The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over nine years ago, on July 13, 2012, the Competitive Enterprise Institute (CEI) published a brief item on its "Open Market" weblog about Penn State University's exoneration of climate scientist Michael Mann, creator of the so-called "hockey stick" climate temperature graph. Notoriously, the post's author, Rand Simberg, suggested Penn State was no more diligent investigating Mann than it had been investigating Jerry Sandusky. Mark Steyn quoted and elaborated on the CEI post with a post of his own on National Review Online.
Mann was understandably upset by these posts and, as is his wont, he filed suit against all involved alleging libel and intentional infliction of emotional distress. Nearly nine years later, the litigation continues, though it is now limping along. The Supreme Court took a pass at reviewing one of the preliminary rulings in 2019, and a DC court granted National Review's motion for summary judgment in March, on the grounds that "actual malice" could not be imputed to National Review on the basis of its decision to publish a blog post. (Mann's separate claims related to an article by NR editor Rich Lowry had been previously dismissed on appeal.)
Today, Mann suffered another loss as the D.C. Superior Court granted CEI's motion for summary judgment on similar grounds. Wrote Judge Irving:
Plaintiff has failed to offer evidence that CEI acted with actual malice in publishing the Simberg Article sufficient for a reasonable jury to find in his favor. "Our profound national commitment to the free exchange of ideas, as enshrined in the First Amendment, demands that the law of libel carve out an area of breathing space so that protected speech is not discouraged." Harte-Hanks Communications, 491 U.S. at 686. The First Amendment requires that a defamation claim pursued by a public figure be supported by a showing of particularly bad-faith behavior by a defendant, lest the freedom of speech be infringed and the press be dissuaded from participation in important national conversations. Indeed, media defendants have the right to publish pieces from outside writers, as CEI did here, on matters of public concern. Plaintiff's failure to show actual malice is the result of the nature of the blog in which the Simberg Article appears: It is a blog designed for low-effort management on the part of CEI, where outside writers enjoy a platform for their opinions, with only cursory review by a relatively low-ranking CEI employee prior to publication.
Today's decision was not a total loss for Mann, however, as the court denied the motion for summary judgment with respect to Simberg, who authored the original post.
Early on in the opinion the court noted that "evidence of 'personal spite, ill will or intention to injure on the part of the writer'" is generally insufficient, by itself, to support a claim of actual malice. As the court cautioned, "Some circumstances may justify reliance on evidence of ill-will, but only where the probative value of that evidence will outweigh the risk that 'such evidence will chill honestly believed speech.'" Nonetheless, the court later concluded that summary judgment should be denied because Mann offered "significant evidence that Mr. Simberg held ill-will for Plaintiff and that he was zealous in advancing his side of the climate change debate," and that such evidence could suffice to establish actual malice in front of a jury. I would not be surprised if Simberg appeals on this point.
Mann also prevailed against defendant Mark Steyn in a separate opinion denying Steyn's motion for summary judgment. This was in a separate opinion because Steyn went his own way in this litigation some time ago.
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. If either of these facts makes you suspect bias on my part, so be it.
Note that while I was once something of a climate skeptic (much like Jerry Taylor), my views have changed. Today I have profound disagreements with CEI on the subject of climate change, having argued in defense of the scientific "consensus" on climate change and in favor of a carbon tax, among other measures to address the climate threat. My interest in this litigation arises from this implications for robust debate on matters of public concern, as I explained in this post.