Beam me to Planet Gore !
Posted on 11/25/2014 4:02:06 PM PST by steelyourfaith
Background (from Sam Katzman, Competitive Enterprise Institute general counsel) going into the hearing of 11/25/14: “Regardless of where one stands on global warming, this case is about the First Amendment. Michael Mann’s defamation lawsuit is an unfounded attempt to chill speech on a major issue of public concern. Professor Mann is a high-profile figure in the global warming debate, and he himself is responsible for much of the overheated rhetoric in that debate. His complaint about CEI’s criticism of his statistical methods belongs in the arena of public discussion and scientific inquiry, not in the courts.
“This is precisely the type of First Amendment lawsuit that the District of Columbia’s Anti-SLAPP law was designed to stop at the outset, and it is for this reason that CEI and National Review’s position is supported by a wide range of amici, including the Reporters’ Committee for Freedom of the Press, the Electronic Frontier Foundation, the Cato Institute, and dozens of other organizations. We are hopeful that the Court of Appeals will agree.”
Background
Michael Mann’s defamation case is based on a 2012 CEI blog post by an adjunct analyst that harshly criticized climate scientist Michael Mann and the 2010 investigation of his work by Penn State, where Mann teaches. Shortly after its posting, the article was excerpted by syndicated columnist Mark Steyn in a piece on National Review Online. Mann demanded a retraction of the article by both NR and CEI. Both of these demands were rejected, and Mann filed suit.
Both CEI and NR moved to dismiss the case under DC’s anti-SLAPP law, which is aimed at quickly ending libel cases whose real purpose is to squelch speech on public issues. The trial court denied these motions, and that is the issue that is now on appeal. (While Mark Steyn was originally jointly represented with NR, they had a falling out and Steyn is now seeking to go to trial against Mann.)
CEI and NR are supported by numerous amicus briefs from such organizations as the ACLU, the Reporters Committee for Freedom of the Press, Time, the Washington Post, and dozens of other major First Amendment entities. No amicus briefs were filed in support of Mann.
The major filings in the case can be found at http://cei.org/michaelmann
The hearing
The panel consisted of Judges Beckwith, Easterly, and Ruiz. All three judges have authored some strong Anti-SLAPP and First Amendment decisions.
The District of Columbia, which had filed an amicus supporting a strong interpretation of the Anti-SLAPP act, was invited by the court to open the argument. There was little doubt that the act permitted an interlocutory appeal such as ours (that is, an appeal that could be taken immediately, rather than after trial). However, the judges asked several highly technical questions regarding the proper evidentiary standard on an Anti-SLAPP motion.
This line of questions continued when our attorney, Andrew Grossman of Baker Hostetler, got up, and they consumed a fair amount of time. But Andrew was able to finish with several strong points regarding the fact that, because the blog post consisted of opinions whose factual basis was clearly disclosed (through hyperlinks and other references in the piece), they were fully protected under the First Amendment.
Michael Carvin then began his portion of the argument for NR. (While Carvin represents NR, his argument, like that of Grossman’s, was really on behalf of both defendants.) His essential point was that the blog post accused Mann of misleadingly manipulating data, not fabricating it outright. This is not a meaningless technicality--a jury might well be able to evaluate the later charge, but not the former. Mann’s “marrying” two sets of data to produce his famous hockey stick was the prime example of this. The deceptive nature of that marriage was totally inappropriate for a jury, as would be a claim that unemployment data or economic statistics had been misleadingly used.
The judges were not that active in questioning Mann’s attorney, John B. Williams, but they made several very telling comments. When Williams claimed that eight separate investigations had exonerated Mann, one judge asked, “What if CEI sincerely believes that those investigations are flawed? They take them apart quite thoroughly in their reply brief.” Another question: “If CEI strongly believes that its statements are true, then how can you ever show malice?” When Williams cited one Supreme Court case as being directly on point, a judge asked, “how is that the right fit for this case?” Another noted that, under Williams’ approach, the Anti-SLAPP law “wouldn’t be doing very much work.” And when Williams claimed that preponderance of evidence should suffice, a judge asked, “but you need clear and convincing evidence for malice.” And the judge noted that Williams failed to aske for the directed discovery that is expressly allowed under the Anti-SLAPP law. Finally, when Williams argued that a jury could evaluate misleading effect, all three judges made some rolling-eye expressions.
Carvin handled the rebuttal, and he made several very strong, and somewhat humorous, points: CEI and NR were fully entitled to mistrust EPA (“they mistrust EPA on everything”); Mann never really disclosed his conjoining of data sets; failing to dismiss would open the courthouse doors to every Washington figure accused of misleading the public; and, “as CEI pointed out”, EPA itself had expressly approved the use of the term fraud in scientific disputes.
In short, while the panel did not give any indication of which way they leaned, we are cautiously optimistic of prevailing.
“Did not give any indication”? Being way too diplomatic.
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Thanks for posting!
I have a correction. Apparently Mark Steyn is not directly involved with today's action, but, of course, he is a major participant in the larger picture.
I wonder if Michael Mann got the reference to him in Interstellar. It’s a stab in the heart, especially being played by (spoiler).
Will he sue Christopher Nolan?
I believe that Steyn wants to go to court. He thinks, quite rightly in my opinion, that Mann would be subject to discovery, and that will destroy him.
>> I believe that Steyn wants to go to court. He thinks, quite rightly in my opinion, that Mann would be subject to discovery, and that will destroy him. <<
Yes, but I have the impression that NR’s and CEI’s insurance companies (who presumably are paying for their defense) have opted for the simpler approach — throw the case out. If so, I can’t fault them, even though it will be great if Steyn eventually prevails.
Liberals firmly believe that free speech means that only they get to speak freely. All others must be silent. That is what was meant by “the debate is over” in regards to Gore-Bull Warming.
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BTTT!
Sounds like something right out of Atlas Shrugged.
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