Joel Conrad Bakan

This dissertation undertakes a cumulative effects analysis of the fossil fuel industry’s numerous tactics to influence public discourse in the U.S., including its use of lobbying, campaign spending, advertising, organizational funding, educational funding, and manipulative rhetoric. In particular, this thesis focuses on the industry’s leveraging of three trends—manufacturing uncertainty, targeting protesters, and expanding constitutional protections for commercial speech. While the fossil fuel industry’s influence over public discourse is often analyzed in parts, this dissertation argues that the true consequences of its actions on discourse and democracy only become visible when seen as a whole. Drawing on dozens of empirical examples, this dissertation documents and analyzes the political infrastructure and financial might the fossil fuel industry can regularly leverage to shape public discourse. It details the fossil fuel industry’s campaign to manufacture uncertainty around climate science, including a timeline, key actors, and key strategies. It demonstrates that the fossil fuel industry is playing a critical role in initiating, amplifying, and supporting government actions to target and stifle climate protesters in the U.S. Drawing on First Amendment theory and doctrine, it shows how protections for commercial speech are expanding, narrowing the distinction between core and commercial speech, and making government regulation and enforcement actions targeting manufactured uncertainty campaigns vulnerable to First Amendment challenges from corporations. Ultimately, this dissertation shows how the multi-pronged approach of the fossil fuel industry allows it to inject its own ideas and policy preferences into the marketplace of ideas, often without the public knowing those ideas are directly linked to industry funding. Simultaneously, the fossil fuel industry targets two of the most powerful checks on industry influence over the marketplace of ideas—public protest and government enforcement actions against false and misleading corporate speech. The impact of the fossil fuel industry’s strategies to influence public discourse is to undermine the constitutional values enshrined in the First Amendment. Yet, the multi-pronged nature of the strategies poses serious challenges for decisionmakers seeking to protect public discourse.

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This thesis develops a theory of curial deference in proportionality analysis under section 1 of the Charter, one of the most undertheorized and doctrinally confused areas of Canadian constitutional law. By drawing, among other things, on insights from Robert Alexy’s theory of epistemic (knowledge-related) discretion, the work outlines the conceptual topology of deference, sketches out the ways in which deference ought to inform judicial review of the proportionality of legislatively chosen measures in achieving legislatively sought objectives, and offers a novel, rule-of-law-based theoretical justification for deference that departs in significant respects from existing justifications based on democratic legitimacy and institutional expertise. In particular, the theory of deference proposed herein carries to a higher level of abstraction the rule of law’s capacity to constrain the political nature of judicial function by fettering the excesses of epistemic discretion inherent in dispensing justice (as explored in the works of Joseph Raz and Judith Schklar, among others). In explaining why the rule-of-law rationale for curial restraint is normatively superior to traditional, competence-based rationales, this thesis re-situates the discussion on deference within the debate over the proper role of judiciary in reviewing the soundness of impugned policy measures. To this end, the work draws on the philosophical, normative, and institutional commitments of Hans Kelsen’s theory of constitutional review and upgrades Kelsen’s insights into the limits of judicial discretionary law-making with reference to modern formal notions of rule of law.Having justified deference on normative and epistemic grounds, this dissertation shows how the doctrine can be brought to bear on the analytical framework for section 1 proportionality reasoning. These proposals offer a course-correction away from currently flawed trends in deference jurisprudence and develop principled solutions to the epistemic difficulties in rights reasoning. Moreover, the suggested corrections incorporate awareness of institutional, doctrinal, and epistemic realities of adjudicating rights disputes under conditions of empirical and normative uncertainty.

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