More than four years ago climate scientist Michael Mann sued the National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg for defamation and intentional infliction of emotional distress, complaining that they wrongfully suggested he used fraudulent methods in framing his much-discussed "hockey stick graph" purporting to show an increase in global warming. Mann was infuriated by vivid rhetoric that portrayed him as a molester of data and compared the investigations that cleared him to Penn State's insincere investigations of child molestation.
After a trial court in the District of Columbia denied the defendants' anti-SLAPP motion, the case headed to the DC Court of Appeals (not to be confused with the United States Court of Appeals for the DC Circuit) — where it languished for more than two years after argument, which makes one rather more sympathetic to Mark Steyn's position that waiting for an appeal is foolish.
Now the DC Court of Appeal has ruled, handing Michael Mann a partial victory and partial defeat. The decision is here. It's gotten a lot of press. But it's complicated. What does it mean, and is it bad or good?
Let's break it down.
The right to an immediate appeal: The defendants won, and Mann lost, the first issue, which was a boring (to most people) procedural one: if you file an anti-SLAPP motion under DC's anti-SLAPP statute, and the trial court denies it, can you appeal immediately, or do you have to wait until the end of the case? The Court of Appeals, following the majority of anti-SLAPP statutes in America, decided that you can appeal immediately. Does that sound dull? It's not. It's actually incredibly important.
As I have described before, the point of anti-SLAPP statutes is to provide a relatively inexpensive, relatively early remedy for meritless lawsuits designed to chill protected speech. Sometimes judges get things wrong, and sometimes judges wrongly deny anti-SLAPP motions. If you can't appeal immediately, then the anti-SLAPP motion is rendered pointless — the defendant has to wait until the end of the case, when either (1) the defendant wins on the merits, making the anti-SLAPP motion irrelevant, or (2) the defendant has lost, so that the heart of the appeal is actually the merits of the case, not the anti-SLAPP motion. Either way, the defendant has been forced to incur the full expense and inconvenience of litigation. By contrast, the right of an immediate appeal protects the defendant, staying the trial court case while a court of appeal reviews the anti-SLAPP motion. Practically, this means that any defendant can delay a case targeting speech for years. The only disincentive to do so is the fact that most anti-SLAPP statutes allow courts to award attorney fees when an anti-SLAPP motion is frivolous. This means that plaintiffs know that if they bring a marginal case it will take years to proceed with it. It's a powerful barrier to filing weak cases against speech.
Now, here the appeal took years, including a two-year delay after oral argument, strongly supporting arguments that justice delayed is justice denied. In fairness to Mark Steyn, I was probably too dismissive of his view that the appellate delay was pointless (though I remain convinced that his cross-complaint is silly and counter-productive). But the decision is important — it means that defendants can still employ the DC anti-SLAPP statute to resist censorious lawsuits even if the trial judge makes a bad call. Though Mark Steyn may itch for an immediate trial, most people can't possibly afford one.
This part of the decision is unremarkable.
The standard of proof for the plaintiff: The DC Circuit also reached an important, but also impenetrable-to-most, decision about a plaintiff's burden of proof in resisting an anti-SLAPP motion. Mann won, and the defendants lost, this issue, although the outcome was by far the most likely one.
Almost all anti-SLAPP statutes use a two-step process for anti-SLAPP motions. In step one, the defendant — the one filing the anti-SLAPP motion — has the burden of showing that the lawsuit is targeting some speech covered by the statute. Anti-SLAPP statutes don't protect speech that's not already protected — that is, they don't immunize any speech that's not already immunized by the First Amendment or state statute. They simply provide a procedural vehicle to invoke those protections — a way to say "judge, you should dismiss this case because it's protected under the First Amendment." The anti-SLAPP statute is the syringe, not the vaccine. But different anti-SLAPP statutes cover different things — that is, they allow a defendant to make that motion in different circumstances. In some states — California and Texas, notably — the anti-SLAPP statutes are very broad and allow the defendant to make the motion whenever the speech is protected by the First Amendment or any statute. In other states the anti-SLAPP statutes are much narrower — they may only allow the defendant to make the motion when, for instance, the lawsuit targets someone petitioning the government. Whatever the statute covers, the defendant has the initial burden in step one of showing that the lawsuit falls into that category.
If the defendant makes that showing, in step two the burden shifts to the plaintiff to show that they can win the case. If they can't make that showing, the defendant wins the motion; if they can, the plaintiff wins the motion. But what does it mean to say that "they can win the case" — or to use the statutory language, show they have a "probability of prevailing?"
The DC Circuit adopted the standard that the vast majority of states use for their anti-SLAPP statutes — the plaintiff only has to produce admissible evidence which, if accepted, is legally sufficient to win. That's the same standard courts apply to motions for summary judgment — motions in which the defendant argues that there's not enough evidence for the case to go to a jury. Practically that means that if the complaint is bogus as a matter of law (for instance, if it targets speech that is clearly just hyperbole or opinion), or if the plaintiff has no evidence to support it, the defendant wins — but if the complaint is legally plausible, and the plaintiff has any evidence to support it, the plaintiff wins. The bottom line is that it doesn't put the trial court in the position of evaluating witness credibility – it just inquires whether there are any witnesses.
A very few statutes require trial courts to engage in some sort of evidence-weighing to see if a plaintiff will prevail — that is, they ask the court to evaluate not just whether evidence is legally sufficient, but convincing. By choosing the "legally sufficient" standard, the DC Court of Appeals just followed the vast majority of courts. That makes it a bit easier for plaintiffs to survive an anti-SLAPP motion.
This part of the decision is also unremarkable.
Intentional Infliction of Emotional Distress: The defendants won this issue and Mann lost.
Mann claimed that some defendants inflicted emotional distress upon him by calling him the "Jerry Sandusky of climate science" — a molester of data rather than of children. In DC that requires a plaintiff to show (1) extreme and outrageous conduct done (2) intentionally or recklessly that (3) causes severe emotional distress. Here the court said that even if the rhetorical comparison was extreme and outrageous — it declined to say whether it was — Mann did not present sufficient evidence of severe emotional distress to support the tort. In other words, even under the relaxed requirement that Mann only offer evidence that was legally sufficient if believed, he didn't. So the Court of Appeals concluded that the trial court should have granted the anti-SLAPP motion as to that cause of action. (Many, though not all, anti-SLAPP statutes let a defendant target individual causes of action rather than an entire complaint.)
This part of the decision is also unremarkable.
Rich Lowry's National Review Article: In August 2012, Rich Lowry wrote an article for National Review ridiculing Mann's threats to file a defamation claim. The DC Court of Appeal found that the trial court should have granted the anti-SLAPP motion to dismiss as to this article. The court's clearly right.
Lowry's article linked to the Stein and CEI articles in the course of discussing Mann's complaints and legal threats about them, described Mann's complains as laughable bluster, criticized Mann as a censor, and asserted that the term "fraudulent" is best understood as an argument and opinion rather than a statement of provable fact. All of that is patently protected under the First Amendment as opinion. Lowry's article was not drafted to endorse or adopt Steyn's or CEI's characterizations of Mann or his work, and didn't even repeat the key passages Mann focuses upon. Only false statements of provable fact — or opinions that imply false statements of provable fact — can be defamatory. These weren't. The point is so clear that the DC Court of Appeal noted that Lowry and National Review didn't even need the anti-SLAPP statute; they could have relied upon a standard motion to dismiss based on Mann's quotations of the article in his complaint.
This part of the decision is also unremarkable.
Steyn's and CEI's Articles: The DC Court of Appeal held that the trial court was correct to deny the anti-SLAPP motion by Steyn, CEI, and Simberg. Mann won, and Steyn, CEI, and Simberg lost, that part of the appeal. The result is notable and, for several reasons, concerning.
There are two key elements to this part of the decision: the distinction between opinion and fact, and the question of what constitutes proof of malice.
Once again, only false statements of provable fact may be defamatory. Opinions, arguments, and hyperbole may not unless they imply false provable facts. "Ken is a jerk" can't be defamatory because it's not objectively provable; "I hacked Ken's email and he's a crook" might conceivably be defamatory because it could imply false facts.
Here, both Steyn's and Simberg's articles were replete with hyperbole, rather strongly signalling opinion. Moreover, they both disclosed the facts that they were relying upon — the hockey stick that another scientist [edited to correct: not Mann] called a "trick" to "hide a decline." I think — like others — that the better and more reasonable interpretation of these writings is that Steyn and Simberg were offering overt argument and opinion based on disclosed facts. You might disagree with the fairness of their conclusions — for instance, you might accept Mann's explanation of what the other scientist [edited: not Mann]meant by "trick," or believe that it's unreasonable not to agree with academic institutions that exonerated Mann — but conclusions based on data aren't defamatory even if they are unfair or unreasonable. That's classic protected speech.
The DC Court of Appeals, however, focused on a lack of overt signals like "in my view" or "in my opinion" or "I think" — silly formalism, in my view, but a pointer to practitioners of how one can manage libel risks. The court also focused on the fact that calling something "fraudulent" or "data manipulation" could possibly be interpreted as a statement of provable fact. The problem with this argument, I think, is that it is very selective about what context it considers. Steyn and Simberg are overtly operating in the context of a scientific culture in which someone has talked about a "trick" in presenting data in support of an argument to "hide" an inconvenient fact. That is the underlying fact framing their opinion. The fact is undisputed even if the interpretation of it is not. Their use of vivid and argumentative language helps establish that they are drawing conclusions, not asserting new (and unspecified) facts.
It's important to understand what the Court of Appeals found, though. It didn't find that Steyn's and Simberg's articles stated facts, let alone false ones. It simply found that Mann presented evidence that, if believed, could allow a jury to conclude that the articles stated facts rather than opinions. The court found he created an arguable issue, in other words. I don't agree, but that's much different than deciding that the articles were factual rather than opinion.
Next, the Court of Appeals found that Mann had presented evidence that was legally sufficient to show that Steyn and Simberg acted with malice. Malice, in this context, doesn't mean ill will — it means with knowledge that statements were false or recklessness about whether or not they were false. Mann has to meet that standard because he's a public figure — only false statements about him made with malice are defamatory. The court found that Mann had presented evidence of widely circulated studies and findings exonerating him, and that the existence of those studies could be accepted by a jury as adequate proof of knowledge that the factual allegations were false.
I think the Court's decision here was, at a minimum, badly framed. The entire point of Steyn's and Simberg's posts was quis custodiet ipsos custodes — that the scientific and academic community's policing of alleged wrongdoing by its own is incredible and unreliable when it is defending ideologically cherished consensus. That criticism is clear from their posts — it's an argument that we can't and shouldn't trust this sort of self-exoneration when it is driven, at least in part, by powerful political motives. The Court's portrayal of the "investigations" and "studies" exonerating Mann seems to wander oddly from dispassionate examination of evidence to eager and almost fawning appeal to authority. The logic is also troubling. The redoubtable Jonathan Adler suggested an apt analogy. Consider George Zimmerman's fatal shooting of Trayvon Martin. A jury acquitted Zimmerman. Imagine I say "George Zimmerman murdered Trayvon Martin." Under traditional First Amendment analysis that would be an obvious statement of political opinion based on the highly publicized facts of the case. Under this Court's analysis, and its stingy treatment of protected opinion, I'm concerned it could be taken as a statement of fact — and that the jury's verdict could be taken as adequate proof that I spoke maliciously, because I should have yielded to the jury's evaluation of the facts rather than assert my own.
Once again, the Court of Appeals only spoke of what a jury could find, not what it must find. But — even adjusting for my bias against defamation claims, against Mann's claims in particular, and in favor of protected speech — I found the Court's discussion disturbingly deferential to Mann's defenders in a way that I think undermines dissent.
In short, this part of the decision was notable.
So. The procedural arguments split one for the defendants and one for Mann, both in predictable ways. Mann lost a substantive argument — the easy one — and won two in ways that are reasons for concern. Next, discovery in the trial court. That will be interesting.
Last 5 posts by Ken White
- No, The Grand Junction Daily Sentinel Shouldn't Sue Over "Fake News" - February 20th, 2017
- Lawsplainer: The Eleventh Circuit Protects Doctors' Right To Ask About Guns - February 17th, 2017
- Eleventh Circuit Revisits Florida Law Banning Doctors From Asking About Guns, And I Can't Even - February 16th, 2017
- Erdoğan and the European View of Free Speech - February 10th, 2017
- Still Annoying After All These Years: A Petty Government Story - February 9th, 2017