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.
