Michael Mann DC Appeals Court brief lays out defamation case and seeks to move toward trial

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Superior Court of the District of Columbia

Superior Court of the District of Columbia

In a brief filed today in the DC Court of Appeals as part of his defamation lawsuit against the National Review and the Competitive Enterprise Institute, Michael Mann once again argued his case and requested that the Court proceed to adjudicate the merits of Defendants’ appeal of the trial court’s denial of their motion to dismiss. The stated intention of Dr. Mann’s request is to expedite moving to trial on a case that has been long-delayed in procedural tangles.

In January 2014 District of Columbia Superior Court Judge Weisberg found that Dr. Mann’s lawsuit should not be dismissed pursuant to the District Of Columbia’s Anti-SLAPP statute.  Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable. So said Judge Weisberg in tossing out motions by defendants National Review et al. to dismiss Prof. Michael Mann’s defamation complaint. This should have moved the case toward discovery proceedings and a jury trial. Then, on January 24, 2014, Defendants appealed Judge Weisberg’s denial of their motion to dismiss. That further delayed movement toward discovery and trial.

Since then, briefs have been filed with the District of Columbia Court of Appeals, on the matter of the Defendants’ appeal, and in particular on the Court’s jurisdiction with regard to the appeal. Today, Dr. Mann’s lawyers filed a 64-page brief with the Court, which says, on the question of jurisdiction:

For the reasons articulated in Dr. Mann’s April 25, 2014 Opposition to Appellants’ Response to the Court’s Order to Show Cause, an appeal of the denial of a motion to dismiss under the Act does not meet the stringent requirements of the collateral order doctrine, and also substantially delays the progression of meritorious lawsuits such as Dr. Mann. However, in light of the fact that Dr. Mann’s lawsuit has been effectively stayed for almost two years, and the fact that this Court has sought briefing on the merits of Defendants’ motions to dismiss[,] at this juncture Dr. Mann no longer opposes Defendants’ arguments that this Court has jurisdiction. Dr. Mann respectfully requests that this Court proceed to the merits of Defendants’ appeal so that his lawsuit can move forward to trial.

If the Court of Appeals accepts this request, presumably it would review de novo the Superior Court’s denial of Defendants’ motion to dismiss under the DC Anti-SLAPP Act. Of course, Dr. Mann’s brief concludes that the judgment of the Superior Court should be affirmed, i.e., that the Superior Court correctly found that Dr. Mann’s lawsuit should not be dismissed pursuant to the Anti-SLAPP statute.

For those who are not familiar with this case, or could use a review of some essential points, Dr. Mann’s brief filed today contains a 16-page Statement of Facts and a 28-page Argument (the latter is outlined below).

In its Introduction, Dr. Mann’s brief says (with underlining added):

Defendants’ and amici assert that this case is a threat to freedom of expression and involves a “scientific controversy” which courts are “ill-equipped” to referee. … They are mistaken.  The issues in this case are simple, straight­forward, and certainly capable of an effective judicial resolution. This is not a referendum on global warming, or climate change, or even the accuracy of Dr. Mann’s conclusions. This is a defamation case, no more and no less: did Defendants defame Dr. Mann when they accused him of fraud? As in any defamation case, the issues are limited: were the defendant’s statements true or false; did the defendant make a defamatory allegation of fact concerning the plaintiff; and did the defendant act with the requisite degree of fault? Those are the essential questions in this case as well—and they do not involve a search for “scientific truth, as Defendants claim. Nor is there, as Defendants suggest, any broad-based “science exclusion” in defamation law.

Here, there is no question that Defendants’ assertions were false, and Defendants do not even attempt to argue that their statements about Dr. Mann were true. They have accused him of “academic and scientific misconduct,” “data manipulation,” “molesting and torturing data,” and “corruption and disgrace”—all the while gloating in a disgraceful comparison to Jerry Sandusky, a convicted child molester who worked at the same institution that employs Dr. Mann. And they made these statements knowing that Dr. Mann’s research has been reviewed repeatedly and replicated by other scientists, and that Dr. Mann has been repeatedly exonerated: no fraud: no misconduct; no molestation; no corruption. Importantly, Dr. Mann brought this lawsuit not to squelch public debate, but rather to protect himself against those who have recklessly accused him of fraud and misconduct.

Rather than defending the falsity of their words, because they cannot, Defendants attempt to hide behind the inapposite “opinion defense” and the unsupported position that accusations of fraud are an accepted part of political discourse and thus protected under the First Amendment. Defendants say that their words are “protected speech” because they are “pure opinion and hyperbole” and cannot be construed, by any reasonable reader, to be assertions of fact. Not so, and the U.S. Supreme Court has been clear on this opinion defense. …

Defendants also argue that they really did not intend to accuse Dr. Mann of fraud. They now claim that they were just engaging in hyperbole; and that, in any event, their readers (or at least their reasonable readers) did not construe their statements to be factual assertions of fraud, but rather to be legitimate criticism of Dr. Mann’s scientific conclusions. These arguments are not only factually unsupported, they are flatly contradicted by the evidence. Defendants’ own subsequent statements make it clear that they intended to—and did—accuse Dr. Mann of fraud. …

Defendants’ secondary challenge to this lawsuit is that it should be dismissed because Dr. Mann is not likely to prove actual malice by clear and convincing evidence. … The allegations already of record without access to discovery demonstrate overwhelmingly that Defendants knew that there was no fraud, and, at the very least, proves that Defendants acted with a reckless disregard for the truth or a “deliberate effort to avoid the truth.” [emphasis added]

The brief has a multi-part Statement of Facts, then this outline of the Argument to the Court of Appeals:

The Superior Court Correctly Found That Dr. Mann’s Lawsuit Should Not Be Dismissed Pursuant To The District Of Columbia’s Anti-SLAPP Statute.

Relevant Legal Standard

The Superior Court Correctly Found That Dr. Mann Is Likely To Succeed On The Merits Of His Defamation Claims.

The First Amendment Does Not Immunize Defendants’ False Statements Regarding Dr. Mann.

Defendants’ Specific Accusations Of Fraud And Misconduct Are Not Constitutionally Protected Opinion.

Defendants’ Statements Do Not Qualify As “Rhetorical Hyperbole.”

Defendants Acted With Actual Malice.

The Superior Court Correctly Found That Dr. Mann Is Likely To Succeed On The Merits Of His Intentional Infliction Of Emotional Distress Claim.

National Review Is Liable For Steyn’s Statements.

National Review Failed To Raise With The Superior Court That It Was Immune From Suit Under Section 230 of the Communications Decency Act.

The CDA Does Not Provide Immunity For National Review.

We think Dr. Mann has a good argument. Now the ball is in the Court of Appeals’ court, so to speak.  Hopefully the Court will move expeditiously on this long-delayed case.

*    *    *

See Aaron Huertas at the Union of Concerned Scientists: Michael Mann Responds to Misleading Filings in Climate Change Lawsuit

Two procedurally relevant earlier CSW posts on this case:

Defendants’ appeal in Michael Mann defamation case further delays discovery process (January 25)

DC judge denies defendants’ motion to dismiss Michael Mann’s defamation complaint (January 23)

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8 Responses to Michael Mann DC Appeals Court brief lays out defamation case and seeks to move toward trial

  1. Hops says:

    As Samuel Johnson said, “No man but a blockhead ever wrote except for money.”

    Will the discovery phase reveal who was paying for the time and effort of writing defamatory articles?

  2. Chris says:

    There are plenty of blockheads who provide a constituency for the defendants’ scribbling and some of those may even provide an income stream.
    But – if you’re really interesting in following the money – rather ask who is paying for the defendants’ lawyers!

  3. Joe I. says:

    Let’s get this case in the Courts, all this haggling is just that. I want to see Mann vs. McIntyre/McKitrick/Steyn. This is likely to be the most entertaining trial ever. I want to see some discovery.

  4. Mr T says:

    What is the position of the ACLU on this matter?

    • Rick - Climate Science Watch says:

      The ACLU joined the Reporters Committee for Freedom of the Press and 25 other groups in filing an amici curiae brief with the Court of Appeals on September 3. The brief argues that the appeals court should take jurisdiction in deciding on the defendants’ anti-SLAPP motion and agrees with the essential substantive arguments made by defendants in their motion to dismiss the case.

      • Hops says:

        Not surprising. The Koch brothers are big donors to the ACLU.

        • Rick - Climate Science Watch says:

          I’m not conversant with this supposed connection, but note this:

          http://washingtonexaminer.com/did-the-kochs-ever-give-the-aclu-20-million-probably-not/article/2551030

          In any case, I don’t think it’s related to the ACLU position in Mann v. National Review. The amicus brief the ACLU of the National Capital Area signed argues an arguable case. I’m just not sure where the ACLU draws the line on the limits of protected speech. At what point are they willing to call something libel or slander? In this case they seem to think it’s OK to loosely accuse a scientist of fraud and lack of integrity as part of freewheeling political brawling in the media. I think I might well draw the line at a different point than the ACLU’s sort of free-speech absolutist position.

  5. Mayfly says:

    Totally agree with you, Rick. Two reasons I don’t give to ACLU: first the absolutist position, second I give only the small amount I can afford and they spend my whole $20. contribution sending me snail mail asking for more money.

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