Facts, Falsehoods and the First Amendment

POSTED BY HANK REICHMAN

Late last year I posted a piece about climate scientist and AAUP Committee A member Michael Mann’s important victory in his ongoing libel suit.  The District of Columbia Court of Appeals ruled in a 111-page opinion that Mann can sue two conservative writers over allegations that they defamed him.  The case centers on posts written by Rand Simberg in a Competitive Enterprise Institute (CEI) blog and Mark Steyn on National Review. Among other comments, Simberg called Mann the “Jerry Sandusky of climate science.”

In the comments to my post and elsewhere some have argued that in fact it is Mann’s suit that threatens free expression, in particular the freedom of the press.  That position was taken by National Review’s attorneys Michael A. Carvin and Anthony Dick in “A Libel Suit Threatens Catastrophe for the Climate of Public Debate,” an op-ed piece published in the Wall Street Journal on February 6.  The following letter to the editor, written by Mann’s attorney, appeared in the Journal on February 9, under the above headline:

The First Amendment sky is not falling as a result of the recent decision of the District of Columbia Court of Appeals permitting climatologist Michael Mann’s case to proceed against the National Review Online, despite the claims of NRO’s attorneys Michael A. Carvin and Anthony Dick in “A Libel Suit Threatens Catastrophe for the Climate of Public Debate” (op-ed, Feb. 6). In this litigation, Dr. Mann is challenging NRO’s accusations that he engaged in scientific fraud when he published his “hockey stick” graph demonstrating the considerable rise in the earth’s temperatures. Messrs. Carvin and Dick assert that this decision is catastrophic for public debate because their client was simply “questioning” Dr. Mann’s work and “voicing one’s opinion.”

To the contrary, NRO’s efforts to characterize its false accusations of fraud as some sort of contribution to public debate ignores the fundamental difference between genuine opinion and knowing or reckless falsehoods. Protected opinion has its limits; fake news doesn’t qualify. This has been the law for decades, and in a delightfully ironic twist the court repeatedly cited a 1976 defamation case successfully pursued on this very ground by none other than William F. Buckley—the founder of National Review. The Buckley decision drew the sharp distinction between protected opinion and knowing falsehoods. The Mann v. NRO decision does nothing different; the First Amendment remains alive and well and undisturbed.

Messrs. Carvin and Dick also tell us how their position is supported by certain “friend-of-the-court briefs,” including one filed by an organization called the Reporters Committee for Freedom of the Press. It should be pointed out to your readers that a member of this committee is News Corp, which owns The Wall Street Journal.

John B. Williams

Washington

Mr. Williams represents Michael Mann in this lawsuit.

Among the comments to my original post was one made some two weeks after that post went up by an individual identifying only as “Locus.”  Responding to my answer to another comment that in this case Mann’s status as a “public figure” was not at issue, “Locus” quoted court records as follows: “The parties agree, as do we, that Dr. Mann is a limited public figure with respect to statements about global warming because he has assumed a role in “the
forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz, 418 U.S. at 345.” (http://www.dccourts.gov/internet/documents/14-CV-101_14-CV-126.pdf).  He then added: “In other words the courts have put Mann in the same legal category as politicians and the Kardashians and his lawsuit has nothing to do with protecting academics. I look forward to you actually reading and understanding something before posting commentary on this case.”

I didn’t bother to respond at the time, since by that point hardly anyone was still viewing the post.  But now let me simply point out that “Locus” actually confirms my point, which was never to claim that Mann is not a public figure but to argue that Mann’s status as a public figure was not at issue in the appeal, since as Locus points out, both sides had already stipulated to this.  As for that stipulation placing Mann in the same category as the Kardashians, let me simply promise Locus that the next time Kim Kardashian is compared to Jerry Sandusky because of her peer-reviewed scientific research, I will be likely to come to her defense as well.  Not holding my breath, however.

7 thoughts on “Facts, Falsehoods and the First Amendment

  1. It’s no small irony that Mann’s libel claim directly parallels the argument that Donald Trump has similarly deployed while threatening libel suits against the press for criticizing him.

    This point, as well as its disastrous consequences for freedom of speech in both cases, was hinted at in an article by law professor Jonathan Adler that also takes up the question of Mann’s status as a public figure.

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/22/making-defamation-law-great-again-michael-manns-suit-may-continue/

      • I see nothing in those comments that addresses Adler’s assessment of the case. Or if you prefer someone who agrees with Mann on climate change policy, here’s law professor Daniel Farber also explaining why accusing Mann of misconduct does not meet the legal definition of libel.

        http://legal-planet.org/2013/09/16/lies-damned-lies-and-climate-denial/

        One has to wonder if you would be taking a similar position if (a) the faculty in question was not Mann but rather a critic of climate change policy and (b) not closely involved with the AAUP’s national body.

      • Look, it is obvious that you have your opinion on this case and I have mine. Each of us — in the space provided here by the AAUP, I might note — have offered arguments and sources in support of our views. People can make up their minds; I see no reason for further debate. I will note, however, that to date court rulings in the case have only concerned Mann’s RIGHT to bring such a suit under current libel law. Whether or not he was in fact libeled and, if so, who is responsible and what should be the redress, are yet to be determined in a trial during which both sides can present evidence. I have no intention of prejudging that proceeding.

        I will add that the AAUP has frequently defended — and will continue to defend — scholars who are not involved in our organization, are not even members, and who may disagree with some or even all of our positions. I am, however, proud that Michael Mann has chosen to join the AAUP and to become active in our work. We are fortunate to have him on board.

  2. It’s not a simple “difference of opinion” though. I’ve given pointed you two well-known legal academics who directly explain why the case is baseless. You can also add an amicus brief by the ACLU to that list, as well as several other free speech organizations.

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/13/media-and-rights-organizations-defend-national-review-et-al-against-michael-mann/?utm_term=.bdf839ff4b7f

    In response, you’ve offered, well, a letter to the editor by Mann’s own attorney.

    • No, I’ve actually offered the unanimous rulings of two federal courts. And whether the case is baseless or not will be decided, as it should be, at trial, not in Volokh’s blog or anywhere else, including on this blog for that matter. But enough is enough. If you wish, you may provide a lengthy reading list of sources on your side for our readers. Feel free. I am done with this.

  3. I went to the store the other day and bought a TV.

    A few minutes later, I went back to the same store, pistol whipped the clerk, and took a second TV.

    They were the same exact act … buying the TV with good money vs. robbing the store.

    At least, they were the same exact act according to the logic of those saying that libel and expressing opinion are the same exact thing.

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