not participating in scientific discourse. Moreover, when courts treat such speech as part of a larger scientific debate, they threaten to undermine the deterrent function of antifraud laws and shift the costs of misleading speech onto the public.

This Article is the first to offer an analytical approach to the question of whether corporate speech about science is misleading. The central argument is that courts should consider a number of context-specific factors in determining whether such speech is misleading. These factors include the costs and benefits of the speech, as well as the regulatory context, cognitive biases, and cultural values that shape how recipients understand the speech. The Article concludes with a discussion of how the First Amendment would apply to commercial and corporate speech about science once the threshold question of misleadingness is resolved.

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