Michael E. Mann is a well-known climate scientist whose research in studying the “paleoclimate,” or ancient climate, has featured prominently in the politically charged debate about climate change. Dr. Mann filed an action for defamation and intentional infliction of emotional distress on October 22, 2012 against Competitive Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and National Review’s editor Rich Lowry that appeared on the websites of CEI and National Review. Dr. Mann’s complaint claimed that the articles which criticized Dr. Mann’s conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his reputation and standing in the scientific and academic communities of which he is a part.

The court order says, on July 15, 2012, Mr. Steyn authored an article titled “Football and Hockey,” which appeared on National Review’s online blog “The Corner.” In his article, Mr. Steyn quoted from Mr. Simberg’s July 13 article:

I’m referring to another cover up and whitewash that occurred [at Penn State] two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet.

And the order further says, Mr. Steyn then added:

Not sure I’d have extended that metaphor all the way into the locker-room showers with quite the zeal Mr. Simberg does, but he has a point. Michael Mann was the man behind the fraudulent climate-change “hockey-stick” graph, the very ringmaster of the tree-ring circus.

The defendants argue that Dr. Mann’s lawsuit infringes on their First Amendment right of free speech and moved for dismissal under the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act, D.C. Code §§ 16-5501 et seq, and, alternatively, under Court Rule 12 (b)(6). The trial court ruled that Dr. Mann’s claims were “likely to succeed on the merits,” the standard established in the Anti-SLAPP Act to defeat a motion to dismiss, and denied the defendants’ motions to dismiss and their subsequent motions to reconsider. CEI, National Review and Mr. Simberg sought interlocutory review of the trial court’s denial of their motions to dismiss.

In a December 22, 2016 order, the District of Columbia Court of Appeals held that it has jurisdiction under the collateral order doctrine to hear appellants’ interlocutory appeals of the trial court’s denial of their special motions to dismiss filed under the Anti-SLAPP Act:

“We further hold that the Anti-SLAPP Act’s “likely to succeed” standard for overcoming a properly filed special motion to dismiss requires that the plaintiff present evidence — not simply allegations — and that the evidence must be legally sufficient to permit a jury properly instructed on the applicable constitutional standards to reasonably find in the plaintiff’s favor. Having conducted an independent review of the evidence to ensure that it surmounts the constitutionally required threshold, we conclude that Dr. Mann has presented evidence sufficient to defeat the special motions to dismiss as to some of his claims.”

The appeals court remanded the case to the trial court for further proceedings.

The defendants have filed a petition for rehearing. Many expect the petition to be granted and that the full Court of Appeals will put an end to this attack on the First Amendment now, before a trial that will no doubt result in many more years of appeal.

I first blogged about this case in 2013, Michael Mann’s Defamation Case Continues, Just Not Now and the saga continues.

Of course a jury verdict in this case will do nothing to resolve the debate over climate change. And given new President Donald Trump has said he will “open up our libel laws” to make it easier to sue for defamation law, this case will not impact the law of libel and slander.

Given that a jury will have to find that Steyn and Simberg acted with “actual malice” or a “reckless disregard” of the truth or falsity of the claims at issue, most believe Dr. Mann, who is among that coterie who refer to people as “climate change deniers” (analogizing those who disagree with him to Nazi Holocaust deniers), .. such that this lawsuit strikes many as the pot calling the kettle Black, is very unlikely to prevail on the merits. We will continue to monitor the debate.