National Review and CEI promptly filed petitions for rehearing or rehearing en banc in January. These petitions were supported by several amicus briefs, and the court sought a response from Mann in February. (These and other filings in the case may be found here.)
Mann’s response was filed over six months ago, and there is still no word from the court. What’s going on? I have no inside knowledge, but I suspect the delay may indicate at least some of the judges are having difficulty with the potential breadth of the initial ruling. As I wrote in March:
Mann was understandably upset by the offending blog post. Yet treating that post as actionable defamation poses a threat to robust political and scientific discourse, for reasons I’ve explained in prior posts. As Popehat’s Ken White noted in an extensive post about the decision, the D.C. Court of Appeals’ decision was “disturbingly deferential to Mann’s defenders in a way that . . . undermines dissent.” It’s the sort of approach to defamation one expects from President Trump, not from a respected court in the nation’s capital. I do not agree with the CEI, et al. on the threat posed by climate change, but I agree even less with the idea of penalizing robust political commentary such as was at issue here.Climate policy activists have generally supported Mann’s litigation, but they may come to regret this view. If the comments at issue in this case are potentially actionable defamation, then so too are all manner of hyperbolic charges hurled against climate skeptics by environmentalist activists, including accusations that skeptics are corporate shills or paid for their positions. Indeed, Mann himself has made comments over the years that might themselves be actionable.Allowing all such claims to proceed to trial might be a boon for lawyers, but it would also chill policy debate. For this reason, I hope the D.C. Court of Appeals reconsiders its opinion. . . .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. FWIW, I also have profound disagreements with the CEI on the threat posed by climate change and the appropriate policy response to this threat.