The Volokh Conspiracy

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Free Speech

National Review Not Liable for Mark Steyn's Blog Post About Michael Mann

The court doesn't decide whether the column was libelous, but just that the National Review wasn't liable for Steyn's post, because Steyn wasn't an employee.


Libel lawsuits by public figures famously require that the plaintiff show that the defendant wrote with "actual malice," which is to say knowing that the statement was false or likely false. But of course most media libel cases aren't brought just against writers; they are also brought against the media enterprises that published the libel. How do you determine what an organization knows?

It turns out that, generally speaking (and in particular in libel cases), you focus on what its employees know. Thus, if a newspaper or magazine publishes a libelous article by its employee, and the employee knows the statement is false, then the publication is also on the hook. But if it publishes an article by a nonemployee third party (e.g., a syndicated columnist or an occasional op-ed writer), then it's only liable if some employee (e.g., an editor) knew the article was false.

Hence the result in Mann v. National Review, Inc., decided today by Judge Jennifer M. Anderson (D.C. Super. Ct.):

On July 15, 2012, Mark Steyn … posted an article titled "Football and Hockey" on National Review Inc.'s … website's blog section, The Corner. On July 23, 2012, Plaintiff Dr. Michael Mann's counsel sent a letter to National Review threatening to sue over Defendant Steyn's post. On August 22, 2012, Rich Lowry …[,] editor of National Review, wrote an article in National Review, addressing Plaintiff's threatened lawsuit. On October 22, 2020, Plaintiff filed suit against Defendants National Review, Steyn, Competitive Enterprise Institute ("CEI"), and Rand Simberg. Plaintiff alleged libel per se against Defendant National Review for the allegedly defamatory statements in Defendant Steyn's article and Mr. Lowry's article [though the lawsuit over the Lowry article was dismissed on appeal].

The court granted National Review's motion for summary judgment:

[1.] "Actual malice [i.e., knowledge that the post was false or was likely false] cannot be imputed to a company based on the state of mind of a writer who is an independent contractor. See Nader v. de Toledano, 408 A.2d 31, 57 n.15 (D.C. 1979)." Mann hadn't sufficiently alleged that Steyn was an employee of the National Review, though he was authorized to post to its blog, so the National Review can't be on the hook just because of the employer-employee relationship.

[2.] Mann had alleged that Steyn, as a blogger at The Corner, was the National Review's "agent," but that's not enough for imputing liability: "courts have consistently declined to impute actual malice to a defendant from another defendant if there is not an employer-employee relationship between them."

[3.] The National Review of course could be held liable if its own employees had the requisite knowledge of likely falsehood; but "Plaintiff has not alleged that any National Review employee was involved in the post that Defendant Steyn published on National Review's blog, The Corner, in July 2012, or knew or suspected it was false." (Note that, to my knowledge, Mann wasn't suing on a theory that the National Review had continued to keep the article up after learning that the article was false, so the arguments in my new duty-to-correct law review article don't seem applicable here.)

The lawsuit against Steyn and the other defendants appears to still be proceeding.