The Volokh Conspiracy

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Will the D.C. Court of Appeals rehear the Michael Mann defamation case?


Scientist and author Michael E. Mann. Photo by Tom Cogill
Scientist and author Michael E. Mann. (Tom Cogill)

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, 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). Will the court reconsider? Perhaps.

In January, the CEI, Simberg and National Review filed petitions for rehearing or rehearing en banc, which were supported by several amicus briefs. On Feb. 28, the D.C. Court of Appeals asked Mann to file a response to the petition for rehearing. Mann filed his response this week. (These and other filings in the case may be found here.)

While one shouldn't read too much into a court's request for a responsive filing, I would not be surprised if at least some of the court's judges have second thoughts about the implications of this decision. 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. (On second thought, given some of the comments made about me over the years, should Mann ultimately prevail, I could have some money coming my way. Perhaps I'm the one who should reconsider . . . .)

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.