The Volokh Conspiracy
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Thursday morning the D.C. Court of Appeals ruled that Michael Mann's defamation suit against Rand Simberg, Mark Steyn, National Review and the Competitive Enterprise Institute over blog posts written by Simberg and Steyn may proceed. More than two years since hearing oral argument, the court sided with the defendants on a procedural question, but ultimately rejected their effort to have the defamation suit dismissed (with one small exception). However intemperate the original blog posts at issue, this decision is tremendously unfortunate, as it threatens to make it too easy for public figures to file lawsuits against their critics and, as a consequence, threatens to chill robust political debate.
First, some quick background. Simberg and Steyn authored a pair of blog posts alleging that Penn State University had failed to adequately investigate the alleged misconduct of climatologist Michael Mann that may have been revealed by the release of the "ClimateGate" e-mails. The posts were colorful and rude, accusing Mann of "molesting" data to produce the infamous "hockey stick" graph and comparing Penn State's investigation of his alleged improprieties to its inquiry into the child-molestation accusations against Jerry Sandusky. The posts at issues were harsh. I blogged about the posts and the suits before (most recently here) as have others, such as Dan Farber and Ken White. As longtime readers might guess, I'm no fan of Thursday's opinion. Let me briefly explain why.
Given that Mann is a public figure for the purposes of this litigation, under D.C.'s anti-SLAPP law, he could only prevail if the court could conclude there was a reasonable likelihood that a reasonable jury could find, by "clear and convincing evidence" that Steyn and Simberg acted with "actual malice" or a "reckless disregard" of the truth or falsity of the claims at issue. This is a high hurdle for a defamation plaintiff to clear. As the Supreme Court explained in St. Amant v. Thompson, "reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." In the alternative, the court must have reason to believe that the defendant was not acting in "good faith" because he had strong reasons to believe the allegedly defamatory statements were false.
While a direct accusation of scientific fraud may be actionable—particularly when made against a non-public figure—challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment. So are erroneous interpretations of scientific conclusions and—particularly relevant here—criticisms of the conclusions of investigatory bodies.
In refusing to dismiss claims against Steyn and Simberg, the D.C. Court of Appeals placed tremendous weight on the fact that Penn State and other institutions investigated Mann and did not find evidence of academic misconduct. Yet it is the alleged inadequacy of Penn State's investigation that was the focus of the very posts at issue. Indeed, this was the whole point of the Sandusky comparison. Both Simberg and Steyn believe that Penn State failed to conduct a thorough investigation of the allegations against Mann and that other investigations either did not focus on Mann's conduct or relied too heavily on Penn State. They were explicit on this point, and they cited the reasons for their conclusions. Further, a reader of their posts would be well aware that they were expressing their own opinions and not claiming that some independent investigatory body or tribunal had reached an equivalent judgment.
Because the university and other investigations failed to find evidence of scientific misconduct on Mann's part, the court declared that claims Mann engaged in such action were "definitively discredited." On that basis, it concluded, "a jury could find, by clear and convincing evidence, that appellants 'in fact entertained serious doubts' or had a 'high degree of awareness' that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and deception, were false, and, as a result, acted 'with reckless disregard' for the statements' truth when they were published." This is a troubling conclusion.
It cannot be that once some official body has conducted an investigation of an individual's conduct, that further criticism of that individual, including criticism that expressly questions the thoroughness or accuracy of the investigatory body, is off limits. By this standard it would be defamatory to express the opinion that George Zimmerman or Darren Wilson is a murderer, even if one also argued that the reason either was exonerated was because of structural racism in the criminal-justice system. After all, each was investigated, tried and found not guilty. Nor is it consistent with existing First Amendment doctrine to suggest that hyperbolic accusations of bad faith or dishonesty against public figures involved in policy debates are actionable. The court's approach is particularly problematic here because both Simberg and Steyn offered reasoned (if also intemperate) explanations for why they did not credit the investigations and why they believed that these investigations failed to uncover the misconduct they believe occurred. Yet according to the court, the existence of these investigations could be sufficient for a jury to find, by "clear and convincing evidence," that they acted with actual malice.
As I've argued before:
Whether or not Mann's work shows all that he has claimed is not the question, for the First Amendment protects robust discussion and debate of scientific matters and the freedom to express wrong-headed opinions in inartful ways. The Defendants believe the ClimateGate e-mails showed that Mann and others are willing to misrepresent scientific claims and distort evidence. Whether or not this is the best interpretation of the various e-mails, they are hardly the only people to hold this belief. At the very least, the ClimateGate e-mails revealed unethical and potentially illegal conduct, so it's not per se unreasonable for some to think the e-mails could signify something more, and not defamatory to say so. The Defendants further believe that the various investigations into Mann's work, including the Penn State investigation, were not particularly thorough. Again, they are not alone in this opinion. Even the National Science Foundation found Penn State's review of Mann's work to be lacking. The NSF review found no "direct evidence of research misconduct," but it did conclude there were "several concerns raised about the quality of the statistical analysis techniques that were used." That the defendants expressed these views in an particularly outrageous and inappropriate manner hardly seems the sort of thing of which a defamation claim should be made, particularly when involving a public figure. Again, at issue is not whether Mann's research is sound—or even whether anthropogenic climate change is real (and long-time readers know that I believe it is). The issue is whether this sort of commentary actually rises to defamation. Those who are rooting for Mann—but love to call climate skeptics "shills," "liars," and (yes) "frauds"—should be careful what they wish for.
As I snarked on Twitter, Donald Trump has not even been sworn in yet, and it's already becoming easier for public figures to sue people in the nation's capital.
A few other points. On the procedural side, I believe the D.C. Court of Appeals correctly concluded that a trial court's denial of a motion to dismiss under D.C.'s anti-SLAPP law is immediately appealable. This is important, as (at least in the normal case) it makes it more likely that non-meritorious suits can be quashed relatively quickly. (Of course, for that to work, appeals courts have to be able to decide the appeal in less than two years.) The court also—again correctly in my view—dismissed Mann's intentional infliction of emotional distress claims and his claims against National Review for a subsequent editorial on the controversy by NR editor Richard Lowry. These are some consolation, but don't change my ultimate conclusions about the merits of this opinion.
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 Competitive Enterprise Institute from 1991 to 2000—many years before the events at issue in this litigation. FWIW, I also have profound disagreements with CEI on the threat posed by climate change and the appropriate policy response to this threat.