Media and rights organizations defend National Review, et al. against Michael Mann

August 13, 2014

The appeal of climate scientist Michael Mann’s defamation suit against National Review, the Competitive Enterprise Institute and Rand Simberg will soon be heard by the D.C. Court of Appeals (not to be confused with the U.S. Court of Appeals for the D.C. Circuit).  The court will consider both a procedural question — whether the denial of a motion to dismiss under the District’s anti-SLAPP statute is immediately appealable — as well as the substantive question of whether Mann’s suit should be dismissed.  Mann also filed suit against National Review contributor Mark Steyn, but Steyn elected not to appeal the trial court’s denial of the motion to dismiss and wants a trial on the merits.  I reviewed this and other recent developments in this litigation earlier this summer.

Of note, the defendants position is being supported by a wide range of media organizations and free speech proponents. The Reporters Committee for the Freedom of the Press, for example, filed an amicus brief in conjunction with the ACLU, the Washington Post, and two dozen other media organizations arguing that all of the speech at issue merits First Amendment protection.  Another amicus brief was filed by the Electronic Frontier Foundation and a group of online publishers, and another — supporting the defendants solely on the procedural question — was filed by the District of Columbia.  Copies of these briefs and other amici supporting the defendants may be found here.

Not everyone is lining up behind the defendants, however.  NYT columnist Paul Krugman cheered Mann’s decision to file suit this week, though it appears his opinion on the matter is based on the uncritical acceptance of Mann’s characterization of events.  For reasons I’ve discussed before (as in this post, among others), I do not think Mann’s legal case is all that strong.

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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