Mann v. Steyn — Steyn goes his own way

June 9

In late 2012, climate scientist Michael Mann sued Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute for defamation and intentional infliction of emotional distress.  Mann, creator of the infamous “hockey stick” climate temperature graph, objected to a blog post authored by Simberg on a CEI blog and quoted by Steyn on National Review Online.  So he took them to court.  The defendants refused to back down, and filed an anti-SLAPP motion seeking to dismiss Mann’s suit.

Those with an interest in climate policy have lined up on their respective sides — environmentalists supporting Mann, skeptics supporting Steyn, et al. — with some notable exceptions.  University of Berkeley law professor Dan Farber, for example, clearly shares Mann’s view of climate science and the urgency of climate change as a problem, but he nonetheless thinks Mann should lose his suit.  The offending blog comments, however tasteless or mistaken, represented the sincerely held beliefs of the authors, and the First Amendment protects even wrong-headed opinions.  This is even true when individuals wish to disagree with — or criticize — expert opinion.

I last reported on this lawsuit in January, when Mann scored a procedural victory and Mark Steyn decided he no longer wished to be represented by NRO‘s lawyers and would instead represent himself.  Even those who think the defendants’ case is quite strong were taken aback by Steyn’s move, and his subsequent decision to file counter-claims against Mann (which prompted an anti-SLAPP motion of their own.  As they often say, the lawyer who represents himself has a fool for a client — and Steyn is not even a lawyer.  Since then, there have been more interesting procedural and legal developments.

First, Steyn is again represented by legal counsel. That’s good for him.  But he has also decided to go his own way due to strategic differences with the other defendants.  Whereas NR and the others would like to see Mann’s suit dismissed, Steyn has decided to forgo procedural wrangling and would like a full trial on the merits as soon as possible.  As he recently explained:

I want to get to court as soon as possible, and put Michael E Mann, PhD (Doctor of Phraudology) on the stand under oath. I haven’t wasted two years on this guy to be denied my moment in court. That’s one reason I’ve countersued Mann. He thinks the DC Superior Court is competent to litigate his fraudulent “hockey stick”. Fine, let’s get it to a jury – before the sclerotic DC “justice” system’s procedural delays go on as long as the global-warming “pause”.

The remaining defendants – NR, CEI, and Simberg — have appealed the district court’s denial of their motion to dismiss the case under D.C.’s anti-SLAPP law, which was specifically enacted to make it easier to dismiss defamation suits, given their tendency to chill protected speech.

A threshold issue — a purely procedural issue of the sort for which Steyn has no patience — was whether the denial of a motion to dismiss under the anti-SLAPP act is immediately appealable, or whether one must wait to bring this issue to the appeals court until after the trial court has finished with the case.  At Popehat, Ken White provides a nice summary of this issue and its importance in defamation litigation.  Among other things, if it is too difficult for a defendant to have a defamation suit dismissed, then it becomes too easy to use such suits to punish unpopular expressions of opinion.  Others think the issue is important too, as the defendants’ appeal was supported by the ACLU, the Reporters Committee for Freedom of the Press, and the District of Columbia.

In May, the D.C. Court of Appeals denied Mann’s motion to dismiss the defendants’ appeal, ordering full briefing on the procedural question as well as the merits of the anti-SLAPP issue.  This was good news for the defendants as the trial court had twice denied their motions to dismiss.  It was followed by more.  On May 29, the D.C. Court of Appeals held that a libel defendant may appeal a denial of a motion to quash subpoena under the anti-SLAPP statute right away.  In this caseDoe v. Burke, the court also held that the trial court had been too reluctant to dismiss the case.  Although this does not guarantee that the appeals court will hold that a denial of a motion to dismiss is immediately appealable, let alone dismiss Mann’s suit against NR, et al., they will at least get to make their case now, before they are subject to discovery.

The climate policy debate is quite heated.  Partisans hurl charges against each others with impunity, challenging the honesty, intelligence, and integrity of those on the other side.  So it’s understandable that many environmentalists hope Mann will win.  Yet should he prevail, many on his side may come to rue this result.  Should Mann win, it will not be long before defamation suits are filed in the other direction.  Every time an environmental activist suggests someone on the other side is “bought” by fossil fuel interests, they had better be able to substantiate their claim, or they will be inviting a lawsuit.  And while it would be nice to have less ad hominem in our political debates, and more serious discussion of climate policy in particular, the threat of defamation suits is not a good way to achieve this result.

CORRECTION: I’ve edited my description of the Doe v. Burke decision. I had written that the court held that a denial of a motion to dismiss is immediately appealable, but that was not the precise issue before the court.  Rather, the immediate question was whether a denial of a motion to quash a subpoena is immediately appealable.  The appeals court in Burke said it was.  This is helpful for the defendants here, but it is not dispositive.  I’ve corrected the post above accordingly.

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 them and occasionally contribute to The Corner and Bench Memos.  It is not a salaried position.  I also worked at CEI from 1991-2000 — many years before the events at issue in this litigation.

 

 

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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Will Baude | June 8