As I predicted last month, Michael Mann’s suit against the National Review, Competitive Enterprise Institute and two of their contributors, has resulted in an anti-SLAPP motion filed by the defendants, along with a companion Rule 12(b)(6) motion.
The Mann complaint is 24 pages long, and contains more than 100 paragraphs of allegations and assertions. The gravamen of the suit is that Mann, who is allegedly “well known for his work regarding global warming,” (which would seem to make him a public figure requiring him to demonstrate actual malice), was allegedly defamed by a blog post that accused him of “academic and scientific misconduct.” (Mann alleges that he had been previously investigated – and cleared). The original post at issue, by defendant Rand Simberg, is here; the other post at issue, by defendant Mark Steyn, is here. The complaint asserts claims for libel and intentional infliction of emotional distress.
Not to be outdone, the anti-SLAPP brief runs 60 pages, with more than 28 pages of that submission chronicling the factual background against which the allegedly defamatory publications were made and the suit brought. After that extended background section, the brief succinctly (and thankfully!) shows that, because the suit arises from an act in furtherance of the right of advocacy on issues of public interest (the blog post, commenting on the global warming debate and Mann’s role in it), the statute applies and requires dismissal of the suit unless Mann can show that he is likely to prevail on the merits. (The brief is also discussed by the Volokh Conspiracy here)
From that, the remainder of the brief attempts to show that Mann cannot do so. It first argues that the challenged statements are opinions and rhetorical hyperbole, and not actionable assertions of fact. According to the defendants, the specific language used, the context and its lack of verifiability all confirm that the statements are not factual assertions and cannot be the basis for a defamation suit. The defendants argue that in the “contentious and often acrimonious debate over global warming,” “forceful, highly opinionated language and hyperbole are not out of place; they are expected, from advocates on both sides.”
They next argue that the allegation that Mann “tortured data” is not, and cannot be, an assertion of actual fraud because “the mind strains to imagine how one might literally molest or torture a datum. By contrast, opinionated criticism of statistical analysis is regularly couched in such terms as contained in the challenged statement.” According to the defendants, “[s]uch criticism amounts to disagreements over assumptions and methodology – that is, matters of opinion on what constitutes good science and solid statistical technique – not an accusation of literal fraud, e.g., making up data.”
Similarly, the defendants argue the allegation that Mann engaged in “data manipulation” is not actionable because it “is commonly used to refer descriptively to the practice of statistics.” As for the third challenged statement (that Mann was “the posterboy of the corrupt and disgraced climate science echo chamber”), the defendants argue that this is opinion, comprised of rhetorical hyperbole, and cannot reasonably be read in its literal sense. As for the remaining challenged statements, the defendants argue that they are either not about Mann (but rather about Penn State’s alleged shoddy investigation) or are protected opinion.
One of the more persuasive arguments in the brief comes next, when the defendants argue that, because the blog post links to the factual material that it references, there can be no defamation because the reader is free to consider the source material and draw his/her own conclusions. Finally, argue the defendants, the language and context of the blog post would not be understood by a reasonable reader as accusing Mann of an actual crime, but rather would be understood as protected hyperbole. In a nice touch, the defendants cite from Mann’s own book – where he allegedly likened the climate debate to “war,” as an example of hyperbole because “reasonable readers would understand that Mann is not engaged in a literal ‘war.’”
In a companion Rule 12(b)(6) memorandum, the defendants argue that, for all of the foregoing reasons, the suit should be dismissed. They further argue that Mann has failed to allege facts to support a finding that they acted with actual malice and, instead, offers only conclusory allegations that they acted “maliciously” or “with actual malice,” and that, for this additional reason, the complaint must be dismissed.