What’s at Stake in Mann v. National Review

By Charles C. W. Cooke

Wednesday, November 26, 2014

Yesterday, in the heart of Washington, D.C.’s Judiciary Square, the D.C. Court of Appeals heard oral arguments in the ongoing case of Michael Mann versus Free Speech. Mann, a professor at Penn State and the progenitor of the infamous “hockey stick,” is currently suing both National Review and the Competitive Enterprise Institute for having criticized his global-warming research and advocacy. Together, the two cases have raised a host of crucial First Amendment questions, among them: “At what point does harsh criticism become libel?”; “how robust may debate be within a free republic?”; and “can juries be expected to arbitrate genuine differences of methodological propriety and political opinion?”

Legally speaking, we are still very much in the procedural weeds. As of now, the court is being asked to decide only whether Mann’s claims are so weak that the case must be dismissed on First Amendment grounds before it can even proceed to trial. The District of Columbia, while taking no position on whether National Review’s appeal should succeed per se, has recognized what is at stake and has taken the position that the First Amendment is important enough to warrant an immediate appeal when a trial court refuses a motion to dismiss in a case like this one involving speech on a matter of public controversy. The District hasn’t taken a position on the merits of the appeal, which is fair enough. One wouldn’t expect the city to take a view either way. Nevertheless, it remains the case that Washington, D.C., is weighing in to support important procedural protections for First Amendment rights. Bravo.

Representing the Competitive Enterprise Institute, Andrew Grossman laid out more clearly what was at stake for the District of Columbia — and the country at large. Urging the court to throw the suit out, Grossman noted that the district’s anti-SLAPP law, targeted at “Strategic Lawsuits Against Public Participation,” requires a plaintiff to show by at least a preponderance of the evidence that his claims are ultimately likely to succeed before a defendant can be subjected to the burdens of trial. That is precisely because lawmakers within the district wished to discourage the bringing of frivolous libel cases such as this one that chill free speech by imposing ruinous litigation costs. The plaintiff’s case, Grossman argued, does not come close to meeting the intended threshold. Mann’s lawyer, John Williams, disagreed, contending that, in order to satisfy the rules, Mann needs only to show that there is a prima facie chance that he could win the case if his alleged facts were to be verified. Given the language of the statute that requires an actual “likel[ihood]” of success and the position that the D.C. government has taken, Williams’s argument faces an uphill battle. The unspoken question, then: Does the nation’s capital really wish to become a magnet for every disgruntled and litigious public figure? And if it does, why bother having an anti-SLAPP law at all?

At the root of this sorry affair is the crucial question of whether Americans are free to lambast public figures on matters of great import. Michael Mann claims that Rand Simberg and Mark Steyn have made “provably false” statements that a jury would be capable of objectively verifying without intruding on free and robust political debate. The Competitive Enterprise Institute and National Review believe that this is abject nonsense, and that Steyn and Simberg have merely criticized the merits of Mann’s scientific work in a manner that is clearly protected under the First Amendment. “Why,” Judge Beckwith inquired early on in the oral arguments, “isn’t it reasonable to conclude that Simberg was saying Mann falsified data?” In other words: By describing Mann as a fraud, wasn’t Simberg making a specific and objectively verifiable claim about an event? Grossman responded bluntly to the query: “Because he didn’t say that.” That much, Grossman argued, was evident “from the language.” Instead, Grossman proposed, Simberg simply stated that Mann’s techniques were akin to “data manipulation” — that is, that Mann had presented his findings in a slippery and underhand way but that he was not being accused of actually falsifying his results. Resolving the truth of that assertion would require a jury to wade into an area of highly contested and contestable opinion. Simberg’s charge, Grossman noted, included a hyperlink to a discussion in which various critics drew different conclusions from the same underlying facts. Because such disagreements constitute “different interpretations” and “subjective views,” and because debate over the merits of scientific techniques is protected under the First Amendment, Grossman proposed, “there can be no liability” for such statements. Indeed, he added, there is nothing to distinguish Simberg’s words from the sort of “sharp-elbowed commentary you hear every day on cable news” and “on the Internet.”

National Review’s counsel, Michael Carvin, agreed, acknowledging that the criticisms advanced by Steyn and Simberg were indeed “caustic,” but that they were not materially different from anything one might “see every day” from people arguing passionately over “crime or the economy.” There is a key distinction, Carvin argued, between one’s charging that a man has literally “falsified” his data — electing, for example, “to change a 5 to a 10” — and one’s contending that a man is engaging in faulty or misleading analysis by comparing “apples to oranges,” drawing the wrong inferences from his evidence, or basing his approach on questionable science (whether “tree ring data [is] an accurate proxy” for temperature, Carvin noted, is debatable). The defendants believe that Mann’s work is “intellectually bogus,” Carvin explained. Which is to say that they “are saying he did a bad thing: he misportrayed the data.” That “bad thing,” Carvin continued, is “misleading” in the same sense as is an economist who sells ostensibly encouraging job numbers by ignoring the fact that there are many actors who have dropped out of the labor market altogether. The plaintiffs are not accusing Michael Mann of having “falsified data in a way that a jury could figure out,” Carvin noted. Nor are they making any claims that are sufficiently specific as to be actionable. In consequence, he insisted that the court must dismiss the case under the First Amendment.

Later, Carvin made explicit what is at stake in this case. “We don’t allow juries to decide scientific questions,” he observed, before asking rhetorically whether anybody would consider it to be acceptable for a court to decide whether “vaccinations lead to autism.” “No court in the history of Anglo-American jurisprudence has allowed a scientific question to go to a jury,” he warned. “If this court goes down this road,” he added, “it will turn every political debate — gun control, voter ID — into what a jury thinks about one person’s interpretation of data.” Later, in his brief rebuttal, Carvin would warn gravely that the “First Amendment allows name calling, and it only permits juries to consider facts.” “The consequences” of the court’s refusing to throw out the case, he submitted, would be to “open everyone up to libel cases if they said the word ‘misconduct.’” This, he augured, would turn debates on matters of public policy — matters as diverse as “immigration and economics” — into legal trials. In sum, then: Michael Mann is attempting to use the courts to fight political battles that he cannot win through argument alone.

Mann’s lawyer, John Williams, rejected both this claim and this line of reasoning, arguing that all such judgments are ultimately “factual” and that accusations of “fraud” can certainly be determined by juries. If charges of legal fraud can be adjudicated in court, Williams contended, then all allegations of “fraudulence” are by their nature “of fact and not opinion” — even in public-policy debates. Moreover, Williams contended, the “context” of the defendants’ critiques suggested that they were being published as ostensible truth, rather than as opinion. “All of the allegations against Mr. Mann,” he suggested, “were [presented] as facts.” In consequence, he argued, there was nothing wrong with asking a jury to adjudicate between varying interpretations of the same data. Thus did Mann’s lawyer confirm Michael Carvin’s fears. And, possibly, the court’s, too. When Williams proposed that he should be permitted to make his full case, the bench mused on the possibility that the city’s anti-SLAPP legislation “wouldn’t be doing very much work” if he were indulged.

Getting to the heart of the matter, Judge Ruiz honed in on the central question of “what is meant by ‘data manipulation,’” reminding the court that enthusiastically pointing out “bad reasoning” is not illegal in the United States. “Which,” she inquired of Williams, “are the particular statements — viewed contextually — that you regard as defamatory or actionable.” In response, Williams read a list of words and phrases — among them “wrongdoing,” “molesting and torturing data,” and “fraud.” As has already been established, however, the defendants hold that these terms relate to the manipulation of evidence rather than its falsification. Moreover, as Carvin pointed out in his rebuttal, the EPA has endorsed the word “fraud” as a rhetorical term not uncommonly deployed in scientific debates — without any serious consequences.

Judge Easterly, meanwhile, wanted to know how the plaintiffs could demonstrate “actual malice” if the defendants “genuinely” believe that “[man-made] climate change is a hoax.” “We don’t have to get to the question of whether climate change is real to look at the accusations,” Williams shot back. This did not seem to convince. “You need clear and convincing evidence for malice,” Easterly said. Simply stating that your critics disagree with you is insufficient.

The “question for the court,” Judge Ruiz summed up toward the end of arguments, is: “Could a jury look at this and determine that this is verifiable fraud?” Hopefully, the court will answer no, holding instead that such subjective and political questions are best arbitrated by the public and not by the legal system. If it does, Mann’s options will narrow dramatically. In the case of a dismissal, Mann would still technically be able to apply for en banc review, or even to petition the Supreme Court directly. The chances of either court’s electing to take up an appeal from him, however, seem slim. And rightly so. Mann is indulging here in a dangerous game — in a petty and quixotic attempt to recruit the nation’s courts to his side and to forestall any criticism of himself and his work. If the First Amendment is to be worth the paper it is written on, those courts should refuse to be co-opted. Rather, they should dismiss the case as soon as is possible, reminding us as they do that, in America, robust public debate is not actionable, but worthy of celebration instead.