America could be in store for another First Amendment battle as questions about energy companies’ free speech rights emerge in a high-stakes Colorado climate case.
Of the roughly 20 “friend of the court” briefs filed in Boulder County’s climate lawsuit against Suncor Energy and ExxonMobil, free speech advocacy groups Protect the First Foundation and Neutral Principles argue the case raises First Amendment concerns, as it potentially imposes liability on fossil fuel companies for protected speech and efforts to influence public policy.
The lawsuit dates back to 2018, with Boulder County and the City of Boulder seeking to hold the companies financially responsible under Colorado tort law for alleged climate-related harms. The energy giants argue Colorado cannot apply state law to claims involving greenhouse-gas emissions that cross state and national borders, claiming such matters fall under federal law.
“This litigation raises serious First Amendment issues insofar as it seeks to hold companies liable for statements about contested matters of public import,” Jonathan H. Adler, Tazewell Taylor Professor of Law at William & Mary Law School, explained to the Daily Caller News Foundation. Adler has filed an amicus brief in the case.
The Supreme Court set a hearing for the case in October after the companies appealed a ruling from Colorado’s high court in 2025.
‘Protected By The First Amendment’
The First Amendment question is distinct from the central issue before the Supreme Court.
Suncor and ExxonMobil argue that federal law preempts state-law claims over global greenhouse-gas emissions, while the First Amendment-focused briefs contend that such lawsuits raise additional constitutional concerns if liability is based on companies’ public statements or political advocacy.
Protect the First Foundation alleges that “respondents seek to punish petitioners because of who they are.” Both organizations argued that parties must remain free to express their views and advocate for government action, citing the Noerr-Pennington doctrine, which protects private entities’ ability to petition the government.
Protect the First Foundation did not respond to the DCNF’s request for comment.
The amici seek to extend that principle beyond traditional antitrust disputes. They argue that fossil fuel companies do not lose First Amendment protection simply because their advocacy concerns climate and energy policy. If a company urged lawmakers to reject an emissions restriction, publicly opposed an international climate agreement or advocated for policies favorable to fossil fuels, the groups contend that those activities cannot themselves become the basis for imposing liability.
“The same is true of petitioning activity related to climate change, or speech to the public arguing for or against adopting particular laws (like the Kyoto Protocol),” Erik S. Jaffe, legal counsel from Neutral Principles, said. “Because the activity is protected by the First Amendment, and the final decision is made by the government or by voters, you cannot premise liability on such protected speech or petitioning activity. Which is exactly what plaintiffs in these climate cases are trying to do to the defendants.”
“Our society thrives on public debate over topics that affect us all. There is a disagreement about what to do in response to climate change as a matter of public policy, setting aside scientific debate about climate change itself,” O.H. Skinner, executive director at Alliance For Consumers, told DCNF. Skinner has filed an amicus brief in support of Suncor.
Corporate free-speech protections have deep roots in Supreme Court precedent.
In First National Bank of Boston v. Bellotti, the Court ruled in 1978 that corporations have First Amendment protections when speaking on political issues, striking down a Massachusetts law restricting corporate spending on a ballot initiative. More than three decades later, Citizens United v. FEC expanded protections for corporate political speech, with the Court holding that the government generally cannot restrict independent political expenditures based on a speaker’s corporate identity.
The Honolulu lawsuit against Suncor was also cited by Protect the First Foundation, which argued that the case raises similar First Amendment concerns. The organization pointed to the plaintiffs’ characterization of third-party witnesses as “climate-denial leaders and authors of climate disinformation,” arguing that such rhetoric reflects an effort to discredit opposing viewpoints in climate litigation.
The Honolulu lawsuit began in 2020, when the City and County of Honolulu and its Board of Water Supply sued Sunoco and other major fossil fuel companies, alleging they misled the public about the climate risks of their products and seeking damages under state tort law. The Hawai‘i Supreme Court allowed the case to proceed in 2023, and the U.S. Supreme Court declined to review that decision in January 2025.
The lawsuit remains ongoing, with a Hawai‘i trial court rejecting the companies’ latest attempt to pause the proceedings in May while the Supreme Court considers Suncor v. Boulder.
“Trying to avoid federal preemption, plaintiffs in this and other climate-change cases have shifted from claims targeting emissions to claims alleging supposed deception,” Neutral Principles argues in its amicus brief.
“The danger to First Amendment rights is another reason favoring uniform national regulation of these issues as opposed to opportunistic state and local overreach that seeks to punish and suppress speech and debate on this controversial topic,” Neutral Principles’ brief says. The organization compared the plaintiffs’ right to criticize Suncor Energy to fossil fuel critics’ ability to question the legitimacy of “climate science.”
Not everyone who sees potential First Amendment implications believes they should determine the outcome of Suncor.
Adler, despite acknowledging that attempts to impose liability for protected speech could raise constitutional concerns, argues that the fossil fuel companies did not properly put a First Amendment question before the Supreme Court.
“The fossil fuel companies did not include any First Amendment-related issues in their petition for certiorari, nor could they have because they had not raised the First Amendment issues before the Colorado Supreme Court,” Adler said.
“Just like it is wrong for the left to try and use courtrooms to impose the climate policy they couldn’t pass at the ballot box or in legislative chambers, it is wrong to use the courtroom to shut down public debate that is ongoing in the public square on these same topics,” Skinner said.
(DCNF)