Climate scientist faces broad array of foes in suit vs. National Review

By Alison Frankel
August 13, 2014

Penn State meteorology professor Michael Mann sounds like a pretty sympathetic character in the brief his lawyers filed last April at the District of Columbia Court of Appeals. Mann, who is widely credited with developing groundbreaking evidence of global warming, asked the appeals court to reject ongoing efforts by National Review and the Competitive Enterprise Institute to dismiss his libel and defamation case under the District of Columbia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law.

The defendants hadn’t just expressed their disagreement with his work on climate change, Mann said. They’d accused him of scientific fraud – “a statement of fact subject to objective verification and thus not protected ‘opinion,’” – Mann’s brief said. And they’d done so, according to Mann, even though the right-leaning magazine and think tank were well aware that he has been cleared in academic and regulatory inquiries about some troubling emails stolen from the Climate Research Unit at the University of East Anglia in the United Kingdom that appeared to raise questions about the integrity of his research.

Mann’s brief urged the D.C. appeals court to let his case move ahead. “This litigation has been pending over a year and a half, and, of course, no discovery has yet taken place,” wrote his lawyers at Williams Lopatto and Cozen O’Connor. “Defendants continue to play their malicious game of defaming Dr. Mann, aptly described by the Superior Court as a ‘witch hunt,’ and have succeeded in raising hundreds of thousands of dollars through their pledge to continue their harassment of this distinguished scientist.”

Anti-SLAPP motions by National Review and CEI have already been rejected, Mann said, by two different Superior Court judges, one of whom explicitly found that the defendants’ criticism of Mann “demonstrates something more and different than honest or even brutally honest commentary.” There was no need, Mann said, for the appeals court to wade in.

The court, however, decided to take the case to resolve the question of whether libel and defamation defendants have the right to appeal the denial of anti-SLAPP dismissal motions. That may sound like an obscure and technical matter of procedure, but not when you look at the amicus briefs that poured in this week in support of CEI, National Review and the two writers who posted pieces criticizing investigations of Mann’s work. If Mann previously believed he was under attack, he must now be feeling besieged. (In an email, Mann told me he couldn’t comment and referred questions to his lawyers.)

A broad array of civil liberties groups from the right and the left, along with two dozen media companies and journalism organizations, has turned out to back National Review and CEI, arguing that free speech will be endangered if defendants can’t dispose of libel suits via anti-SLAPP motions. They also argue that the National Review and CEI attacks on Mann were opinions about matters of public importance – precisely the speech that anti-SLAPP laws are intended to protect. The list of amici, whose briefs are all available at CEI’s website, includes such unlikely bedfellows as the American Civil Liberties Union and the Goldwater Institute; the Center for Investigative Reporting and the Individual Rights Foundation; the Electronic Frontier Foundation and the religious rights group Alliance Defending Freedom.

What they all have in common, according to their briefs, is an interest in protecting the First Amendment’s guarantee of free public discourse. No matter how nastily National Review and CEI wrote about Mann, the defense amici argue, the lower courts were wrong to deny their anti-SLAPP motions to dismiss. The appeals court, they say, should accept its jurisdiction and reverse the erroneous rulings.

I asked CEI lawyer Andrew Grossman of Baker & Hostetler whether his side had solicited amicus filings. He said defense lawyers had sent around a couple of emails to likely supporters, but that, for the most part, amici approached CEI and National Review, not the other way around. The ACLU and media organizations, for instance, reached out to the defendants early in the litigation, Grossman said, and have filed previous amicus briefs in the case in support of defense arguments. The broad spectrum of new amici, Grossman said, is gratifying. “It shows that people of good faith who disagree on many issues can come together to support free speech,” he said.

National Review counsel Anthony Dick of Jones Day added, “The amici understand that this case could have an enormous chilling effect on speech across the political spectrum. That’s why you see groups like the ACLU and the Washington Post supporting the National Review.”

Mann’s lawyer Catherine Reilly of Cozen told me her team wasn’t surprised by the amici support for National Review and CEI. It’s typical for the ACLU and media groups to oppose libel litigation, she said, and none of the newly filed briefs makes arguments Mann and his lawyers haven’t already countered successfully in the trial court. Unlike the defendants, Mann didn’t have amici to back him in the lower courts. I asked Reilly if the professor would have any supporting briefs next month when he responds to the defendants in the D.C. appeals court.

“At this point, we don’t know,” she said.

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If Dr. Mann is so sure of his case against Steyn et al and Dr. Timothy Ball, why has he been stalling answering discovery? And why does he have to lie about being a Nobel Laureate? And I would like to see those sections of the inquiries that “exonerated” his work. I think Steyn has the right idea (albeit an expensive one) of making Dr. Mann back up his allegations and work in court. And I agree with Steyn and Simberg, how can you give any credence to Penn State’s investigation of Mann when they whitewashed Jerry Sandusky?

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