BY FIRST-CLASS MAIL
September 12, 2016
The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
United States House of Representatives
2321 Rayburn House Office Building
Washington, DC 20515
Re:

Subpoena dated July 13, 2016 Issued to Union of Concerned Scientists

Dear Chairman Smith:
The undersigned constitutional law scholars, civil liberties advocates, and First
Amendment litigators write to express their grave concerns about the lawfulness of the
subpoenas you issued as Chairman of the House Committee on Science, Space & Technology to
the Union of Concerned Scientists, 350.org, Greenpeace, Global Warming Legal Action Project,
and four other non-profit organizations on July 13, 2016 (the “Subpoenas”).1 Those Subpoenas
make wholesale demands for the communications between and among the organizations and
state law enforcement officials concerning any potential investigation or prosecution “related to
the issue of climate change,” and do so out of a purported concern over a possible conspiracy to
deprive fossil fuel companies of their First Amendment rights. But the Subpoenas, and the threat
of future sanctions, themselves threaten the First Amendment—directly inhibiting the rights of
their recipients to speak, to associate and to petition state officials without interference from
Congress.
As demonstrated below, these Subpoenas violate the separation of powers, exceed the
committee’s delegated authority, abridge the First Amendment, and undermine fundamental
principles of federalism. The Subpoenas should not have been issued and should not be
enforced. We urge you to withdraw voluntarily these misguided demands for information your
committee has no legitimate right to inspect.
Background
The nine organizations you subpoenaed each have a public track record of contributing to
a critical international effort to understand global climate change and to combat its causes. The
Union of Concerned Scientists (“UCS”), for example, was founded more than four decades ago
by M.I.T. faculty and students who sought “[t]o initiate a critical and continuing examination of
governmental policy in areas where science and technology are of actual or potential
significance.”2 In the 1990s, UCS led a delegation of U.S. organizations during negotiations that
resulted in the Kyoto Protocol. In the early 2000s, its climate experts played a key role in
crafting the Regional Greenhouse Gas Initiative, the first multi-state effort to combat global
warming. Over the past fifteen years, UCS has worked to defend scientists from political
interference in their work and harassment by public officials and private industry. Today, UCS
collaborates with over 17,000 scientists and technical experts to develop and advocate for the

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 2 of 13
adoption of solutions to the world’s most pressing problems. The other organizations targeted
with subpoenas have similar records of research and advocacy to promote informed
environmental policy-making based on independent science.
In July 2015, UCS released a report documenting what it believed to be a coordinated,
decades-long campaign by some fossil fuel companies to distort climate science findings and
confuse the public about the risks of climate change.3 According to that report, ExxonMobil and
other companies learned of the serious risks of climate change no later than 1977. The report
concluded that instead of sounding an alarm and addressing those risks, the fossil fuel companies
publicly denied or minimized the risks and secretly funded purportedly independent, contrarian
climate research. Around the same time as the UCS report, InsideClimate News and other news
organizations published reports independently reaching identical conclusions.4
State and federal officials quickly responded to the published reports. In November
2015, New York Attorney General Eric Schneiderman opened an investigation into whether
ExxonMobil misled its investors about the risks of climate change. On December 7, 2015, fortyfive members of the United States House of Representatives sent a letter to the CEOs of
ExxonMobil and other fossil fuel companies asking when their companies learned of climate
change and whether their companies had actively misinformed the public about its risks.5
On March 29, 2016, Vermont Attorney General William Sorrell and New York Attorney
General Schneiderman convened a conference to coordinate state-led efforts to combat climate
change. UCS’s Director of Science and Policy, Dr. Peter Frumhoff, briefed the conference on
climate science and UCS’s view that fossil fuel companies should be held accountable for any
deception. At the conclusion of the conference, the states in attendance formed a coalition
dedicated to combatting climate change, and Massachusetts Attorney General Maura Healy and
Virgin Islands Attorney General Claude Walker announced that they would join New York’s ongoing investigation into ExxonMobil.
On May 18, 2016, you and twelve Republican members of your committee sent letters to
seventeen attorneys general participating in the coalition to combat climate change and the heads
of nine non-profit organizations.6 The letters expressed concern that the state investigations
amounted to “political theater,” and indicated that the committee intends to “conduct[] oversight
of a coordinated attempt to deprive companies, nonprofit organizations, and scientists of their
First Amendment rights and ability to fund and conduct scientific research free from intimidation
and threats of prosecution.”7 To assist in this “oversight,” the committee members requested the
environmental organizations to produce two sets of documents, dating back to January 1, 2012:
1. All documents and communications between any officer
or employee of the Union of Concerned Scientists and any officer
or employee of the office of a state attorney general, referring or
relating to the investigation, subpoenas duces tecum, or potential
prosecution of companies, nonprofit organizations, scientists, or
other individuals related to the issue of climate change.

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 3 of 13
2. All documents and communications between any officer
or employee of the Union of Concerned Scientists and any officer
or employee of the Climate Accountability Institute, Greenpeace,
350.org, the Rockefeller Brothers Fund, the Rockefeller Family
Fund, the Global Warming Legal Action Project, the Pawa Law
Group, or the Climate Reality Project referring or relating to the
investigation, subpoenas duces tecum, or potential prosecution of
companies, nonprofit organizations, scientists, or other individuals
related to the issue of climate change.8
The majority committee members sent similar letters to the attorneys general requesting their
climate-change related communications with the environmental organizations, other attorneys
general offices, and the federal government. The environmental organizations and the state
attorneys general each refused to comply with the committee members’ requests.
You responded by issuing subpoenas duces tecum to the heads of the nine organizations
and to the attorneys general for Massachusetts and New York, demanding production of the
same documents requested in the earlier letters from the committee members.9 Once again, the
recipients declined to produce their records.
To date the committee has taken no action to enforce your Subpoenas. On August 30,
2016, you scheduled a full committee hearing for September 14, 2016, entitled “Affirming
Congress’ Constitutional Oversight Responsibilities: Subpoena Authority and Recourse for
Failure to Comply with Lawfully Issued Subpoenas.”10 We write in advance of that hearing to
explain why the Subpoenas issued to the nine organizations cannot be enforced without violating
the dictates of the Constitution in multiple respects.
The Subpoenas Violate the Separation of Powers, Exceed
The Committee’s Authority And Abridge The First Amendment
When UCS and other organizations discussed their concerns about what they viewed as
the apparently intentional distortion of climate science with state attorneys general and with each
other, they were exercising their constitutional rights. The First Amendment guarantees, among
other rights, the rights to speak freely, to petition the government, and to associate with others
for the advancement of beliefs and ideas.11 The right to petition entitles citizens to communicate
with their government bodies and officials to express ideas, hopes, and concerns.12 It
incorporates the right to associate with others in a joint effort to convince the government to take
particular actions.13 The right to associate, in turn, permits groups to associate freely and in
private, so long as they are not engaged in subversive or illegal activity.14
Your Subpoenas infringe the organizations’ exercise of these First Amendment rights.
The rights of association and petition are as fundamental and precious to our society as they are
delicate and vulnerable.15 “It is hardly a novel perception that compelled disclosure of affiliation
with groups engaged in advocacy may constitute as effective a restraint on freedom of
association as [other] forms of governmental action.”16 Likewise, subjecting individuals to
onerous legal process for petitioning the government impermissibly penalizes and restrains the

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 4 of 13
exercise of that right.17 Your Subpoenas do just that. They require UCS and other organizations
to disclose not only the fact of their affiliation with other environmental organizations to promote
government action, but also the nature of those relationships. They also impose onerous burdens
on these organizations specifically for having petitioned state officials to act, including by
requiring them to disclose nearly four years of communications.
Congress, however, may no more infringe the exercise of First Amendment rights by
subpoena than by law.18 It is well established that a congressional subpoena that intrudes on the
exercise of First Amendment rights can only properly be enforced if it meets three conditions.
First, the subpoena must fall within Congress’s general investigatory authority. Second, the
subpoena must be issued by a committee with specific, unequivocal authorization to conduct an
investigation that intrudes on First Amendment rights. Third, there must be a substantial relation
between the information sought and a subject of overriding and compelling government interest.
Your committee’s Subpoenas to UCS and the other organizations meet none of these conditions
and are patently improper.
a. The Subpoenas exceed Congress’ authority and violate the separation of powers.
It is axiomatic that Congress’s authority to issue subpoenas must be tied to the exercise of
legislative authority granted to it by Article I of the Constitution. Stated differently, Congress
may only exercise its investigatory power when doing so is “related to, and in furtherance of, a
legitimate task of Congress.”19 Congress, however, possesses no power to investigate in order to
enforce laws and punish lawbreakers.20 Separation of powers dictates that “[t]hese are functions
of the executive and judicial departments of government,” not the legislative department.21
Under this basic principle, your Subpoenas to the nine organizations should not have
been issued, and Congress lacks the authority to enforce them. While there may be occasions
where Congress could appropriately authorize an investigation into apparent systemic violations
of constitutional rights that require a legislative response, Congress is not a prosecutor and may
not properly use its subpoena power simply to pursue perceived First Amendment violations.
This is particularly so where, as here, the asserted constitutional violations by the environmental
organizations are themselves self-evidently protected First Amendment activity.
If the executive is concerned about a possible conspiracy, the Department of Justice can
investigate and file suit where appropriate. If state attorneys general are seeking to deprive fossil
fuel companies of their First Amendment rights, the federal courts are open to those companies,
armed with the appropriate authority to rebuff any unconstitutional encroachment.22
Investigating illegal conspiracies and ensuring that individuals are not deprived of their
constitutional rights are functions of the executive and judicial branches, not Congress. As the
Supreme Court reminded us decades ago, “[t]he hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power, even to accomplish desirable
objectives, must be resisted.”23
b. Your Committee lacks specific authority to issue the Subpoenas.
Even if Congress possessed general authority to investigate the actions of the attorneys
general here, your committee lacks the specific authority necessary to issue the Subpoenas

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 5 of 13
demanding disclosure of the First Amendment activities of private organizations. Before a
committee may issue subpoenas that so directly intrude upon First Amendment rights, Congress
must “demonstrate[] its full awareness of what is at stake” by “unequivocally” authorizing an
inquiry that “raises doubts of constitutionality in view of the prohibition of the First
Amendment.”24 As the Supreme Court has explained, that means the delegation of that power to
the committee must be clearly revealed in its charter.25
For example, in United States v. Rumely, 345 U.S. 41 (1953), the Supreme Court held
that the House Select Committee on Lobbying Activities lacked authority to compel a witness to
disclose the names of those who purchased books espousing particular political views.26 That
committee’s charter specified that it was “authorized and directed to conduct a study and
investigation of . . . all lobbying activities intended to influence, encourage, promote, or retard
legislation.”27 The committee’s Chair contended that the committee’s authority to investigate
“lobbying activities” permitted it to compel testimony in order to investigate “attempts to
saturate the thinking of the community.”28 The Supreme Court disagreed. It held that Congress
had not “inescapably” delegated the committee with power to conduct an inquiry of dubious
constitutionality.29 Invoking the canon of constitutional avoidance, the Court narrowly construed
the authority to investigate “lobbying activities” as authorizing only investigations of traditional
lobbying activities which did not intrude on First Amendment rights.30
So also here, Congress has not “inescapably” delegated to your committee the authority
to issue subpoenas that directly impinge First Amendment rights. Your Committee’s charter
reads as follows:
(k) The Committee on Science, Space, and Technology
shall review and study on a continuing basis laws, programs, and
Government activities relating to nonmilitary research and
development.31
No fair reading of this charter unequivocally demonstrates that the House of Representatives
specifically intended to authorize the committee to issue subpoenas that intrude on their
recipients’ First Amendment rights. Nor do the House Rules delegate to the committee any
special investigatory power. Those rules grant your committee only the same generic
investigatory authority allotted all standing committees: to “conduct at any time such
investigations and studies as it considers necessary or appropriate in the exercise of its
responsibilities under rule X.”32
c. The Subpoenas are unenforceable under controlling Supreme Court precedent.
Even if the committee possessed the specific authority it needed, the Subpoenas issued to
UCS and the other organizations would still be constitutionally impermissible. When Congress
does inescapably delegate authority to conduct an investigation that intrudes on First
Amendment rights, courts must determine whether any subpoena issued pursuant to that
authority is permissible under the Constitution.33 In Gibson v. Florida Legislative Investigation
Committee, 372 U.S. 539 (1963), the Supreme Court laid out the test to be applied: A legislative
subpoena intruding on First Amendment rights is permissible only when the legislature
“convincingly show[s] a substantial relation between the information sought and a subject of

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 6 of 13
overriding and compelling [government] interest.”34 As the Court explained, “to impose a lesser
standard . . . would be inconsistent with the maintenance of those essential conditions basic to
the preservation of our democracy.”35
To meet Gibson’s strict test, Congress must first lay an adequate factual foundation for
inquiry by producing a “reasonable, demonstrated factual basis to believe” that a subpoena’s
recipient is either engaged in unlawful activity or meaningfully associated with such activity.36
Indirect or unsubstantiated evidence of illegal activity is insufficient.37 The Court’s imposition
of such a high evidentiary threshold stems directly from the lessons of the McCarthy era, which
taught us that suspicions of illegal activity can too easily provide a basis to use the subpoena
power improperly to investigate political opponents and suppress First Amendment rights. To
guard against such abuse, Gibson requires any congressional subpoena that impinges on First
Amendment rights to be supported by a factually substantiated connection between known
unlawful conduct and a highly significant government interest.
For example, in Barenblatt v. United States, 360 U.S. 109 (1959), the Supreme Court
permitted a House subcommittee to compel a witness to disclose his association with the
Communist Party.38 The Court explained that the intrusion into the witness’s First Amendment
rights was justified based on society’s interest in “self-preservation” and “the close nexus
between the Communist Party and violent overthrow of government.”39 But the Court took pains
to note that even the government’s interest in preventing its own violent demise will not always
override individuals’ First Amendment rights. It explained that “indication[s] . . . that the
Subcommittee was attempting to pillory witnesses,” that the witness’s appearance “follow[ed]
from indiscriminate dragnet procedures[] lacking in probable cause for belief that he possessed
information which might be helpful to the Subcommittee,” or that the questions posed were
irrelevant could “lead to the conclusion that the individual interests at stake [are] not subordinate
to those of the state.”40
Likewise, Congress cannot meet Gibson’s test with mere suspicions of possibly unlawful
conduct. Indeed, that is the key lesson from Gibson itself. In that case, the Florida legislature
had issued a subpoena to the Miami branch of the N.A.A.C.P. demanding its membership list.
The subpoena was purportedly issued in support of the legislature’s inquiry into the infiltration
of Communists into domestic organizations, and the legislature defended its propriety based on
an investigator’s testimony that fourteen persons with Communist affiliations were either
members of the NAACP branch or participated in its meetings.41 The Supreme Court found this
evidence entirely insufficient, because “[m]ere presence at a public meeting or bare
membership—without more—is not infiltration of the sponsoring organization.”42 The Court
held that the legislature’s subpoena power must yield to the NAACP’s First Amendment rights
because the Florida legislature “neither demonstrated nor pointed out any threat to the State by
virtue of the existence of the N.A.A.C.P. or the pursuit of its activities or the minimal
associational ties of the 14 asserted Communists.”43
The lesson from Gibson is that legislatures cannot issue subpoenas that infringe upon
First Amendment rights on the basis of unsubstantiated accusations or suspicions of unlawful
conduct. The committee ignores that teaching. It has made no claim that the organizations have
engaged in any unlawful activity. To the contrary, the letter written to UCS by the majority

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 7 of 13
committee members on May 18, 2016, contends that UCS’s wrongful conduct consists of
associating with other organizations to persuade state attorneys general to prosecute fossil fuel
companies.44 But associating with others to petition state attorneys general to redress grievances
is not unlawful; it is explicitly protected by the First Amendment.
Nor has the committee identified the sort of compelling government interest necessary to
override the organizations’ associational rights under Gibson. While bad faith investigations
undertaken by prosecutors for a wrongful purpose might give rise to constitutional concerns, we
have no evidence of that here. Rather, we have an investigation into whether or not companies
violated state “securities, business and consumer fraud laws.”45 This kind of investigation
cannot be compared to those into the existential threats posed by Communist infiltration of
domestic organizations at the height of the Cold War. It cannot plausibly be stated that the
ambitions of the environmental organizations “include the ultimate overthrow of the Government
of the United States by force and violence.”46
You have expressed concern about the good faith of the decisions of the state attorneys
general to proceed as they have. Of course, that is a topic you are fully protected by the First
Amendment in raising, both on and off the floor of Congress. That very issue has been raised in
various courts by recipients of the subpoenas issued by the state attorneys general. What you
may not do, however, is to use your power to issue compulsory process to require production of
the internal files of organizations that are in the process of exercising their First Amendment
rights where there is no basis, let alone any compelling one, for you to do so.
In the absence of any compelling government interest, it goes without saying that there is
no “substantial relation between the information sought and a subject of overriding and
compelling [government] interest.”47 Your Subpoenas plainly fail to satisfy Gibson’s
requirements and should be withdrawn.
The Subpoenas Violate Fundamental Principles of Federalism
The constitutions of many states also independently guarantee to the nine organizations a
state right to associate and petition, apart from their corresponding federal rights.48 For example,
New York’s constitution guarantees individuals the “right of association”49 and the right “to
petition the government, or any department thereof.”50 State rights to petition state governments
are particularly fundamental to states’ sovereignty. They lie at the very heart of representative
government, defining one of the basic aspects of individuals’ relationships with states.51 Your
Subpoenas equally infringe upon these state-guaranteed rights.
Even if these state constitutional rights are not insurmountable, there is a strong
presumption that Congress does not override state law lightly.52 Courts generally will infer a
congressional intent to authorize the overriding of state law only when doing so is “the clear and
manifest purpose of Congress.”53 For the reasons explained above, nothing in the charter of
your committee indicates that Congress has clearly and manifestly authorized it to issue
subpoenas that infringe state-law rights.54 Moreover, Congress could not have authorized the
Subpoenas for the further reason that they effectively deprive UCS and the organizations of their
right to petition state governments in violation of the federal Constitution’s Guarantee Clause.55

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 8 of 13
***
For all of these reasons, your June 13, 2016, subpoenas to the nine organizations are
invalid and constitutionally impermissible. We urge you to withdraw them promptly. Should
Congress seek to enforce them, we are confident that a federal court will take seriously the
lessons this country learned from McCarthyism and refuse to do so.
Very truly yours,
Abrams Institute for Freedom of Expression
Yale Law School*
Floyd Abrams
Partner, Cahill Gordon & Reindel LLP*
Jack Balkin
Knight Professor of Constitutional Law, Yale Law School*
Bill of Rights Defense Committee & Defending Dissent Foundation
Mark Bartholomew
Professor of Law, University at Buffalo School of Law*
David Cole
Hon. George J. Mitchell Professor in Law and Public Policy,
Georgetown Law*
Erwin Chemerinsky
Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First
Amendment Law, University of California, Irvine School of Law*
Eric M. Freedman
Siggi B. Wilzig Distinguished Professor of Constitutional Rights, Maurice A. Deane School
of Law at Hofstra University*
Jameel Jaffer
Founding Director of the Knight First Amendment Institute at Columbia University*
Tamara R. Piety
Professor of Law, University of Tulsa College of Law*
David A. Schulz
Senior Research Scholar in Law and Clinical Lecturer in Law, Yale Law School*
*

Affiliation provided for identification purposes only.

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 9 of 13
Andrew Sellars
Director, BU/MIT Technology & Cyberlaw Clinic, Boston University School of Law*
David Vladeck
Professor of Law, Georgetown Law School*
Timothy Zick
Mills E. Godwin, Jr. Professor of Law, William & Mary Law School*
cc:

Honorable Eddie Bernice Johnson
Ranking Member, Committee on Science, Space and Technology
Majority Staff, Committee on Science, Space, and Technology
Rayburn House Office Building, Room 2321
Minority Staff, Committee on Science, Space, and Technology
Ford House Office Building, Room 394

*

Affiliation provided for identification purposes only.

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 10 of 13
1

The environmental organizations subpoenaed are 350.org; Climate Accountability Institute;
Climate Reality Project; Global Warming Legal Action Project; Greenpeace, Pawa Law Group,
P.C.; The Rockefeller Brothers Fund; Rockefeller Family Fund; and UCS. The Subpoenas to
those organizations are available at http://democrats.science.house.gov/letter/document-requestssent-state-attorneys-general-and-environmental-groups.
2

Founding Document: 1968 MIT Faculty Statement, Union of Concerned Scientists,
http://www.ucsusa.org/about/founding-document-1968.html#.V6jSMWX9_04 (last visited Aug.
8, 2016).
3

Kathy Mulvey et al., The Climate Deception Dossiers: Internal Fossil Fuel Industry Memos
Reveal Decades of Corporate Disinformation, Union of Concerned Scientists (July 2015),
http://www.ucsusa.org/sites/default/files/attach/2015/07/The-Climate-Deception-Dossiers.pdf.
4

See, e.g., Katie Jennings et al., How Exxon Went From Leader to Skeptic On Climate Change
Research, L.A. TIMES (Oct. 23, 2015), http://graphics.latimes.com/exxon-research/; Sara Jerving
et al., What Exxon Knew About The Earth’s Melting Arctic, L.A. TIMES (Oct. 9, 2015),
http://graphics.latimes.com/exxon-arctic/; Neela Banerjee et al., Exxon Believed Deep Dive Into
Climate Research Would Protect Its Business, INSIDE CLIMATE NEWS (Sept. 17, 2015),
https://insideclimatenews.org/news/16092015/exxon-believed-deep-dive-into-climate-researchwould-protect-its-business; Neela Banerjee et al., Exxon’s Own Research Confirmed Fossil
Fuels’ Role in Global Warming Decades Ago, INSIDE CLIMATE NEWS (Sept. 16, 2015),
https://insideclimatenews.org/news/15092015/Exxons-own-research-confirmed-fossil-fuels-rolein-global-warming.
5

Letter from Members of Congress to Fossil Fuel CEOs (Dec. 7, 2015),
https://lieu.house.gov/sites/lieu.house.gov/files/documents/1214_001.pdf.
6

See State Attorneys General and Environmental Groups Document Requests and Responses, H.
COMM. ON SCI., SPACE, & TECH. (June 3, 2016),
http://democrats.science.house.gov/letter/document-requests-sent-state-attorneys-general-andenvironmental-groups.
7

Letter from U.S. House, Committee on Science, Space, and Technology, to Kenneth Kimmell,
President, Union of Concerned Scientists (May 18, 2016),
https://science.house.gov/sites/republicans.science.house.gov/files/documents/05.18.16%20SST
%20Letter%20to%20UCS.pdf.
8

Id.

9

See, e.g., Subpoena from U.S. House, Committee on Science, Space, and Technology to
Kenneth Kimmell, President, Union of Concerned Scientists (July 13, 2016),
http://democrats.science.house.gov/sites/democrats.science.house.gov/files/documents/UCS%20
Subpoena.pdf.
10

Full Committee Hearing - Affirming Congress’ Constitutional Oversight Responsibilities:
Subpoena Authority and Recourse for Failure to Comply with Lawfully Issued Subpoenas,
COMM. ON SCI., SPACE & TECH., https://science.house.gov/legislation/hearings/full-committeehearing-affirming-congress-constitutional-oversight (last visited Aug. 31, 2016).

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 11 of 13
11

U.S. CONST. amend. I; Nat’l Ass’n for Advancement of Colored People v. State of Ala. ex rel.
Patterson (“Patterson”), 357 U.S. 449, 460 (1958).
12

Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 388–89 (2011).

13

BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002) (quoting E. R. R. Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 131 (1961)) (internal alterations
omitted).
14

Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 557–58 (1963).

15

Gibson, 372 U.S. at 544; Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S.
415, 433 (1963).
16

Patterson, 357 U.S. at 462.

17

See Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1757 (2014) (“We
crafted the Noerr–Pennington doctrine . . . to avoid chilling the exercise of the First Amendment
right to petition the government for the redress of grievances.”); E. R. R. Presidents Conference
v. Noerr Motor Freight, Inc., 365 U.S. 127, 137–38 (1961); Cate v. Oldham, 707 F.2d 1176,
1189 (11th Cir. 1983).
18

Watkins v. United States, 354 U.S. 178, 197 (1957).

19

Id. at 187.

20

See id. at 200 (observing that there is no congressional power “to expose for the sake of
exposure,” or to investigate in order “to ‘punish’ those investigated”).
21

Id.

22

28 U.S.C. § 2201(a).

23

I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

24

United States v. Rumely, 345 U.S. 41, 46 (1953).

25

Watkins, 354 U.S. at 198.

26

United States v. Rumely, 345 U.S. 41, 44 (1953).

27

Id.

28

Id. at 47 (internal quotation marks omitted).

29

Id. at 46, 48.

30

Id. at 46, 48.

31

H.R. Rule X(3)(m).

32

H.R. Rule XI(1)(b)(1).

33

Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 545-46 (1963).

34

Id. at 546.

35

Id. at 558.

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 12 of 13
36

Id. at 551, 555.

37

Id. at 555.

38

Barenblatt v. United States, 360 U.S. 109, 127-28 (1959).

39

Id. at 128.

40

Id. at 134.

41

Gibson, 372 U.S. at 551.

42

Id. at 552.

43

Id. at 555.

44

Letter from U.S. House, Committee on Science, Space, and Technology, to Kenneth Kimmell,
President, Union of Concerned Scientists (May 18, 2016),
https://science.house.gov/sites/republicans.science.house.gov/files/documents/05.18.16%20SST
%20Letter%20to%20UCS.pdf.
45

Letter from Leslie B. Dubeck, Counsel, New York Office of the Attorney General, to Lamar
Smith, Chairman, House Comm. On Science, Space & Tech. (May 26, 2016),
http://democrats.science.house.gov/sites/democrats.science.house.gov/files/documents/NY_in_0
5.26.16.pdf.
46

Barenblatt v. United States, 360 U.S. 109, 128 (1959).

47

Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963).

48

See, e.g., CAL. CONST., art. 1, § 3(a) (“The people have the right to instruct their
representatives, petition government for redress of grievances, and assemble freely to consult for
the common good.”); MASS. CONST., art. XIX (“The people have a right, in an orderly and
peaceable manner, to assemble to consult upon the common good; give instructions to their
representatives, and to request of the legislative body, by the way of addresses, petitions, or
remonstrances, redress of the wrongs done them, and of the grievances they suffer.”).
49

Golden v. Clark, 564 N.E.2d 611, 613 (N.Y. 1990).

50

N.Y. CONST., art. I, § 9.

51

Cf. Gregory v. Ashcroft, 501 U.S. 452, 463 (1991).

52

Cf. Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144
(1992).
53

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).

54

See supra at p. 5.

55

Compare U.S. CONST., art. IV, § 4 (guaranteeing “every state in this union a republican form
of government”), with BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 524–25 (2002) (explaining
that the right to petition the government “is implied by ‘the very idea of a government,
republican in form’” (quoting United States v. Cruikshank, 92 U.S. 542, 552 (1876)); cf. Octane
Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1757 (2014) (“We crafted the

 The Honorable Lamar Smith, Chair
Committee on Science, Space, and Technology
Page 13 of 13
Noerr–Pennington doctrine . . . to avoid chilling the exercise of the First Amendment right to
petition the government for the redress of grievances.”); E. R. R. Presidents Conference v. Noerr
Motor Freight, Inc., 365 U.S. 127, 137–38 (1961); Cate v. Oldham, 707 F.2d 1176, 1189 (11th
Cir. 1983).