The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
More than four years ago, Penn State University climatologist Michael Mann—creator of the infamous "hockey stick"—filed a defamation suit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute over a few blog posts that attacked Mann in colorful terms, accusing him of "molesting" data to produce the graph and comparing PSU's investigation of his alleged improprieties to its inquiry into the child molestation accusations against Jerry Sandusky. The posts at issues were harsh. Mann thinks they were also defamatory, so he sued.
What should have been a straightforward defamation claim has been anything but. The litigation got bogged down in a series of procedural issues (compounded by Steyn's disagreements with the other defendants). But that's hardly been the only source of delay.
Two years ago today, the D.C. Court of Appeals heard oral argument on the defendants' (save Steyn) appeal of the trial court's denial of their anti-SLAPP (anti-strategic lawsuit against public participation) suit motion. Among the issues was whether the denial of an anti-SLAPP motion to dismiss may be immediately appealed. This is somewhat ironic, as one purpose of SLAPP statutes is to expedite resolution of defamation claims due to their potential to chill protected speech.
As I've noted before, I think this should be a relatively easy case. However offensive or intemperate the posts at issue, they should be recognized as protected speech. To hold otherwise would be to confuse hyperbolic rhetoric for actionable defamation. Moreover, insofar as the statements at issue reflected the defendants' sincere belief that Mann manipulated his data to exaggerate the threat of climate change and that PSU's cursory investigation into his conduct was insufficient, they do not demonstrate the degree of "actual malice" or "reckless disregard" for the truth necessary for a defamation claim, a point recognized even by folks who share Mann's general views on climate science (such as UCal Berkeley's Daniel Farber). Under Mann's theory, George Zimmerman could sue anyone who claimed he "got away with murder" after killing Trayvon Martin. (Ditto equivalent claims about O.J. Simpson, Timothy Loehmann, etc.). It's no wonder that so many media groups and others filed amicus briefs on the defendants' behalf.
Although this case arises out of a dispute over climate change, that's not what the case is about. Climate change is a serious problem, and one that policymakers need to do more to address. But legitimate concern about climate change should not be a pretense for chilling protected speech, whether by independent advocacy groups, opinion publications or others. Environmental concern is no reason to abandon constitutional principle or to dampen freedom of speech.
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 to 2000—many years before the events at issue in this litigation.