When does Denial Become Fraud?

 

Screen Shot 2016-05-02 at 8.16.34 AMIn testimony before Congress, Attorney General Loretta Lynch said the Department of Justice “has discussed” bringing a civil RICO action against climate change “deniers” for fraud — similar to the Clinton Administration’s suits against the tobacco industry — and confirmed that it has issued a request for action to the FBI for consideration. Assuming that she really means it and isn’t just trying to threaten people into silence, what constitutes prosecutable denial? There are many levels of opposition to the belief that global warming is primarily caused by human activity and that this warming will be catastrophic. Here’s a list of beliefs in descending levels of dissent:

  • Global warming is a complete hoax;
  • The planet is warming, but due to natural causes;
  • Human activity contributes to global warming, but is not the primary driver;
  • Human activity contributes significantly to global warming, but the consequences are not catastrophic;
  • Human activity contributes significantly to global warming, but there is nothing we can do to stop it;
  • Human activity contributes significantly to global warming, but adaptation is more economical than trying to stop it;
  • Human activity contributes significantly to global warming and there may be something we can do to stop it, but we don’t yet know what that is; and
  • Human activity contributes significantly to global warming but, we don’t know yet how to stop it and, until we do know, we shouldn’t implement “solutions” that might only make things worse

Which of these statements constitutes the minimum standard for fraud?

Suppose the CEO of a company (say, ExxonMobil) asks its scientists to determine whether global warming is real and, if so, what the company’s position should be. Emails fly back and forth in an internal debate, representing all levels of belief and disbelief. In the end, the company decides (as ExxonMobil did) to back a carbon tax as the best response.

Do the emails that expressed some level of disbelief represent fraud? Do the emails expressing complete buy-in prove that there was a cover up?

Published in Law, Science & Technology
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  1. Tyler Boliver Inactive
    Tyler Boliver
    @Marlowe

    I don’t see how it’s legal to prosecute anyone for an opinion. Even conmen are still legally allowed to write books, because of the first amendement.

    • #1
  2. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    Tyler Boliver:I don’t see how it’s legal to prosecute anyone for an opinion. Even conmen are still legally allowed to write books, because of the first amendement.

    Since when did legality constrain the Obama Administration?

    • #2
  3. MJBubba Member
    MJBubba
    @

    When AG Lynch files her first prosecution on climate denial, I hope the defense attorney can get Mark Steyn on the defense team.

    • #3
  4. civil westman Inactive
    civil westman
    @user_646399

    The real fraud is likely to be found in academic “peer-reviewed” publications. Conduct an honest study, fail to find evidence of man-made global warming and poof, no more grant money. Anyone doubt the effect of that fact on incentives for fraudulent research?

    • #4
  5. Robert McReynolds Member
    Robert McReynolds
    @

    The parts that prevent the Democrat Party from socializing the US economy and relegating the middle class to a substandard level of living.

    • #5
  6. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    Tyler Boliver:I don’t see how it’s legal to prosecute anyone for an opinion. Even conmen are still legally allowed to write books, because of the first amendement.

    Many people believe that Lynch will not really prosecute anyone given the reason you state.  Instead, they argue, Lynch is really just trying to shut opponents up with the threat of legal action.  I’m not so sure.  ExxonMobil has deep pockets and Obama may want to extort some money from them so that he can (as he has in the past) channel it to his political allies on the left.

    • #6
  7. Brandon Shafer Coolidge
    Brandon Shafer
    @BrandonShafer

    I’m just a lowly engineer, not a scientist, but I have trouble seeing how they can claim to get specific to fractions of degree with the level of noise in their data and the amount of finessing it takes (whether legitimate or not) and claim that those fractions have any significance.  Am I wrong?  Perhaps someone better versed in it could tell me.  Also the acting as if science is infallible.  Science is done by people who have many motivations, and climate science is a very politicized field, and many of their assertions are unfalsifiable until a very long time has gone by.

    • #7
  8. TKC1101 Member
    TKC1101
    @

    It is not the legality but the indictment that they seek. They do not need to actually prosecute the case to destroy you. Just the fact that they can bring their machinery to bear is enough to ruin a person.

    • #8
  9. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    TCK,
    Absolutely.  As they say, the process is the punishment.

    • #9
  10. Melissa O'Sullivan Member
    Melissa O'Sullivan
    @melissaosullivan

    Which brings to mind Kate Braestrup’s brilliant comment on the dangers of “just saying stuff”…

    • #10
  11. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    Melissa,
    I’m not familiar with the comment.  Do you have the quote or a link?  Thanks.

    • #11
  12. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    According to an NRO piece, increased levels of carbon dioxide have led to a significant increase in global vegetation, which is all to the good.  But wait, there’s more:

    “[V]ariations in global temperature correlate much better with solar activity and complicated cycles of the oceans and atmosphere” than they do with increased levels of carbon dioxide. And that “there isn’t the slightest evidence that more carbon dioxide has caused more extreme weather.”

    Are the scientists who published this information deniers?  Should Lynch go after them along with ExxonMobil?

    • #12
  13. civil westman Inactive
    civil westman
    @user_646399

    I have read many times of marked global cooling due to so-called super volcano ejections of ash into the upper levels of the atmosphere. Such events have occurred repeatedly and unpredictably in geologic time. Is it not possible that, even if we execrable humans are causing global warming, it could serve as partial insurance against such a sudden global cooling event? Indeed, is every single one of the consequences of some degree of warming harmful? Is asking these questions now culpable in the eyes of the department of justice (sic)?

    • #13
  14. Old Bathos Member
    Old Bathos
    @OldBathos

    That they would misuse political power to punish criticisms of politicized science is not as surprising as it should be.  President Hillary will likely double down and declare “deniers” to be anti-woman and anti-children as well.

    The First Amendment will only apply so long as it does not conflict with The Narrative.

    I have already written the Attorney General of Maryland asking if I should retain counsel having publicly questioned The Consensus (Peace be Upon It) and having actually had conversations within the headquarters of the American Petroleum Institute in which The Consensus (All Hail!) was discussed in a non-affirmational manner.  The fascist bastard has not responded to my inquiry.

    • #14
  15. Robert Zubrin Inactive
    Robert Zubrin
    @RobertZubrin

    The issue here has nothing to do with climate change. People are entitled to have any opinion they like on the weather, including both regarding predictions and preferences. To make any such views a matter for an inquisition is a direct attack on free speech, and thus science itself. Scientific debates must be settled by convincing arguments, not by force. People who use force to prevail in science are in the same class as those who use force in matters of courtship. Anyone who claims to be a civilized person must oppose such rape.

    • #15
  16. Melissa O'Sullivan Member
    Melissa O'Sullivan
    @melissaosullivan

    Richard Fulmer, the point I was making was that in this era, “just saying stuff “ can have terrible consequences.   That phrase was introduced by Ricochet member Kate Braestrup, explaining, “what might make him [Trump] appealing to normal, non-crazy, non-fascist, non-white-supremacist people…”   in an era when people are pulling their punches for fear of retribution.  She was commenting to a TKC1101 post:

    http://ricochet.com/answering-a-question-anti-anti-or-not-anti/  

    Another commenter said it wasn’t any big deal to be ‘say stuff’, and nobody is keeping people from ‘saying stuff’.  I, in response, used the example of AG Lynch’s statements the day after the San Bernardino terrorist attack to buttress Braestrup’s observation that we were indeed in an era when “just saying stuff” can have real negative consequences.

    You have just added another.  The prosecution of Mark Steyn is yet another, or Curt Shilling, or Larry Summers, or from our friends on the continent, the German prosecution of a comedian who criticized Erdogen: https://www.washingtonpost.com/news/worldviews/wp/2016/04/15/merkel-allows-prosecution-of-german-comedian-who-mocked-turkish-president/

    …here is some of Kat’s comment-it should be a stand along post:  “Americans may not be up to speed on The Issues, but they know there’s something wrong when we can’t Just Say Stuff. They’re noticing what isn’t being said and why—not because it’s not true, but because it’s forbidden.

    “The President Does Not Say Stuff— even obvious stuff, like “the people who are blowing people up are Muslims.”

    “College students whose parents paid 65 thousand dollars a year in tuition threw tantrums on TV when somebody Said Stuff…and the somebody got fired.”

    “Racism is not what is keeping large numbers of African Americans poor and dysfunctional” is on the list of Stuff You Can’t Say, while you can say anything you want to and about police officers. (They can’t Say Stuff in return, though.)

    “Climate change is false…” or even “the science is not settled…”—No, you had better not say that either, or you won’t get tenure, and you might get prosecuted.

    • #16
  17. Mister D Inactive
    Mister D
    @MisterD

    All this hand wringing over saving the environment, but once Yellowstone blows (and some day it will), most of the good and bad we have done ecologically will be wiped away in hours.

    • #17
  18. Addiction Is A Choice Member
    Addiction Is A Choice
    @AddictionIsAChoice

    Mister D:All this hand wringing over saving the environment, but once Yellowstone blows (and some day it will), most of the good and bad we have done ecologically will be wiped away in hours.

    But that presumes all this hand-wringing is actually about the environment; it’s actually about the overthrow of capitalism.

    • #18
  19. James Gawron Inactive
    James Gawron
    @JamesGawron

    Richard,

    Isn’t it interesting that the evidence of multiple felonies committed by the former Secretary of State are already available on-line to all interested parties? However, Loretta Lynch’s Justice Dept. has failed to indict. Perhaps a “look it’s a squirrel” MMGW is the idea.

    Meanwhile, both Clintons continue to perpetrate the fraud that it was a matter of judgement as to how the emails should have been classified and by whom. The law is written specifically that it was the secretary’s responsibility to judge whether they would be considered classified. The standards were well known and obvious. Many, many others have been prosecuted for much smaller offenses and with much less evidence.

    The great mystery is why a Secretary of State would choose to maintain the entire business of the United States Government on an unsecured server. Perhaps there is an answer.

    Regards,

    Jim

    • #19
  20. Bob W Member
    Bob W
    @WBob

    I would add another to your list:

    Global warming may be caused by people…not denying it…but if it is, it’s a good thing and we should try to cause more of it. Many good results come from warming, including the possibility of preventing the next ice age.

    How would you categorize that one, Loretta?

    • #20
  21. KC Mulville Inactive
    KC Mulville
    @KCMulville

    I realize that I’m betraying my stupidity (yet again), but I confess I don’t understand the legal basis for any claim of fraud here. It’s not that I can competently refute it; I just don’t understand it.

    Suppose the climate lobby is right, and that some skeptics are publishing “wrong” analysis of existing information, or hiding information that detracts from their case. What’s the legal basis for fraud? In other words, what’s the harm being alleged?

    Because if all error = fraud … man, that opens up a nasty precedent.

    • #21
  22. Andy Blanco Inactive
    Andy Blanco
    @AndyBlanco

    I’m not a lawyer, but I am a law student, so I have some awareness of what’s needed to prove fraud.  I believe the elements are:

    Representation of a fact;

    The fact is false;

    The fact is material;

    The person making the statement knew of its falsity;

    And intended the other person to rely on it; and

    The other person did rely on it and was harmed.

    The obvious problem with the global warming stuff is, what is fact?  I mean does the government have a monopoly on it?  The other obvious problem is harm.  In what sense can we say that one is specifically harmed by global warming?

    The whole idea seems rather lawless and arbitrary to me.

    Material facts are like “this car can go 75mph” when it can only go 65.

    Is the Obama administration really willing to put climate science on trial?  That’s a terrible precedent.  Do we really want courts (and I mean liberals and conservatives) adjudicating scientific disputes?  It seems we could all lose a lot.  Judges deciding when fetuses become viable, when food is dangerous, when academic programs are up to par, etc.

    • #22
  23. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    KCM,
    I think the argument of the left is not that deniers are simply in error, but that they are knowingly trying to mislead people and are therefore committing fraud.  Their analogy is to the (ultimately) successful attack on the tobacco industry which alleged that, though cigarette makers knew from their own research that smoking was harmful, they attempted to hide the truth and to even (in some cases) argue that smoking was actually healthful.

    I am dubious about the analogy.  While there is a good argument for the case that human activity contributes to global warming, there little proof that human activity is the primary cause and certainly no case that it is the only cause.

    Moreover, the questions of how harmful the anthropogenic (manmade) contribution is and what we can do about it are far from settled.  In fact, some government-driven programs (e.g., ethanol) have actually resulted in increased carbon dioxide emissions.

    In addition, the evidence is that catastrophic weather events have been less frequent rather than more, and that the fraud in this area has been confined to the alarmist side of the argument.  Don’t hold your breath waiting for the DoJ to prosecute alarmist fraud, however.

    • #23
  24. KC Mulville Inactive
    KC Mulville
    @KCMulville

    Andy Blanco: The other obvious problem is harm. In what sense can we say that one is specifically harmed by global warming?

    Richard Fulmer:Moreover, the questions of how harmful the anthropogenic (manmade) contribution is and what we can do about it are far from settled.

    I appreciate the responses.

    Yes, I’m particularly concerned about how these guys define the “harm” here. Really, this is a two-step issue: (1) the first “harm” is whether global warming actually hurts anything, but (2) the second “harm” is that people who reject a “fact” are being accused of causing some legal injury. The first is a scientific question but the second is a free speech issue. For rhetorical purposes, advocates are conflating the two, to allege that people who engage in speech are somehow contributing to whatever scientific harm they can find.

    I go back to the philosophical understanding of “fact.” Some statements that are necessarily true (e.g., axioms). But there are many statements that aren’t necessarily true but that are so overwhelmingly accepted that the public treats them as such. The climate change fascists are demanding that their conclusions be universally accepted as fact because … their side overwhelmingly accepts them. Popularity equals proof.

    The legal harm, it sounds like, is standing in their way.

    • #24
  25. Bob W Member
    Bob W
    @WBob

    I think we’re overthinking the legal aspect of it. There is no possible legal basis for fraud here.

    Simply saying false things in public is not a crime or a civil offense.

    We’re falling into their trap if we start to think that their position is even remotely valid from a legal perspective, that it’s even worthy of a rebuttal, or that it’s put forward in good faith.  This is simply a totalitarian attempt to crush thought crime.

    • #25
  26. Autistic License Coolidge
    Autistic License
    @AutisticLicense

    This is a First Amendment test case waiting to happen.  Why wait for her to come to us?  Isn’t it already actionable that she would make such statements aloud, even as conjectures?  Or:  the Congressional route – a censure?

    • #26
  27. Pilli Inactive
    Pilli
    @Pilli

    Most climate predictions are based on models.  Inaccurate models.  Guess work models. Until a model can be run that starts from the present ruining backwards to a known point in the past and gets the data correct for that past moment, we cannot use the model as a basis for anything except conjecture.  When the models are correct, then we can use them to make policy decisions.

    • #27
  28. Pilli Inactive
    Pilli
    @Pilli

    This administration does not think ahead.  Do they really want to set a precedent that would allow a future Republican administration to sue the Sierra Club, N.O.W., or the A.F.L. / C.I.O. for fraud using these same loose standards?  They need to be careful what they ask for.

    • #28
  29. Richard Fulmer Inactive
    Richard Fulmer
    @RichardFulmer

    Pilli,
    That’s a really good point (#27).  Belief in the ill effects of smoking was not based on models but on actual experience with real patients.  There was honest-to-God proof that tobacco was bad and not conjecture.

    • #29
  30. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    While tobacco companies were producing a product that conferred no benefit, one that people could choose not to use—and might well have chosen not to use, if they’d known how harmful it was— oil companies are producing a product upon which our entire society ( including the department of defense) depends. Anthropogenic climate change  is the price we pay for anthropogenic improvements in the lives of millions of human beings.

    • #30
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