In the libel squabble between Michael Mann and National Review, Mann has filed his response to the defendants’ anti-SLAPP motion, and they, in turn, have filed their reply brief. Now that the briefing is complete, it is clear that there are several issues in serious dispute between the parties.
First, they disagree on the burden imposed upon Mann to avoid dismissal. The statute provides that, if the moving party satisfies the statute’s elements, the suit must be dismissed unless the non-moving party can show that it is “likely” to succeed on the merits.
In their opening brief, the defendants argued that this “likely” standard “is a heavy burden, one unique among anti-SLAPP statutes. To defendants’ knowledge, no other state employs in an anti-SLAPP statute a standard requiring a plaintiff to demonstrate that he or she is ‘likely to succeed the merits.’”
Mann’s opposition brief counters that the DC anti-SLAPP statute is modeled on the California anti-SLAPP statute and that, under the California law, a moving party needs only to show that there is a “probability” of success on the merits, which the California courts have interpreted to require a summary judgment like procedure.
In reply, the defendants argue that, while the DC statute was modeled on the California legislation, the DC Council made a conscious decision to require that one is “likely” to prevail instead of just having a probability of success, and that the “likely” standard imposes a “daunting burden” on Mann. It seems to me that the defendants have the better of this argument because the different terms have different meanings, and it must be presumed the DC Council knew that and chose accordingly.
Second, the parties disagree about whether the suit is the type contemplated by the anti-SLAPP statute. Mann argues that, “[u]nlike a traditional SLAPP, there is no economic bullying here,” as evidenced by the fact that the defendants continue to write and talk about the subject of the lawsuit. (This point echoes arguments made by another party resisting an anti-SLAPP motion (Huntington), and adopted by the DC Superior Court in denying an anti-SLAPP motion there).
In response, the defendants point out that SLAPP suits impact both the named defendants and others in the jurisdiction, by chilling speech, and that defendants are “fully entitled to seek the protection of anti-SLAPP statutes notwithstanding their ability to continue to exercise their First Amendment rights.” Once again, it seems to me that the defendants have the better of the argument. While a certain type of David vs. Goliath suit certainly animated the DC Council’s enactment of the anti-SLAPP statute, it is not restricted only to those classes of defendants.
Finally, the parties predictably disagree about whether the challenged statements are verifiable fact (and thus properly the subject of a defamation suit) or protected opinion/hyperbole (and thus incapable of forming the basis of a defamation suit). Mann argues that the statements – including that he engaged in data manipulation and “has molested and tortured data” – are all easily verifiable. While acknowledging that certain forums (e.g., “artistic commentary and review”) are relevant in determining whether certain statements are factual or opinion, Mann argues that the forum here is not the type in which hyperbole or opinion is expected to be found.
The gravamen of the defendants’ reply brief is that the Mann opposition ignores the “context” in which the challenged statements were made. They argue that a line of Supreme Court decisions show that the Court continues to consider the “context” in which statements are made, and that the forum is not limited to artistic commentary and review. When considering the forum (a blog), the broader vigorous debate over global warming, and the language surrounding the challenged statements, the defendants argue that they are “clearly rhetorical hyperbole, phrased in colorful language, and not actionable assertions of fact.” The defendants also persuasively argue that Mann has failed to plead facts showing that they acted with actual malice.