The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2012, climate scientist Michael Mann filed a defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute and Rand Simberg over a hyperbolic blog post written by Simberg for the CEI and quoted approvingly by Steyn on National Review Online.
In December 2016, after sitting on the case for years, the D.C. Court of Appeals (not to be confused with the U.S. Court of Appeals for the D.C. Circuit) held that Mann's suit against the CEI, National Review and Simberg may proceed to trial (Steyn having gone his own way in the litigation).
National Review and CEI promptly filed petitions for rehearing or rehearing en banc in January. These petitions were supported by several amicus briefs, and the court sought a response from Mann in February 2017. (These and other filings in the case may be found here.)
Mann's response was filed over 10 months ago, and there is still no word from the court. What's going on? I have no inside knowledge, but I suspect the delay may indicate at least some of the judges are having difficulty with the potential breadth of the initial ruling. As I wrote in March 2017:
Mann was understandably upset by the offending blog post. Yet treating that post as actionable defamation poses a threat to robust political and scientific discourse, for reasons I've explained in prior posts. As Popehat's Ken White noted in an extensive post about the decision, the D.C. Court of Appeals' decision was "disturbingly deferential to Mann's defenders in a way that . . . undermines dissent." It's the sort of approach to defamation one expects from President Trump, not from a respected court in the nation's capital. I do not agree with the CEI, et al. on the threat posed by climate change, but I agree even less with the idea of penalizing robust political commentary such as was at issue here.
Climate policy activists have generally supported Mann's litigation, but they may come to regret this view. If the comments at issue in this case are potentially actionable defamation, then so too are all manner of hyperbolic charges hurled against climate skeptics by environmentalist activists, including accusations that skeptics are corporate shills or paid for their positions. Indeed, Mann himself has made comments over the years that might themselves be actionable.
Allowing all such claims to proceed to trial might be a boon for lawyers, but it would also chill policy debate. For this reason, I hope the D.C. Court of Appeals reconsiders its opinion. . . .
Why do I think the D.C. Court of Appeals decision is wrong? I addressed this in my December 2016 post on the case
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.
I further addressed the initial (and highly problematic) trial court opinion in this post, in which I wrote:
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 holdthis 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 notalone 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.
Whether or not judges on the D.C. Court of Appeals agrees with me on these points, it seems they've had more than enough time to consider the issue.
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 the Competitive Enterprise Institute from 1991 to 2000 — many years before the events at issue in this litigation. FWIW, I also have profound disagreements with the CEI on the threat posed by climate change and the appropriate policy response to this threat.