UPDATE: Dr. Michael Mann vs. National Review and others.
"The idea of human-induced global climate change is one of the greatest hoaxes perpetrated out of the scientific community. It is a hoax."
Members of Congress in their respective houses are
allowed by the Constitution to say any fool thing they wish, truth and facts be damned. Given how many members of Congress are, these days, the
paid tools of Exxon and the Koch brothers, scientists have powerful enemies in Congress.
One of the best and most peer respected of these scientists, Dr. Michael Mann of Penn State University, has nevertheless found a way to fight back against some of the lies, finding the courage and resources to take on an icon of conservative media, The National Review. Dr. Mann has sued the publication and its minions for their malicious lies about him and his science. When I recently reported here on this lawsuit, pending in the District of Columbia, I promised an additional post to "explain how the 1st Amendment messes with libel law and places a very heavy burden of proof on Dr. Mann in this case." That discussion is out in the tall grass, if you wish to know more.
The First Amendment in the Bill of Rights complicates defamation law in the U.S. After all, defamation is a court claim for relief against something someone said (slander) or published (libel). Any defamation action necessarily amounts to the government (via the courts) intervening to suppress something someone said or published. Yet the First Amendment, along with its 50 analogues in the several states, ostensibly prohibits government from "abridging the freedom of speech, or of the press". Understandably, unavoidably, over the course of centuries, our courts and lawmakers have worked out a complicated set of rules that recognize formidable Constitutional barriers to those seeking to sue for defamation, while nevertheless recognizing that sometimes, what looks like speech really isn't speech and thus becomes subject to governmental suppression via defamation suit.
Sometimes speech is not really meant to communicate, argue, persuade, teach, etc. Instead, what the speaker or publisher really wants to do is to hurt the person they are talking about. So, what they have to say isn't really speech. Instead, it is a kind of weapon.
That is why courts apply a standard of "actual malice" to defamation claims involving the press or public figures. Anything said or published without actual malice is, ipso facto, protected speech and a defamation suit against such speakers will fail. This enhanced standard, in turn, requires proof of the subjective intent and actual knowledge of the party alleged to have uttered malicious lies. Intent and knowledge refer to the intention to specifically harm the object of the speech and knowledge that the speech will probably succeed at that. The effect of this burden is to require Dr. Mann's legal team to show the court a lot of very convincing and germane evidence of what the National Review and its minions were trying to do and what they knew about it. Meanwhile, there are myriad ways for people to cloud, obfuscate and misrepresent their subjective thoughts and intentions, making this kind of proof uniquely difficult to mount.
The National Review published some very nasty lies intended to tarnish Dr. Mann's scientific stature by falsely tying him to the sexual molestation scandal in the athletic department at Penn State. When Dr. Mann appropriately requested a retraction from National Review before proceeding to court, the assholes responded with an editorial telling its wing-nut followers it was going to use the court's powerful discovery processes to expose Dr. Mann's science as a hoax. Good luck with that. Court's have very strict standards for the scientific qualification of scientific witnesses.
Predictably, the threat was completely empty. What the National Review has done instead is to fight tooth and nail to prevent any discovery from beginning in the suit. Their procedural tool for this is the District of Columbia Strategic Lawsuit Against Public Participation Act. Such laws exist to protect parties from meritless, harassing lawsuits whose purpose is to chill protected expression. But discovery isn't allowed to begin until SLAPP issues are resolved.
My previous report was occasioned by the recent ruling that the evidence in Dr. Mann's case was sufficient to overcome the National Review's SLAPP defenses and that the case could therefore proceed with discovery, among other results of the ruling.
That is a very big F deal, as Joe Biden might say. The ruling meant that Dr. Mann's team had convinced the trial judge that his case had a reasonable probability of prevailing in its claims. To do this, they produced evidence of legally sufficient arguments supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. The trial judge has seen the evidence and ruled, in effect, that if Dr. Mann's evidence is true, he wins.
Given its editorializing, you might expect the National Review to embrace the beginning of discovery so that it could use it to embark "on a journalistic project of great interest to us and our readers." and "hire a dedicated reporter to comb through the materials and regularly post stories on Mann." But, no, they are not.
Instead, the defense teams are busy filing motions to reconsider, new motions on the same grounds and motions to allow immediate appeal of the SLAPP ruling. They are doing everything in their power to delay the beginning of discovery in the case.
If SLAPP goes to appeal in Dr. Mann's suit, it could be years before the suit, already nearly a year old, moves forward again and Dr. Mann's team gets to use the powerful discovery process on the National Review and its minions to find out about what they knew and when they knew it. That is what I'm hoarding popcorn for.
I will keep an eye on the docket and report any further news.