The Oklahoma County District Judge who earlier suspended enforcement of the state’s anti-ESG law has yet to issue a response to a request to make her ruling a permanent one.
District Judge Sheila Stinson was asked for a summary judgment by state retiree Don Keenan who filed suit last year contending the Oklahoma Energy Discrimination Elimination Act was unconstitutional. The Judge ruled months ago in support of a temporary injunction that prevented state Treasurer Todd Russ from enforcing a list of financial companies banned from doing business with state agencies because of their ESG policies against the oil and gas industry.
Since then, the Judge has dealt with responses from the State Attorney General and Keenan’s attorney, some as late last week. The claims and counter-claims focus on legal definitions.
The Attorney General’s office contends the Act “merely ensures that the State will not subsidize boycotts that harm a crucial industry within the state. And the Act does not infringe upon free speech because it regulates inherently non-expressive and commercial conduct.” That was part of the response filed August 26 by Solicitor General Garry M. Gaskins, II.
In seeking a summary judgment in the case, Keenan’s attorney argued it was a violation of free speech. The Solicitor General argued it does not violate Keenan’s right to free speech.
“Plaintiff claims that the Act infringes upon expressive conduct in a way that is viewpoint and content discriminatory. This claim must fail because the Act only affects commercial conduct that is inherently non-expressive, as was held by the one appellate court to decide the issue,” wrote the state in its defense of the Act.
The Solicitor General further added, “Therefore, the decision to boycott energy companies is not inherently expressive. Accordingly, Oklahoma’s free speech clause is not implicated. Plaintiff attempts to avoid this conclusion by arguing that the Act prohibits speech in addition to non-expressive conduct. This is incorrect.”
Keenan’s attorney, former state legislator Collin Walke, responded on August 30, suggesting Judge Stinson has heard all that she needs to hear in order to rule in support of a summary judgment.
“Exhaustingly, Defendant managaes to interpret Mr. Keenan’s argument that the Act does not regulate commercial speech—,” he answered in the filing.
“To set the record straight: First, Mr. Keenan does not believe that any of the investment decisions qualify as “boycotting” oil and gas under the Act. Nor does Mr. Keenan beliee that even if this Court determines the Act governs commercial speech that the Act is constitutional.”
Walke argued that the Act indeed regulates political speech and does so through a section that rquires a company contracting with the state to affirm in writing that it “does not boycott energy companies” and “will not boycott energy companies.” So if company XYZ, Inc., wanted to boycott energy companies, it could not do so without being placed on the blacklist.”
The Attorney General’s office through its attorneys before Judge Stinson at a July hearing indicated they are ready to take the issue to the State Supreme Court should she rule in support of Keenan’s lawsuit.
