National Review Online
Tuesday,
January 16, 2024
Another year,
another chapter in the interminable saga of Michael Mann versus American
journalism — which, despite the existence of the First Amendment, of an array
of anti-nuisance lawsuit statutes, and of a presumption within American law
that tends toward the protection of free speech, has now been a going concern
since the summer of 2012. What’s that old line about justice delayed?
Over
time, the details of Mann’s case have changed a little. Until 2021, when we
were removed as a defendant on constitutional actual-malice grounds, National Review was a litigant.
Now, Mann’s targets are limited to the writer Mark Steyn, who published a blog
post on National Review’s
website in which Mann’s work was harshly criticized, and the writer Rand
Simberg, who published a similar post on the website of the Competitive
Enterprise Institute. (Like National
Review, CEI was also removed from the case in 2021.) Still, the material
question remains the same as it was twelve years ago. That question: Are
Americans able to disagree about hotly contested political topics without being
harassed, dragged into court on the most specious of pretexts, and subjected to
ruinous legal fees? That more than a decade has passed without the system
yielding a resounding “Yes” remains a blot on our national escutcheon.
Before
Michael Mann launched his lawsuit, he wrote to an acquaintance that he believed
that there was “a possibility that I can ruin National Review.” This was
unbecoming of a man who calls himself a scientist, and it was even more
unbecoming of a man who calls himself an American. The Supreme Court of the
United States has observed that the First Amendment represents “a profound
national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks.” If it is to mean anything,
this promise must apply to everyone; not solely to those people who are in good
standing with the bien-pensant class. Does it? The test of any law is whether
it attaches to those who ruffle feathers. Michael Mann is a darling of
fashionable opinion. Mark Steyn is not. Does Steyn enjoy equal protection? On
this the jury is — quite literally — still out.
That
Mann’s case is laughably weak has been clear from the start. To meet the
standard laid out in the regnant precedent, New York Times v. Sullivan,
Mann’s critics must have met an “actual malice” threshold that neither of them
came within a country mile of breaching. Steyn’s and Simberg’s posts were,
indeed, both “vehement” and “caustic,” and, under this country’s long-standing
laws, their authors had every right to make them so. If, in a sop to runaway
snowflakery, America’s courts are to be impressed into the adjudication of
every abrasive dispute, they will soon have precious little time for anything
else, and America will soon have precious little debate. To be exposed to
“libel judgments virtually unlimited in amount,” the Supreme Court has
observed, leads inexorably to “self-censorship.” Bringing about such
self-censorship is Michael Mann’s ultimate aim. He ought to receive no help in
achieving it from our judiciary.
Will
he? Alas, that is still unclear. This morning, in Washington, D.C., a court is
convening to hear Mann’s latest case. In a country that understood its
heritage, the members of that court would insist that their role was not to
superintend the discussion of current affairs and laugh Mann out of the room.
The court still can — and, if it doesn’t, God help us all.
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