Supreme Court

Alito Faults Supreme Court for Refusing to Hear 'Disfavored Speech' Case

“If the Court is serious about protecting freedom of expression, we should grant review.”

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Last week, the U.S. Supreme Court declined to hear a pair of cases that together raise fundamental questions about what sort of protections the First Amendment offers to journalists and pundits who weigh in on controversial issues. The Court's inaction prompted Justice Samuel Alito to take the rare step of chastising his colleagues for failing to get involved. "If the Court is serious about protecting freedom of expression," Alito wrote, "we should grant review."

The cases are National Review, Inc. v. Mann and Competitive Enterprise Institute v. Mann. At issue are several blog posts written by the columnists Rand Simberg and Mark Steyn and published by the Competitive Enterprise Institute (CEI) and National Review. The posts criticized the academic work of Michael Mann, a Penn State professor who studies climate change. As Justice Alito put it, Simberg and Steyn "employed pungent language, accusing Mann of, among other things, 'misconduct,' 'wrongdoing,' and the 'manipulation' and 'tortur[e]' of data."

Mann responded by suing for defamation in the District of Columbia's Superior Court. Mann later prevailed at that court, and then prevailed again at the U.S. Court of Appeals for the District of Columbia Circuit, which rejected an attempt by CEI and National Review to have the cases thrown out on the grounds that Mann's litigation violated a D.C. law which blocks defamation suits if the offending speech was made "in furtherance of the right of advocacy on issues of public interest." Now that the Supreme Court has declined to take up the cases on appeal, the defamation suits will go to trial.

In his dissent from the denial of certiorari, Justice Alito criticized that outcome as constitutionally suspect and faulted the Court for sending a dangerous message about its overall commitment to free speech principles. "The freedom of speech and the press are most seriously implicated," Alito wrote, "in cases involving disfavored speech on important political or social issues."

Alito acknowledged that the Court's inaction does not mean that the matter is closed for good. Indeed, CEI and National Review may go on to win at trial. But as Alito pointed out, "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." Such costs "may deter the uninhibited expression of views that would contribute to healthy public debate."

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  1. Sounds like common sense speech control.

    1. Nobody needs a high-capacity thesaurus.

      1. What stultiloquence!
        garrulous
        logorrhea
        eutonious

        1. Well, that comment ejaculated prematurely, lol.

          1. Yes, and as the first comment explained, it is precisely common-sense “speech” control. Some kinds of “free speech” simply don’t merit any form of “constitutional protection,” let alone any attention from the Court. This is exactly how we handled our nation’s leading criminal “parody” case, and everyone, including Alito, had the good sense to realize that further examination of that sort of “expression” was pointless. See the documentation at:

            https://raphaelgolbtrial.wordpress.com/

  2. >>>academic work of Michael Mann

    stretch.

    1. He did find the one perfect tree proxy for the entire planet…That’s some serious academic work, right there!!

      1. And with that proxy he stopped using it post 1970 since the signal went the opposite direction of the temp record.

  3. You can’t fire an AR-15 in a crowded theater, so…

  4. You can’t yell fire in a crowded movie theater, you can’t just call Michael Mann a fraud, and you can’t just call Donald Trump a liar.

    No assault on journalism here.

  5. >>Justice Alito criticized that outcome as constitutionally suspect

    jury trial = constitutionally suspect?

    1. The expense and waste of time for something which ought to be a slam dunk win is still expensive and a waste of time.

      “Chilling”, it’s called.

    2. This has been going on for 10 years now. Process is the punishment. Go read some Steyn interviews on how much this has cost him while Manns attorneys are funded by his college.

      1. I wonder if this gets defeated and the anti-slapp laws are applied if Mann would have to pay or the school would pick up his tab.

        1. Even if the school didn’t do it the globalist far left billionaires club will be more than happy to bail him out. Chuckie Koch would probably contribute heavily.

      2. Those interviews would be far less informative than eg this 30 min speech in 2015 by Steyn re Mann when he wrote his book Climate Change:The Facts.

        I like Steyn. He’s funny and irreverent. But there ain’t no way you can get through this speech while pretending that all he is doing is opinionating. He is making very serious accusations – of fact. With an entire book that also purports to be fact not opinion.

        IDK if an actual trial would be anything more than a circus. A Scopes Monkey Trial introduced as actual evidence re evolution is more likely. But I do think this climate issue has gotten so fact-free-inquisitional that an actual trial to discover whatever actual facts are actually facts is long overdue. Denying the opportunity for a trial – Alito’s preference – seems almost perversely designed to prevent someone on some side being PROVEN wrong.

        A far better solution would be to FORCE a trial. No out-of-court settlement possible. Mano-a-mano is what both sides say they want. So FORCE THAT.

    3. As I read the post, not having read the court documents, the defendants moved in District Court (potentially the trial court) for dismissal of the suit “on the grounds that Mann’s litigation violated a D.C. law which blocks defamation suits if the offending speech was made ‘in furtherance of the right of advocacy on issues of public interest.'” Although “outcome” is indeed ambiguous here, I think Alito was saying the District Court’s denial of defendants’ motion, and the Court of Appeals affirmation thereof, were constitutionally suspect.

      1. sounds legit. gracias.

    4. It’s honestly not as big a deal because it is likely that D.C.s anti-SLAPP law which is designed for these types of suits will mean Mann will have to pay for all of the defendants costs. Unless Mann somehow wins which is possible as we know how little the liberals in D.C. think of our rights especially the 1st and 2nd…

  6. Of course, there’s no indication as to how this would play out.

    As they say, bad cases make bad law. And the left has made “climate denial” the modern day Nazi-ism. There’s every chance that Roberts would go along with a defense of that notion.

    If you read the left on this topic – including particularly science communicators and journalists – you’ll see a near universal passion that “climate science denial” should be illegal. None of them see the danger or even the parallels to their own chosen careers.

    1. The funny part (that damned song makes me reluctant to use “ironic”) is that the climate alarmists like Mann are the real climate skeptics, since they deny that the Roman and Medieval Warming Periods were warmer than today, while touting models which can’t even predict the last 20 years correctly.

      There are two sides to this AGW crap, alright: climate deniers like Mann, and climate realists who think broken models are a poor substitute for climate history.

  7. Pssh, as if you want people being able to legally talk about guns in public. Sheesh, a more compelling public interest can’t exist!

    /sarc

    Although in all seriousness, try talking about bombs in an airport and see how fast you’re arrested for speech.

  8. I’m confused, Damon.

    Here are the 4 things required to prove defamation:

    “To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.”

    https://www.law.cornell.edu/wex/defamation

    I think that’s reasonable. For everyone, including the press. Are you claiming the press should have more leeway than the average citizen?

    1. There isn’t just one standard for defamation. There are multiple tests used in different circumstances.

      True story.

      1. FIne. I’m no lawyer. But if you’re wrongly accused and said accusation harms you, you have and should have recourse. Even against, and maybe especially against, the media. Prolly be a good thing for the media to remember that, while they can have their opinion, they may be held liable for libel.

        I’m not taking one side or another in this particular case. My point is that the right to free speech for the press and a guy on the street is identical, and the only limit is that you may not violate the rights of another when exercising it.


        1. But if you’re wrongly accused and said accusation harms you, you have and should have recourse.

          Is your position that you don’t currently have recourse if that occurs? Because as I noted, there is recourse today.

          The bigger problem, in my view, is how they’ve defined down the notion of a public vs. private individual. If George Zimmerman is a public person because NBC reported on them, than private individuals simply do not exist which is a pretty big loophole for outlets like NBC to drive a truck through.

          The reason, in short, is because the standards are harder to prove for ‘public persons’ and while there are good justifications for that the distinction is increasingly moot.

          1. “Is your position that you don’t currently have recourse if that occurs?”

            No. There certainly is recourse (and should be).

            I was wondering about Root’s position. It sounded, to me, like he was saying that it’s perfectly alright for the press to have the ability to lie and smear someone without having to worry about being drug into court for it. I may be misinterpreting his position, but that’s what I was trying to clarify.

            1. That is kind of how I read it too = It sounded, to me, like he was saying that it’s perfectly alright for the press to have the ability to lie and smear someone without having to worry about being drug into court for it.

              If NR and CEI went too far in their remarks, they pay. Free speech is not the same as speech free of any consequences.

            2. i> like he was saying that it’s perfectly alright for the press to have the ability to lie and smear someone without having to worry about being drug into court for it.

              I sometimes get that impression too. That our vaunted media is “under assault” if they’re taken to court for what are alleged to be slanderous lies.

              I say ‘alleged’ in this case because I’m not deeply familiar with the facts and I don’t have a strong opinion on who’s in the right, here.


            3. I was wondering about Root’s position. It sounded, to me, like he was saying that it’s perfectly alright for the press to have the ability to lie and smear someone without having to worry about being drug into court for it.

              Ah, I see then. That would be absurd, and it seems to me that journalists and media outlets already get greater protection than they should RE: reporting on private vs. public persons.

              On paper, if NBC gets the facts wrong about a private person it’s hard for NBC to win. Unfortunately, it seems that courts are going the route of stating that anyone NBC reports on is a public person by default which effectively gives the outlet the ability to make courts use the easier test on anything they publish.

              That isn’t how it’s supposed to work, of course, but there it is.

              1. it seems to me that journalists and media outlets already get greater protection than they should RE: reporting on private vs. public persons.

                No they don’t. Or at least no more protection than any other defendant with deep pockets gets.

                The issue re public v private plaintiffs is about the universe of plaintiffs and what they have the burden to prove in court.


                1. No they don’t. Or at least no more protection than any other defendant with deep pockets gets.

                  Yeah, they do. The media outlet gets to decide if a person is public or private if they’re big enough and have enough reach, which then determines the test the court will apply.

                  That’s a greater protection afforded to large outlets.

                  1. No the media outlet does not make that decision. That is what courts decide.

                    In this case that’s not relevant anyway because Mann acknowledges he is a public figure.

                    1. Re-read the decision to label George Zimmerman a public figure. He’s a public figure because NBC said he was, and that flew in court well enough to find NBC not guilty despite blatantly editing audio to make him appear guilty. And he was in no way, shape, or form a public figure before NBC reported on him.

                      Sorry, but I have at least one high profile court case that says you’re wrong and it’s in recent memory. All a major outlet needs to do is report on you, and viola you are now given a virtually impossible to prove court standard designed for Presidents and Congressmen with clout and huge amounts of money.

                      Sure, seems legit.

                    2. You’re gonna have to do a lot better than that. The judge in that case dismissed his case. NBC did not dismiss his case. Nothing in your link says he was even claiming to be a private figure. But if that was his claim – again – it is the judge who determined whether he was private or public.

                      And if I were to guess, there is a ton of legal precedent that participants in a legal case are not allowed to claim privacy about that case when that specific case is being discussed in public.

                    3. “…Nothing in your link says he was even claiming to be a private figure…”

                      Is this sort of claiming you’re innocent? How much proof do you need to show you’re a ‘private person’?

                    4. How much proof do you need to show you’re a ‘private person’?

                      Are you really this stupid? The nanosecond GZ exerted (and received) his 6A right to have a PUBLIC trial, he became a PUBLIC figure re the specific reporting about that trial. And yeah I’m pretty certain there is a ton of legal precedent that says a participant can’t have it both ways – a public trial – with defendant as managing anti-defamation editor for everything that is reported about it/him.

                      Afaik NBC didn’t defame him by searching for his porn preferences.

              2. I see what you’re saying about different standards of proof for private vs public individuals. As you say, there are probably some good justifications for that. Not sure if I agree there should be differences, or not. Need to think on that.

                It benefits an agenda motivated press to be able to present opinion as fact. It stirs controversy, which sells papers and air-time, going directly to their bottom line. It additionally allows them to sway public opinion towards their narrative by misrepresenting facts. So I can see why an unscrupulous media would want additional protection from litigation.

                For a scrupulous media, the solution is simple. Simply clarify whether the information being presented is opinion or fact. You can’t be sued for having an opinion, as far as I’m aware.


                1. I see what you’re saying about different standards of proof for private vs public individuals. As you say, there are probably some good justifications for that. Not sure if I agree there should be differences, or not. Need to think on that.

                  Here’s a quick link that outlines the differences. I gave it a quick once over and tracks with my recollection of media law.

                  Public vs Private Defamation

                  Hopefully I didn’t SF the link.

      2. Francisco has his wikipedia executive summary, he doesn’t need your jabroni ass fancy shit like legal reasoning and precedent.

        1. I think you’re missing the point

    2. I agree there’s something seriously missing in this article. Notably not a single link to anything to provide any context/backing for anything except Alito’s certiorari dissent.

      Ars Technica is clearly favoring Mann but they did write a good article (from 6 freaking years ago) showing what is apparently both the defamation claim by Mann and the strategy to squash standing by CEI/NR

      1. Reading through Alito’s dissent. Yeah there is some stuff there that indicates the SC may not have seen the last of this case (if Mann wins). But he is also kind of arguing that someone should be denied standing in court to pursue a claim because one SC judge (him) either:
        a)thinks a jury is probably too muddle-headed to understand anything complicated and technical like ‘what is fraud’ in science or
        b)the jury shouldn’t even be impaneled because 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 where the the first is constitutionally protected and the second isn’t.

        I don’t trust anything where the answer is to deny standing and prevent a civil trial from even happening. That has far more effect in squashing the ‘disfavored’.

        1. Your option b is at the essence of anti-SLAPP laws. Yes, the premise of an anti-SLAPP law is that there are some issues for which a jury shouldn’t even be impaneled. The motion to dismiss was based on DC’s version of that law.

          While I agree that we should generally be skeptical of anything that denies standing, the anti-SLAPP laws are a necessary balance to the documented abuses of the litigation process.

          1. The motion to dismiss was based on DC’s version of that law.

            And the motion to deny cert was based on 8 of the judges believing that that DC court understood and correctly applied DC’s version of that anti-SLAPP law. My problem – having read both Alito’s dissent and that Ars Technica article – is that Alito doesn’t even mention the specific context of what he calls ‘pungently phrased opinion’. Which is that those articles were initially written with the explicit assertion that Penn St was covering up fraud just like they had covered up for Jerry Sandusky. THAT statement (which is a statement of fact turned into simile – not opinion) was withdrawn and the media apologized – but that certainly goes to achieving the ‘actual malice’ bar for a public figure (which Mann admits he is) that makes it NOT a frivolous lawsuit even under SLAPP. And that means imo that plaintiff should have the ability to go to court. Still has the burden to prove that something in there is ‘false fact’ rather than ‘opinion’.

            But denying standing? None of the sides in this case are little guys at all. Proof – the case is seven years old and still hasn’t even made it to trial. The truly disfavored would have surrendered and been silenced long ago.

  9. “what sort of protections the First Amendment offers to journalists and pundits who weigh in on controversial issues.”

    The same as everyone else. True rights protection does not grant some people different rights than others.

  10. This absolutly should be heard in the courts. It’s about time that the courts rule that the clingers do not have the same speech rights. Free speech is reserved for those of us who are morally superior than all of the anti-science/anti-woke masses. If one side controls the message soon enough everyone will think the same way.

    1. You are soooooo much better than that Kirkland poser! 🙂

      1. This is a replacement I can get on board with.

  11. Yet another example of why we need serious tort reform.

  12. Why would his university fund his litigation?

    This seems like a misappropriation of funds.

    1. Simply for the sake of argument, his research was conducted as part of his job at the university, so that he’s effectively being defamed (if it was defamation) for doing his job. This makes the case job related.

      The problem here comes in if he loses. If he loses, because it wasn’t defamation, but instead the truth, that implies that he was also cheating his employer by being paid to do real research, and engaging in fraud instead.

  13. … why would being a journalist give you immunity to a defamation lawsuit?

    1. “… why would being a journalist give you immunity to a defamation lawsuit?”

      So none of the facts effect your opinion?
      How……………….
      non-surprising.

      1. As described here, what got to the SCOTUS wasn’t the defamation lawsuit itself, it was whether or not the defamation lawsuit could happen.

        So sure, the facts matter. To the outcome of the trial, not to whether there is a trial.

    2. Those all sound rather like opinions/interpretations, not outright lies…

      Calling Hillary Clinton a stupid money chasing, power hungry cunt who is willing to lie in order to gain power might be a mean thing to say…

      But I don’t see where any of that comes down to being a lie. Claiming Clinton owned 300 black sex slaves that she whips every day after she uses their services while cackling … That, I imagine, would be a lie, hence defamation. But not what they said, or my first example.

      If people can stop things like what they said, that’s a dangerous road to go down…

      1. Those all sound rather like opinions/interpretations, not outright lies…

        Which will be an excellent defense for National Review and CEI to use in the trial.

        But that wasn’t what was in front of the SCOTUS. What was in front of the SCOTUS was whether or not Mann could sue them at all.

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