It has been a few months since I wrote about Michael Mann’s libel suit against National Review, the Competitive Enterprise Institute and two contributors. During that time, the parties have been very busy in both the Superior Court and DC Court of Appeals. Here is what you might have missed.
When the case returned to the Superior Court from the Court of Appeals, the Superior Court again denied the defendants’ anti-SLAPP motions. The Competitive Enterprise Institute, National Review and one of the individual defendants (Rand Simberg) then appealed that decision to the DC Court of Appeals.
Mark Steyn (the other defendant), however, went a different route, firing his counsel, answering the complaint, and filing a counterclaim, alleging that the claim against him was “abusive litigation designed to chill freedom of speech and to stifle legitimate criticism of Plaintiff’s work.” (Steyn then filed an amended answer and counterclaim, here).
Mann – who had twice successfully defeated anti-SLAPP motions filed by the defendants – then filed his own anti-SLAPP motion against Steyn’s counterclaim, alleging that it failed to state a claim for abuse of process or malicious prosecution. Steyn, now again represented by counsel, argued in response that his counterclaim did not assert claims for malicious prosecution or abuse of process, but instead asserted claims for: (a) an implied, private cause of action under the DC anti-SLAPP statute; (b) a constitutional tort; and (c) abusive litigation, all of which, he argued, survived the anti-SLAPP motion.
While Steyn and Mann were sparring in the Superior Court, the DC Court of Appeals ordered Mann, National Review, CEI and Rand Simberg to brief whether it had jurisdiction – i.e., whether the Superior Court’s Order denying the anti-SLAPP motions could be immediately appealed or needed to wait until the conclusion of the litigation. (If this sounds familiar, it is because the parties had already briefed this issue the first time the case was on appeal last year).
CEI, National Review and Simberg argued (again) that jurisdiction was available under the collateral order doctrine; Mann argued (again) that the collateral order doctrine was inapplicable. After receiving their briefs, along with amicus briefs from the ACLU, Reporters Committee for Freedom of the Press and 18 other media organizations and District of Columbia, all of which argued that the DC Court of Appeals had immediate appellate jurisdiction over the denial of an anti-SLAPP motion, the Court of Appeals issued an order holding that “the issue of appealability is a matter of first impression” and that “the parties shall address in their brief the jurisdictional issue presented in this appeal.”
In August, CEI and Simberg filed their opening brief. In it, they argued that the Court of Appeals had jurisdiction under the collateral order doctrine, and that the lawsuit should be dismissed because the challenged statements were not assertions of fact that could form the basis for a libel claim but rather “First Amendment-protected expressions of opinion and interpretation regarding the Climategate scandal and its aftermath.” They also argued that Mann had not shown that any statements were made with “actual malice” and that CEI would not be held liable for linking to a National Review column.
National Review filed a similar brief, arguing that the challenged statements were a “vigorous expression of criticism on a matter of scientific and political controversy” that was protected by the First Amendment; that Mann was not “likely” to show “actual malice” by “clear and convincing evidence” as required to avoid dismissal under the anti-SLAPP statute; and that National Review could not be held liable as an Internet publisher for any of the statements authored by Steyn or Simberg.
After the opening briefs were filed, an array of groups lined up in support of CEI, National Review and Simberg. The Reporters Committee for Freedom of the Press and 26 other organizations filed an amicus brief arguing that: (a) a special motion to dismiss under the anti-SLAPP statute is immediately appealable; and (b) the Superior Court erred by failing to treat the commentaries at issue as constitutionally protected opinion and fair comment. My favorite sentence: “the judicial system should not be the arbiter of either scientific truth or correct public policy.”
The Electronic Frontier Foundation and five other online publishers filed an amicus brief explaining that the statute requires a party to show that he is “likely” to succeed on the merits to survive an anti-SLAPP motion, but that the Superior Court erred by requiring Mann to satisfy a lower standard. (As readers of this blog know, although various movants have previously argued that DC’s “likely” standard is more demanding than California’s “probability” standard, DC courts have generally borrowed California’s law on the applicable standard). The same brief argued that CEI could not be held liable to hyperlinking to the allegedly defamatory article. My favorite sentence: “If permitted to stand, the Superior Court’s holdings on hyperlinking and the anti-SLAPP standard will have the perverse effect of making the District of Columbia, the nation’s capital and seat of government, the preferred forum where public policy and political speech go to die.”
Alliance Defending Freedom filed an amicus brief “to highlight the First Amendment’s safeguard of offensive or inflammatory speech and the important role that hyperbole plays in American politics” in order “to ensure that the protections provided by the Free Speech Clause are broadly construed and not restricted by defamation laws.” Its brief argued that the challenged statements fit comfortably within the sphere of speech that has been traditionally afforded broad First Amendment protection. My favorite sentence: “If this Court were to do an about-face from traditional First Amendment values, then debates on political topics, including the Israeli-Palestinian conflict, the refusal to ratify the Kyoto Protocol, and the merits of universal healthcare, as well as other matters of public concern where hyperbole and accusatory language are coin of the realm would likewise be chilled.”
The District of Columbia filed an amicus brief which argued that jurisdiction was available under the collateral order doctrine. The brief was similar to briefs that the District has filed in other cases.
The Cato Institute and three other foundations/institutes filed an amicus brief arguing that debates over scientific disagreements – like Mann’s hockey stick – are ill suited for resolution in courts, and should instead be resolved in the marketplace of ideas. My favorite sentence: “Courts have routinely held that scientific and academic controversies are better resolved by open debate rather than in the dusty confines of the courtroom.”
And Mark Steyn (yes, the same Mark Steyn who is a defendant in the Mann suit), filed an amicus brief arguing that the anti-SLAPP statute demands a quick resolution to libel cases to prevent prejudice to defendants. (The Superior Court has stayed proceedings until the appeal is resolved).
Following the filing of the appellants’ opening briefs and the six amicus briefs, Mann filed his opposition brief. Interestingly, while acknowledging that he had previously argued that “an appeal of the denial of a motion to dismiss under the Act does not meet the stringent requirements of the collateral order doctrine,” Mann’s opposition brief stated that “Dr. Mann no longer opposes Defendants’ arguments that this Court has jurisdiction.” (Notwithstanding this statement, the DC Court of Appeals will have to analyze whether it has jurisdiction. See, e.g., Bank of America, N.A. v. District of Columbia, 80 A.3d 650, 659 (D.C. 2013) (noting that, although neither party contested whether the Court had immediate appellate jurisdiction, “this court must be satisfied that it has jurisdiction. Therefore, we consider the jurisdictional questions raised by the motions panel”).
Mann’s opposition brief next argues that, in analyzing the anti-SLAPP motion, the lower court appropriately applied a summary judgment like standard, requiring him to show only that “the complaint is legally sufficient and supported by a showing of facts to sustain a favorable judgment- assuming that the evidence submitted by the plaintiff is credited.” The brief argues that the lower court properly denied the anti-SLAPP motions because Mann has shown that the defendants made false and defamatory statements about him, with the requisite degree of fault, and is thus likely to prevail on the merits. The gravamen of Mann’s opposition is that “Defendants did not merely express an opinion, they falsely stated facts accusing Dr. Mann of fraud.”