Two days before Thanksgiving, your intrepid blogger joined approximately 60-70 others in the DC Court of Appeals’ ceremonial courtroom to watch the Mann v. CEI oral argument. The panel was comprised of Judges Ruiz, Beckwith and Easterly (who authored the Court’s decision in Burke v. Doe). Here are my impressions.
The Court first heard from the District of Columbia, which filed an amicus brief on the issue of whether the denial of an anti-SLAPP motion can be immediately appealed. Ariel Levinson-Waldman presented the argument on behalf of DC and seemed to convince the panel that immediate appeal was necessary to effectuate the statue’s intent (to protect against the cost, burden and chilling effect of potentially meritless suits). In fact, most of the questions were on the appropriate standard, and not the appealability issue. (As a result, my guess is that the Court is going to hold that the denial of an anti-SLAPP motion to dismiss, like a motion to quash, is immediately appealable).
On the issue of the appropriate standard, Levinson-Waldman argued that the DC Council, in requiring a non-movant to show that he was “likely to succeed,” intended to borrow from the “familiar” preliminary injunction standard. Picking up on this theme, CEI’s counsel, the fast-talking Andrew Grossman, argued that it was clear, from both the language of the statute and its legislative history, that the DC Council elected to impose a higher standard than California’s “probability” standard – one that was more demanding than Rule 12(b)(6) or Rule 56. In response to a question from Judge Ruiz, Grossman argued that this might even require the trial judge to weigh disputed facts and make a credibility determination – not quite unlike what a judge might make at the preliminary injunction stage.
Next to the podium was the animated Michael Carvin, representing National Review. Time and time again, he returned to the same theme: that the American legal system does not allow juries to decide what is/not scientifically valid. According to Carvin, subjective interpretations regarding matters of public concerns – like whether Mann’s approach was intellectually bogus – are not provably false.
After long last, a reserved John Williams rose in support of Mann and defense of the Superior Court’s decision. According to Williams, the trial court correctly denied the anti-SLAPP motions because the challenged statements were provable assertions of fact. Williams’ argument was that the defendants accused Mann of fraud, and whether he committed fraud is verifiable. Given the studies that have cleared Mann of any wrongdoing, Williams argued, the defendants purposefully avoided the truth, evidencing actual malice.
After Carvin completed the lengthy oral argument by returning to his theme that disputes over scientific methods have no place in courtrooms, we were done.
It is always dangerous to make predictions about outcomes based upon oral argument. With that caveat, it would not surprise me if the Court holds that: (a) there is a right to immediate appeal from the denial of an anti-SLAPP motion to dismiss; (b) a trial court should apply the “likely to succeed” law from the preliminary injunction context; and (c) in this case, the trial court erred in not granting the anti-SLAPP motions.