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Mann v. National Review, Judges v. First Amendment
The assault on the First Amendment continues. On December 22, more than two years after it heard our appeal of a lower-court ruling, a sweet-time-taking three-judge panel of the District of Columbia Court of Appeals issued a ruling in the Mann v. National Review case. The case stems from this July 15, 2012 Corner post in which Mark Steyn, quoting in part from something Rand Simberg had posted on the Competitive Enterprise Institute website, laid into global-warmist Penn State prof Michael Mann’s infamous “hockey stick” graph, Mann himself, and his Penn State bosses.
On the ruling’s upside: The court tossed out Mann’s defamation claim against National Review and Rich Lowry over his August, 2012 “Get Lost” NRO piece replying to Mann’s lawsuit threat.
But that aside, in legal gobbledyegook that even John Yoo might have a hard time deciphering, the judges said the case against NR, Steyn, CEI, and Simberg could proceed to trial. Here is the ruling and here is the website for NoDoz (you might need it). It’s not difficult to see why some very initial reports of the ruling (which claimed the judges tossed the case) were wrong.
Some post-ruling takes:
- Here’s Mark Steyn’s reaction.
- Over at the Volokh Conspiracy blog at the Washington Post, Jonathan Adler slams the decision.
- And here is CEI’s formal response.
Meanwhile the media writers who write about the media — you know, those First Amendment guardians who are currently consumed with tweeting about fake news and Trump tweeting — had this to say about this major free-speech ruling, as of 8 AM EST on December 27:
- From the Columbia Journalism Review … zilch.
- From the Poynter Institute … nada.
- From NiemanLab … ugatz.
- And from the Newseum … noseeum.
Are you the real Jack Fowler or someone using that name?Welcome to Ricochet in either case.Oops, I should have read your bio in your profile before I commented.
There were 2.5 issues at hand:
The court held:
* 2. was not entirely clear. The court used language associated with normal motions to dismiss. But it did discuss Mann’s alleged vindication by various reviewing agencies. This would not be relevant to a normal motion to dismiss.
Showing what little I know, I had thought there would be greater risk that the court would hold the matter to not be immediately appealable than that it would apply the low standard of a normal motion to dismiss.
I thought the same thing. The picture was familiar, so I checked his profile.
Having gotten entangled in a SLAPP lawsuit myself (over a book review), I feel for your publication.
Seawriter
If you know the judge, you know the ruling before it happens. Right? DC judges seem as lawless as the Pacific coast circuit judges.
So is there hope of ever appealing to a lawful judge?
Trump gets to name a Supreme Court justice, so the answer might be yes.
Seawriter
Good topic for the Law Talk podcast.
I take the relative silence from the media about the First Amendment as evidence that (a) they really don’t know much about it, or (b) appreciate its importance.
Sad, I know.
I am none the wiser – can someone put in simple English what all of this means to Steyn et al??
What it means is that unless intervening appeals — to dismiss Mann’s claims — prevail, his defamation case against NR / Steyn / CEI / Simberg will go to trial.
@jack-fowler would be better able to tell you about the chances of someone trying to take the current issues to the Supreme Court.
If not heading there, then we have a “discovery” battle ahead.
In discovery, Mann requested documents/info from the defendants and they requested documents/info from him. Due to the appeal, he never provided the documents/info. Now he will have to.
Mann or others may resist requests for documents and that may go up on appeal. Mann or others may claim to have destroyed documents, which may lead to further motions to dismiss and then appeals of their denial. This could last 5-10 years at the current pace.
You’d think he’d have a greater sense of urgency. With rising sea levels, Happy Valley could be underwater by then.
Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.
If anyone questioned whether the process really is the punishment, here’s defendant’s exhibit 58,120 that it really is true. Somebody pass some tort reform (and loser pays), asap.
Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.
Just a question for those in the journalism business: Do you bear in mind this case or similar even now, and if so how does it impact what you publish?
Ultimately the problem is systemic in that there are so many laws and regulations in existence that cases are decided based on the personalities involved, not the evidence presented to clear-thinking juries.
It is so ironic that laws can grow to be as tyrannical as royalty has ever been.
The little that I know of what Conrad Black went through over the course of his case in this country, I worry for National Review and Mark Steyn. At the end of Black’s ordeal, the final decision wreaked of “we have to get him on something.” It was the same for Martha Stewart.
The best defense at this point is probably tons of publicity. I’ve noticed in the past few years that many very sharp attorneys are seeing this new fact of legal life and getting out to the public ahead of the prosecution’s doing so. The fact that the NR-Steyn case has gone this far suggests that publicity is the key to winning. There needs to be a public outcry, and the court needs to feel as though everyone is watching what it does.
The main point that should be pulled from the facts of the case and made prominent to the general public has to be one that would affect nearly everyone in the country.
This is where Trump really excels. In a media-saturated intellectual environment, the shorter the better—a twenty-five-word elevator speech. Bumper-sticker-generated public rallies.
I recently posted a piece that asked Which Beliefs about Global Warming are Legal? Apparently, I should have asked: Which beliefs about global warming are required? It seems that we should believe that the Hockey Stick is good science and, therefore, that the middle ages warming period never occurred. Perhaps we’re also required to believe that we’ve reached and passed our last chance to save humanity a dozen times, and the tipping point nine times. Or perhaps we’re required to believe that – thanks to global warming – autumn will be both more colorful and less colorful, and that we’ll have both more mosquitoes and fewer mosquitoes.
Most people will say they believe just about anything if that’s the price of staying out of endless litigation.
They warned me that if I voted for Trump, defamation suits would be easier to bring, and they were right!
Anything that will spare me the trouble of reading it.
I’ve got to believe Mann would have shredded the evidence. He’s a serial litigant. He must be aware of the breadth of potential discovery. This case puts the entire veracity of his “hockey stick” analysis in play.
Spoilation is punishable.
Tell that to Hillary, Lois Lerner…
That requires a discovery process, neither of those cases reached that point.
Congressional subpoena seems sufficiently similar.
Thanks Jamie, as a lawyer I would never have known that. :)
That might change. There is a new sheriff in town.
Seawriter
Been there. Wrote the book.
Tragic. This post plus “The Hill” article
http://thehill.com/policy/energy-environment/311495-court-climate-scientist-can-sue-conservative-writers-over-alleged
helped me understand that it took four years for the Court to even get around to allowing the lawsuit. A terrible decision and a waste of money. Thankfully DJT will be appointing a couple of Conservative judges to the Supreme Court by 2020. If they lose, NR / Steyn / CEI / Simberg can appeal all the way to the Supreme Court and maybe get justice. Even if they are bankrupt by then.
Just make sure @johnyoo is well-fortified with a McRib beforehand, and he’ll make child’s play of it.
Mark Steyn has already complied with Mann’s discovery request, but Mann has not complied with Steyn’s. Mann is afraid to go to trial and has no idea who he picked a legal fight with when he filed against Mark Steyn.