Promoted from the Ricochet Member Feed by Editors Created with Sketch. 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.

There are 59 comments.

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  1. Profile Photo Member

    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.

    • #1
    • December 27, 2016, at 6:03 AM PST
    • Like
  2. ctlaw Coolidge

    There were 2.5 issues at hand:

    1. whether the denial of the anti-SLAPP motion to dismiss was immediately appealable (“interlocutory appeal”);
    2. if yes, what the “likely to succeed” standard for Mann to prevail on the motion actually meant;
    3. (really 2.5) whether Mann met that standard.

    The court held:

    1. yes;
    2. a really low threshold, either like a normal motion to dismiss or only slightly higher*;
    3. yes as to Simberg and Steyn but no as to Lowry who had enough qualifying language in his editorial.

    * 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.

    • #2
    • December 27, 2016, at 6:46 AM PST
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  3. Seawriter Member

    10 cents: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.

    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

    • #3
    • December 27, 2016, at 6:55 AM PST
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  4. Aaron Miller Member

    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?

    • #4
    • December 27, 2016, at 6:56 AM PST
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  5. Seawriter Member

    Aaron Miller: 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

    • #5
    • December 27, 2016, at 6:57 AM PST
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  6. David Wilder Thatcher

    Good topic for the Law Talk podcast.

    • #6
    • December 27, 2016, at 7:05 AM PST
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  7. KC Mulville Inactive

    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.

    • #7
    • December 27, 2016, at 7:24 AM PST
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  8. Biggles Member

    I am none the wiser – can someone put in simple English what all of this means to Steyn et al??

    • #8
    • December 27, 2016, at 7:58 AM PST
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  9. Jack Fowler Member
    Jack Fowler Post author

    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.

    • #9
    • December 27, 2016, at 8:03 AM PST
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  10. ctlaw Coolidge

    Biggles:I am none the wiser – can someone put in simple English what all of this means to Steyn et al??

    View comment in context.

    @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.

    • #10
    • December 27, 2016, at 8:13 AM PST
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  11. Paul Erickson Member

    ctlaw: 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.

    View comment in context.

    You’d think he’d have a greater sense of urgency. With rising sea levels, Happy Valley could be underwater by then.

    • #11
    • December 27, 2016, at 8:25 AM PST
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  12. Z in MT Inactive

    Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    • #12
    • December 27, 2016, at 8:41 AM PST
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  13. Brian McMenomy Inactive

    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.

    • #13
    • December 27, 2016, at 9:27 AM PST
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  14. Miffed White Male Member

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    • #14
    • December 27, 2016, at 9:28 AM PST
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  15. Slow on the uptake Thatcher

    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?

    • #15
    • December 27, 2016, at 9:32 AM PST
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  16. MarciN Member

    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.

    • #16
    • December 27, 2016, at 9:35 AM PST
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  17. Richard Fulmer Member

    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.

    • #17
    • December 27, 2016, at 9:42 AM PST
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  18. Gumby Mark (R-Meth Lab of Demo… Thatcher

    They warned me that if I voted for Trump, defamation suits would be easier to bring, and they were right!

    • #18
    • December 27, 2016, at 9:52 AM PST
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  19. Cato Rand Reagan

    David Wilder:Good topic for the Law Talk podcast.

    View comment in context.

    Anything that will spare me the trouble of reading it.

    • #19
    • December 27, 2016, at 11:57 AM PST
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  20. Cato Rand Reagan

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    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.

    • #20
    • December 27, 2016, at 12:01 PM PST
    • Like
  21. Jamie Lockett Inactive

    Cato Rand:

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    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.

    View comment in context.

    Spoilation is punishable.

    • #21
    • December 27, 2016, at 12:45 PM PST
    • Like
  22. ctlaw Coolidge

    Jamie Lockett:

    Cato Rand:

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    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.

    View comment in context.

    Spoilation is punishable.

    View comment in context.

    Tell that to Hillary, Lois Lerner…

    • #22
    • December 27, 2016, at 12:49 PM PST
    • Like
  23. Jamie Lockett Inactive

    ctlaw:

    Jamie Lockett:

    Cato Rand:

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    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.

    View comment in context.

    Spoilation is punishable.

    View comment in context.

    Tell that to Hillary, Lois Lerner…

    View comment in context.

    That requires a discovery process, neither of those cases reached that point.

    • #23
    • December 27, 2016, at 12:56 PM PST
    • Like
  24. ctlaw Coolidge

    Jamie Lockett:

    ctlaw:

    Jamie Lockett:

    Cato Rand:

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    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.

    View comment in context.

    Spoilation is punishable.

    View comment in context.

    Tell that to Hillary, Lois Lerner…

    View comment in context.

    That requires a discovery process, neither of those cases reached that point.

    View comment in context.

    Congressional subpoena seems sufficiently similar.

    • #24
    • December 27, 2016, at 1:05 PM PST
    • Like
  25. Cato Rand Reagan

    Jamie Lockett:

    Cato Rand:

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    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.

    View comment in context.

    Spoilation is punishable.

    View comment in context.

    Thanks Jamie, as a lawyer I would never have known that. :)

    • #25
    • December 27, 2016, at 1:14 PM PST
    • Like
  26. Seawriter Member

    ctlaw:

    Spoilation is punishable.

    View comment in context.

    Tell that to Hillary, Lois Lerner…

    View comment in context.

    That might change. There is a new sheriff in town.

    Seawriter

    • #26
    • December 27, 2016, at 1:17 PM PST
    • Like
  27. Aaron Miller Member

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    Been there. Wrote the book.

    • #27
    • December 27, 2016, at 1:40 PM PST
    • Like
  28. Sweezle Member

    Jack Fowler: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.

    View comment in context.

    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.

    • #28
    • December 27, 2016, at 1:41 PM PST
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  29. Eeyore Member


    Jack Fowler
    : But that aside, in legal gobbledyegook that even John Yoo might have a hard time deciphering…

    David Wilder:

    Good topic for the Law Talk podcast.

    View comment in context.

    Just make sure @johnyoo is well-fortified with a McRib beforehand, and he’ll make child’s play of it.

    • #29
    • December 27, 2016, at 2:38 PM PST
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  30. Z in MT Inactive

    Aaron Miller:

    Miffed White Male:

    Z in MT:Mark Steyn’s preference to go immediately to trial three years ago is looking better all the time.

    View comment in context.

    Steyn wants to go to discovery against Mann. He gets to dig into all of his work on AGW.

    View comment in context.

    Been there. Wrote the book.

    View comment in context.

    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.

    • #30
    • December 27, 2016, at 2:54 PM PST
    • Like
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