Last year, the noted (and controversial) climate scientist Michael Mann sued National Review and the Competitive Enterprise Institute for defamation and intentional infliction of emotional distress for blog posts written by Mark Steyn and Rand Simberg and posted on National Review Online and CEI’s OpenMarket blog, respectively. I blogged about the case in these four posts: 1, 2, 3, 4. Because the suit was filed in D.C. Superior Court, it was subject to D.C.’s anti-SLAPP statute, which is designed to discourage nuisance defamation suits. Accordingly, the defendants filed motions to dismiss the complaint. On July 19, Judge Natalia Combs-Greene of the D.C. Superior Court denied these motions. Barring a reconsideration or interlocutory review, this case could head to trial.
In her two orders (NRO/Steyn, CEI/Simberg), Judge Combs-Greene characterizes the this as a “close case.” She recognizes Mann qualifies as a “public figure,” at least in the context of climate policy debates. This requires that Mann show that the allegedly defamatory comments were made with actual malice — i.e. actual knowledge that the allegdly defamatory claims were false or reckless disregard for the truth or falsity of the claims made. Despite this high burden, Judge Combs-Greene ruled against the defendants on their motion to dismiss. In her view, both sets of defendants made statements that alleged or implied facts that could be defamatory or otherwise actionable, e.g. that Mann engaged in fraud or other disreputable conduct. She further concluded that, despite the “slight” evidence of actual malice “at this stage” of the litigation, “[t]here is however sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false.” As discovery could produce sufficient evidence to support a claim of actual malice or reckless disregard of the truth, Judge Combs-Greene concluded the cases should not be dismissed.
The case may be close, but I’m skeptical of Judge Combs-Greene’s conclusions. For starters, some of her reasoning strikes me as overly speech restrictive. Like Ken White at Popehat, I believe the statements at issue are best understood as hyperbolic expressions of opinion, not statements of fact. While portions of the posts at issue were in exceedingly poor taste — whatever Michael Mann may or may not have done, it does not compare to the heinous crimes of Jerry Sandusky — it takes more to support a defamation or intentional infliction of emotional distress claim. Mann himself has applied denigrating labels to those with whom he disagrees, including language that equates skepticism of apocalyptic warming with holocaust denial. Sad to say, this is just part of rough-and-tumble world of what passes for climate policy “debate” (and I use that word advisedly, as I think partisans on this issue spend more time hurling invective and ad hominems than they do actually debating things).
While a direct accusation of scientific fraud may be actionable, challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment. So are erroneous interpretations of scientific conclusions. Yet according to Judge Combs-Greene, to call someone’s work “a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff’s work has been investigated and substantiated on numerous occasions)” (emphasis added). This is quite a remarkable statement. Even if Combs-Greene was correct to deny the motion to dismiss, she’s wrong on this point.
Judge Combs-Greene places substantial weight on the fact that Penn State and other institutions investigated and cleared Mann’s work. Yet it is the alleged inadequacy of Penn State’s investigation that were the focus of the very posts at issue. It cannot be that once some official body has conducted an investigation of an individual’s conduct, that further criticism of that individual, including criticism that “question[s] his intellect and reasoning” is off limits. By this standard it would be defamatory to express the opinion that George Zimmerman or Casey Anthony is a murderer. After all, each was investigated, tried, and found not guilty. Nor is it consistent with existing First Amendment doctrine to suggest that hyperbolic accusations of bad faith or dishonesty against public figures involved in policy debates are actionable.
Whether or not Mann’s work shows all that he has claimed is not the question, for the First Amendment protects robust discussion and debate of scientific matters and the freedom to express wrong-headed opinions in inartful ways. The Defendants believe the ClimateGate e-mails showed that Mann and others are willing to misrepresent scientific claims and distort evidence. Whether or not this is the best interpretation of the various e-mails, they are hardly the only people to hold this belief. At the very least, the ClimateGate e-mails revealed unethical and potentially illegal conduct, so it’s not per se unreasonable for some to think the e-mails could signify something more, and not defamatory to say so. The Defendants further believe that the various investigations into Mann’s work, including the Penn State investigation, were not particularly thorough. Again, they are not alone in this opinion. Even the National Science Foundation found Penn State’s review of Mann’s work to be lacking. The NSF review found no “direct evidence of research misconduct,” but it did conclude there were “several concerns raised about the quality of the statistical analysis techniques that were used.” That the defendants expressed these views in an particularly outrageous and inappropriate manner hardly seems the sort of thing of which a defamation claim should be made, particularly when involving a public figure. Again, at issue is not whether Mann’s research is sound — or even whether anthropogenic climate change is real (and long-time readers know that I believe it is). The issue is whether this sort of commentary actually rises to defamation. Those who are rooting for Mann — but love to call climate skeptics “shills,” “liars,” and (yes) “frauds” — should be careful what they wish for.
I was also struck by the sloppiness of the opinions. They could have both benefited from a good proof read — and not just for grammar and punctuation. The case involves separate allegations against two separate sets of defendants (Rand Simberg/CEI and Mark Steyn/NRO). Accordingly there are two separate orders. Yet the two orders have a hard time keeping the defendants straight and, at times, attribute specific actions to the wrong defendants. In concluding that Mann might be able to prove that NRO acted with “actual malice,” for example, Judge Combs-Greene writes that the Environmental Protection Agency (EPA) investigated Michael Mann’s work “as a result of constant pressure” from Steyn and National Review. Yet as charged by Mann it is CEI, and not NR that sought such reviews. Then in the order denying CEI’s motion to dismiss, Judge Combs-Greene relies upon the definition of the word “fraud” to conclude that use of such language, even in the context of hyperbolic opinion, could be actionable, and yet the word “fraudulent” was used by Mark Steyn on NRO, but not in the CEI post cited in the plaintiff’s complaint. She makes a similar error with regard to the word “bogus.” And so on. It’s not clear to me Judge Combs-Greene would have ruled differently were it not for these errors, but this sort of sloppiness should give one pause.
Mann has sued two sets of separate defendants, and he has to establish his claims with respect to each one. For this reason it is important to properly attribute the alleged defamatory statements. This is particularly so given the judge’s own characterization of this as a “close case.” If, for instance, a defendant’s reckless disregard of the truth or falsity of an allegedly defamatory allegation is to be demonstrated by that defendant’s familiarity with the subject matter, it would seem to be a problem to point the actions of a separate defendant when assessing the claim. Yet that is what the judge did here.
As a procedural matter, I’m also not sure about her reading of the D.C. anti-SLAPP statute. The statute provides, in relevant part, that:
If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
There’s no question the act applies, so the question is what burden the plaintiff has to meet to defeat the claim. Although the statute says the plaintiff must “demonstrate that the claim is likely to succeed on the merits,” Judge Combs-Greene concludes that this only requires that the plaintiff show “a probability” the claim will succeed — or “a sufficient legal basis for his claims” — to defeat the anti-SLAPP motion. In other words, the plaintiff need not show any more than would be required to defeat a motion for summary judgment. Judge Combs-Greene may be right, and there’s not much case law on this point, but it seems an odd way to read the language of the statute.
Both sets of defendants have filed motions for reconsideration of the respective orders. (Here’s NR’s.) They have also filed a joint motion for interlocutory review, though it is not clear that such review is available in D.C. There’s at least one decision holding that an order denying a special motion to dismiss under the anti-SLAPP Act can only be reviewed on appeal of a trial verdict. A status conference is scheduled for September. Stay tuned.
[Disclosure: I am a contributing editor to National Review Online. This is an unsalaried position. I also worked on environmental issues at CEI from 1991 to 2000. The opinions expressed here are my own.]
UPDATE: I am reliably informed that the case has been assigned to a new judge. Judge Combs-Greene is scheduled to step down on September 30. MORE: The new judge is Judge Frederick Weisberg.