The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, the Supreme Court denied certiorari in National Review v. Mann, seeking to put an end to climate scientist Michael Mann's defamation suit against National Review, the Competitive Enterprise Institute, and Rand Simberg. (Mann's related suit against Mark Steyn is now proceeding on a separate track.)
This litigation arose out of a hyperbolic blog post written by Simberg for CEI and quoted approvingly by Steyn on National Review Online. Mann objected to the post's sharp tone and, most significantly, to its suggestion that Penn State University had failed to adequately investigate Mann's alleged scientific misconduct. I've blogged extensively about this litigation, most recently here.
National Review, et al. sought certiorari on two issues. The first was whether the question of whether a state contains a "provably false" factual statement is a question to be resolved by a judge or a jury. Most federal courts seem to say the former, but many state courts (and the courts of D.C., where the case was filed, say the latter). The second was "whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy," such as the validity of Mann's research, which has been the subject of extensive criticism and multiple investigations.
The Court denied the petition for certiorari, likely because the of the posture of the case. SCOTUS rarely accepts petitions arising out of interlocutory appeals. The Court could have another chance to consider these questions once the case is complete. Nonetheless, at least one Justice—Justice Alito—dissented from the denial of certiorari.
As Justice Alito noted, the sort of defamation claim at issue in this suit poses a particular risk to robust commentary and debate on contentious policy questions.
The constitutional guarantee of freedom of expression serves many purposes, but its most important role is protection of robust and uninhibited debate on important political and social issues. . . . If citizens cannot speak freely and without fear about the most important issues of the day, real self government is not possible. . . . To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views.
At issue in this case is the line between, on the one hand, a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day and, on the other, a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false. Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990). Under Milkovich, statements in the first category are protected by the First Amendment, but those in the latter are not. Id. . . .
When an allegedly defamatory statement is couched as an expression of opinion on the quality of a work of scholarship relating to an issue of public concern, on which side of the Milkovich line does it fall? This is a very important question that would greatly benefit from clarification by this Court. . . .
In recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate. For example, last Term, in Iancu v. Brunetti, 588 U. S. ___ (2019), we upheld the right of a manufacturer of jeans to register the trademark "F-U-C-T." Two years before, in Matal v. Tam, 582 U. S. ___ (2017), we held that a rock group called "The Slants" had the right to register its name.
In earlier cases, the Court went even further. In United States v. Alvarez, 567 U. S. 709 (2012), the Court held that the First Amendment protected a man's false claim that he had won the Congressional Medal of Honor. In Snyder, the successful party had viciously denigrated a deceased soldier outside a church during his funeral. 562 U. S., at 448–449. In United States v. Stevens, 559 U. S. 460, 466 (2010), the First Amendment claimant had sold videos of dog fights.
If the speech in all these cases had been held to be unprotected, our Nation's system of self-government would not have been seriously threatened. But as I noted in Brunetti, 588 U. S., at ___ (slip op., at 1) (concurring opinion), the protection of even speech as trivial as a naughty trademark for jeans can serve an important purpose: It can demonstrate that this Court is deadly serious about protecting freedom of speech. Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.
This is just such a case. Climate change has staked a place at the very center of this Nation's public discourse. Politicians, journalists, academics, and ordinary Americans
discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.
I do not suggest that speech that touches on an important and controversial issue is always immune from challenge under state defamation law, and I express no opinion on whether the speech at issue in this case is or is not entitled to First Amendment protection. But the standard to be applied in a case like this is immensely important. Political debate frequently involves claims and counterclaims about the validity of academic studies, and today it is something of an understatement to say that our public discourse is often "uninhibited, robust, and wide-open." New York Times Co., 376 U. S., at 270. I recognize that the decision now before us is interlocutory and that the case may be reviewed later if the ultimate outcome below is adverse to petitioners. But requiring a free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden. . . . A journalist who prevails after trial in a defamation case will still have been required to shoulder all the burdens of difficult litigation and may be faced with hefty attorney's fees. Those prospects may deter the uninhibited expression of views that would contribute to healthy public debate.
Unlike Justice Alito, I am quite confident the speech at issue in this case should be entitled to First Amendment protection. While my views of climate science are likely closer to Mann's than the defendants, I fear a First Amendment doctrine that exposes individuals to suit because they question the conclusions of expert review bodies. As I wrote in an earlier post:
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.
Stay tuned to see whether the trial court ultimately agrees. This case began in 2012, and is unlikely to conclude any time soon.