A Court Introduces Attorney General McCuskey to the First Amendment
Pursuing political opponents through government-sponsored “investigations” is quite the thing in Washington and Charleston these days. In September, West Virginia Attorney General J.B. McCuskey issued sweeping subpoenas to two environmental advocacy groups opposed to fossil fuels, claiming their advocacy was deceptive and violated the West Virginia Credit and Consumer Protection Act. The legal rationale for this claim is so flimsy that its true political purpose is clear. McCusky, a staunch supporter of the energy industry, simply disagrees with their point of view and seeks to disable the groups.
Federal Judge Joseph R. Goodwin was having none of it. On October 29, 2026, he entered a temporary restraining order barring McCuskey from enforcing the subpoenas or issuing new ones until November 12, when a hearing will be held on whether the injunction should be extended. I’d bet that it will be.
McCuskey learned his approach to the job of Attorney General at the knee of his predecessor, Patrick Morrissey. Both have used the legal machinery of the Attorney General’s office to promote right-wing political goals and, in the process, to advance their own political careers. We have seen the same weaponization of state legal machinery on the national stage, and it should frighten us.
Both Morrissey and McCuskey have joined or led coalitions of other Attorneys General (all from red states) in lawsuits on newsworthy national political issues that have nothing to do with West Virginia. They have accompanied this with skillful publicity to project faux outrage and position the Attorney General as an action hero. But McCuskey has gone further, using deprecating names to undermine his ideological opponents, like “insane leftist greeno’s” and a “green cabal” full of people “willing to destroy our economy.” This is Trump-style schoolyard stuff.
McCuskey claims authority to issue the subpoenas under the West Virginia Credit and Consumer Protection Act. This makes unlawful “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The trade or commerce referred to must be related to the sale of goods or services.
But according to Judge Goodwin, the Act doesn’t apply to the operations of the two advocacy groups – West Virginia Rivers Coalition and 350.org. Their missions are public education and dissemination of information. Their speech consists of public advocacy on important topics, not commercial speech. They are not financial institutions, lenders, or creditors. They are not seeking to make a profit by engaging with consumers. They do not sell services of any kind. Their only sales are trivial items like T-shirts and coffee mugs displaying their logos.
But here is where this dispute takes a serious turn beyond the usual West Virginia right-left political controversy. The subpoenas are “shockingly broad.” They demand more than ten years of records, including originals and drafts of 25 different document types in any way relating to a fossil-fuel climate claim, or identifying a West Virginia energy business. This kind of burden would cripple a small advocacy organization and chill its ongoing work. McCuskey surely knows this.
The most alarming aspect of the subpoenas is that they probe into the relationships of the advocacy groups with others. They seek documents related to work with third parties to develop communications and strategies, documents relating to contacts with or funding by renewable energy companies or associations, and documents pertaining to dealings with other advocacy groups active in West Virginia on the fossil fuel-climate connection. This must have triggered the red First Amendment fire alarm on Judge Goodwin’s desk.
The First Amendment protects the right of peaceable assembly. This necessarily includes the right to associate with others. When government intrudes into the ability of an individual or group to work with others toward a common political goal, the protected right of association is abridged.
The First Amendment is not absolute, and McCuskey is right that some speech does not deserve protection. But when government seeks to probe into speech and association like these subpoenas do, it had better have a very good reason. McCuskey’s reason is limp. He asserted only that there might have been a violation of the WVCCPA, and admitted that it is possible there was none.
Judge Goodwin has now held that the WVCCPA – a statute that prohibits deceptive and unfair commercial acts – can only apply to the type of commercial speech in which the advocacy groups do not engage. So a desire to enforce that statute cannot supply the sufficiently important governmental interest necessary to probe into non-commercial, protected speech and association. Accordingly, “the subpoenas [McCuskey] issued severely and unconstitutionally burden the Plaintiffs’ First Amendment right to free association.”
All West Virginia lawyers are required to take continuing legal education courses to maintain their law license. Perhaps Attorney General McCuskey could profit from a course in which he can brush up on the First Amendment.
