COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG v. MICHAEL E. MANN, NATIONAL REVIEW, INC. v. MICHAEL E. MANN

District of Columbia
Court of Appeals
No. 14-CV-101 DEC 22 2016
COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG,
Appellants,
CAB-8263-12
v.
MICHAEL E. MANN,
Appellee.
No. 14-CV-126
NATIONAL REVIEW, INC.,
Appellant,
v.
MICHAEL E. MANN,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: BECKWITH and EASTERLY, Associate Judges; and RUIZ, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed this
date, it is now hereby
ORDERED and ADJUDGED that the trial court’s denial of the special
motions to dismiss the defamation claims is affirmed, and the matter is remanded for
additional proceedings in the trial court with respect to these claims. The trial court’s denial
of the special motions to dismiss with respect to Appellee’s claims for defamation and
intentional infliction of emotional distress are reversed; on remand, the court shall dismiss
these claims with prejudice.
For the Court:
Dated: December 22, 2016.
Opinion by Senior Judge Vanessa Ruiz.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
12/22/16
/
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CV-101
COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG, APPELLANTS,
V.
MICHAEL E. MANN, APPELLEE,
NO. 14-CV-126
NATIONAL REVIEW, INC., APPELLANT,
V.
MICHAEL E. MANN, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CAB-8263-12)
(Hon. Natalia M. Combs Greene, Trial Judge)
(Hon. Frederick H. Weisberg, Trial Judge)
(Argued November 25, 2014 Decided December 22, 2016)
Andrew M. Grossman, with whom David B. Rivkin, Jr., and Mark I. Bailen
were on the brief, for appellants Competitive Enterprise Institute and Rand
Simberg.
Michael A. Carvin, with whom David M. Morrell and Anthony J. Dick were
on the brief, for appellant National Review, Inc.
3
John B. Williams, with whom Peter J. Fontaine and Catherine Rosato Reilly
were on the brief, for appellee Michael E. Mann.
Ariel B. Levinson-Waldman, Senior Counsel to the Attorney General, with
whom Irvin B. Nathan, Attorney General for the District of Columbia at the time
the brief was filed, and Todd S. Kim, Solicitor General, were on the brief, for
amicus curiae the District of Columbia, in support of the court’s appellate
jurisdiction to review interlocutory order.
Michael J. Songer and Daniel J. Kornstein were on the brief for amicus
curiae Mark Steyn, in support of the court’s appellate jurisdiction to review
interlocutory order.
Ilya Shapiro, Nicholas C. Dranias, Bradley A. Benbrook, and Stephen M.
Duvernay were on the briefs, in support of appellants, for amici curiae The Cato
Institute, Reason Foundation, Individual Rights Foundation, and Goldwater
Institute.
Gregg P. Leslie, Cynthia A. Gierhart, Seth D. Berlin, Shaina Jones Ward,
and Mara J. Gassmann were on the brief, in support of appellants, for amici curiae
The Reporters Committee for Freedom of the Press; The American Civil Liberties
Union of the Nation’s Capital; American Society of News Editors; Association of
Alternative Newsmedia; The Association of American Publishers, Inc.; Bloomberg
L.P.; The Center for Investigative Reporting; First Amendment Coalition; First
Look Media, Inc.; Fox News Network, LLC; Gannett Co., Inc.; The Investigative
Reporting Workshop; The National Press Club; National Press Photographers
Association; NBCUniversal Media, LLC; Newspaper Association of America;
North Jersey Media Group, Inc.; Online News Association; Radio Television
Digital News Association; The Seattle Times Company; Society of Professional
Journalists; Stephens Media LLC; Time Inc.; Tribune Publishing; The Tully Center
for Free Speech; D.C. Communications, Inc., d/b/a Washington City Paper; and
WP Company LLC d/b/a The Washington Post.
David A. Cortman, Kevin H. Theriot, Christopher Byrnes, and Kurt Van
Sciver were on the brief, in support of appellants, for amicus curiae Alliance
Defending Freedom.
Phillip C. Chang, Jonathan E. Buchan, E. Duncan Getchell, and Amy Miller
were on the brief, in support of appellants, for amici curiae Newsmax Media, Inc.;
Free Beacon, LLC; The Foundation for Cultural Review; The Daily Caller, LLC;
4
PJ Media, LLC; and The Electronic Frontier Foundation.
Before BECKWITH and EASTERLY, Associate Judges, and RUIZ, Senior Judge.
RUIZ, Senior Judge: These appeals present us with legal issues of first
impression concerning the special motion to dismiss created by the District of
Columbia’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP)
Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special
motion to dismiss is immediately appealable and the standard applicable in
considering the merits of an Anti-SLAPP special motion to dismiss.
Appellee Michael E. Mann is a well-known climate scientist whose research
in studying the “paleoclimate,” or ancient climate, has featured prominently in the
politically charged debate about climate change. Dr. Mann filed an action for
defamation and intentional infliction of emotional distress against Competitive
Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National
Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and
National Review’s editor Rich Lowry that appeared on the websites of CEI and
National Review. Dr. Mann’s complaint claimed that the articles which criticized
Dr. Mann’s conclusions about global warming and accused him of deception and
academic and scientific misconduct contained false statements that injured his
5
reputation and standing in the scientific and academic communities of which he is
a part.
Defendants argued that Dr. Mann’s lawsuit infringes on their First
Amendment right of free speech and moved for dismissal under the Anti-SLAPP
Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled
that Dr. Mann’s claims were “likely to succeed on the merits” — the standard
established in the Anti-SLAPP Act to defeat a motion to dismiss — and denied
appellants’ motions to dismiss and their subsequent motions to reconsider.
Appellants — CEI, National Review and Mr. Simberg — sought interlocutory
review in this court of the trial court’s denial of their motions to dismiss.1
As a preliminary matter, we hold that we have jurisdiction under the
collateral order doctrine to hear appellants’ interlocutory appeals of the trial court’s
denial of their special motions to dismiss filed under the Anti-SLAPP Act. We
further hold that the Anti-SLAPP Act’s “likely to succeed” standard for
overcoming a properly filed special motion to dismiss requires that the plaintiff
present evidence — not simply allegations — and that the evidence must be legally
1
Defendant Steyn did not appeal the trial court’s denial of his motions to
dismiss the complaint.
6
sufficient to permit a jury properly instructed on the applicable constitutional
standards to reasonably find in the plaintiff’s favor. Having conducted an
independent review of the evidence to ensure that it surmounts the constitutionally
required threshold, we conclude that Dr. Mann has presented evidence sufficient to
defeat the special motions to dismiss as to some of his claims. 2 Accordingly, we
affirm in part, reverse in part, and remand the case to the trial court for further
proceedings.
I. Statement of the Case
A. Factual Background
The facts presented in the complaint and subsequent pleadings filed with the
court are as follows. Dr. Mann is a graduate of the University of California at
Berkeley (B.S. Physics and Applied Math) and Yale University (M.S. Physics;
Ph.D. Geology and Geophysics), and has held faculty positions at the University of
Massachusetts’s Department of Geosciences and the University of Virginia’s
2
Because we hold that the showing required to defeat an Anti-SLAPP
special motion to dismiss is more demanding than is required to overcome a Rule
12 (b)(6) motion to dismiss, Dr. Mann’s successful response to appellants’ Anti-
SLAPP special motions to dismiss necessarily also defeats appellants’ Rule 12
(b)(6) motions to dismiss.
7
Department of Environmental Sciences. He is a Distinguished Professor of
Meteorology and the Director of the Earth System Science Center at Pennsylvania
State University (Penn State).3 Dr. Mann is considered an authority on climate
change science, and has been recognized with honors and awards for his work
identifying global warming and its cause.
In 1998 and 1999, Dr. Mann and two colleagues4 co-authored two scientific
papers, the first of which was published in the international scientific journal
Nature and the second of which was published in Geophysical Research Letters,
that reported the results from a statistical study of the Earth’s temperatures over
3
According to the CV currently on Penn State’s website, Dr. Mann’s title is
Distinguished Professor of Atmospheric Science. Michael E. Mann, Curriculum
Vitae at 2, PENNSYLVANIA STATE UNIVERSITY DEPARTMENT OF METEOROLOGY,
http://www.meteo.psu.edu/holocene/public_html/Mann/about/cv.php (last visited
Aug. 31, 2016).
4
The co-authors were Raymond S. Bradley and Malcolm K. Hughes. Dr.
Raymond S. Bradley is the Principal Investigator, Distinguished Professor of
Geosciences, and Director of Climate Systems Research Center at the Northeast
Climate Science Center at the University of Massachusetts. He received a B.S.
degree from the University of Southampton, United Kingdom, and M.S. and Ph.D.
degrees from the University of Colorado at Boulder. Raymond Bradley, NE.
CLIMATE SCI. CTR., https://necsc.umass.edu/people/raymond-bradley (last visited
Aug. 31, 2016). Dr. Malcolm Hughes is Regents’ Professor of Dendrochronology
with the Laboratory of Tree-Ring Research at the University of Arizona. He
received B.S. and Ph.D. degrees from Durham University, United Kingdom.
Malcolm Hughes, UNIV. OF ARIZ. SCI. LAB. OF TREE-RING RESEARCH,
http://ltrr.arizona.edu/people/hughes (last visited Aug. 31, 2016).
8
several centuries. Their 1998 study used a technique to reconstruct temperatures
from time periods before the widespread use of thermometers in the 1960s by
using “proxy indicators” (described by Dr. Mann as “growth rings of ancient trees
and corals, sediment cores from ocean and lake bottoms, ice cores from glaciers,
and cave sediment cores”). The data showed that global mean annual temperatures
have been rising since the early twentieth century, with a marked increase in the
last fifty years. The papers concluded that this rise in temperature was “likely
unprecedented in at least the past millennium” and correlated with higher
concentrations of carbon dioxide in the atmosphere emitted by the combustion of
fossil fuels.
The 1999 paper included a graph depicting global temperatures in the
Northern Hemisphere for a millennium, from approximately 1050 through 2000.
The graphical pattern is roughly horizontal for 90% of the temperature axis —
reflecting a slight, long-term cooling period between 1050 and 1900 — followed
by a sharp increase in temperature in the twentieth century. Because of its shape
resembling the long shaft and shorter diagonal blade of a hockey stick, this graph
became known as the “hockey stick.”5 The hockey stick graph became the
5
The hockey stick graph appears as follows:
(footnote continued . . . )
9
foundation for the conclusion that the sharp increase in temperature starting in the
twentieth century was anthropogenic, or caused by concentrations of CO2 in the
atmosphere generated by human activity initiated by the industrial age. The
hockey stick graph also became a rallying point, and a target, in the subsequent
debate over the existence and cause of global warming and what, if anything,
should be done about it.
In 2001, the Intergovernmental Panel on Climate Change (IPCC), 6 in its
(. . . footnote continued)
Intergovernmental Panel on Climate Change, Climate Change 2001—IPCC Third
Assessment Report (2001), http://www.ipcc.ch/ipccreports/tar/slides/05.16.htm.
6
The IPCC is an international scientific body created under the auspices of
the United Nations Environment Program and the World Meteorological
(footnote continued . . . )
10
Third Assessment Report, summarized the study and data that led to the hockey
stick graph and featured several of the studies that replicated its data. In 2003 and
2005, mining consultant Stephen McIntyre and Professor Ross McKitrick 7
published articles claiming to demonstrate that the hockey stick graph was the
result of bad data and flawed statistical analysis. That same year, in a study
commissioned by two U.S. Congressmen, Professor Edward Wegman 8 concluded
that Dr. Mann’s statistical methodology was flawed. That same year, the National
Research Council of the National Academies of Science, in a study commissioned
by the U.S. House of Representatives, raised questions about the reliability of
temperature reconstructions prior to 1600, but agreed substantively with the
conclusions represented by the hockey stick graph. Follow-up, peer-reviewed
studies published in the literature have independently validated conclusions
illustrated by the hockey stick graph.
(. . . footnote continued)
Organization. IPCC Factsheet: What is the IPCC? 1 (2013),
http://www.ipcc.ch/news_and_events/docs/factsheets/FS_what_ipcc.pdf (last
visited Aug. 3, 2016). The IPCC was awarded the 2007 Nobel Peace Prize for its
work on climate change, jointly with Al Gore. Dr. Mann was a lead author of the
IPCC’s 2001 Third Assessment Report.
7
Professor of Economics, University of Guelph, Ontario.
8
Professor of Statistics, George Mason University, Virginia.
11
In November 2009, thousands of emails from the Climate Research Unit
(CRU) of the University of East Anglia in the United Kingdom — some between
Dr. Mann and CRU climate scientists — were somehow obtained and
anonymously published on the Internet, shortly before the U.N. Global Climate
Change Conference was to begin in Copenhagen in December 2009. In a
controversy dubbed “Climategate,” some of these emails were cited as proof that
climate scientists, including Dr. Mann, falsified or manipulated their data, in
collusion with government officials, to produce the hockey stick result. The emails
led to public questioning of the validity of the research leading to the hockey stick
graph and to calls for evaluation of the soundness of its statistical analysis and the
conduct of the scientists involved in the research, including, specifically, Dr.
Mann.
Following disclosure of the emails and the questions raised, Penn State, the
University of East Anglia, and five governmental agencies — the U.K. House of
Commons Science and Technology Committee, the U.K. Secretary of State for
Energy and Climate Change, the Inspector General of the U.S. Department of
Commerce, the U.S. Environmental Protection Agency, and the U.S. National
Science Foundation — issued reports after conducting inquiries into the validity of
the methodology and research underlying the hockey stick graph and investigating
12
the allegations impugning the integrity of Dr. Mann’s and other climate scientists’
conduct. The inquiries that considered the science largely validated the
methodology underlying the hockey stick graph. None of the investigations found
any evidence of fraud, falsification, manipulation, or misconduct on the part of Dr.
Mann.9 These reports were published in 2010 and 2011.
On July 13, 2012, Mr. Simberg authored an article entitled “The Other
Scandal in Unhappy Valley,” which was published on OpenMarket.org, an online
blog of CEI. Comparing “Climategate” with the then-front-page news of the Penn
State sexual abuse scandal involving Jerry Sandusky that had been revealed in the
9
The investigations considered the Climategate emails. For example, one
of the most cited emails, from the director of the CRU to Dr. Mann and two other
climate scientists, stated, “I’ve just completed [Dr. Mann’s] Nature trick of adding
in the real temps to each series for the last 20 years (i.e., from 1981 onwards) and
from 1961 for Keith’s to hide the decline.” The University of East Anglia
investigation concluded that the reference to the “trick” used in Dr. Mann’s paper
for the science journal Nature was a colloquialism used by the scientists to
describe a specific and legitimate statistical technique used to interpret the data and
to exclude certain non-relevant data. Philip Jones, the head of the UEA Climate
Research Unit and author of the email, explained that “trick” did not refer to a
deception, but rather to “the ‘best way of doing or dealing with something,’”
namely, the exclusion of proxy temperature data for a period in which thermometer
readings were available (i.e., “the decline”). The UEA investigation concluded
that the emails used “slang, jargon, and acronyms,” and were “extreme modes of
expression” but “no[t] indicative of actual behavior that is extreme, exceptional or
unprofessional.”
13
Freeh Report,10 Mr. Simberg wrote:
So it turns out that Penn State has covered up
wrongdoing by one of its employees to avoid bad
publicity.
But I’m not talking about the appalling behavior
uncovered this week by the Freeh report. No, I’m
referring to another cover up and whitewash that
occurred there two years ago, before we learned how
rotten and corrupt the culture at the university was. But
now that we know how bad it was, perhaps it’s time that
we revisit the Michael Mann affair, particularly given
how much we’ve also learned about his and others’
hockey-stick deceptions since. Mann could be said to be
the Jerry Sandusky of climate science, except for instead
of molesting children, he has molested and tortured data
in service of politicized science that could have dire
consequences for the nation and planet. . . .[11]
[M]any . . . luminaries of the “climate science”
community were shown to have been behaving in a most
unscientific manner. Among them were Michael Mann,
Professor of Meteorology at Penn State, whom the emails
revealed had been engaging in data manipulation to keep
the blade on his famous hockey-stick graph, which had
become an icon for those determined to reduce human
carbon emissions by any means necessary. . . .
10
Former FBI Director Louis Freeh conducted a review which severely
criticized Penn State’s investigation of sexual abuse complaints made against Penn
State football coach Jerry Sandusky.
11
CEI subsequently deleted from its website the comment comparing Dr.
Mann to Jerry Sandusky, characterizing it as “inappropriate.” Rand Simberg, The
Other Scandal in Unhappy Valley, COMPETITIVE ENTER. INST. (July 13, 2012),
https://cei.org/blog/other-scandal-unhappy-valley.
14
Mann has become the posterboy of the corrupt and
disgraced climate science echo chamber. No university
whitewash investigation will change that simple
reality. . . .
Michael Mann, like Joe Paterno, was a rock star in
the context of Penn State University, bringing in millions
in research funding. The same university president who
resigned in the wake of the Sandusky scandal was also
the president when Mann was being whitewashed
investigated. We saw what the university administration
was willing to do to cover up heinous crimes, and even
let them continue, rather than expose them. Should we
suppose, in light of what we now know, they would do
any less to hide academic and scientific misconduct, with
so much at stake?
It’s time for a fresh, truly independent
investigation.
(strike-through in original).
On July 15, 2012, Mr. Steyn authored an article titled “Football and
Hockey,” which appeared on National Review’s online blog “The Corner.” In his
article, Mr. Steyn quoted from Mr. Simberg’s July 13 article:
I’m referring to another cover up and whitewash that
occurred [at Penn State] two years ago, before we learned
how rotten and corrupt the culture at the university was.
But now that we know how bad it was, perhaps it’s time
that we revisit the Michael Mann affair, particularly
given how much we’ve also learned about his and others’
hockey-stick deceptions since. Mann could be said to be
15
the Jerry Sandusky of climate science, except that instead
of molesting children, he has molested and tortured data
in service of politicized science that could have dire
consequences for the nation and planet.
Mr. Steyn then added:
Not sure I’d have extended that metaphor all the
way into the locker-room showers with quite the zeal
Mr. Simberg does, but he has a point. Michael Mann
was the man behind the fraudulent climate-change
“hockey-stick” graph, the very ringmaster of the tree-ring
circus. And, when the East Anglia emails came out,
Penn State felt obliged to “investigate” Professor Mann.
Graham Spanier, the Penn State president forced to
resign over Sandusky, was the same [one] who
investigated Mann. And, as with Sandusky and Paterno,
the college declined to find one of its star names guilty of
any wrongdoing.
If an institution is prepared to cover up systematic
statutory rape of minors, what won’t it cover up?
Whether or not he’s “the Jerry Sandusky of climate
change”, [sic] he remains the Michael Mann of climate
change, in part because his “investigation” by a deeply
corrupt administration was a joke.
Dr. Mann’s counsel wrote to appellants requesting an apology and retraction
of the statements, and threatening litigation if the articles were not removed from
their respective websites. The letter stated that the allegations of data manipulation
and misconduct were false, and pointed to the investigations that had concluded
Dr. Mann had not engaged in wrongdoing or manipulated data in a deceptive
16
manner. No apology was forthcoming, nor were the posted statements withdrawn.
Instead, on August 22, 2012, Mr. Lowry wrote an editorial on National Review’s
website titled “Get Lost” that referred to “Michael Mann of Climategate infamy,”
characterized his threatened litigation as “a nuisance lawsuit,” and included a link
to National Review’s lawyer’s response rejecting Dr. Mann’s counsel’s request for
a retraction. Mr. Lowry explained that “[i]n common polemical usage,
‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means
intellectually bogus and wrong.” The editorial concluded: “[Dr. Mann is] going to
go to great trouble and expense to embark on a losing cause that will expose more
of his methods and maneuverings to the world. In short, he risks making an ass of
himself. But that hasn’t stopped him before.” The underlying lawsuit followed.
B. Trial Court Proceedings
Dr. Mann filed his initial complaint on October 22, 2012, alleging libel and
intentional infliction of emotional distress based on appellants’ statements accusing
him of improperly manipulating data to reach a preordained conclusion, deception,
fraud, and misconduct. Appellants filed special motions to dismiss the complaint
pursuant to the D.C. Anti-SLAPP Act and motions to dismiss for failure to state a
claim under Superior Court Rule 12 (b)(6). Dr. Mann opposed the motions. On
17
July 19, 2013, Judge Natalia Combs Greene denied the motions. She determined
that the subject of appellants’ challenged statements brought them within the ambit
of the Anti-SLAPP Act, but that Dr. Mann had made the required showing under
the Act to defeat the special motions to dismiss. First, the trial court interpreted the
“likely to succeed” standard in the Act as substantively similar to the standard for
prevailing on a motion for summary judgment or motion for judgment as a matter
of law. Second, the trial court concluded that Dr. Mann met this burden by making
a prima facie showing that appellants’ statements were defamatory and not
sheltered by the fair comment privilege, and by providing sufficient evidence for
the court to find that “discovery may uncover” that appellants acted with actual
malice. Third, the trial court determined that Dr. Mann also made the requisite
showing of malicious and outrageous conduct to support his claim of intentional
infliction of emotional distress. Finally, the trial court determined that the
complaint stated a claim, and thus survived a Rule 12 (b) (6) evaluation.
Appellants asked the trial court to vacate the denials of their motions to
dismiss and, after the trial court denied this request, appellants moved for
certification of the trial court’s orders for interlocutory appeal. The trial court
denied the motions for certification. Appellants then appealed to this court, which
issued an order to show cause as to why the appeals should not be dismissed for
18
lack of jurisdiction as having been taken from non-appealable orders. On
December 19, 2013, these appeals were dismissed as moot because Dr. Mann filed
an amended complaint on June 28, 2013.
The amended complaint is substantially the same as the original complaint,
with the addition of one count of libel based on the comment comparing Dr. Mann
to Jerry Sandusky, which, in the original complaint, supported only the intentional
infliction of emotional distress claim. Appellants renewed their motions to
dismiss, and Dr. Mann opposed them. On January 22, 2014, Judge Frederick
Weisberg denied the motions, reasoning that Judge Combs Greene’s order denying
the original motions to dismiss was the law of the case, and adding an analysis of
the new defamation count. Appellants again filed motions seeking vacatur of the
denial of their motions to dismiss and certification for interlocutory appeal, which
were, again, denied by the trial court.
Appellants filed notices of appeal to this court, and Dr. Mann moved to
dismiss the appeals on the ground that they seek review of non-final orders that are
not immediately appealable, or, in the alternative, to expedite the appeal. The
court ordered appellants to show cause as to why the court has jurisdiction to hear
these interlocutory appeals. Appellants filed a response, as did Dr. Mann. The
19
court ultimately reserved the jurisdiction question, expedited the appeal, and
ordered the parties to file briefs addressing the court’s jurisdiction as well as the
merits. The District of Columbia and non-appealing defendant Mr. Steyn filed a
brief as amicus curiae in favor of the court’s jurisdiction to hear the interlocutory
order on appeal.12 Several organizations filed briefs as amici curiae in support of
appellants. We now address all issues.
II. SLAPP Actions and the D.C. Anti-SLAPP Act
A “SLAPP” (strategic lawsuit against public participation) is an action “filed
by one side of a political or public policy debate aimed to punish or prevent the
expression of opposing points of view.” Council of the District of Columbia,
Report of Committee on Public Safety and the Judiciary on Bill 18-893, at 1 (Nov.
18, 2010) (hereinafter Report on Bill 18-893). Thus, the goal of a SLAPP “is not
to win the lawsuit but to punish the opponent and intimidate them into silence.” Id.
at 4 (citing George W. Pring, SLAPPs: Strategic Lawsuits Against Public
Participation, 7 PACE ENVTL. L. REV. 3, 3, 9-11 (1989)). Enacted in 2012, the
D.C. Anti-SLAPP Act was designed to protect targets of such meritless lawsuits by
12
Mr. Steyn also urged the court to act expeditiously as Dr. Mann’s claims
against Mr. Steyn, and Mr. Steyn’s counterclaim, have been put on hold in the trial
court pending resolution of this appeal.
20
creating “substantive rights with regard to a defendant’s ability to fend off” a
SLAPP. Report on Bill 18-893, at 1. The rights created by the Act comprise a
special motion to dismiss a complaint, D.C. Code § 16-5502, and a special motion
to quash discovery orders, requests for information, or subpoenas for personal
identifying information in suspected SLAPPs, D.C. Code § 16-5503. This court
has interpreted and applied the Anti-SLAPP Act with respect to the provisions
concerning the special motion to quash a subpoena, see Doe v. Burke (Burke I), 91
A.3d 1031 (D.C. 2014), and the award of attorney’s fees in connection with such a
motion, see Doe v. Burke (Burke II), 133 A.3d 569 (D.C. 2016). This is the first
case presented on appeal that raises the proper interpretation and application of the
Act’s special motion to dismiss.
Under the District’s Anti-SLAPP Act, the party filing a special motion to
dismiss must first show entitlement to the protections of the Act by “mak[ing] 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.” D.C. Code § 16-5502 (b). Once
that prima facie showing is made, the burden shifts to the nonmoving party, usually
the plaintiff,13 who must “demonstrate[] that the claim is likely to succeed on the
13
The nonmoving party could also be the defendant in the original action,
who has filed a counterclaim, and is responding to a special motion to dismiss filed
(footnote continued . . . )
21
merits.” Id. If the plaintiff cannot meet that burden, the motion to dismiss must be
granted, and the litigation is brought to a speedy end. Id. In this case, the parties
agree that appellants made the requisite prima facie showing that the Act applies
because the lawsuit is based on articles that appeared on CEI’s and National
Review’s websites that concern the debate over the existence and causes of global
warming. See D.C. Code § 16-5501 (1) (defining “[a]ct in furtherance of the right
of advocacy on issues of public interest” to include “[a]ny written or oral statement
made . . . [i]n a place open to the public or a public forum in connection with an
issue of public interest . . . .”); D.C. Code § 16-5501 (3) (“‘Issue of public interest’
means an issue related to health or safety; environmental, economic, or community
well-being; the District government; a public figure; or a good, product, or service
in the market place.”). What is contested in this appeal is whether Dr. Mann met
his burden of demonstrating that he is “likely to succeed on the merits” of his
claims for defamation and intentional infliction of emotional distress. If he has,
appellants’ special motions to dismiss were properly denied, and the litigation
continues. If he has not, the motions should have been granted, and the litigation
would be terminated. But we must decide first whether this court has jurisdiction
to decide that question at this stage of the litigation.
(. . . footnote continued)
by the counterclaim defendant. For the sake of clarity, we refer to the nonmoving
party and plaintiff interchangeably.
22
III. Jurisdiction
Denial of a special motion to dismiss filed under the Anti-SLAPP Act does
not end the litigation and is not a final order. To the contrary, it signals that the
litigation will continue.14 Nor is it one of the types of interlocutory orders
specified by statute over which this court has jurisdiction. See D.C. Code § 11-721
(a)(2)-(3) (2012 Repl.). The denial of a motion to dismiss filed under Rule 12
(b)(6) is not usually immediately appealable. See McNair Builders, Inc. v. Taylor,
3 A.3d 1132, 1135 (D.C. 2010). Thus, we must decide, in the first instance,
whether the denial of a special motion to dismiss filed pursuant to D.C. Code § 16-
5502 belongs to that “small class” of non-final orders that may be appealed under
the collateral order doctrine established by the Supreme Court in Cohen v.
Beneficial Industrial Loan Corp., because it is “too important to be denied review
and too independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.” 337 U.S. 541, 546 (1949).
The test for application of the collateral order doctrine is “stringent.”
McNair Builders, 3 A.3d at 1136 (quoting Will v. Hallock, 546 U.S. 345, 349-50
14
The grant of a special motion to dismiss, on the other hand, is appealable
as a final order. See D.C. Code § 11-721 (a)(1).
23
(2006)). For an order to qualify for interlocutory review under the doctrine, “(1) it
must conclusively determine a disputed question of law, (2) it must resolve an
important issue that is separate from the merits of the case, and (3) it must be
effectively unreviewable on appeal from a final judgment.” Id. at 1135-36
(quoting, and overruling on other grounds, Finkelstein, Thompson & Loughran v.
Hemispherx Biopharma, Inc., 774 A.2d 332, 339-40 (D.C. 2001)). “Effective”
unreviewability encompasses the notion that the matter at stake concerns an issue
of “substantial public interest.” Id. at 1137. We conclude that these criteria are
met where a special motion to dismiss filed under the Anti-SLAPP Act is denied as
they are in the case of denial of a special motion to quash filed under the Act. See
Burke I, 91 A.3d at 1038 (“[The] determination that an order is appealable under
[these criteria] is ‘not directed at the individual case, but to the entire category to
which a claim belongs.’”) (quoting McNair Builders, 3 A.3d at 1140 n.9)).15
15
Burke I held that denial of a special motion to quash a subpoena to
discover the identity of unidentified defendant(s) filed under the Anti-SLAPP Act
is appealable on an interlocutory basis, 91 A.3d at 1036-40; it reserved the “related
but separate question” of the appealability of an order denying a special motion to
dismiss filed under the Act. Id. at 1036 n.6.
24
A. Conclusivity
First, a trial court’s order denying a special motion to dismiss under the
Anti-SLAPP Act “conclusively determine[s] a disputed question of law,” McNair
Builders, 3 A.3d at 1135: whether the movant is entitled to dismissal under the
Act. In analyzing whether the denial of a special motion to quash under the Act is
immediately appealable, the Burke I court concluded that the “conclusivity
element” of the collateral order doctrine is “satisfied when a trial court has
determined the movant is ineligible for protection under the [Anti-SLAPP]
statute.” 91 A.3d at 1038 (quoting Godin v. Schencks, 629 F.3d 79, 84 (1st Cir.
2010)).16 Here, appellants have received some measure of protection under the Act
by having their motions to dismiss evaluated under the special provisions of the
Act created to deter SLAPPs. The application of the Act does not mean, however,
that there is no “disputed question of law” for purposes of the collateral order
doctrine. There remains the specific disputed legal question of whether the movant
is entitled to the Act’s ultimate protection: mandatory dismissal of the lawsuit at
an early point in the litigation. That is an issue a trial court conclusively
16
In Burke I, the special motion to quash was denied after the trial court
determined that the movant failed to make a prima facie case that the lawsuit arose
out of protected acts and that the plaintiff was likely to succeed on the merits. 91
A.3d at 1035. This court reversed on both counts. Id. at 1045.
 25
determines when it rules on a special motion to dismiss. Therefore, denial of a
special motion to dismiss satisfies the “conclusivity element” of the collateral order
doctrine.
B. Separability
Second, a trial court’s order denying a special motion to dismiss “resolve[s]
an important issue that is separate from the merits of the case.” McNair Builders,
3 A.3d at 1135. The issue in the case of a special motion to dismiss, once the
threshold prima facie case has been met by the movant, is whether the movant has
a statutory right to be free of the burdens of defending the litigation. Resolution of
both issues — whether the claim arises from acts protected by the Act and whether
the movant is entitled to dismissal — will involve some of the same facts relevant
to the merits of the claim. That commonality, however, does not necessarily
preclude interlocutory review of the denial of an Anti-SLAPP special motion to
dismiss.
An analogy to qualified immunity is apt. “[I]t follows from the recognition
that qualified immunity is in part an entitlement not to be forced to litigate the
consequences of official conduct that a claim of immunity is conceptually distinct
from the merits of the plaintiff’s claim that his rights have been violated.” Mitchell
26
v. Forsyth, 472 U.S. 511, 527-28 (1985). The special motion to dismiss created by
the Anti-SLAPP Act “explicitly protects the right not to stand trial” in a SLAPP,
which is intended as a “weapon to chill or silence speech.” Burke I, 91 A.3d at
1033, 1039; see Report on Bill 18-893, at 4 (referring to “other jurisdictions, which
have similarly extended absolute or qualified immunity for individuals engaging in
protected actions”). This statutory right is analogous to qualified immunity for
official conduct in that its application depends on the court’s resolution of whether
the acts complained of entitle the defendant not to stand trial “under certain
circumstances.” Mitchell, 472 U.S. at 525. In this case we interpret the statutory
standard (“likely to succeed on the merits”) for determining special motions under
the Act and, as discussed infra, conclude that the court must decide, as a matter of
law, whether the plaintiff has produced (usually without the benefit of discovery)
sufficient evidence to prevail on the claim. In other words, the circumstance under
which the Anti-SLAPP Act creates immunity from trial is a meritless SLAPP. As
we stated in Burke I, this “resolves a question separate from the merits in that it
merely finds that such merits may exist, without evaluating whether the plaintiff’s
claim will succeed.” 91 A.3d at 1039 (quoting Batzel v. Smith, 333 F.3d 1018,
1025 (9th Cir. 2003)).17
17
Burke I also explained that denial of a special motion to quash on the
ground that the defendant was not entitled to protection under the Act is separable
(footnote continued . . . )
27
We readily acknowledge that this inquiry is not completely separable from
the merits, but it need not be where it serves a different purpose. See Henry v.
Lake Charles Am. Press, 566 F.3d 164, 175 (5th Cir. 2009) (noting that purpose of
Anti-SLAPP special motions is “distinct from [the purpose] of the underlying
suit”). As the Supreme Court has recognized, “although sometimes practically
intertwined with the merits, a claim of immunity nonetheless raises a question that
is significantly different from the questions underlying plaintiff’s claim on the
merits (i.e., in the absence of qualified immunity).” Johnson v. United States, 515
U.S. 304, 314 (1995). As is the case with qualified immunity, the issue that the
court must resolve in deciding a special motion to dismiss under the Anti-SLAPP
Act is whether the defendant is entitled to immunity from trial, a question of law
that involves the evaluation of the complained-of conduct against established legal
standards. Cf. Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (holding that court’s
denial of qualified immunity separate and immediately appealable because it
“necessarily determined that certain conduct attributed to [defendant] (which was
(. . . footnote continued)
because whether “speech qualifies for protection under the statute is a separate
question from whether [appellants] may be held liable for defamation.” Burke I,
91 A.3d at 1038. As discussed supra, appellants’ speech in this case was deemed
to be covered by the Act.
28
controverted) constituted a violation of clearly established law”).18 Consequently,
even though a court’s determination involves consideration of evidence produced
in support of the merits, in view of the purpose of the D.C. Anti-SLAPP Act to
provide immunity from suit, a court’s denial of a special motion to dismiss
resolves an issue of law at the threshold of litigation — whether the defendant is
entitled to immunity from trial — that is sufficiently separate from the ultimate
question on the merits of the case decided at trial — whether the defendant is
liable. See Henry, 566 F.3d at 175 (noting that Anti-SLAPP motion is “separate[]
from the merits of the claim itself” because its purpose is to determine ‘“whether
the defendant is being forced to defend a meritless claim,’ not to determine
whether the defendant actually committed the relevant tort” (quoting Batzel, 333
F.3d at 1025)).19
18
See id. (contrasting Johnson, where what was “at issue in the sufficiency
determination was nothing more than whether the evidence could support a finding
that certain conduct occurred”).
19
But see Ernst v. Carrigan, 814 F.3d 116, 119-22 (2d Cir. 2016) (holding
that even if Vermont Anti-SLAPP statute provides immunity from trial,
consideration of special motion to dismiss takes into account fact-based
determinations and is thus not “completely separate from the merits”).
29
C. Unreviewability
Third, a trial court’s denial of a special motion to dismiss is “effectively
unreviewable on appeal from a final judgment.” McNair Builders, 3 A.3d at 1135
(quoting Finkelstein, Thompson & Loughram, 774 A.2d at 339-40). Denial of
immunity from trial is the quintessential unreviewable order because the core of
immunity from suit “is its possessor’s entitlement not to have to answer for his
conduct in a civil damages action.” Id. at 1137 (quoting Mitchell, 472 U.S. at 525).
The D.C. Anti-SLAPP Act provides not only immunity from having to stand trial
but also protection from “expensive and time consuming discovery that is often
used in a SLAPP as a means to prevent or punish” by “toll[ing] discovery while the
special motion to dismiss is pending.” Report on Bill 18-893, at 4. Consequently,
the denial of a special motion to dismiss filed under the Act — a denial of the
immunity from suit and pretrial burdens afforded by the statute — is the type of
unreviewable order that falls squarely within the collateral order doctrine. Accord
Henry, 566 F.3d at 178 (holding that denial of Anti-SLAPP motion to dismiss
satisfies the third requirement of the collateral order doctrine because its purpose is
to “provide[] a right not to stand trial”); see also Behrens, 516 U.S. at 308 (noting
that the scope of protection afforded by qualified immunity, which includes the
right to not stand trial and to avoid the burdens of pretrial matters, such as
30
discovery, made denial of immunity claim immediately appealable).
D. Substantial Public Interest
Finally, and of particular importance in conducting a Cohen analysis, we
conclude that because the denial of a special motion to dismiss implicates a
“substantial public interest,” it would be effectively unreviewable on appeal from a
final judgment. McNair Builders, 3 A.3d at 1136. The purpose of the special
motion to dismiss is to protect a “particular value of a high order” — the right to
free speech guaranteed by the First Amendment — by shielding defendants from
meritless litigation that might chill advocacy on issues of public interest. Will, 546
U.S. at 352 (citing cases involving separation of powers, states’ dignitary interests
under the Eleventh Amendment, and double jeopardy bar of the Fifth
Amendment); cf. McNair Builders, 3 A.3d at 1141 (holding that contractor’s
asserted immunity under judicial proceedings privilege did not implicate a
substantial public interest warranting interlocutory review). The legislative history
of the Anti-SLAPP Act confirms that the legislature thought the denial of the Act’s
protection merited immediate appellate review. The original Anti-SLAPP bill
presented to the Council of the District of Columbia included a provision for the
interlocutory appeal of the denial of a special motion to dismiss or quash. This
31
provision was excluded from the final version of the bill following this court’s
decision in Stuart v. Walker, 6 A.3d 1215 (D.C. 2010), vacated, 30 A.3d 783 (D.C.
2011) (Mem.)., which held that a similar provision affecting the jurisdiction of the
court is beyond the scope of the Council’s authority. Report on Bill 18-893, at 7.
The Council’s evident intent and preference to include an interlocutory review
provision — regardless of whether it had the authority to do so — is a significant
indicator of its belief that “some particular value of a high order,” Will, 546 U.S. at
352, is at issue that should be addressed by the court on appeal without waiting for
completion of the litigation. See Henry, 566 F.3d at 181 (concluding that where
statute “embodies a legislative determination that parties should be immune from
certain abusive tort claims that have the purpose or effect of imperiling First
Amendment rights, ‘there is little room for the judiciary to gainsay its
“importance”’” (quoting Digital Equip. v. Desktop Direct, 511 U.S. 863, 879
(1994))); cf. Englert v. MacDonnell, 551 F.3d 1099, 1105-06 (9th Cir. 2009)
(holding that denial of special motion to strike under Oregon’s anti-SLAPP statute
was not immediately appealable where Oregon statute did not provide for
immediate appellate review of such order).
We conclude that denial of Anti-SLAPP special motions to dismiss meet the
requirements of conclusivity, separability, and effective unreviewability
32
established in Cohen, as further refined in Will, and is immediately appealable to
this court. We come to this conclusion in light of the District of Columbia Anti-
SLAPP Act’s purpose to create a substantive right not to stand trial and to avoid
the burdens and costs of pre-trial procedures, a right that would be lost if a special
motion to dismiss is denied and the case proceeds to discovery and trial; our
interpretation of the Act as requiring a judicial determination applying established
principles of law in deciding a special motion to dismiss; and, most especially, the
public interest in safeguarding important First Amendment rights in an expeditious
manner as shown by the Council’s evident desire to make denials of such motions,
which must be filed and decided in the early stage of litigation, immediately
appealable. See Henry, 566 F.3d at 176-78 (noting that a ruling on a special
motion to dismiss under the Louisiana Anti-SLAPP statute meets every prong of
the collateral order doctrine because the statute provides a right not to stand trial
and bear the costs of defending a meritless defamation claim that can chill
important First Amendment rights by gauging plaintiff’s probability of success);
Batzel, 333 F.3d at 1025-26 (holding that denial of special motion to dismiss under
California Anti-SLAPP Act met Cohen standards because it created a substantive
immunity from suit and provided for immediate right of appeal).
As we have determined that we have jurisdiction, we have two further
33
questions to address: (1) what is meant by the Act’s language requiring the
plaintiff to “demonstrate[] that the claim is likely to succeed on the merits,” and (2)
whether Dr. Mann has met this standard in the present case.
IV. The Anti-SLAPP Act’s “Likely to
Succeed on the Merits” Standard for Special Motions to Dismiss
The Anti-SLAPP Act’s special motion to dismiss creates a burden-shifting
procedure that is triggered by the party seeking to invoke the special protections
afforded by the Act. See D.C. Code § 16-5502.20 The moving party (usually the
20
D.C. Code § 16-5502 provides in its entirety:
(a) A party may file a special motion to dismiss any
claim arising from an act in furtherance of the right of
advocacy on issues of public interest within 45 days after
service of the claim.
(b) 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.
(c)(1) Except as provided in paragraph (2) of this
subsection, upon the filing of a special motion to dismiss,
(footnote continued . . . )
34
defendant)21 files a special motion to dismiss within forty-five days after service of
the complaint. Id. § 16-5502 (a). Filing of the motion stays discovery, unless the
court grants a limited exception for discovery targeted to defeating the motion. Id.
§ 16-5502 (c). If the moving party makes a “prima facie showing” that the claim
“arises from an act in furtherance of the right of advocacy on issues of public
interest,” the burden shifts to the party opposing the motion to “demonstrate[] that
the claim is likely to succeed on the merits.” Id. § 16-5502 (b) & (d). The court is
required to hold an “expedited hearing” on the motion and to issue a ruling “as
soon as practicable after the hearing.” Id. § 16-5502 (d). If the plaintiff’s
opposition fails to meet the statutory standard, the Act requires the trial court to
(. . . footnote continued)
discovery proceedings on the claim shall be stayed until
the motion has been disposed of.
(2) when it appears likely that targeted discovery
will enable the plaintiff to defeat the motion and
that the discovery will not be unduly burdensome,
the court may order that specified discovery be
conducted. Such an order may be conditioned
upon the plaintiff paying any expenses incurred by
the defendant in responding to such discovery.
(d) The court shall hold an expedited hearing on the
special motion to dismiss, and issue a ruling as soon as
practicable after the hearing. If the special motion to
dismiss is granted, dismissal shall be with prejudice.
21
See supra note 13.
35
dismiss the complaint, with prejudice. Id. § 16-5502 (b) & (d). If the opposition is
successful, the motion to dismiss is denied, id., and the litigation proceeds in the
normal course.
For the reasons that follow, we conclude that in considering a special motion
to dismiss, the court evaluates the likely success of the claim by asking whether a
jury properly instructed on the applicable legal and constitutional standards could
reasonably find that the claim is supported in light of the evidence that has been
produced or proffered in connection with the motion. This standard achieves the
Anti-SLAPP Act’s goal of weeding out meritless litigation by ensuring early
judicial review of the legal sufficiency of the evidence, consistent with First
Amendment principles, while preserving the claimant’s constitutional right to a
jury trial.
We review questions of statutory interpretation de novo. Burke I, 91 A.3d at
1040.22 Our analysis begins with the language of the statute, see District of
Columbia v. Place, 892 A.2d 1108, 1111 (D.C. 2006), which requires that to
22
Burke I held that the special motion to dismiss filed in that case should
have been granted because the plaintiff’s claim was unlikely to succeed. The court
did not need to dwell on the precise interpretation of the “likely to succeed”
standard in light of its conclusion that the record contained no evidence that the
defendant acted with the requisite malice. 91 A.3d at 1045.
36
prevail in opposing a special motion to dismiss, the opponent must “demonstrate[]
that the claim is likely to succeed on the merits.” D.C. Code § 16-5502 (b). As
neither the phrase nor any of its components is defined in the statute, we look to
“the language of the statute by itself to see if the language is plain and admits of no
more than one meaning.” Rodriguez v. District of Columbia, 124 A.3d 134, 146
(D.C. 2015) (quoting Dobyns v. United States, 30 A.3d 155, 159 (D.C. 2011)).
Although we can be confident that “on the merits” refers to success on the
substance of the claim,23 the meaning of the requirement that the opponent
“demonstrate[] that the claim is likely to succeed” is more elusive. Use of the
word “demonstrate”24 indicates that once the burden has shifted to the claimant, the
statute requires more than mere reliance on allegations in the complaint, and
mandates the production or proffer of evidence that supports the claim. This
interpretation is supported by another provision in the Act, § 16-5502 (c), that stays
discovery upon the filing of a special motion to dismiss “until the motion has been
disposed of,” unless it “appears likely that targeted discovery will enable the
23
“Merits” is defined as “[t]he elements or grounds of a claim or defense;
the substantive considerations to be taken into account in deciding a case, as
opposed to extraneous or technical points, esp. of procedure.” BLACK’S LAW
DICTIONARY (10th ed. 2014).
24
The relevant dictionary definitions of “demonstrate” are: “to show
clearly and deliberately; manifest,” and “to show to be true by reasoning or
adducing evidence.” THE AMERICAN HERITAGE DICTIONARY (5th ed. 2015).
37
plaintiff to defeat the motion and that the discovery will not be unduly
burdensome.” If evidence were not required to successfully oppose a special
motion to dismiss under § 16-5502 (b), there would be no need for a provision
allowing targeted discovery for that purpose.25 Moreover, unless something more
than argument based on the allegations in the complaint is required, the special
motion to dismiss created by the Act would be redundant in light of the general
availability, in all civil proceedings regardless of the nature of the claim, of
motions to dismiss under Rule 12 (b)(6).
But what does it mean that the evidence must demonstrate that the claim is
“likely to succeed”? In common parlance, the term “likely” connotes a predictive
quality, and its dictionary definition is “probable.”26 The phrase conveys an
assessment of the claimant’s chance of success, but does not inherently provide the
25
See Tippett v. Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc) (referring
to interpretation of statutory language as a “holistic endeavor” (quoting Wash. Gas
Light Co. v. Pub. Serv. Comm’n, 982 A.2d 691, 716 (D.C. 2009))).
26
“Likely” is defined as “[a]pparently true or real; probable. . . . Showing a
strong tendency; reasonably expected (likely to snow).” BLACK’S LAW
DICTIONARY, supra note 23. Rather unhelpfully, “probable,” in turn, is defined in
Black’s as “[l]ikely to exist, be true, happen.” Id. See THE AMERICAN HERITAGE
DICTIONARY, supra note 24 (defining “likely” as “1. Possessing or displaying the
qualities or characteristics that make something probable . . . 2. Within the realm
of credibility; plausible . . . 3. Apparently appropriate or suitable . . . 4. Apt to
achieve success or yield a desired outcome”).
38
exact measure by which such an assessment is to be made. It could be argued that
“likely to succeed” is different from and a lesser standard than “more likely than
not to succeed,” the phrase routinely used to mean a preponderance of the
evidence, and that if the legislature had in mind a preponderance of the evidence
standard, it would have used that well-known term of art. See Haley v. United
States, 799 A.2d 1201, 1209 n.6 (D.C. 2002) (“The preponderance of the evidence
standard requires proof that something more likely than not exists or occurred.”).
On the other hand, it seems counterintuitive to say that a claim is “likely to
succeed” if it has a less than 50% chance of prevailing. In short, the statutory
language’s dictionary meaning, even if good enough for common parlance, leaves
us in doubt as to its proper interpretation in the Anti-SLAPP Act.
Appellants argue that we should look to a similar phrase, “a likelihood of
success on the merits,” that is used to evaluate requests for temporary stays and
preliminary injunctions. In that context, “a likelihood of success” has been defined
to mean a “substantial likelihood” though not a “mathematical probability,”
Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 162 (D.C. 2013) (quoting In re
Estate of Reilly, 933 A.3d 830, 837 (D.C. 2007)), and does not express a fixed
39
measurement,27 as it is part of a multi-factor test where a stronger showing on
some factors can compensate for a weaker showing on others.28 The phrase “a
likelihood of success” is similar (though not identical) on its face to the phrase
“likely to succeed,” and in both the preliminary injunction context and under the
Anti-SLAPP Act, the judicial role involves prediction of ultimate success on the
merits. The two terms should not automatically be equated, however, because of
the different purpose and impact of the court’s ruling in the two contexts. In
granting a request for preliminary injunction, the court grants temporary relief to a
movant who makes some showing of likelihood of success that is weighed, along
with other factors such as irreparable harm, to preserve the status quo pending the
final outcome of litigation. See Nken, 556 U.S. at 434 (noting that preliminary
injunctions and stays similarly concern whether court order “may allow or disallow
27
It has been suggested that, in the federal courts, “a likelihood of success”
in the preliminary injunction context is to be contrasted with a chance of success
that is only a “mere possibility” or “better than negligible,” but without requiring a
showing of success “more likely than not.” Citigroup Glob. Mkts. v. VCG Special
Opportunities Master Fund, 598 F.3d 30, 37 & n.7 (2d Cir. 2010) (quoting Nken v.
Holder, 556 U.S. 418, 434 (2009))).
28
See Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine
Workers of Am., 412 F.2d 165, 168 (D.C. Cir. 1969) (“The likelihood of success on
the merits that a movant for injunctive relief must demonstrate varies with the
quality and quantum of harm that it will suffer from the denial of an injunction.
‘Where it appears that a lack of a showing of irreparable [harm] exists . . . the party
seeking a preliminary injunction has a burden of convincing with a reasonable
certainty that it must succeed . . . .’” (quoting Dino de Laurentiis Cinematografica
v. D-150, Inc., 366 F.2d 373, 375 (2d Cir. 1966))).
40
anticipated action before the legality of that action has been conclusively
determined”). Under the Anti-SLAPP Act, on the other hand, the result of the
court’s ruling in favor of the moving party means complete and final victory for
that party by bringing the litigation to an end, avoiding a resolution by trial.
Because it is a variable standard that is used for a different purpose, “a likelihood
of success,” the term used in deciding requests for preliminary injunctions and
stays, does not determine the proper interpretation of the “likely to succeed”
standard for deciding special motions to dismiss under the Anti-SLAPP Act.
Lacking a statutory definition, clear dictionary definition, or application as a
term of art that reasonably can be borrowed from another legal context, the Anti-
SLAPP Act’s “likely to succeed on the merits” leaves us with “textual
uncertainty.” Cass v. District of Columbia, 829 A.2d 480, 486 (D.C. 2003). Our
task, therefore, is to interpret the ambiguous term in a manner “that makes sense of
the statute as a whole” by reference to legislative history and other aids to
construction, such as applicable canons of statutory interpretation. District of
Columbia v. Reid, 104 A.3d 859, 868 (D.C. 2014) (quoting Cass, 829 A.2d at 482).
We begin with what the legislature said it was trying to accomplish: to deter
SLAPPs by “extend[ing] substantive rights to defendants in a SLAPP, providing
41
them with the ability to file a special motion to dismiss that must be heard
expeditiously by the court.” Report on Bill 18-893, at 4. The special motion to
dismiss is a mechanism by which a SLAPP defendant can “expeditiously and
economically dispense of litigation” to alleviate the burdens and cost of defending
against a suit that is filed, not to succeed, but to “prevent or punish” the
defendant’s speech or advocacy. Id. To this end, a special motion to dismiss must
be filed and decided in the early stage of litigation. D.C. Code § 16-5502 (a). If
the trial court determines that the plaintiff has not met the statutory burden, the
special motion to dismiss must be granted “with prejudice.” Id. § 16-5502 (b) &
(d). In short, the special motion to dismiss provision authorizes final disposition of
a claim in a truncated proceeding, usually without the benefit of discovery, id.
§ 16-5502 (c), to avoid the toll that meritless litigation imposes on a defendant who
has made a prima facie showing that the claim arises from advocacy on issues of
public interest.
The dispositive nature of a court’s grant of a special motion to dismiss after
the claimant has been required to proffer evidence, but without a full opportunity
to engage in discovery and before trial, is critical to our interpretation of the “likely
to succeed” standard. An interpretation that puts the court in the position of
making credibility determinations and weighing the evidence to determine whether
42
a case should proceed to trial raises serious constitutional concerns because it
encroaches on the role of the jury.29 In view of this concern, we apply the canon of
constitutional avoidance, “an interpretive tool, counseling that ambiguous statutory
language be construed to avoid serious constitutional doubts.” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 516 (2009). This canon leads us to
interpret the phrase “likely to succeed on the merits,” undefined in the D.C. Anti-
SLAPP statute, in a manner that does not supplant the role of the fact-finder, lest
the statute be rendered unconstitutional.30 We, therefore, conclude that to remove
29
See Davis v. Cox, 351 P.3d 862, 873-74 (Wash. 2015) (en banc)
(declaring that Washington state’s Anti-SLAPP special motion to dismiss, WASH.
REV. CODE § 4.24.525 (2010), violates the state’s constitutional guarantee to a jury
trial because it required trial court to weigh the evidence and make factual
determination whether there was “clear and convincing evidence [of] a probability
of prevailing on the claim”); Opinion of the Justices (SLAPP Suit Procedure), 641
A.2d 1012, 1015 (N.H. 1994) (declaring that proposed Anti-SLAPP legislation
would violate right to trial by jury guaranteed by state constitution because it
would require court to “weigh the pleadings and affidavits on both sides and
adjudicate a factual dispute” in determining whether claimant has shown “a
probability of prevailing on the merits”); Unity Health Care, Inc. v. Cty. of
Hennepin, 308 F.R.D. 537, 549 (D. Minn. 2015) (concluding that Minnesota Anti-
SLAPP provision requiring that party opposing dismissal must persuade judge by
clear and convincing evidence that defendant is not immune from liability violates
Seventh Amendment right to jury trial because it requires judge to weigh evidence
and make credibility determination), interlocutory appeal docketed, No. 15-2489
(8th Cir. July 10, 2015).
30
See Lafayette Morehouse, Inc. v. Chronicle Publ’g Co., 44 Cal. Rptr. 2d
46, 53 (1995) (interpreting standard for judging California’s Anti-SLAPP motion
to dismiss to avoid violating the state constitutional right to jury trial); cf.
Leiendecker v. Asian Women United of Minn., 848 N.W.2d 224, 232-33 (Minn.
(footnote continued . . . )
43
doubt that the Anti-SLAPP statute respects the right to a jury trial, the standard to
be employed by the court in evaluating whether a claim is likely to succeed may
result in dismissal only if the court can conclude that the claimant could not prevail
as a matter of law, that is, after allowing for the weighing of evidence and
permissible inferences by the jury. Cf. Mixon v. Wash. Metro. Area Transit Auth.,
959 A.2d 55, 58 (D.C. 2008) (explaining that summary judgment does not violate
right to jury trial because it results in dismissal only if no reasonable jury could
find for the claimant based on the undisputed facts).
The standards against which the court must assess the legal sufficiency of
the evidence are the substantive evidentiary standards that apply to the underlying
claim and related defenses and privileges. As we discuss in the next section, in
addition to the elements required to make out a claim for defamation under the law
of the District of Columbia, there is a well-developed body of case law, originating
with the Supreme Court, that establishes different levels of fault and proof that are
designed to protect First Amendment rights. One example is the requirement to
(. . . footnote continued)
2014) (concluding that it was not possible to use constitutional avoidance canon to
interpret statute to avoid constitutional defect where statutory language
“unambiguously require[s] the responding party to produce evidence and the
district court to make a finding on whether ‘the responding party has produced
clear and convincing evidence that the acts of the moving party are not immunized
from liability’” (quoting Minn. Stat. § 554.02 (2014)).
44
prove actual malice by clear and convincing evidence when the claimant is a public
official or, as in this case, a limited public figure with respect to the issue that is the
subject of speech claimed to be defamatory. Cf. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254-55 (1986) (holding that in evaluating motion for summary
judgment under Rule 56, as in evaluating motion for directed verdict under Rule 50
(a), in a case requiring proof of actual malice by clear and convincing evidence,
“the judge must view the evidence presented through the prism of the substantive
evidentiary burden”). The precise question the court must ask, therefore, is
whether a jury properly instructed on the law, including any applicable heightened
fault and proof requirements, could reasonably find for the claimant on the
evidence presented.31
31
Colorado, which was specifically cited in the Committee Report, applies a
similar standard. See Report on Bill 18-893 at 2 n.4. In Protect Our Mountain
Env’t, Inc. v. Dist. Court, 677 P.2d 1361 (Colo. 1984), the Colorado Supreme
Court crafted a means to protect the First Amendment right to petition of a
defendant sued for abuse of process, while also protecting “those truly aggrieved
by abuse of these processes to vindicate their own legal rights.” Id. at 1369. The
court permits the parties to present “all material pertinent to the motion” and then
considers a motion to dismiss “as one for summary judgment.” Id. In resolving
the motion, the court applies a “heightened standard” intended to protect
petitioning activity by requiring a showing that
(1) the . . . claims were devoid of reasonable factual
support, or, if so supportable, lacked any cognizable basis
in law for their assertion; and (2) the primary purpose of
the defendant’s petitioning activity was to harass the
plaintiff or to effectuate some other improper objective;
(footnote continued . . . )
45
We acknowledge that our functional interpretation of the statutory language
is not evident from the face of the statute alone. As we have explained, the
interpretation we adopt is made possible by the ambiguity of the statutory language
and rendered necessary to avoid doubt about the constitutionality of § 16-5502 (b).
This interpretation comports with the legislative aim of building special protections
for a defendant who makes a prima facie case that the claim arises from advocacy
on issues of public interest. A comparison of the procedures usually available in
(. . . footnote continued)
and (3) the defendant’s petitioning activity had the
capacity to adversely affect a legal interest of the
plaintiff.
Id.
Other states have adopted similar approaches. California’s Anti-SLAPP
statute, which requires a showing “that there is a probability that the plaintiff will
prevail on the claim,” CAL. CIV. PROC. CODE § 425.16 (b)(1) (West 2015), has
been interpreted as requiring the plaintiff to “state and substantiate a legally
sufficient claim,” by “demonstrat[ing]” that the complaint is both legally sufficient
and supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.” Rusheen v. Cohen,
128 P.3d 713, 718 (Cal. 2006) (alterations in original omitted) (quoting Wilson v.
Parker, Covert & Chidester, 50 P.3d 733, 739 (Cal. 2002)). See also Yount v.
Handshoe, 171 So. 3d 381, 387 n.4 (La. Ct. App. 2015) (commenting that
Louisiana and California’s Anti-SLAPP statutes match “word for word”); John v.
Douglas Cty. Sch. Dist., 219 P.3d 1276, 1281 (Nev. 2009)) (stating that under
Nevada’s statute requiring “clear and convincing evidence [of] a probability of
prevailing on the claim,” plaintiff must show genuine issue of material fact); OR.
REV. STAT. § 31.150 (2010) (providing that if defendant makes prima facie
showing speech is protected by statute, “the burden shifts to the plaintiff in the
action to establish that there is a probability that the plaintiff will prevail on the
claim by presenting substantial evidence to support a prima facie case”).
46
civil litigation makes clear that the complement of provisions of the Anti-SLAPP
Act impose requirements and burdens on the claimant that significantly advantage
the defendant. As we have noted, the filing of a special motion to dismiss stays the
claimant’s right to seek discovery “until the motion has been disposed of,” with a
limited exception that favors the defendant. D.C. Code § 16-5502 (c). The Act
also places the initial burden on the claimant to present legally sufficient evidence
substantiating the merits without placing a corresponding evidentiary demand on
the defendant who invokes the Act’s protection. Id. § 16-5502 (b). This is a
reversal of the allocation of burdens for dismissal of a complaint under Superior
Court Rule of Civil Procedure 12 (b)(6), which requires the moving party to show
that the complaint’s allegations, even if proven, would not state a claim as a matter
of law; and for summary judgment under Superior Court Rule of Civil Procedure
56, which requires the moving party to wait until discovery has been completed
and then shoulder the initial burden of showing that there are no material facts
genuinely in dispute and that the movant is entitled to judgment as a matter of law
on the undisputed facts.
In addition to these substantive burdens, there are financial levies to deter a
SLAPP plaintiff. The Act authorizes the trial court to award costs and fees —
including attorney’s fees — to a moving party who prevails “in whole or in part”
47
on a special motion to dismiss. D.C. Code § 16-5504 (a). We have held that under
the parallel provision for special motions to quash under D.C. Code § 16-5503, the
successful movant is presumptively entitled to an award of fees unless special
circumstances make a fee award unjust. See Burke II, 133 A.3d at 571. The Act is
much less generous to a plaintiff who successfully defends against a special motion
to dismiss, allowing the award of costs and fees “only if the court finds that [the]
motion . . . is frivolous or is solely intended to cause unnecessary delay.” D.C.
Code § 16-5504 (b). In sum, the special motion to dismiss not only provides
substantial advantages to the defendant over and above those usually available in
civil litigation, but also imposes procedural and financial burdens on the plaintiff.
Our interpretation of the requirements and standard applicable to special
motions to dismiss ensures that the Anti-SLAPP Act provision is not redundant
relative to the rules of civil procedure. A defendant may still file a motion to
dismiss a complaint at the onset of litigation under Rule 12, based solely on
deficiencies in the pleadings. See Super. Ct. Civ. R. 12 (a) (requiring that motion
for failure to state a claim must be filed within 20 days of service of complaint).
The Anti-SLAPP Act gives the defendant the option to up the ante early in the
litigation, by filing a special motion to dismiss that will require the plaintiff to put
his evidentiary cards on the table and makes the plaintiff liable for the defendant’s
48
costs and fees if the motion succeeds. D.C. Code § 16-5502 (a) (requiring that
special motion to dismiss be filed within forty-five days of service of the
complaint); id. § 16-5504 (a) (providing for costs and fees). Even if the Anti-
SLAPP special motion to dismiss is unsuccessful, the defendant preserves the
ability to move for summary judgment under Rule 56 later in the litigation, after
discovery has been completed, or for a directed verdict under Rule 50 after the
presentation of evidence at trial.32
32
The D.C. Circuit has described the Anti-SLAPP Act’s “likely to succeed”
standard as “an additional hurdle a plaintiff must jump over to get to trial,” and
opined (without elaboration) that the standard “is different from and more
difficult” than for summary judgment under Federal Rule 56. Abbas v. Foreign
Policy Grp., LLC, 783 F.3d 1328, 1333-34 (D.C. Cir. 2015). For the reasons we
note in the text, we agree with Abbas that the special motion to dismiss is different
from summary judgment in that it imposes the burden on plaintiffs and requires the
court to consider the legal sufficiency of the evidence presented before discovery is
completed. As concerns the standard to be employed by the court in deciding
whether to grant the motion, however, the question is substantively the same:
whether the evidence suffices to permit a jury to find for the plaintiff.
Abbas also stated that the special motion to dismiss created by D.C. Code
§ 16-5502 does not apply in federal court because it answers the same question as
the Federal Rules of Civil Procedure — when a court must dismiss a case before
trial — in a different way. Id. at 1336. Implicit in Abbas is that the special motion
to dismiss is only procedural in nature rendering it inapplicable in federal court
sitting in diversity. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938); Burke
v. Air Serv Int’l, Inc., 685 F.3d 1102, 1104 (D.C. Cir. 2012) (applying Erie
doctrine to District of Columbia). Other federal appellate courts have come to a
different conclusion and applied similar state Anti-SLAPP procedures. See, e.g.,
Liberty Synergistics, Inc. v. Microflo Ltd., 718 F.3d 138, 143-44 (2d Cir. 2013)
(applying California Anti-SLAPP statute’s “probability” standard); Price v.
Stossel, 620 F.3d 992, 1000 (9th Cir. 2010) (same); Godin, 629 F.3d at 89
(footnote continued . . . )
49
Finally, our interpretation of the standard applicable to special motions to
dismiss as providing an early judicial evaluation of the legal sufficiency of the
plaintiff’s evidence strikes the right balance between the interests of the parties.
Consistent with the Anti-SLAPP Act’s purpose to deter meritless claims filed to
harass the defendant for exercising First Amendment rights, true SLAPPs can be
screened out quickly by requiring the plaintiff to present her evidence for judicial
evaluation of its legal sufficiency early in the litigation. But by deferring to the
jury’s reasonable decision-making, the constitutional right of a plaintiff who has
presented evidence that could persuade a jury to find in her favor is respected. It
(. . . footnote continued)
(applying Maine Anti-SLAPP statute’s special motion to dismiss because it is “so
intertwined with a state right or remedy that it functions to define the scope of the
state-created right”) (quoting Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins.
Co., 559 U.S. 393, 423 (2010) (Stevens, J., concurring)); Henry, 566 F.3d at 168-
69 (applying Louisiana Anti-SLAPP statute’s “nominally-procedural” special
motion to dismiss “probability” standard). But cf. Royalty Network, Inc. v. Harris,
756 F.3d 1351, 1361-62 (11th Cir. 2014) (declining to apply Georgia Anti-SLAPP
statute’s verification requirement because it was procedural and conflicted with
Federal Rules of Civil Procedure, which do not require verification).
The applicability of the Anti-SLAPP statute in federal court is not for this
court to determine. Abbas recognized that at the time, this court “has never
interpreted the D.C. Anti-SLAPP Act’s likelihood of success standard to simply
mirror the standards imposed by” Federal Rule 56. 783 F.3d at 1135. We do so
now. This court’s interpretation of the standard applicable to the special motion to
dismiss under District of Columbia law will no doubt factor into future analysis of
the dicta in Abbas concerning the applicability of the Anti-SLAPP Act in litigation
brought in federal courts. See Abbas, 783 F.3d at 1339-1341 (dismissing
complaint with prejudice under Rule 12 (b)(6) for failure to state a claim).
50
bears remembering that the fact that a defendant can make a threshold showing that
the claim arises from activities “in furtherance of the right of advocacy on issues of
public interest,” D.C. Code § 16-5502 (a), does not mean that the defendant is
immunized from liability for common law claims. See Duracraft Corp. v. Holmes
Prods. Corp., 691 N.E.2d 935, 943 & n.19 (Mass. 1998) (construing Anti-SLAPP
statute to avoid unconstitutionality and noting that “[b]y protecting one party’s
exercise of its right of petition, unless it can be shown to be sham petitioning, the
statute impinges on the adverse party’s exercise of its right to petition, even when
it is not engaged in sham petitioning”). Rather, heightened legal and proof
requirements apply when First Amendment rights of the defendant are implicated,
but it is possible to meet these requirements by strong evidence in support of the
claim. The immunity created by the Anti-SLAPP Act shields only those
defendants who face unsupported claims that do not meet established legal
standards. Thus, the special motion to dismiss in the Anti-SLAPP Act must be
interpreted as a tool calibrated to take due account of the constitutional interests of
the defendant who can make a prima facie claim to First Amendment protection
and of the constitutional interests of the plaintiff who proffers sufficient evidence
that the First Amendment protections can be satisfied at trial; it is not a
sledgehammer meant to get rid of any claim against a defendant able to make a
prima facie case that the claim arises from activity covered by the Act. See, e.g.,
51
Sandholm v. Kuecker, 962 N.E.2d 418, 429-30 (Ill. 2012) (noting that Illinois
statute is aimed solely at “meritless, retaliatory SLAPPs” and “was not intended to
protect those who commit tortious acts and then seek refuge in the immunity
conferred by the statute”).
To sum up, it is not the court’s role, at the preliminary stage of ruling on a
special motion to dismiss, to decide the merits of the case but to test the legal
sufficiency of the evidence to support the claims. We now turn to a discussion of
the operative constitutional and legal substantive and proof requirements that apply
to the underlying claims and to an analysis of the legal sufficiency of Dr. Mann’s
proffered evidence applying those requirements.
V. Judicial Review for Legal Sufficiency
A court’s review for legal sufficiency is a particularly weighty endeavor
when First Amendment rights are implicated. The court must “examine for [itself]
the statements in issue and the circumstances under which they were made to
see . . . whether they are of a character which the principles of the First
Amendment . . . protect.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)
(quoting Pennekamp v. Fla., 328 U.S. 331, 335 (1946)). The court must consider
52
whether a properly instructed jury could find for the plaintiff “both to be sure that
the speech in question actually falls within the unprotected category and to confine
the perimeters of any unprotected category within acceptably narrow limits in an
effort to ensure that protected expression will not be inhibited.” Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). This is a question of
law, measured against constitutional standards, that does not involve the court in
making credibility determinations or weighing the evidence. See Harte-Hanks
Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685, 690 (1989) (considering
findings of fact made by jury along with undisputed evidence in concluding
evidence was legally sufficient to prove actual malice); see id. at 697-700 (Scalia,
J., concurring) (referring to appellate court’s “independent assessment of whether
malice was clearly and convincingly proved on the assumption that the jury made
all the supportive findings it reasonably could have made”). With these principles
in mind, we turn to a de novo review of the record to determine whether the
evidence produced by Dr. Mann could support, with the clarity required by First
Amendment principles, a jury verdict in his favor.
A. Defamation
53
To succeed on a claim for defamation, a plaintiff must prove “(1) that the
defendant made a false and defamatory statement concerning the plaintiff; (2) that
the defendant published the statement without privilege to a third party; (3) that the
defendant’s fault in publishing the statement [met the requisite standard];[33] and
(4) either that the statement was actionable as a matter of law irrespective of
special harm or that its publication caused the plaintiff special harm.” Oparaugo v.
Watts, 884 A.2d 63, 76 (D.C. 2005) (quoting Crowley v. N. Am. Telecomms. Ass’n,
691 A.2d 1169, 1173 n.2 (D.C. 1997)). Appellants contend that the trial court
erred in denying their special motions to dismiss because Dr. Mann did not
sufficiently substantiate his defamation claim on the first three elements. As to
Mr. Lowry’s editorial, we agree; but as to some of the other statements on which
Dr. Mann bases his complaint, we disagree. We conclude that Dr. Mann hurdled
the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits
because the evidence he has presented is legally sufficient to support findings by
the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were
defamatory, were published by appellants to a third party without privilege, and
were made with actual malice.
33
As discussed infra, the level of fault — from negligence to actual malice
— depends on whether the plaintiff is a public official or, if a private individual, is
deemed a public figure with respect to the subject matter of the statement alleged
to be defamatory.
54
1. False and Defamatory Statements
A statement is defamatory “if it tends to injure [the] plaintiff in his trade,
profession or community standing, or lower him in the estimation of the
community.” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C.
2000) (alteration in original) (quoting Howard Univ. v. Best, 484 A.2d 958, 989
(D.C. 1984)). The statement “must be more than unpleasant or offensive; the
language must make the plaintiff appear ‘odious, infamous, or ridiculous.’” Rosen
v. Am. Isr. Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C. 2012) (quoting
Howard Univ., 484 A.2d at 989).
The important societal interest in vigorous debate over matters of public
concern protected by the First Amendment has led to the development of
constitutional standards for evaluating statements before liability may be imposed
under state defamation laws. Because the First Amendment protects speech as an
expression of the fundamental right to freedom of thought, constitutionally
speaking, “there is no such thing as a false idea.” Milkovich v. Lorain Journal Co.,
497 U.S. 1, 18 (1990) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339
(1974)). Expressions of pure opinion, as embodiments of ideas, are generally
entitled to constitutional protection. See id. (noting that “opinion” and “ideas” are
55
equated). “However pernicious an opinion may seem, we depend for its correction
not on the conscience of judges and juries but on the competition of other ideas.”
Gertz, 418 U.S. at 339-40. Therefore, under the First Amendment a statement is
not actionable “if it is plain that a speaker is expressing a subjective view, an
interpretation, a theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts.” Guilford Transp. Indus., 760 A.2d at
597 (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).
Although ideas and opinions are constitutionally protected, the First
Amendment does not, however, “create a wholesale defamation exemption for
anything that might be labeled ‘opinion.’” Milkovich, 497 U.S. at 18.
“[S]tatements of opinion can be actionable if they imply a provably false fact, or
rely upon stated facts that are provably false.” Guilford Transp. Indus., 760 A.2d
at 597. Whether a defamatory statement of opinion is actionable often depends on
the context of the statement in question. See id. “If, for example, an average
reader would likely understand that particular words, in the context of an entire
article, were not meant to imply factual data but, rather, were intended merely to
disagree strongly with the views of the [plaintiff], those words would be protected
despite their factual content.” Sigal Const. Corp. v. Stanbury, 586 A.2d 1204,
1211 (D.C. 1991). Thus, statements that constitute “imaginative expression” and
56
“rhetorical hyperbole” are not actionable because they “cannot reasonably be
interpreted as stating actual facts about an individual.” Guilford Transp. Indus.,
706 A.2d at 596-97 (quoting Milkovich, 497 U.S. at 20). Such statements are
“used not to implicate underlying acts but ‘merely in a “loose, figurative sense”’ to
demonstrate strong disagreement” with another’s ideas. Sigal, 586 A.2d at 1210
(quoting Rinaldi v. Holt, Rinehart & Winston, Inc., 366 N.E.2d 1299, 1307 (N.Y.
1977)). On the other hand, a statement is actionable if viewed in context it “was
capable of bearing a defamatory meaning and . . . contained or implied provably
false statements of fact.” Guilford Transp. Indus., 760 A.2d at 597.
Appellants contend that all the statements on which Dr. Mann bases his
defamation claims are protected under the First Amendment because they
expressed appellant’s opinions about climate change, a matter of widespread public
concern that “must be resolved through the process of free and open debate, not
through costly litigation.” There is no dispute that the statements that Dr. Mann
claims defamed him were made in the context of a broad disagreement between the
parties about the existence and cause of global warming, a disagreement that
reached a high level of intensity and rhetoric. Public discussion about whether
there is a warming climate and, if so, its cause, involves scientific questions and
policy prescriptions of general public interest. The First Amendment protects
57
those engaged in a debate of such public concern in the expression of their ideas on
the subject, even with pointed language, free of the chilling effect of potential civil
liability. As a matter of constitutional principle, when the issue is whether liability
may be imposed for speech expressing scientific or policy views, the question is
not who is right; the First Amendment protects the expression of all ideas, good
and bad.
But not all the statements cited in the complaint are necessarily cloaked by
the First Amendment simply because the articles in which they appeared related to
a matter of public concern. As we have discussed, the law distinguishes between
statements expressing ideas and false statements of fact. To the extent statements
in appellants’ articles take issue with the soundness of Dr. Mann’s methodology
and conclusions — i.e., with ideas in a scientific or political debate — they are
protected by the First Amendment. But defamatory statements that are personal
attacks on an individual’s honesty and integrity and assert or imply as fact that Dr.
Mann engaged in professional misconduct and deceit to manufacture the results he
desired, if false, do not enjoy constitutional protection and may be actionable. The
Second Circuit’s observation in Buckley v. Littell with respect to defamatory
statements about a journalist made in the course of political debate is equally apt to
58
defamatory statements about a scientist made in the course of scientific and policy
debate:
In short, whatever might be said of a person’s political
views, any journalist, commentator or analyst is entitled
not to be lightly characterized as inaccurate and dishonest
or libelous. . . . [I]t is “crucial” to such a person’s career
that he or she not be so treated. To call a journalist a
libeler and to say that he is so in reference to a number of
people is defamatory in the constitutional sense, even if
said in the overall context of an attack otherwise directed
at his political views.
539 F.2d 882, 896-97 (2d Cir. 1976).
Tarnishing the personal integrity and reputation of a scientist important to
one side may be a tactic to gain advantage in a no-holds-barred debate over global
warming. That the challenged statements were made as part of such debate
provides important context and requires careful parsing in light of constitutional
standards. But if the statements assert or imply false facts that defame the
individual, they do not find shelter under the First Amendment simply because
they are embedded in a larger policy debate.
We apply these principles to the statements in the articles cited in the
complaint, in the order in which they appeared. The articles, as they appeared on
CEI and National Review’s websites, are appended to this opinion.
59
Mr. Simberg’s July 13, 2012 article on CEI’s OpenMarket.org.34
Mr. Simberg’s article does not specifically criticize Dr. Mann’s statistical
techniques, except by calling him the “poster boy of the corrupt and disgraced
climate science echo chamber.”35 The article’s focus is on Dr. Mann personally,
alleging that he has engaged in “wrongdoing,” “deceptions,” “data manipulation,”
and “academic and scientific misconduct.” The article calls Dr. Mann “the Jerry
Sandusky of climate science,” comparing Dr. Mann’s “molest[ing] and tortur[ing]
data in the service of politicized science” to Sandusky’s “molesting children.” The
article also describes Dr. Mann as being, “like Joe Paterno,” a “rock star” at Penn
34
Rand Simberg, The Other Scandal in Unhappy Valley, COMPETITIVE
ENTER. INST. (July 13, 2012), https://cei.org/blog/other-scandal-unhappy-valley.
35
Mr. Simberg’s article quotes from a linked article written by Steven
McIntyre, which in turn quotes the CRU email that referred to “Mike’s Nature
trick” and reviews data charts that, according to McIntyre, reveal the “trick.”
Other links in Mr. Simberg’s article are to Mr. Simberg’s earlier posts: “The
Death of the Hockey Stick?” published online on May 17, 2012, in which
Mr. Simberg criticized the methodology and statistical analysis that led to the
hockey stick graph by citing the work of other researchers, but without accusing
Dr. Mann of personal wrongdoing; and “Climategate: When Scientists Become
Politicians,” dated November 23, 2009, in which Mr. Simberg commented that
climate scientists had subverted proper scientific process by molding data to fit
their preconceived ideas about a warming global climate, but without accusing Dr.
Mann, personally, of misconduct.
60
State, who attracted millions of dollars to the University, and, like Bernie Madoff
“at the height of his financial career,” “a sacred funding cash cow.”
A jury could find that the article accuses Dr. Mann of engaging in specific
acts of academic and scientific misconduct in the manipulation of data, and thus
conveys a defamatory meaning, because “to constitute a libel it is enough that the
defamatory utterance imputes any misconduct whatever in the conduct of
[plaintiff’s] calling.” Guilford Transp. Indus., 760 A.2d at 600 (alteration in
original) (quoting RESTATEMENT (SECOND) OF TORTS § 569, cmt. (e)); see
Tavoulareas v. Piro, 817 F.2d 762, 780 (D.C. Cir. 1987) (en banc) (holding that
statement that “a father set up his son in business” accuses father of nepotism and
is defamatory because it, “might ‘tend[] to injure [him] in his trade, profession or
community standing, or lower him in the estimation of the community’” (quoting
Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 654 (D.C. Cir. 1966))). Moreover, a
jury could find that by calling Dr. Mann “the [Jerry] Sandusky of climate science,”
the article implied that Dr. Mann’s manipulation of data was seriously deviant for a
scientist. These noxious comparisons,36 a jury could find, would demean Dr.
36
These were well-known figures in the public eye. Jerry Sandusky is a
notorious convicted child sexual abuser and former assistant football coach at Penn
State who was making front-page news at the time. Joe Paterno was the once-
revered long-term head football coach at Penn State during the time of Sandusky’s
(footnote continued . . . )
61
Mann’s scientific reputation and lower his standing in the community by making
him appear similarly “odious, infamous, or ridiculous.” Rosen, 41 A.3d at 1256;
see also Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1091 (D.C. Cir. 2007)
(Jankovic I) (holding that statement was capable of defamatory meaning because it
suggested Serbian businessman was an ally of the Milosevic regime for which, as
in the case of the apartheid regime in South Africa, Americans have an “intense
antipathy” (quoting South. Air Transp., Inc., v. ABC, Inc., 877 F.2d 1010, 1015
(D.C. Cir. 1989))).
Appellants contend that Mr. Simberg’s article is more reasonably understood
as a criticism of the hockey stick graph and the research that underlies it. This
seems to be a forced interpretation — and one that a jury could easily reject —
because the article does not comment on the specifics of Dr. Mann’s methodology
at all. Nor does the article purport to reveal previously unknown facts about Dr.
Mann’s methodology, which was apparent from his published work and numerous
articles commenting on the hockey stick graph and its findings. In a different
context, the article’s use of the phrase “corrupt and disgraced climate science,”
could, as appellants argue, be interpreted as criticism of flawed scientific
(. . . footnote continued)
depredations. Bernie Madoff is a convicted criminal who swindled billions of
dollars from thousands of investors and charities through a massive Ponzi scheme.
62
methodology. But when the phrase is used in conjunction with assertions that Dr.
Mann engaged in “deception[],” “misconduct,” and “data manipulation,” and the
article concludes that he should be further investigated, the cumulative import is
that there are sinister, hidden misdeeds he has committed. These are pointed
accusations of personal wrongdoing by Dr. Mann, not simply critiques of
methodology of his well-known published scientific research. Cf. Milkovich, 497
U.S. at 21 (“This is not the sort of loose, figurative or hyperbolic language which
would negate the impression that the writer was seriously maintaining that the
petitioner committed the crime of perjury.”). We conclude that Mr. Simberg’s
article is capable of conveying a defamatory meaning.
Appellants do not argue that Mr. Simberg’s article, if capable of conveying a
defamatory meaning, is not actionable because the statements that Dr. Mann
engaged in deception and misconduct are true. Their argument is that the
statements are not verifiably false because they are simply Mr. Simberg’s opinion.
See Oparaugo, 884 A.2d at 76 (noting that defamation requires that statement be
both defamatory and false). To be clear, the Supreme Court has rejected “an
additional separate constitutional protection for ‘opinion’” as such, deeming that
the dual constitutional requirements of falsity and fault, as well as a searching
appellate judicial review, suffice “to ensure the freedom of expression guaranteed
63
by the First Amendment.” Milkovich, 497 U.S. at 20-21. The reason a pure
statement of opinion is not actionable is that, not being factual, it cannot be proved
to be false. See id. at 20. It is also clear, however, that “the First Amendment
gives no protection to an assertion ‘sufficiently factual to be susceptible of being
proved true or false’ even if the assertion is expressed by implication in ‘a
statement of opinion.’” Jankovic v. Int’l Crisis Grp. (Jankovic II), 593 F.3d 22, 27
(D.C. Cir. 2010) (quoting Milkovich, 497 U.S. at 20, 21). We, therefore, turn to a
close reading of Mr. Simberg’s article to determine whether it asserts or implies a
defamatory provable fact. See Moldea v. N.Y. Times Co. (Moldea I), 15 F.3d 1137,
1144 (D.C. Cir. 1994) (noting this is “a question of law for the court to determine
as a threshold matter”).
Mr. Simberg’s article contains two principal defamatory assertions about Dr.
Mann. The first is that Dr. Mann has been “shown” to have behaved in a
“deceptive” and “most unscientific manner” because he “molested and tortured
data in the service of politicized science” as was “revealed” in the leaked CRU
emails. This is followed by a related defamatory assertion, that Dr. Mann engaged
in “academic and scientific misconduct” that Penn State’s investigation
64
exonerating Dr. Mann of these charges failed to uncover because Penn State was
biased and its investigation was a “whitewash.”37
We note that in the article Mr. Simberg does not employ language normally
used to convey an opinion, such as “in my view,” or “in my opinion,” or “I
think.”38 The article’s assertions about Dr. Mann’s deception and misconduct are
stated objectively, as having been “shown” and “revealed” by the CRU emails.
Thus, Mr. Simberg’s article can fairly be read as making defamatory factual
assertions outright. Mr. Simberg would not have concluded the article with the
37
The full concluding paragraphs in Mr. Simberg’s article state:
Michael Mann, like Joe Paterno, was a rock star in
the context of Penn State University, bringing millions in
research funding. The same university president who
resigned in the wake of the Sandusky scandal was also
the president when Mann was being whitewashed
investigated. We saw what the university administration
was willing to do to cover up heinous crimes, and even
let them continue, rather than expose them. Should we
suppose, in light of what we now know, they would do
any less to hide academic and scientific misconduct, with
so much at stake?
It’s time for a fresh, truly independent investigation.
38
This is not to suggest that use of such words would automatically insulate
the ensuing statements from liability. “In my opinion, Jones is a liar” is actionable
if the statement is false and the speaker acted with the requisite degree of fault.
See Milkovich, 497 U.S. at 18-19, 20. But the absence of such language is one
indication of how the article would come across to the reader.
65
prescription that a “fresh, truly independent investigation” is necessary, unless he
supposed that “ordinary, reasonable readers could read the [article] as implying,”
Jankovic II, 593 F.3d at 25, that Dr. Mann was guilty of misconduct that had to be
ferreted out. An opinion may be subject to further discussion or debate, but a
“truly independent investigation” is necessary to uncover facts that, impliedly, are
there to be found. Moreover, Mr. Simberg cites the CRU emails as proof of Dr.
Mann’s deception and academic and scientific misconduct. The assertion that the
CRU emails showed or revealed that Dr. Mann engaged in deception and academic
and scientific misconduct is not simply a matter of opinion: not only is it capable
of being proved true or false, but the evidence of record is that it actually has been
proved to be false by four separate investigations.
Appellants attempt to find shelter in post-Milkovich appellate decisions
recognizing that “a statement of opinion that is based upon true facts that are
revealed to readers . . . [is] generally . . . not actionable so long as the opinion does
not otherwise imply unstated defamatory facts.” Moldea I, 15 F.3d at 1144. The
theory is that when a writer discloses the facts upon which a statement is based, the
reader will understand that the statement reflects the writer’s view, based on an
interpretation of the facts disclosed, such that the reader remains “free to draw his
or her own conclusion based upon those facts.” Id. at 1145. This argument is
66
unavailing here. First, as we have discussed, a jury could reasonably interpret
Mr. Simberg’s article as asserting as fact that the CRU emails “show[]” that Dr.
Mann engaged in deceptive data manipulation and academic and scientific
misconduct. In this regard, this case is markedly different from Rosen, where we
noted that because no specific misconduct was mentioned in the allegedly
defamatory statement, “no one hearing the general characterizations . . . could have
discerned particular behaviors that were concrete enough to reveal ‘objectively
verifiable’ falsehoods,” and that the statements “exuded merely subjective
evaluation — essentially a ‘statement of opinion’ without an ‘explicit or implicit
factual foundation.’” 41 A.3d at 1259 (footnote omitted).
Second, to claim this form of protection from liability, the facts on which the
purported opinion is based must be accurate and complete. See Milkovich, 497
U.S. at 18-19 (“[E]ven if the speaker states the facts upon which he bases his
opinion, if those facts are either incorrect, or incomplete, or if his assessment of
them is erroneous, the statement may still imply a false assertion of fact.”).39
39
In Jankovic II the court summarily dismissed the publisher’s argument
that the defamatory statement was protected as opinion because it was offered as
the writer’s interpretation of a fact that was disclosed in the report, noting that this
protection applies only where opinion is “based on true facts, accurately
disclosed.” 593 F.3d at 28. Because an inaccurate fact (that one of the plaintiff’s
companies was on a frozen assets list because it provided support to the Milosevic
(footnote continued . . . )
67
Mr. Simberg’s article does not assemble facts that prove Dr. Mann’s alleged
deception and misconduct, but primarily criticizes two entities, Penn State and the
National Science Foundation, that investigated those charges and concluded they
are unfounded. The target of the article is Dr. Mann; the criticism of these two
investigations is a means to that end. Mr. Simberg’s attack on the investigations
begins with a mocking reference to Dr. Mann’s “exoneration” by Penn State. It
points to the University’s vested financial interest in Dr. Mann and what
Mr. Simberg characterizes as the University’s resulting “whitewash” in its
investigation of the accusations leveled against Dr. Mann, comparing it to Penn
State’s previous investigation in the Sandusky case.40 The article also refers to the
report of the National Science Foundation,41 and acknowledges that the NSF
(. . . footnote continued)
regime) was cited as the basis of the report’s purported opinion that the plaintiff
supported the regime in exchange for favorable treatment of his businesses, the
defamatory statement was not protected as opinion. Id.
40
The Penn State report on the investigation of Dr. Mann is embedded as a
link in Mr. Simberg’s article, as is the Freeh Report, which criticized inadequacies
in Penn State’s investigation of Sandusky (not Dr. Mann).
41
The article does not include a link to the NSF Report itself but to a
secondary source that describes its substantive observations and conclusions.
Mr. Simberg’s article inaccurately refers to the report as having been produced by
“NAS” instead of “NSF.” The National Academy of Sciences, a private nonprofit
organization, is a different entity than the National Science Foundation, an
independent government funding agency. See National Academy of Sciences,
(footnote continued . . . )
68
investigation confirmed Penn State’s conclusion that Dr. Mann had not engaged in
misconduct. Mr. Simberg questions the independent corroboration of the NSF
report, however, because, as he emphasizes, “more importantly,” the NSF “relied
on the integrity of [Penn State] to provide them with all relevant material.” In
other words, the NSF investigation and report should not be trusted because they
were tainted by reliance on Penn State’s biased and inadequate work.
In this, Mr. Simberg’s article was inaccurate. As the NSF Report clearly
lays out, in addition to “fully review[ing] all the reports and documentation the
University provided,” NSF reviewed “a substantial amount of publicly available
documentation concerning both [Dr. Mann’s] research and parallel research
conducted by his collaborators and other scientists in that particular field of
research.” The NSF also independently interviewed Dr. Mann, his “critics, and
disciplinary experts.”42 Moreover, the article was incomplete because it failed to
mention two other parallel investigations of the CRU emails, conducted in the
(. . . footnote continued)
http://www.nasonline.org/ (last visited Oct. 5, 2016); National Science Foundation,
https://www.nsf.gov/ (last visited Oct. 5, 2016).
42
Appellants CEI and Mr. Simberg impliedly concede that the description
of the NSF investigation in the article is inaccurate, acknowledging in their reply
brief that the NSF interviewed Dr. Mann’s critics. But, as noted in the text and in
the NSF report itself, that is not all that NSF did in conducting its own separate
investigation, after reviewing the Penn State report.
69
United Kingdom, that came to the same conclusion as Penn State and NSF. In
short, Mr. Simberg’s assertions that the CRU emails revealed deception and
academic and scientific misconduct on the part of Dr. Mann that Penn State
covered up and NSF failed to uncover, are not protected as opinion based on
accurate, complete facts, because the article gave a skewed and incomplete picture
of the facts a reader would need to come to his or her own conclusions on the
matter. See Moldea I, 15 F.3d at 1144.
Even allowing for the use of hyperbole in the public discussion about global
warming, we conclude that the statements in Mr. Simberg’s article that Dr. Mann
acted dishonestly, engaged in misconduct, and compared him to notorious persons,
are capable of conveying a defamatory meaning with the requisite constitutional
certainty and included statements of fact that can be proven to be true or false.
Mr. Steyn’s July 15, 2012 article on National Review’s “The Corner”43
National Review argues that Mr. Steyn’s statement that “Michael Mann was
the man behind the fraudulent climate-change ‘hockey stick’ graph” could be, and
43
Mark Steyn, Football and Hockey, NATIONAL REVIEW (July 15, 2012),
http://www.nationalreview.com/corner/309442/football-and-hockey-mark-steyn.
70
therefore should be, interpreted as expressing vigorous disagreement with the idea
represented by the hockey stick graph and as criticism of the methodology that Dr.
Mann used in gathering the data that led to the graph. As such, National Review
contends that the statement is not actionable because it does not possess the clarity
of defamatory meaning required by the Constitution. See Greenbelt Coop. Publ’g
Ass’n v. Bressler, 398 U.S. 6, 13-14 (1970) (noting that the word “blackmail,”
when used to describe a real estate developer’s negotiating position, was not
defamatory as “even the most careless reader must have perceived that the word
was no more than rhetorical hyperbole” to express that the developer was being
unreasonable where the description of the negotiations was “accurate and full”).
At oral argument, counsel for National Review explained that “fraudulent” was
intended to mean (or could reasonably be interpreted as meaning) that Dr. Mann’s
research is not reliable because he “cherry-picked” the data on which he relied and
compared “apples to oranges” in producing the hockey stick graph, by first relying
on temperature data derived from proxy sources (such as tree rings) and, after a
certain date, using actual measured temperatures. We agree that if the use of
“fraudulent” in this one sentence were the only arguably defamatory statement in
Mr. Steyn’s article, we would have to conclude that it is insufficient as a matter of
law, as such an ambiguous statement may not be presumed to necessarily convey a
71
defamatory meaning. In such a case, the First Amendment tips the judicial balance
in favor of speech. See Bose, 466 U.S. at 505.
Statements are not to be viewed in isolation but in context, however. See
Guilford Transp. Indus., 760 A.2d at 597. Mr. Steyn’s article continued the theme
of personal attack and innuendo against Dr. Mann commenced in Mr. Simberg’s
article. It begins by quoting three sentences from Mr. Simberg’s article that refer
to “hockey-stick deceptions” by “molest[ing] and tortur[ing] data,” and the
comparison of Dr. Mann to Sandusky. Mr. Steyn first appears to retreat from the
comparison to Sandusky, saying that he is “[n]ot sure” that he would have
extended the metaphor “all the way into the locker-room showers,” but then adds
that Mr. Simberg “has a point.” See Olinger v. Am. Savs. & Loan Ass’n, 409 F.2d
142, 144 (D.C. Cir. 1969) (“The law affords no protection to those who couch their
libel in the form of . . . repetition . . . repetition of a defamatory statement is a
publication in itself.”) (citation omitted). Referring to the investigation of Dr.
Mann by a “deeply corrupt [Penn State University] administration,” Mr. Steyn
elaborates that “as with Sandusky and Paterno” Penn State University “declined to
find one of its star names guilty of any wrongdoing.” The clincher in Mr. Steyn’s
article: “If an institution is prepared to cover up systemic statutory rape of minors,
72
what won’t it cover up?” The implication that serious misconduct has been
covered up is inescapable.
Appellants would have us conclude that the comparisons of Dr. Mann to
notorious individuals are merely exaggerated — if crass — depictions of a policy
opponent. There is an important distinction, however, between generic labels with
derogatory connotations and comparisons to specific individuals from which
defamatory factual allegations can be inferred. Thus, in Buckley, the Second
Circuit dismissed defamation claims that were based on statements in a book that
described William F. Buckley, Jr.,44 as “fascist,” “fellow traveler,” and “radical
right,” because even if the labels were insulting and derogatory, they could not be
proven to be false statements of fact due to “the tremendous imprecision of the
meaning and usage of these terms in the realm of political debate.” 539 F.2d at
893. The same book also described Buckley as having lied about and libeled
several people who could take him to court “if they wanted to and could afford it,”
and compared Buckley to another journalist, identified by name, “who lied day
after day in his column.” Id. at 895. These statements, the court held, were
actionable because they “make a factual assertion relating to Buckley’s journalistic
44
Mr. Buckley was a well-known and influential conservative author and
commentator, and the founder of National Review. Buckley, 539 F.2d at 885-86.
73
integrity.” Id. at 895-96. The comparison to a known liar, the court noted, “as it
appears on its face states that Buckley was engaging in libelous journalism” and, as
it was proven to be false, was “constitutionally as well as tortiously defamatory.”
Id. at 896.
The statements in Mr. Steyn’s article are similarly factual and specific in
their attack on Dr. Mann’s scientific integrity. As with Mr. Simberg’s article,
Mr. Steyn’s is not about the merits of the science of global warming, but about Dr.
Mann’s “deceptions” and “wrongdoing.” Like Mr. Simberg, Mr. Steyn compares
Dr. Mann’s alleged wrongdoing — “molesting” and “torturing” data to achieve a
deceptive but desired result that will court funding for Penn State — to that of
Sandusky, which suggests that their characters are similarly base. (“Whether or
not he’s ‘the Jerry Sandusky of climate change,’ he remains the Michael Mann of
climate change.”) The accusation is bolstered by referring to the University’s
investigation as a “cover-up” of Dr. Mann’s “wrongdoing” in order to protect
someone who was a “star name” at Penn State like Sandusky and Paterno.
Because the allegations impugned Dr. Mann’s scientific integrity and likened him
to notorious individuals connected to Penn State in whom the University had
(according to Mr. Steyn) a similar financial interest to protect, the statements are
not merely fanciful or extreme, purely for rhetorical effect. As in Buckley, they
74
deliver an indictment of reprehensible conduct against Dr. Mann that a reader
could take to be an assertion of a true fact.45 These injurious allegations about Dr.
Mann’s character and his conduct as a scientist are capable of being verified or
discredited. If they are proven to be false, the statements breach the zone of
protected speech. See Buckley, 539 F.2d at 895-96.
Mr. Lowry’s August 22, 2012 editorial for National Review46
We come to a different conclusion with respect to the third in the series of
articles that Dr. Mann claims defamed him, Mr. Lowry’s editorial for National
Review. In the editorial, Mr. Lowry is responding to Dr. Mann’s threatened
45
We reject appellants’ argument that “the correct measure of the
challenged statements’ verifiability as a matter of law is whether no reasonable
person could find that the [] characterizations were supportable interpretations” of
the work being criticized. Moldea v. N.Y. Times Co., 22 F.3d 310, 317 (D.C. Cir.
1994) (Moldea II) (modifying Moldea I). As Moldea II made clear, however, that
stricter standard depends on the genre of the work, and “takes into account the fact
that the challenged statements appeared in the context of a book review, and were
solely evaluations of a literary work.” Id. In the case of an “ordinary libel,” the
standard is “whether a reasonable jury could find that the challenged statements
were false.” Id. (contrasting “reviewer’s comments on a literary work” with a
“review that stated or implied that [the work] was a badly written book because its
author was a drug dealer”). As appellants’ articles were not reviews of artistic
work, but “garden-variety” libels, id. at 315, about the character of Dr. Mann, we
apply the “supportable interpretation” standard, id. at 316.
46
Rich Lowry, Get Lost, NATIONAL REVIEW (August 22, 2012),
http://www.national review.com/blogs/314680.
75
lawsuit after National Review rejected the request for an apology and retraction.
The editorial refers and links to Mr. Steyn’s article, characterizing it as “mild” and
“f[a]ll[ing] considerably short of” Mr. Simberg’s article; Mr. Lowry does not
repeat Mr. Steyn’s statements except to say that Mr. Steyn referred to the hockey
stick graph as “fraudulent.” The editorial does not disavow Mr. Steyn’s use of the
word “fraudulent” but puts a gloss on it, explaining that “[i]n common polemical
usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means
intellectually bogus and wrong.” In sum, Mr. Lowry’s editorial does not repeat or
endorse the factual assertions that Dr. Mann engaged in deception and misconduct
that we have found to be actionable in Mr. Simberg’s and Mr. Steyn’s articles.
Mr. Lowry’s editorial ridicules Dr. Mann, repeatedly calling him “poor
Michael,” describing his letter as “laughably threatening” and “pathetically lame
chest-thumping,” and saying that if he proceeds with a lawsuit Dr. Mann “risks
making an ass of himself.” The editorial mocks the threatened lawsuit and even
welcomes it, as a way of “teach[ing] [Dr. Mann] a thing or two about how the law
and how free debate works in a free country.” These statements, however
belittling of Dr. Mann, are not statements of fact, but of Mr. Lowry’s opinion of
Dr. Mann and his threatened lawsuit. Even though the ultimate success or failure
of Dr. Mann’s lawsuit will eventually be a provable fact, it was not so at the time
76
the editorial was written — it still is not so — and Mr. Lowry’s opinions on the
matter are protected speech. Mr. Lowry’s editorial is clearly an attempt to distance
Mr. Steyn’s article that appeared on National Review’s website from
Mr. Simberg’s that appeared on CEI’s, and to express to National Review’s readers
that it is confident of the success of the vigorous defense that it intended to mount
in response to Dr. Mann’s threatened lawsuit. Because Mr. Lowry’s editorial for
National Review does not repeat or endorse the actionable defamatory statements
in Mr. Simberg’s and Mr. Steyn’s articles or contain defamatory assertions of fact
that were provably false at the time they were made, the editorial is an expression
of opinion protected by the First Amendment.47
We emphasize that in conducting a review of the legal sufficiency of the
evidence “it is the role of the court to determine whether the challenged
statement[s] [are] ‘capable of bearing a particular meaning’ and whether ‘that
47
As the allegedly defamatory statements were included in the complaint
and Mr. Lowry’s editorial was appended to the complaint, the claims based on
these statements could have been dismissed, for failure to state a claim, under
Superior Court Civil Rule 12 (b)(6). Clawson v. St. Louis Post-Dispatch, LLC, 906
A.2d 308, 312-13 (D.C. 2006) (noting that newspaper article appended to
complaint could be considered in ruling on Rule 12 (b)(6) motion, which presented
issue of law whether use of word “informer’ was capable of conveying defamatory
meaning). The additional evidence presented by Dr. Mann in opposition to the
special motion to dismiss was unnecessary to test the legal sufficiency of the
statements; its relevance went primarily to the issue of actual malice, discussed
infra.
77
meaning is defamatory.’” Tavoulareas, 817 F.2d at 779 (quoting RESTATEMENT
(SECOND) OF TORTS § 614 (1)). “The jury’s proper function, in turn, is to
determine whether a statement, held by the court to be capable of a defamatory
meaning, was in fact attributed such a meaning by its readers.” Id. at 780. As we
conclude that Dr. Mann has demonstrated that Mr. Simberg’s and Mr. Steyn’s
articles are capable of conveying a defamatory meaning and contain statements of
fact that can be proven to be true or false, we continue to evaluate the legal
sufficiency of the evidence with respect to the other elements of defamation.
2. Publication
“[A] cause of action for defamation requires proof of publication of the
defamatory statement to a third party.” Oparaugo, 884 A.2d at 73. Dr. Mann
presented documentation showing that Mr. Simberg’s article appeared on the
website of CEI and Mr. Steyn’s on the website of National Review. Notably, CEI
and Mr. Simberg do not dispute that Mr. Simberg’s blog post on CEI’s website
constituted publication.48
48
As we have concluded that the defamation claims based on Mr. Lowry’s
editorial are not actionable, we do not address CEI’s argument (presented for the
first time on appeal) that hyperlinking Mr. Lowry’s editorial on the CEI website
does not suffice to satisfy the element of publication.
78
National Review takes a different position. It argues that it cannot be held
liable for any of the statements made by Mr. Simberg or Mr. Steyn that appeared
on its website. According to National Review, it is shielded from liability by the
Communications Decency Act of 1996 (“CDA”), because its website is a
“provider . . . of an interactive computer service”49 that may not be “treated as the
publisher or speaker of any information provided by another information content
provider.”50 47 U.S.C. § 230 (c)(1). Under the CDA “[n]o cause of action may be
brought and no liability may be imposed under any State or local law that is
inconsistent with” § 230 (c)(1). 47 U.S.C. § 230 (e)(3). This argument was not
raised in the trial court and is not properly before us. See Akassy v. William Penn
Apartments Ltd. P’ship, 891 A.2d 291, 304 n.11 (D.C. 2006) (“Generally, issues
not raised in the trial court will not be considered on appeal.”). Moreover, it is not
a pure question of law that we may decide on appeal without an adequate trial
court record. As National Review notes in its brief, the availability of § 230
49
The CDA defines an “interactive computer service” as “any information
service, system, or access software provider that provides or enables computer
access by multiple users to a computer server, including specifically a service or
system that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.” 47 U.S.C. § 230 (f)(2).
50
The CDA defines an “information content provider” as “any person or
entity that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer
service.” 47 U.S.C. § 230 (f)(3).
79
immunity under the CDA involves a three-part test that inquires into the nature of
the website and the involvement of the website provider with the content of the
statement, including the relationship with its author. See Klayman v. Zuckerberg,
753 F.3d 1354, 1357 (D.C. Cir. 2014) (stating that § 230 mandates dismissal of
action if defendant is a “provider or user of an interactive computer service,”
statement on which liability is based is “provided by another content provider,”
and liability is based on publishing or speaking the statement); Fair Hous. Council
of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir.
2008) (noting that “[a] website operator can be both a service provider and a
content provider” under the CDA: immune as a “service provider” if it “passively
displays content that is created entirely by third parties,” but a “content provider”
and thus not immune if it displays content that “it creates itself, or is ‘responsible,
in whole or in part for’ creating”). These are questions that have not been
developed or considered in the trial court, and that Dr. Mann has not had an
opportunity to address.
On the record before us, Dr. Mann met his burden of demonstrating that a
jury could find that Mr. Simberg’s and Mr. Steyn’s articles were published to a
third party.
80
3. Actual Malice
An essential safeguard of First Amendment rights is the “breathing space”
for uninhibited expression, NAACP v. Button, 371 U.S. 415, 433 (1963), afforded
by the heightened showing of fault — actual malice — that must be proved in
defamation cases that rely on statements made about public figures concerning
matters of public concern,51 see N.Y. Times Co., 376 U.S. at 279-80 (imposing
heightened standard to defamation action brought by a state official); Curtis Publ’g
Co. v. Butts, 388 U.S. 130 (1967) (plurality opinion), 164 (Warren, C.J.,
concurring), 170 (Black, J., concurring in part and dissenting in part), 172-73
(Brennan, J., concurring in part and dissenting in part) (extending the actual malice
standard to public figures). Moreover, to prevail, the plaintiff in such a lawsuit
bears a higher burden of proof than the preponderance of the evidence standard
usually applicable in civil cases; the plaintiff must persuade the fact-finder that the
defendant acted with actual malice in publishing the defamatory statements by
clear and convincing evidence. See N.Y. Times Co., 376 U.S. at 285-86 (referring
to the “convincing clarity which the constitutional standard demands”).
51
The parties agree, as do we, that Dr. Mann is a limited public figure with
respect to statements about global warming because he has assumed a role in “the
forefront of particular public controversies in order to influence the resolution of
the issues involved.” Gertz, 418 U.S. at 345.
81
A plaintiff may prove actual malice by showing that the defendant either (1)
had “subjective knowledge of the statement’s falsity,” or (2) acted with “reckless
disregard for whether or not the statement was false.” Burke I, 91 A.3d at 1044.
The “subjective” measure of the actual malice test requires the plaintiff to prove
that the defendant actually knew that the statement was false. See N.Y. Times Co.,
376 U.S. at 280. The “reckless disregard” measure requires a showing higher than
mere negligence; the plaintiff must prove that “the defendant in fact entertained
serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390
U.S. 727, 731 (1968) (“[R]eckless conduct is not measured by whether a
reasonably prudent man would have published, or would have investigated before
publishing.”). The plaintiff may show that the defendant had such serious doubts
about the truth of the statement inferentially, by proof that the defendant had a
“high degree of awareness of [the statement’s] probable falsity.” Harte-Hanks
Commc’ns, Inc., 491 U.S. at 688 (quoting Garrison v. Louisiana, 379 U.S. 64, 74
(1964)). A showing of reckless disregard is not automatically defeated by the
defendant’s testimony that he believed the statements were true when published;
the fact-finder must consider assertions of good faith in view of all the
circumstances. St. Amant, 390 U.S. at 732 (“[R]ecklessness may be found where
there are obvious reasons to doubt the veracity of the informant or the accuracy of
his reports.”). Thus, in considering the evidentiary sufficiency of the plaintiff’s
82
response to a special motion to dismiss filed under D.C. Code § 16-5502 (b), the
question for the court is whether the evidence suffices to permit a reasonable jury
to find actual malice with convincing clarity.52
There is a hefty volume of evidence in the record. Appellants’ special
motions to dismiss were accompanied by various investigatory reports cited in Dr.
Mann’s complaint and several articles by third parties that criticize the
investigations underlying the reports. In his response, Dr. Mann also submitted
extensive documentation from eight separate inquiries that either found no
evidence supporting allegations that he engaged in fraud or misconduct or
concluded that the methodology used to generate the data that resulted in the
52
In this case, the trial court characterized the evidence of actual malice as
“slight” and as not amounting to a showing by clear and convincing evidence, but
stated that it was “sufficient to find that further discovery may uncover evidence of
‘actual malice.’” We are not constrained by the trial court’s conclusion in this
regard, as the sufficiency of the evidence to support a finding of actual malice is a
question of law that we review de novo. See Harte-Hanks Commc’ns, Inc., 491
U.S. at 685. We note, however, that if the trial court considers that the evidence
presented in opposition to a special motion to dismiss is not sufficient to go to a
jury, the court must grant the motion to dismiss as the opponent has the burden to
demonstrate a sufficient evidentiary basis for his claim. See D.C. Code § 16-5502
(b). The court is not at liberty to dispense with this statutory burden. The Anti-
SLAPP Act authorizes the court to permit targeted discovery for the purpose of
responding to a special motion to dismiss. Granting a request for such discovery
was the proper way to proceed, if it “appear[ed] likely that targeted discovery
[would] enable the plaintiff” to shoulder his evidentiary burden to overcome the
special motion to dismiss and would not be “unduly burdensome” to the
defendants. Id. § 16-5502 (c)(2).
83
hockey stick graph is valid and that the data were not fabricated or wrongly
manipulated.
Not all the evidence before the court was relevant to the question of whether
appellants acted with the requisite malice in accusing Dr. Mann of engaging in
deceptive behavior and misconduct. We set aside the reports and articles that deal
with the validity of the hockey stick graph representation of global warming and its
underlying scientific methodology. The University of East Anglia, the U.S.
Environmental Protection Agency, and the U.S. Department of Commerce issued
reports that concluded that the CRU emails did not compromise the validity of the
science underlying the hockey stick graph. As we have explained, the expression
of scientific and policy opinions in the debate over global warming that the hockey
stick illustrates is speech protected by the First Amendment. Much as Dr. Mann’s
pride in his work may be wounded by criticisms of the hockey stick graph,
appellants are entitled to their opinions on the subject and to express them without
risk of incurring liability for defamation. The proper place for the discussion is the
scientific community and the public sphere of policy prescriptions.
The reports that are relevant to the defamation claims are those that concern
appellants’ statements that Dr. Mann engaged in “dishonesty,” “fraud,” and
84
“misconduct.” The University of East Anglia Independent Climate Change E-
mails Review, Penn State University, the United Kingdom House of Commons,
and the Office of the Inspector General of the U.S. National Science Foundation,
all conducted investigations and issued reports that concluded that the scientists’
correspondence in the 1,075 CRU emails that were reviewed did not reveal
research or scientific misconduct. Appellants do not counter any of these reports
with other investigations into the CRU emails that reach a contrary conclusion
about Dr. Mann’s integrity.
The issue for the court at this juncture is to determine whether the
conclusions reached by these various investigations, when considered in view of
all the evidence before the court, permit a jury to find, by clear and convincing
evidence, that appellants either knew their accusations of misconduct were false or
made those accusations with reckless disregard for their truth.
We begin our examination by noting that the results of the investigations
that Dr. Mann says exonerate him of wrongdoing were made public; appellants do
not claim they were unaware of them when they made the challenged statements.
In assessing whether these reports provided appellants with “obvious reasons to
doubt the veracity,” St. Amant, 390 U.S at 732, of their subsequent statements that
85
Dr. Mann engaged in misconduct, we consider (as would a jury) the source of the
reports, the thoroughness of the investigations, and the conclusions reached. As
the reports are extensive, we summarize the relevant portions in this opinion.
We are struck by the number, extent, and specificity of the investigations,
and by the composition of the investigatory bodies. We believe that a jury would
conclude that they may not be dismissed out of hand. Although we do not
comment on the weight to be given to the various investigations and reports, which
is a question for the jury, what is evident from our review is that they were
conducted by credentialed academics and professionals.53 The investigations
53
The first Penn State investigation, into allegations of research
misconduct, was directed Henry C. Foley, Ph.D, Vice President for Research and
Dean of the Graduate School; Alan W. Scaroni, Ph.D., Associate Dean for
Graduate Education and Research, College of Earth and Mineral Sciences; and Ms.
Candice A. Yekel, M.S., CIM, Director of the Office for Research Protections and
Research Integrity Officer. A second Penn State investigation, into compliance
with accepted academic practices, was conducted by Sarah M. Assmann, Waller
Professor, Department of Biology; Welford Castleman, Evan Pugh Professor and
Eberly Distinguished Chair in Science, Department of Chemistry and Department
of Physics; Mary Jane Irwin, Evan Pugh Professor, Department of Computer
Science and Electrical Engineering; Nina G. Jablonski, Department Head and
Professor, Department of Anthropology; Fred W. Vondracek, Professor,
Department of Human Development and Family Studies; with Candice Yekel,
Director of the Office for Research Protections. The National Science
Foundation’s investigation was conducted by its Office of Inspector General. The
University of East Anglia’s Independent Climate Change E-mails Review was led
by Sir Muir Russell, a former professor and Vice Chancellor for the University of
Glasgow, and current chair of the Judicial Appointments Board for Scotland. He
(footnote continued . . . )
86
considered, and expressly rejected, the claim that the CRU emails substantiated
charges of misconduct, fraud, and deception. The investigations posed their
questions in slightly different ways and conducted their analyses in accordance
with their own procedures and standards, a mark of the cumulative strength of the
conclusion each reached unanimously and without equivocation: that the CRU
emails did not support the conclusion that the scientists engaged in fabricating or
deceptively manipulating data, or in scientific misconduct, fraud or dishonesty in
their reporting and presentation of research results.
The Penn State investigation report looked into “research misconduct” such
as “manipulating data, destroying records and colluding to hamper the progress of
scientific discourse”54 the National Science Foundation considered “allegations of
(. . . footnote continued)
was assisted by Professor Geoffrey Boulton, Regius Professor Emeritus of
Geology and former Vice Principal of the University of Edinburgh; Professor Peter
Clarke, Professor of Physics at the University of Edinburgh; Mr. David Eyton,
Head of Research & Technology at British Petroleum; and Professor James
Norton, an independent policy advisor from the U.K. Parliament’s Office of
Science & Technology. The United Kingdom’s investigation was conducted by
the House of Commons’ Science and Technology Committee, comprised of
fourteen members of the House of Commons from the Labour Party, the
Conservative Party, the Liberal Democrats Party, and an independent.
54
Penn State conducted two separate investigations by two different
investigatory bodies. The first was into research misconduct; after the first
investigation found no research misconduct, the second took a broader view and
(footnote continued . . . )
87
research misconduct” the University of East Anglia investigated “whether data had
been manipulated or suppressed” the U.K. House of Commons considered whether
the scientists had “deliberately misrepresented the data.” These reports expressly
disclaimed that their purpose or conclusions were concerned with the validity of
the underlying statistical methodology, or its representation in the hockey stick
graph.55
(. . . footnote continued)
considered whether Dr. Mann had “engaged in, or participated in, directly or
indirectly, any actions that seriously deviated from accepted practices within the
academic community for proposing, conducting, or reporting research or other
scholarly activities.”
55
For example, the report commissioned by the University of East Anglia
states: “The Review examines the honesty, rigour and openness with which the
CRU scientists have acted. It is important to note that we offer no opinion on the
validity of their scientific work. Such an outcome could only come through the
normal processes of scientific debate and not from the examination of e-mails or
from a series of interviews about conduct.”
From the Penn State report: “[R]esearch misconduct does not include
disputes regarding honest error or honest differences in interpretations or
judgments of data, and is not intended to resolve bona fide scientific disagreement
or debate.” “We are aware that some may seek to use the debate over Dr. Mann’s
research conduct and that of his colleagues as a proxy for the larger and more
substantive debate over the science of anthropogenic global warming and its
societal (political and economic) ramifications. We have kept the two debates
separate by only considering Dr. Mann’s conduct.”
From the report of the U.K. House of Commons, Science and Technology
Committee: “The complaints and accusations made against CRU in relation to the
scientific process come under two broad headings. The first is transparency . . . .
The second is honesty: that CRU has deliberately misrepresented the data, in order
(footnote continued . . . )
88
Appellants offer several reasons why the reports do not supply sufficient
evidence for the jury to find that they acted with actual malice.
1. Appellants’ Honest Belief
Appellants contend that because the challenged statements reflect their
subjective and honest belief in the truth of their statements, actual malice cannot be
proven. This argument, however, presupposes what the jury will find on the facts
of this case. The issue for the court is whether, taking into account the substantive
conclusions of investigatory bodies constituted to look into the very evidence —
the CRU emails — that appellants’ statements claimed as factual proof of Dr.
Mann’s deception and misconduct, a jury could find, by clear and convincing
evidence, that appellants acted with “actual malice.” This is a determination the
(. . . footnote continued)
to produce results that fit its preconceived views about the anthropogenic warming
of the climate.” “If there had been more time available before the end of this
Parliament we would have preferred to carry out a wider inquiry into the science of
global warming itself.”
From the report of the National Science Foundation, Office of Inspector
General: “Although [Dr. Mann’s] data is still available and still the focus of
significant critical examination, no direct evidence has been presented that
indicates the Subject fabricated the raw data he used for his research or falsified his
results. . . . Such scientific debate is ongoing but does not, in itself, constitute
evidence of research misconduct.”
89
jury could reach by finding either that appellants knew their defamatory statements
were false, or that appellants acted with reckless disregard for the truth of their
statements. It is for the jury to determine the credibility of appellants’
protestations of honest belief in the truth of their statements, and to decide whether
such a belief, assuming it was held, was maintained in reckless disregard of its
probable falsity.56
2. Unreliability of Reports
As Mr. Simberg and Mr. Steyn make clear in their articles, they dismiss the
Penn State investigation as biased, conducted by insiders with a vested interest in
upholding Dr. Mann’s reputation as a leading climate scientist. The articles
describe the Penn State investigation as a “cover-up” and a “whitewash,” and argue
they have a good basis for believing so in light of Penn State’s shoddy
investigation of Jerry Sandusky, in which he was cleared in the face of multiple
allegations of sexually abusing children for which he was subsequently charged
56
Appellants have made representations in their briefs about their subjective
belief, but there is no evidence in the record (beyond the articles that are the
subject of the defamation action) in the form of affidavits or depositions attesting
to the personal beliefs of Mr. Simberg, Mr. Steyn, or the responsible personnel at
CEI and National Review, and how they came to have such beliefs in light of the
reports that had been issued before the statements were made.
90
and convicted. Even if appellants’ skepticism of the Penn State report were to be
credited by a jury as a valid reason for not taking its conclusions seriously, that
leaves three other reports, from separate investigatory bodies in academia and
government, on both sides of the Atlantic, that also found no wrongdoing.57
Appellants argue that the investigatory reports could not be relied upon by a
jury because the investigations Dr. Mann claims exonerate him of misconduct
“take no ultimate position,” but only indicate that there was “no evidence” of
fraud. This is a quibble about wording that does not call into question the import
57
Of particular relevance to appellants’ criticism of the Penn State
investigation is the report of the National Science Foundation, an independent
federal agency that funded Dr. Mann’s scientific research, and therefore had a
responsibility to monitor and ensure compliance with required standards. As the
NSF report states, it examined “de novo” each of three allegations of misconduct
leveled against Dr. Mann that were dismissed by the Penn State report. As part of
that review, NSF “reviewed the emails and concluded that nothing contained in
them evidenced research misconduct.” The NSF found that Penn State had
adequately addressed those three allegations. However, the NSF found the Penn
State investigation deficient concerning the allegation concerning data fabrication
or falsification because the University had not interviewed experts critical of Dr.
Mann’s research. The NSF Office of Inspector General then undertook its own
independent investigation of this allegation, broadened it beyond data falsification,
and interviewed Dr. Mann, his critics, and disciplinary experts. After concluding
its independent investigation, the NSF found “no evidence” that data had been
fabricated or falsified or that Dr. Mann had engaged in any other types of research
misconduct. The NSF closed its investigation “with no further action.” Thus, even
if appellants initially had reason to be skeptical of Penn State’s motivations and
thoroughness, a jury could find that the independent, de novo investigation by the
NSF corroborated the Penn State findings, as did the investigations conducted by
the University of East Anglia and the U.K. House of Commons.
91
of the investigations’ conclusions. An investigatory body can report only on what
it has found; a determination that there is “no evidence” of fraud is an ultimate
conclusion that investigation has not turned up any evidence of misconduct.
Appellants also contend that the investigatory reports cannot be relied upon
to find that they purposely avoided the truth because the investigations do not, in
fact, “exonerate” Dr. Mann. They point to the report of the University of East
Anglia, which states that the hockey stick graph that was submitted for inclusion in
the 1999 WMO Report and IPCC Third Assessment Report was “misleading.”
The UEA report does use the word “misleading.” As that report makes clear,
however, what it meant is not that the statistical procedures used to generate the
hockey stick graph — which involved reconstructions of temperature through the
use of proxies (such as tree rings) or splicing data from different sources — are
themselves misleading, but that an explanation of those procedures should have
been included in the graph itself or in immediately accompanying text. It is not an
indictment of the deceptive use of data, but a comment on how the graph could and
should have been presented to be more transparent to the readers of the WMO and
IPCC Reports. With respect to the allegations of misconduct it investigated, the
report of the University of East Anglia is unequivocal in its conclusion:
92
Climate science is a matter of such global
importance, that the highest standards of honesty, rigour
and openness are needed in its conduct. On the specific
allegations made against the behaviour of CRU scientists,
we find that their rigour and honesty as scientists are not
in doubt.[58]
Appellants argue that the investigations of the University of East Anglia and
the U.K. House of Commons also cannot be said to have exonerated Dr. Mann
because they were primarily focused on the conduct of the scientists in the U.K., at
the University of East Anglia’s Climate Research Unit. The CRU emails at the
core of those investigations, however, contained exchanges between these
scientists, specifically, the CRU’s head, Philip Jones, and Dr. Mann or referred to
Dr. Mann. See supra note 9. The National Science Foundation Report was
specifically focused on Dr. Mann and similarly concluded that there was “no
specific evidence that [Dr. Mann] falsified or fabricated any data and no evidence
that his actions amounted to research misconduct.” The Penn State investigations
also were specifically directed at Dr. Mann’s conduct.
58
The report did criticize the CRU scientists for their “unhelpfulness” in
responding to FOIA requests and for deleting emails that may be requested.
93
3. Subjectivity of Reports
Appellants contend that the investigations’ conclusions need not have alerted
them to the probable falsity of their beliefs because the reports reflected no more
than subjective and standardless opinions on the manner in which Dr. Mann and
the other scientists conducted their work. A jury could well think otherwise. Each
of the reports cites to specific standards for assessing the allegations of
misconduct. The Penn State investigation refers to the University’s Research
Administration Policy No. 10; the National Science Foundation Office of Inspector
General conducted a de novo review of the CRU emails and relevant documents
against NSF Research Misconduct Regulation, 45 C.F.R. § 689.1 (plagiarism,
fabrication, falsification), and other requirements applicable to federal awardees
under federal statutes, such as the False Claims Act, 18 U.S.C. § 287, and False
Statements Act, 18 U.S.C. § 1001; and the U.K. House of Commons investigation
specifically inquired into charges of “dishonesty” and falsification of data for the
purpose of exaggerating global warming arising out of the scientists’ use of the
phrases “trick” and “hide the decline” in the most-quoted CRU email referring to
Dr. Mann’s statistical technique; the University of East Anglia’s investigation set
out its analytic parameters for assessing the “honesty, rigour and openness” of the
CRU scientists’ handling of data as follows:
94
In making its analysis and conclusions, the Team
[of investigators] will test the relevant work against
pertinent standards at the time it was done, recognizing
that such standards will have changed. It will also test
them against current best practice, particularly
statements of the ethics and norms such as those
produced by the UK Government Office for Science and
by the US National Academy of Sciences. These
identify principles relating to rigour, respect and
responsibility in scientific ethics and to integrity,
accessibility and stewardship in relation to research data.
The fact that the standards applied to charges of scientific and research
misconduct are primarily professional or ethical, not criminal, and that their
application requires the exercise of judgment does not mean that they lack
substantive content, real-life consequences, or make them incapable of
verification.59 These standards do not suffer from the defect we identified in
Rosen, that “no threshold showing of falsity is possible” where there were no
standards of “a particular kind identifiable in writing,” and thus the challenged
statement was “too subjective, too amorphous, [and] too susceptible of multiple
interpretations.” 44 A.3d at 1255, 1260 (noting statement’s reference to
59
See Jankovic II, 593 F.3d at 28 (noting that a proposition is “verifiable in
the practical sense that our legal system is ready to make decisions on the basis of
how such issues are resolved — decisions profoundly affecting people’s lives”).
As an example, the conduct of lawyers is evaluated against professional and ethical
standards, and civil liability and disciplinary sanctions can be imposed based on
findings that those standards have been violated.
95
unspecified “standards [the employer] expected of its employees”).
As the preceding discussion demonstrates, appellants’ objections to the
reports can fairly be characterized as arguments that could be made to a jury as to
why the reports’ conclusions should not be credited or given much weight. We do
not judge whether appellants’ arguments will persuade a jury. Our task now is not
to anticipate whether the jury will decide in favor of appellants or Dr. Mann, but to
assess whether, on the evidence of record in connection with the special motion to
dismiss, a jury could find for Dr. Mann.
We reviewed a comparable constellation of facts in Nader v. de Toledano,
the first case considered by this court following the Supreme Court’s adoption of
the actual malice standard for defamation actions by public figures. 408 A.2d 31
(D.C. 1979). The case involved Ralph Nader, the well-known consumer advocate,
who sued a journalist who wrote a newspaper column criticizing Nader, saying that
it had been “demonstrate[d] conclusively that Nader falsified and distorted
evidence” during hearings before a Senate subcommittee. Id. at 37-38. In support
of this assertion, the column referred to a Senate Report, issued after an extensive
investigation, that rejected the thrust of Nader’s testimony as unsubstantiated. Id.
at 37. The Report also stated, however, that the testimony had been presented “in
96
good faith based on the information available” to Nader at the time. Id. On appeal
of the trial court’s grant of summary judgment to the journalist, the court reversed
and remanded the case for trial. The court dismissed the argument that a finding of
malice would be impermissible because the journalist asserted that he “honestly
believed in the truth of his statement when he published it,” concluding that the
Report’s “explicit, unambiguous finding” that Nader had acted in good faith
afforded “a sufficient evidentiary basis from which a reasonable inference” could
be drawn that the statement that Nader “falsified and distorted evidence” had been
made with actual malice. Id. at 53.
We come to the same conclusion as in Nader. In the case before us now, not
one but four separate investigations were undertaken by different bodies following
accusations, based on the CRU emails, that Dr. Mann had engaged in deceptive
practices and scientific and academic misconduct. Each investigation unanimously
concluded that there was no misconduct. Reports of those investigations were
published and were known to appellants prior to Mr. Simberg’s and Mr. Steyn’s
articles continuing to accuse Dr. Mann of misconduct based on the emails that
were the subject of the investigations. Applying the reasoning in Nader to the
97
evidence now of record in this case, we conclude that a jury could find that
appellants’ defamatory statements were made with actual malice.60
There is, in this case, another factor that a jury could take into account in
evaluating appellants’ state of mind in publishing the statements accusing Dr.
Mann of misconduct and deception. As the articles that form the basis of Dr.
Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one
side of the global warming debate that is opposed to the view supported by Dr.
Mann’s research. Although animus against Dr. Mann and his research is by itself
insufficient to support a finding of actual malice where First Amendment rights are
implicated, bias providing a motive to defame by making a false statement may be
a relevant consideration in evaluating other evidence to determine whether a
statement was made with reckless disregard for its truth. See Harte-Hanks
Commc’ns, Inc., 491 U.S. at 664-65, 667-68, 689 n.36 (stating that “it cannot be
said that evidence concerning motive or care never bears any relation to the actual
malice inquiry,” and noting that jury could have found actual malice on the basis,
inter alia, that publisher was biased against plaintiff and in a “bitter rivalry” with
60
Our legal conclusion is based on the evidence that has been presented at
this juncture, in connection with the special motion to dismiss. Once discovery is
completed, the legal conclusion that the evidence is sufficient to go to trial could
change.
98
another newspaper that would be impugned by discrediting the plaintiff); see also
Payne v. Clark, 25 A.3d 918, 925 (D.C. 2011) (distinguishing between common
law malice, for which “ill will” or bad faith is sufficient, and “actual malice”
required by the First Amendment). In evaluating the evidence in this case, for
example, the jury could consider that appellants’ zeal in advancing their cause
against the hockey stick graph’s depiction of a warming global climate led them to
accuse Dr. Mann, one of its most prominent proponents, of deception and
misconduct in producing the graph with reckless disregard of their knowledge that
several investigations had discredited those accusations. See Tavoulareas, 817
F.2d at 796 (noting that evidence of ill will or bad motive, if probative of a
“willingness to publish unsupported allegations,” may be suggestive of actual
malice).
Just as this court’s decision in Nader provides a useful comparison with the
facts of this case, the D.C. Circuit’s recent opinion in Jankovic v. Int’l Crisis Grp.
(Jankovic III), 822 F.3d 576 (D.C. Cir. 2016), provides a useful contrast. After
deciding in two previous appeals, during the twelve-year course of litigation, that a
report stating that a Serbian businessman had supported the Milosevic regime in
exchange for favorable treatment for his businesses was capable of conveying a
defamatory meaning, see supra at 60, and that the statement was actionable
99
because it was not purely an opinion but asserted a false fact as justification, see
supra note 39, the court addressed the element of actual malice. The court
evaluated the evidence to determine whether it would allow a jury to find, by clear
and convincing evidence, that the International Crisis Group’s (ICG) publication of
the statement was made with actual malice. Concluding that the evidence was
insufficient as a matter of law, the court noted the following facts: ICG considered
that the writer of the report was an able analyst and expert on the Balkans; the
writer had conducted research of published reports and Serbian press accounts, and
had interviewed a number of confidential sources in government, business, and
NATO embassies, before writing the report; and the report was reviewed and
edited by the writer’s supervisor, the head of research, and ultimately approved by
ICG’s president. Id. at 591-92.
The court stressed that because the plaintiff had not produced evidence that
the writer had reason to doubt his research and sources, his failure to investigate
further or question his sources did not show actual malice or a reckless disregard
for the truth. “[I]t is only when a plaintiff offers evidence that ‘a defendant has
reason to doubt the veracity of its source’ does its ‘utter failure to examine
evidence within easy reach or to make obvious contacts in an effort to confirm a
story’ demonstrate reckless disregard.” Id. at 590 (quoting McFarlane v. Sheridan
100
Square Press, Inc., 91 F.3d 1501, 1510 (D.C. Cir. 1996)). “Absent such
evidence . . . [the writer’s] extensive background research and reporting on the
Balkans, his understanding of the Serbian press, and his good faith belief that the
frozen assets list implied more than it actually did, belies actual malice.” Id. at
597. In sum, the court concluded, what was missing was evidence that the
publisher had “serious doubt” or had “a high degree of awareness” of the
statement’s probable falsity, and thereby “acted with reckless disregard” for the
truth of the defamatory statement. Id.
What was present in Jankovic III that lent support to the claim of good faith
belief is missing here. Unlike in Jankovic III, where the court noted that ICG had
relied on an able analyst who had researched, reviewed and edited the report prior
to publication, in this case there is, at this point, no similar evidence that
Mr. Simberg, Mr. Steyn, CEI, or National Review conducted research or
investigation that provided support for their defamatory statements that Dr. Mann
engaged in deception and misconduct. The only support cited in the articles are the
CRU emails, with primary reliance on the language in one email that referred to
“Mike’s Nature trick.” But what the court noted was missing in Jankovic III to
support a finding of actual malice is present here: evidence that there was reason
to doubt the emails as a reliable source for the belief that Dr. Mann had engaged in
101
misconduct. That evidence has been presented in the form of reports from four
separate investigations that debunked the notion that the emails and, specifically
the reference to Dr. Mann’s “trick,” revealed deception in the presentation of data
and scientific misconduct.
On the current record, where the notion that the emails support that Dr.
Mann has engaged in misconduct has been so definitively discredited, a reasonable
jury could, if it so chooses, doubt the veracity of appellants’ claimed honest belief
in that very notion. A jury could find, by clear and convincing evidence, that
appellants “in fact entertained serious doubts” or had a “high degree of awareness”
that the accusations that Dr. Mann engaged in scientific misconduct, fraud, and
deception, were false, and, as a result, acted “with reckless disregard” for the
statements’ truth when they were published. Nader, 408 A.2d at 41, 50-53.
B. Intentional Infliction of Emotional Distress
The complaint’s claim for intentional infliction of emotional distress was
based on the statement that compared Dr. Mann to Jerry Sandusky.61 To establish
61
“Dr. Mann could be said to be the Jerry Sandusky of climate science,
except for instead of molesting children, he has molested and tortured data in the
(footnote continued . . . )
102
a prima facie case of intentional infliction of emotional distress, a plaintiff must
show “(1) extreme and outrageous conduct on the part of the defendants, which (2)
intentionally or recklessly (3) causes the plaintiff severe emotional distress.”
Williams v. District of Columbia, 9 A.3d 484, 493-94 (D.C. 2010) (quoting Futrell
v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C. 2003)). The
conduct must be “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Id. at 494 (quoting Bernstein v. Fernandez,
649 A.2d 1064, 1075 (D.C. 1991)). As a constitutional matter, a public figure
“may not recover for the tort of intentional infliction of emotional distress by
reason of publication[] . . . without showing in addition that the publication
contains a false statement of fact which was made with ‘actual malice.’” Hustler
Magazine, Inc., 485 U.S. at 56.
Our conclusion that the evidence presented suffices to permit a jury to find
the constitutional requirement of actual malice also satisfies the mens rea element
of the tort of intentional infliction of emotional distress. Arguably, appellants’
statement comparing Dr. Mann to a convicted child sexual abuser could be
(. . . footnote continued)
service of politicized science that could have dire consequences for the nation and
planet.”
103
considered to be not simply a serious departure from journalistic standards, but
also “outrageous” and “extreme in degree,” particularly where there was no
legitimate need or urgency that might excuse it. Cf. Minch v. District of Columbia,
952 A.2d 929, 941 (D.C. 2008) (noting the pressure on police officers who
publicly and prematurely identified a student as suspect in one murder as they
confronted murder of a second student at undergraduate campus). We need not
decide whether the statement permits a finding that appellants’ conduct was
“extreme and outrageous,” because we conclude that Dr. Mann has not
demonstrated that he is likely to succeed in proving that he suffered the severe
emotional distress required to prevail on a claim for intentional infliction of
emotional distress.
The complaint alleges that as a result of the defamatory statements
“besmirching Dr. Mann’s reputation and comparing him to a convicted child
molester,” Dr. Mann has suffered “extreme emotional distress,” “mental anguish,”
and “personal humiliation.” From the statement itself, a jury could infer that the
comparison to Sandusky was particularly hurtful. Dr. Mann’s requests for an
apology and retraction, and his undertaking this litigation, would allow a jury to
infer that he was so deeply aggrieved that he deemed it necessary to restore his
public reputation. Dr. Mann has presented no evidence, however, that his
104
understandable consternation met the high bar of “severe emotional distress,”
which requires a showing beyond mere “mental anguish and stress” and must be
“of so acute a nature that harmful physical consequences are likely to result.”
Armstrong v. Thompson, 80 A.3d 177, 189-90 (D.C. 2013) (quoting Futrell, 816
A.2d at 808); see also Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 81 (D.C.
2011) (en banc) (noting that claim of negligent infliction of emotional distress
requires showing of emotional distress that is “acute, enduring or life-altering”).
We, therefore, conclude that, on the record before us, the evidence is insufficient to
support a finding that Dr. Mann suffered “severe” emotional distress. See id. at
182, 189 (noting that plaintiff’s “strong distress” resulting from false statements to
prospective employer that plaintiff was under investigation “for suspected
violations of both a criminal and administrative nature” that led to rescission of
employment offer was insufficient to show “severe emotional distress”). As Dr.
Mann has not produced or proffered evidence that he is likely to succeed in
proving that he suffered severe emotional distress, appellants’ special motions to
dismiss the claim of intentional infliction of emotional distress should have been
granted.
***
Concluding that we have jurisdiction pursuant to the collateral order doctrine
to hear appellants’ interlocutory appeal of the trial court’s denial of their special
105
motions to dismiss under the District’s Anti-SLAPP Act, we hold that the Act’s
“likely to succeed on the merits” standard for overcoming a special motion to
dismiss filed under D.C. Code § 16-5502 (b) requires that the plaintiff present an
evidentiary basis that would permit a reasonable, properly instructed jury to find in
the plaintiff’s favor. Dr. Mann has supplied sufficient evidence for a reasonable
jury to find, by a preponderance of the evidence, that statements in the articles
written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by
appellants to third parties, and, by clear and convincing evidence, that appellants
did so with actual malice. We, therefore, affirm the trial court’s denial of the
special motions to dismiss the defamation claims based on those articles and
remand the case for additional proceedings in the trial court with respect to these
claims. Id. We reverse the trial court’s denial of the special motions to dismiss
with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and
the claim for intentional infliction of emotional distress. On remand, the court
shall dismiss these claims with prejudice. Id. § 16-5502 (d).
So ordered.
106
APPENDIX
The Other Scandal In Unhappy Valley62
by Rand Simberg on July 13, 2012
in Global Warming, Transparency
So it turns out that Penn State has covered up wrongdoing by one of its
employees to avoid bad publicity.
But I’m not talking about the appalling behavior uncovered this week by the Freeh
report. No, I’m referring to another cover up and whitewash that occurred there
two years ago, before we learned how rotten and corrupt the culture at the
university was. But now that we know how bad it was, perhaps it’s time that we
revisit the Michael Mann affair, particularly given how much we’ve also learned
about his and others’ hockey-stick deceptions since. Mann could be said to be the
Jerry Sandusky of climate science, except for instead of molesting children, he has
molested and tortured data in the service of politicized science that could have dire
economic consequences for the nation and planet.
To review, when the emails and computer models were leaked from the Climate
Research Unit at the University of East Anglia two and a half years ago, many
of the luminaries of the “climate science” community were shown to have been
behaving in a most unscientific manner. Among them were Michael Mann,
Professor of Meteorology at Penn State, whom the emails revealed had been
engaging in data manipulation to keep the blade on his famous hockey-stick
graph, which had become an icon for those determined to reduce human carbon
emissions by any means necessary.
As a result, in November of 2009, the university issued a press release that it was
going to undertake its own investigation, independently of one that had been
launched by the National Academy of Sciences (NAS) in response to a demand
from Congressman Sherwood Boehlert (R- N.Y.). In July of the next year, the
panel set up to investigate declared him innocent of any wrongdoing:
62
The underlining in the articles in the Appendix indicate a hyperlink.
107
Penn State Professor Michael Mann has been cleared of any wrongdoing,
according to a report of the investigation that was released today (July 1).
Mann was under investigation for allegations of research impropriety that
surfaced last year after thousands of stolen e-mails were published online.
The e-mails were obtained from computer servers at the Climatic Research
Unit of the University of East Anglia in England, one of the main
repositories of information about climate change.
The panel of leading scholars from various research fields, all tenured
professors at Penn State, began its work on March 4 to look at whether
Mann had “engaged in, directly or indirectly, any actions that seriously
deviated from accepted practices within the academic community for
proposing, conducting or reporting research or other scholarly activities.”
My emphasis.
Despite the fact that it was completely internal to Penn State, and they didn’t
bother to interview anyone except Mann himself, and seemingly ignored the
contents of the emails, the warm mongers declared him exonerated (and the
biggest victim in the history of the world). But many in the skeptic community
called it a whitewash:
This is not surprising that Mann’s own university circled the wagons and
narrowed the focus of its own investigation to declare him ethical.
The fact that the investigation cited Mann’s ‘level of success in proposing
research and obtaining funding’ as some sort of proof that he was meeting
the ‘highest standards’, tells you that Mann is considered a sacred funding
cash cow. At the height of his financial career, similar sentiments could have
been said about Bernie Madoff.
Mann has become the posterboy of the corrupt and disgraced climate science
echo chamber. No university whitewash investigation will change that
simple reality.
Richard Lindzen of MIT weighed in as well:
“Penn State has clearly demonstrated that it is incapable of monitoring
violations of scientific standards of behavior internally,” Lindzen said in an
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e-mail from France.
But their criticism was ignored, particularly after the release of the NAS report,
which was also purported to exonerate him. But in rereading the NAS
“exoneration,” some words stand out now. First, he was criticized for his
statistical techniques (which was the basis of the criticism that resulted in his
unscientific behavior). But more importantly:
The OIG also independently reviewed Mann’s emails and PSU’s inquiry
into whether or not Mann deleted emails as requested by Phil Jones in the
“Climategate” emails (aka Allegation 2). The OIG concluded after
reviewing the published CRU emails and the additional information
provided by PSU that “nothing in [the emails] evidenced research
misconduct within the definition of the NSF Research Misconduct
Regulation.” Furthermore, the OIG accepted the conclusions of the PSU
inquiry regarding whether Mann deleted emails and agreed with PSU’s
conclusion that Mann had not.
Again, my emphasis. In other words, the NAS investigation relied on the integrity
of the university to provide them with all relevant material, and was thus not truly
independent. We now know in hindsight that it could not do so. Beyond that, there
are still relevant emails that we haven’t seen, two years later, because the
University of Virginia continues to stonewall on a FOIA request, and it’s heading
to the Supreme Court of the Commonwealth of Virginia.
Michael Mann, like Joe Paterno, was a rock star in the context of Penn State
University, bringing in millions in research funding. The same university
president who resigned in the wake of the Sandusky scandal was also the
president when Mann was being whitewashed investigated. We saw what the
university administration was willing to do to cover up heinous crimes, and even
let them continue, rather than expose them. Should we suppose, in light of what
we now know, they would do any less to hide academic and scientific misconduct,
with so much at stake?
It’s time for a fresh, truly independent investigation.
109
NATIONAL REVIEW
Football and Hockey
By Mark Steyn — July 15, 2012
In the wake of Louis Freeh’s report on Penn State’s complicity in serial rape, Rand
Simberg writes of Unhappy Valley’s other scandal:
I’m referring to another cover up and whitewash that occurred there two
years ago, before we learned how rotten and corrupt the culture at the
university was. But now that we know how bad it was, perhaps it’s time that
we revisit the Michael Mann affair, particularly given how much we’ve also
learned about his and others’ hockey-stick deceptions since. Mann could be
said to be the Jerry Sandusky of climate science, except that instead of
molesting children, he has molested and tortured data in the service of
politicized science that could have dire economic consequences for the
nation and planet.
Not sure I’d have extended that metaphor all the way into the locker-room
showers with quite the zeal Mr Simberg does, but he has a point. Michael Mann
was the man behind the fraudulent climate-change “hockey-stick” graph, the very
ringmaster of the tree-ring circus. And, when the East Anglia emails came out,
Penn State felt obliged to “investigate” Professor Mann. Graham Spanier, the Penn
State president forced to resign over Sandusky, was the same cove who
investigated Mann. And, as with Sandusky and Paterno, the college declined to
find one of its star names guilty of any wrongdoing.
If an institution is prepared to cover up systemic statutory rape of minors, what
won’t it cover up? Whether or not he’s “the Jerry Sandusky of climate change”, he
remains the Michael Mann of climate change, in part because his “investigation”
by a deeply corrupt administration was a joke.
110
NATIONAL REVIEW
Get Lost
My response to Michael Mann.
By Rich Lowry — August 22, 2012
So, as you might have heard, Michael Mann of Climategate infamy is threatening
to sue us.
Mann is upset — very, very upset — with this Mark Steyn Corner post, which had
the temerity to call Mann’s hockey stick “fraudulent.” The Steyn post was mild
compared with other things that have been said about the notorious hockey stick,
and, in fact, it fell considerably short of an item about Mann published elsewhere
that Steyn quoted in his post.
So why threaten to sue us? I rather suspect it is because the Steyn post was
savagely witty and stung poor Michael.
Possessing not an ounce of Steyn’s wit or eloquence, poor Michael didn’t try to
engage him in a debate. He sent a laughably threatening letter and proceeded to
write pathetically lame chest-thumping posts on his Facebook page. (Is it too much
to ask that world-renowned climate scientists spend less time on Facebook?)
All of this is transparent nonsense, as our letter of response outlines.
In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness
criminal fraud. It means intellectually bogus and wrong. I consider Mann’s
prospective lawsuit fraudulent. Uh-oh. I guess he now has another reason to sue us.
Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It
consumes time. It costs money. But this is a different matter in light of one word:
discovery.
If Mann sues us, the materials we will need to mount a full defense will be
extremely wide-ranging. So if he files a complaint, we will be doing more than
fighting a nuisance lawsuit; we will be embarking on a journalistic project of great
interest to us and our readers.
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And this is where you come in. If Mann goes through with it, we’re probably going
to call on you to help fund our legal fight and our investigation of Mann through
discovery. If it gets that far, we may eventually even want to hire a dedicated
reporter to comb through the materials and regularly post stories on Mann.
My advice to poor Michael is to go away and bother someone else. If he doesn’t
have the good sense to do that, we look forward to teaching him a thing or two
about the law and about how free debate works in a free country.
He’s going to go to great trouble and expense to embark on a losing cause that will
expose more of his methods and maneuverings to the world. In short, he risks
making an ass of himself. But that hasn’t stopped him before.
— Rich Lowry is the editor of NATIONAL REVIEW.