Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably, several of defendants’ statements fall into these protected categories. Some of defendants’ statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff

For reasons I explained here, I am skeptical of this result. Judge Combs-Greene’s opinion was unpersuasive (and error-ridden) and Judge Weisberg — insofar as he adopted the same reasoning — is similarly mistaken. (Note, however, that Judge Weisberg did not claim he was bound by Judge Combs-Greene’s conclusions under the law of the case doctrine.) The statements at issue — however wrongheaded or outrageous — constituted protected expressions of opinion. Berkeley’s Dan Farber, who is undoubtedly less sympathetic to the defendants than am I, likewise believes the comments at issue were protected speech.

At this point, the defendants — or most of them, at least — are likely to renew their effort to seek interlocutory review. There is some question whether review of a denial of a motion to dismiss under D.C.’s anti-SLAPP statute is available, but the defendants will take their shot — and will almost certainly get renewed support from amici. The last time around, their effort was supported by the ACLU, Reporters Committee for the Freedom of the Press (joined by several more media organizations), and the District of Columbia.

AD

AD

I expect Simberg, CEI, and NR to pursue this course. I’m not so sure about Steyn. Steyn and NR have had some differences of late and they’ve terminated their joint representation. (Judge Weisberg granted the lawyers’ permission to withdraw on January 8.) Steyn is now critical of his lawyers’ approach to the case and, at least for the moment, is representing himself. (You know what they say about the lawyer who represents himself, but Steyn is not a lawyer.)

On Tuesday Steyn filed a flowery motion on his own behalf assailing Judge Combs-Greene’s handling of the case (what he calls a “procedural fiasco”), seeking to withdraw from motions previously filed on his behalf, and and suggesting that he’s done with any more procedural wrangling in this case. Steyn apparently wants the judge to dismiss the case or get on with a trial. The filing may have made for a fun blog post, but I doubt it was helpful to his case. The sort of rhetoric that drives web traffic is not particularly effective in court. Then again, perhaps that’s Steyn’s hope. As he concludes his latest post:

The lesson of the last year is that you win a free-speech case not by adopting a don’t-rock-the-boat, keep-mum, narrow procedural posture but by fighting it in the open, in the bracing air and cleansing sunlight of truth and justice.

UPDATE: More reactions from Steyn here and here.

AD

AD

[Note: I’ve updated some links in this post and added a disclosure below. JHA]