I get the sense that the Washington libel community and U.S. national media have belatedly woken up to the potential threat of Mann v Steyn and that the tide is now starting to run strongly against Mann in the anti-SLAPP proceedings. The most visible evidence of this is an impressive Amici brief from the ACLU and an imposing list of 25 other media organizations (the Reporters Committee for Press Freedom, the American Society of News Editors, the Association of American Publishers, the Association of Alternative Newsmedia (The Village Voice et al), NBC Universal, Bloomberg News, the publishers of USA Today, Time, The Washington Post, The Chicago Tribune, The Los Angeles Times, The Detroit Free Press, The Seattle Times, The Arizona Republic and The Bergen County Record) filed on August 11, 2014.

In addition, Steyn’s own Amicus brief substantially upped the ante on a separate front. It repeatedly and directly accused Mann of submitting “fraudulent” information to the court and commented adversely on “the ease with which Mann lies about things that would not withstand ten minutes of scrutiny in a courtroom”.

Other briefs are by CEI; National Review, the District of Columbia, the Alliance Defending Freedom; the Cato Institute, Goldwater Institute, Reason magazine and David Horowitz’s Individual Rights Foundation;, The Daily Caller, PJ Media, The New Criterion and various Internet publishers.

The Brief by ACLU and 25 Others

On some points, the ACLU brief takes a pretty similar line to that previously taken by National Review and CEI, but it presents some interesting fresh nuances and authorities. I won’t attempt to precis the brief as it is well written and worth reading, though readers uninterested in the procedural details of anti-SLAPP litigation would do well to skip to section II of the brief (commencing on page 12).

They asserted that the “challenged publications bear all the traditional hallmarks of opinion” and that “permitting such a defamation claim to proceed will substantially chill speech that challenges scientific conclusions, as well as public policies based on them.”

They observe:

Mann essentially complains that the defendants accused him of manipulating data, including by molesting and torturing it, to serve a political agenda. … Because the statements are quintessential opinions about the validity of Mann’s scientific methods and conclusions, they are entitled to full constitutional protection.

The ACLU brief provides detailed commentary on the range of abusive commentary in scientific disputes that courts have found to be permissible, concluding that the commentary in this case was within permissible limits.

In subsection II(D) (page 20), the ACLU et al provide an interesting and, in my opinion, compelling argument against Mann’s claim that the defendants were obliged to accept the findings of the various government agencies – a topic that I’ve focused on in my previous commentary.

CA readers are aware that Mann’s claim to have been “exonerated” by Muir Russell, Oxburgh, NOAA and the UK Government are untrue (“fraudulent” is Steyn’s term), but ACLU’s argument is different: they say that “punishing defendants’ speech because Mann’s work had been backed by other scientists or governmental agencies is contrary to core First Amendment principles”.

They first counsel the court against getting embroiled in trying to resolve scientific questions, no matter how authoritative the apparent support for the scientific assertion – advice that any court would undoubtedly be willing to heed.

The ACLU et al also unambiguously said that any reliance given by the Superior Court to supposed vindications or exonerations by governmental agencies was an “error” and that such government agencies did not give Mann the right to “silence his critics in a defamation claim”:

Furthermore, to the extent the Superior Court credited Mann’s assertion that investigations by the EPA, the National Science Foundation, and Penn State, among other scientific and governmental bodies, “laid to rest” defendants’ questions regarding Mann’s research, Am. Compl. ¶ 24, this too was in error. See also July 19, 2013 Orders at 16 (suggesting that statements were actionable because “Plaintiff’s work has been investigated and substantiated on numerous occasions”). The fact that certain official panels backed Mann’s methodology – facts that were not only disclosed in the challenged publications but in fact formed the basis for them – cannot allow him to silence his critics in a defamation claim. Under the First Amendment, the government is not the final arbiter of truth with the power to foreclose further challenge to its policies.11

In footnote 11, the Amici unambiguously supported defendants’ right to disagree with the findings of government inquiries, describing the right to such disagreement as fundamental to the First Amendment. In doing so, they observed that the defendants had provided substantive criticism of the procedures of the investigative bodies:

11 Indeed, if the First Amendment and case law interpreting it stand for anything, it must be that disagreement with findings of government and quasi-government bodies are fully protected. Here, defendants criticized the investigative bodies as, variously, lacking independence, failing to interview a relevant witness and therefore being too limited in scope, and being overly reliant on evidence provided by Mann’s employers, who had “so much at stake.” See Am. Compl., Ex. A.

In the next footnote, they pointed out that Mann’s pleadings had omitted the relevant information that the commentaries had disclosed that the government agencies had sided with Mann (while disagreeing with the agencies) and had provided hyperlinks to the criticized agency reports thereby permitting readers to form their own conclusions:

In this regard, Mann’s description of the commentaries omits that they disclose that governmental agencies had in fact sided with him while also criticizing those official findings. That background is described in their text – and, in some instances, through hyperlinked sources – thereby allowing readers to formulate their own judgments about the opinions expressed. See, e. g., Boley, supra, 950 F. Supp. 2d at 262 (hyperlinking to an earlier article provided “the necessary context for the allegedly defamatory remark”); Abbas, supra, 975 F. Supp. 2d at 18 & n. 7 (finding hyperlinks were sufficient to disclose background for fair comment privilege); Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697, 704-05 (D. Md. 2000) (dismissing defamation claim based on facts disclosed through hyperlinks), aff’d, 11 F. App’x 99 (4th Cir. 2001); Adelson v. Harris, 973 F. Supp. 2d 467, 483 (S. D. N. Y. 2013) (relying on a hyperlink to a report about an official proceeding in dismissing a defamation claim).

The ACLU brief closes:

At bottom, a participant in the “rough-and-tumble” of public debate should not be able to use a lawsuit like this to silence his critics, regardless of whether one agrees with Mann or defendants. See Guilford Transp. Indus., supra, 760 A. 2d at 595-96 (endorsing Voltaire’s philosophy, “‘I disapprove of what you say, but I will defend to the death your right to say it,'” which “anticipatorily articulated the spirit of our First Amendment”). The “law certainly does not insist” that a speaker “look kindly on [his] subjects,” nor that a plaintiff “simply by filing suit and crying ‘character assassination!,'” may “silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests.” Underwager v. Salter, 22 F. 3d 730, 736 (7th Cir. 1994). Rather, as the Seventh Circuit eloquently put it, expressing a sentiment echoed by other courts: “Scientific controversies must be settled by the methods of science rather than by the methods of litigation. More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.” Id. (citation omitted).13

Steyn’s Brief

Steyn’s brief (noted up together with the other briefs in Steyn’s blogpost here is far more direct in its allegations against Mann than previous pleadings, repeatedly describing claims and assertions in Mann’s previous pleadings as “fraudulent”.

Steyn rubbed salt into Mann’s false claim to have been a Nobel Prize winner and the imaginary tort of defaming a Nobel Prize winner, describing Mann’s priod claim as a “fraudulent misrepresentation”:

Mann’s fraudulent misrepresentation of his credentials and academic standing later earned him a rebuke from Geir Lundestad, director of the Nobel Institute in Oslo. One can well understand why the exposure of Mann’s fraudulent claim should cause him embarrassment but it should surely not justify resetting the procedural clock back to the beginning on this case, which is what in effect happened.

Steyn repeatedly used the term “fraudulent”, also using phrases like “the audacity of the falsehoods in Mann’s court pleadings is breathtaking” and that it was “deeply disturbing that a plaintiff should make such fraudulent claims in his legal pleadings”:

In his later court filings, Mann has made equally preposterous and objectively false claims. For example, Mann has claimed that he has been “exonerated” by such bodies as the University of East Anglia, the U.S. National Oceanic and Atmospheric Agency, and even by the government of the United Kingdom, none of which have investigated Dr Mann at all, never mind “exonerated” him. The audacity of the falsehoods in Mann’s court pleadings is breathtaking. For example, on page 19 of his brief below dated January 18, 2013, he cites the international panel chaired by the eminent scientist Lord Oxburgh, FRS as one of the bodies that “exonerated” him, whereas on page 235 of Mann’s own book, The Hockey Stick and the Climate Wars , he states explicitly that “our own work did not fall within the remit of the committee, and the hockey stick was not mentioned in the report.” It is deeply disturbing that a plaintiff should make such fraudulent claims in his legal pleadings.

Steyn added:

It is clear from the ease with which Mann lies about things that would not withstand ten minutes of scrutiny in a courtroom that he has no intention of proceeding to trial.

Conclusion

All in all, it seems to me that Mann is facing far more formidable opposition than in any of the previous hearings, both from the ACLU et al intervention and from increasingly formidable defendant briefs. Mann presumably chose DC as a forum because he thought that it would favor him, but appears to have overlooked the possibility of intervention by the ACLU and national media. I can’t imagine that the DC Appeals Court will want the quixotic decision by J Combs-Greene (mostly adopted by J Weisberg) to represent the public face of DC libel law and I anticipate a different decision.



