The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
More than three years ago, Penn State University climatologist Michael Mann filed a defamation suit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute over a few blog posts that criticized Mann in extremely colorful terms. The posts accused Mann of "molesting" data and compared PSU's investigation of his alleged improprieties with its investigation of Jerry Sandusky. The posts at issues were not nice, to say the least. The key question for the courts was whether they were defamatory. Also at issue, however, are procedural issues that have dragged out the litigation.
The last time we checked in on the case, three of the defendants (all save Steyn) were seeking to appeal the trial court's denial of their anti-SLAPP (anti-strategic lawsuit against public participation) suit motion. Oral argument on this question before the D.C. Court of Appeals took place more than a year ago, and there's still no word. Most other cases heard around that time have been decided, suggesting the court may be having some difficulty—perhaps because some of the judges are conflicted or the panel is split. This would be unfortunate because, in my view, the primary issues should be clear. Even folks who share Mann's view of climate science (and his dim view of climate skeptics) recognize the danger of his suit (see, e.g., Dan Farber's post at Legal Planet). In addition, a wealth of amici not particularly sympathetic to CEI or National Review ideologically nonetheless support their legal position.
It is also worth noting that this is not the only case implicating D.C.'s anti-SLAPP law that has been sitting around, suggesting that the judges may be having a difficult time on this aspect of the case. In any event, one would think it would not take over a year to sort out these questions. Indeed, the extent to which this litigation has been drawn out makes a mockery of the D.C. anti-SLAPP law, which was intended to accelerate the resolution of speech-related suits so as to reduce their potential effect of chilling protected expression.
For those wanting more background, I've blogged a fair amount about the case, and Ken White at Popehat has a series of informative posts as well. For a more colorful round-up, see Mark Steyn's last post on the subject. (I don't know what Michael Mann has said about the suit of late; he blocked me on Twitter.)
DISCLOSURE: As I've noted in prior posts on this case, I am a contributing editor at National Review Online, which means I have a fancier byline when I submit articles to the publication and occasionally contribute to The Corner and Bench Memos. It is not a salaried position. I also worked at CEI from 1991-2000—many years before the events at issue in this litigation.