As the Supreme Court prepares to hear Suncor v. Boulder, a once-local climate lawsuit is packed with threats to the First Amendment lurking just below the waterline. At stake is not simply whether federal law preempts state tort claims arising from climate change, but whether state and local governments may use those claims to punish disfavored speakers for what they said about fossil fuels, climate policy, and their own place in the national economy.
If that theory survives, it will not remain confined to energy companies — it will open the way to regulate everyone’s speech.
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As we told the Supreme Court in our amicus brief, the issue is not that everything energy companies ever said in defense of fossil fuels was correct. Our point is that Boulder is trying to compel everyone to agree to only one side of a public debate. The speech at issue includes public statements, ads, and other forms of protected speech, including petitioning activity directed at legislators, regulators, and the public on one of the most intensely contested issues in modern American life.
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At the heart of the case are allegations by Boulder and other Colorado localities that major energy companies helped cause climate change and misled the public about the climate effects of fossil fuels. They seek huge damages on that basis. They target particular speakers, a particular subject, and a particular viewpoint in a live public controversy.
That should trouble anyone who cares about open debate, including people who angrily disagree with the energy-company defendants. In the United States, major public controversies are not argued only by professors, editorial boards, and political candidates. They are argued by advocacy groups of all political stripes, labor unions, trade associations, businesses, scientists, and citizens trying to persuade one another and their government. On an issue as complex as climate policy, those arguments will inevitably include public campaigns, institutional advocacy, and direct efforts to influence legislation and regulation.
The First Amendment protects that process because democratic self-government and the scientific method depend on it. The alternative is more dangerous than Boulder’s lawyers admit: Scientific understanding is not frozen in place, and political consensus is not a substitute for truth. Views once treated as settled have often been revised, narrowed, or abandoned under the pressure of new evidence and better arguments. Remember when the theory that the COVID-19 virus was artificial was considered so outlandish, even racist, that it had to be suppressed on social media? That stiff-arming approach to a critical question lasted until the Biden-era CIA and FBI concluded that an artificial origin for the virus was the likeliest explanation.
If courts allow lawsuits to become weapons against those who challenge prevailing assumptions on contested scientific and policy questions, many people with far fewer resources than an oil company will simply shut up. Businesses will say less. Scientists will be more cautious. Advocacy groups will think twice before engaging in controversial debates. The result will not be a sharper search for the truth. It will be quieter, narrower, and more fearful public discourse, with trial lawyers acting as national moderators.
Nor will the damage stop here. If one set of plaintiffs can recast a disputed public message as a cause for legal action, the same theory can be turned against pharmaceutical companies, food producers, automakers, technology firms, financial institutions, and advocacy organizations across the ideological spectrum. Today’s approved plaintiff can become tomorrow’s forbidden defendant with remarkable speed. Bad legal theories don’t stay confined to the causes that first produced them. They spread.
The Supreme Court granted review in Suncor earlier this year and is expected to hear the argument in October 2026. That gives the Justices a chance to do more than resolve a preemption dispute. It allows them to say that the First Amendment cannot be evaded by dressing hostility to speech in the language of state tort law. Governments remain free to answer speech with speech, to rebut industry claims in public, and to urge voters and lawmakers to choose a different energy future. What they may not do is use the threat of devastating financial penalties to force ideological or scientific conformity by crushing a speaker on the “wrong side” in a heated controversy.
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Free speech matters most when emotions run high and public opinion is divided. Nobody needs constitutional protection for saying the sky is blue. The First Amendment’s guarantees are especially needed when a viewpoint is unpopular, controversial, or deeply resented.
The Court should make clear that the truth about climate change and climate policy, like every other consequential public question, must be winnowed out through the harsh solvents of argument and counterargument, not through efforts to bankrupt and silence one side.
Gene Schaerr is the general counsel of Protect The 1st, an organization dedicated to defending the guarantees of the First Amendment.
