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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.
Or he could be using this for publicity and fundraising purposes, planning to ultimately settle or drop the case.
So in order to get the attention of any of these august institutions, Trump needs to tweet “Media guardians unconcerned about Mann v. National Review. So sad!” after which the headlines will read, Trump goes on attack against defenders of free speech.
I think you’re right. I pray your are. Would be a dream to see Mann disemboweled.
(Waiting for the Ricochet speech police to chastise me for violent imagery.)
I think there are several goals…1.) punish, if not destroy, National Review financially, and 2.) make all afraid to question their faux science. Mann must know the tricks he played and would not relish being cross-examined by a Mark Levin style atty. Global warming folks are dangerous bullies who have either attempted or succeeded in destroying those who go against them.
One comment was correct-we need to publicly attack this assault on free speech. People aren’t that concerned with global warming and will come to a more sensible conclusion than did these judges.
They went after the climate experts and now they are going after the magazines and pundits. We citizens will be next. We need to stop government funding of this and neuter the EPA. If nothing else, those called “deniers” should be entitled to the same considerations that Mann is getting. Let them sue the lefties.
What is so odd about all the “denier” charges is that it’s the alarmists who do the most to lend credence to the idea that global warming is a fraud. Their endless apocalyptic predictions that fail to come true, their double standards (e.g., this weather event was caused by global warming but that unusually harsh winter was weather not climate), their cherry picking of data, their suppression of dissent, their refusal to share their data. Granted, none of these actions is scientific proof of anything. But it does prove that the true believers don’t have enough confidence in the evidence to base their case on it.
If they had evidence, they wouldn’t have to make it up. Computer models are not evidence.
I would pay money to be present when Mann loses this disgusting, absurd, shameful lawsuit. Just hoping that the fraud that is”climate change” dies during the Trump Adminstration.
I have been trying to follow this case, and the index-card synopsis of issues I’ve filed in my head was something like: Mann sued Stein for saying Mann’s “hockey stick” graph was “fraudulent”. That means not only was it inaccurate ( it is, as the world knows by now) but Mann KNEW it was incorrect and he wanted to, and did, induce others to rely on it to their detriment. Stein counter-sued. Mann filed an anti-SLAPP motion (Strategic Limitation Against Public Participation) to dismiss Steyn’s counterclaim, which was granted, and now for years, the D.C. Court has been trying to decide whether that motion was interlocutory( not immediately appealable) or “final”.
So, now the court has decided it was “final”.. and reversed the earlier order as to some but not all defendants?
My recollection of libel principles is that if the plaintiff is a “public figure” it’s almost impossible for him to win; has to show not only falsehood nut “actual malice”.
How can Mann not be a “public figure”? EVERYBODY knew about the “hockey stick”. And how can Mann show “actual malice” when also, by this time, EVERYBODY knows the hockey stick graph was produced using inaccurate and misleading data? Or, at the very least, that many scientists believe it was.
This case seems to be proceeding sui generis. Remember when Sharpton accused that DA in New York of having actually raped Tawana Brawley? That unsung county functionary was found to be a “public figure” and it took him YEARS after the ruination of his life and career to get “justice” for Sharpton’s clearly outrageous statement. In the instant case, the courts are bending over backwards to protect, ah, “disputed” science, to put it kindly.
If Mann wins this case, it will be another victory for the Left’s standard go-to when caught in a lie”So what if it’s isn’t true? It COULD have happened!”
Riiiight– that’s what they said about the Brawley rape and the Duke Lacrosse team rape lies.
No. The anti-SLAPP motion was filed by Steyn, Simberg, et al.
It was denied because the trial court applied a very low standard for what Mann needed to show to overcome it.
SLAPP is “strategic lawsuit against public participation“. Many states have anti-SLAPP laws to prevent people from trying to shut others up via lawsuit. Under such a law, the defendants can file a motion to dismiss. To overcome the motion, the plaintiff must show that it is “likely to succeed”.
The DC trial court (and now the appellate court) interpreted “likely to succeed” as being pretty much the same very low standard applied to a normal motion to dismiss. Basically, you accept everything the plaintiff says and don’t look at any evidence. Is there any chance a reasonable jury might find for Mann…
The defendants argued that a higher standard should be required of a plaintiff seeking to overcome an anti-SLAPP motion. Apparently, they analogized to the “likelihood of success” standard for injunctive relief. They argued that Mann had failed to show he was actually likely (significant chance) to win vs. the effective standard applied by the court of whether Mann had any chance of winning.
Okay, so that’s where I went wrong….but Stein himself didn’t participate in the motion, right? He wants to get to trial.
He participated in the original motion, but only the other defendants appealed its denial.
Mann has financial backing from several green groups….probably spent more on the case than the judgment will return…therefore, one can only surmise that it isn’t about Mann but destroying and silencing, or just punishing financially dissenters. It is totalitarian in goal, meant to silence and put fear in scientists.
Rehearing denied 3/1/2019.
@jackfowler, Is NR going to petition for certiorari to the Supreme Court?
NR petitioned for certiorari to the Supreme Court.
https://www.nationalreview.com/wp-content/uploads/2019/05/NationalReviewInc-v-Mann-Cert-Petition.pdf
What does this mean to those of us who depend on Law Talk podcasts?
Supreme Court docket:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1451.html
CEI also petitioned for certiorari:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18-1477.html
Mann has waived the right to respond.
It will take at least a couple of months for a decision. If the Court doesn’t take the case, we’ll see discovery later this year. If they take the case, it will be a year until the case goes before the Court.
Appeal on the merits will be so far in the future that the lack of Mann’s predicted global warming will be manifest.
Which will thus have proven that the Trump Administration and its ideological cronies hacked all the scientific servers and falsified the collected data to mask the truth of Anthropogenic Global Warming. Which means that we have even less time and need even more money to immediately counter this existential threat.
Or something.
You know,of course, that true believers will never be deterred by either court findings or facts. Those things just demonstrate they have to revolt against these nattering nabobs of negativism.
Separately, Southeastern Legal Foundation, Judicial Watch. and Steyn have filed amicus briefs.
Steyn’s starts:
Mann’s opposition brief:
https://www.supremecourt.gov/DocketPDF/18/18-1477/104466/20190628130353819_Consolidated%20brief%20in%20opposition.pdf
Strangely appears to be written as if it’s a brief opposing on the merits a petition regarding a conventional motion to dismiss.
Thanks for posting these updates.
I must say, sympathetic as I am to the victims (um, defendants) of this farce (um, case), procedurally it would seem odd for the Court to take this up at this point.
Borderline.
The DC court effectively said that if they read the Anti-SLAPP statute according to its clear meaning, they would have to find it unconstitutional. So, instead, they chose to interpret it in a way to read all meaning out of it.
Had they done the former, it would be a classic case for granting cert.
in addition to the NR, CEI, Southeastern Legal Foundation, Judicial Watch, Mark Steyn, and Judith Curry amicus briefs, we have:
American Center for Law and Justice
Accepts DC ruling on jury v. judge questions generally but basically asserts defendants’ vague statements are per se not defamatory.
21 U.S. Senators
Mostly blather by:
John Barrasso
Marsha Blackburn
Roy Blunt
Mike Braun
John Cornyn
Tom Cotton
Ted Cruz
Mike Enzi
Chuck Grassley
Josh Hawley
Jim Inhofe
Ron Johnson
John Kennedy
Mitch McConnell
Jim Risch
Mitt Romney
Marco Rubio
Ben Sasse
Tim Scott
Pat Toomey
Roger Wicker
Three more amici July 5:
1. Former United States Attorneys General (Meese, Mukasey, Sessions)
2. STEPHEN MCINTYRE (Climate Audit)
3. Cato Institute, Reason Foundation, and the Individual Rights Foundation
This is a freaking nightmare. They largely are addressing different issues due to the nature of the DC court’s decision.
I have a fundamental issue with all of them. It’s issue in most Supreme Court cases that has made me want to file my own amici in many cases. None of the amici starts of by frankly explaining “here’s how we got to where we are” or “if something seems strange, here’s why”. Usually, there’s an issue that neither of the two parties want to address because, in one way or another, it’s a loser for both.
Here the omitted issue is how the DC court finessed the constitutional question by turning what appeared to be a pure issue of constitutional validity of the Anti-SLAPP statute (a type of question that is prime for the Supreme Court to consider) into one of interpretation of the statute (a type that’s not – even though the DC court based its decision on the same constitutional grounds).
Although the missing issue may help one party regarding the present question, it may hurt that party as to another question so it does not get raised.
Often, it’s a procedural loser for the petitioner or appellant and a substantive loser for the respondent/appellee. The petitioner does not want it raised because it will cause him to lose the present case. The respondent does not want it raised because it will at least cause him to lose the next case.
NR reply:https://www.supremecourt.gov/DocketPDF/18/18-1451/108186/20190716105719035_18-1451%20cert%20rb.pdf
CEI reply
http://www.supremecourt.gov/DocketPDF/18/18-1477/108284/20190717095009657_18-1477%20Reply%20Brief.pdf