No Mulligan Zone

Mann vs. Steyn and others (the vs others has popcorn value, but not nearly as much), lurches forward as Steyn discovers that being his own lawyer has costs and has acquired some, Michael Songer, Daniel Kornstein and Mark Platt, pro bono or maybe not, but they appear to have a problem, the stuff that Steyn filed on his own.  Make no mistake these lawyers are lawyers, but. . . .

No mulligans at this point, so they have to build out on Steyn's crazy in their response to counterclaims asserted by Michael Mann's attorneys, you know the ones where Mann's lawyers had to be restrained from laughing themselves to death about Steyn's filings.  At the time Eli noted that all of a sudden Steyn might be getting the hint that he was in over his head, and that does appear to be the case, or, perhaps some friends took him out for drinks and explained the facts of life.

According to Steyn's lawyers, in their response to Mann's counterclaims, Steyn made three simple claims

1. Steyn’s first counterclaim is an implied right of action under the D.C. Anti-SLAPP law. Steyn is a member of the class the statute was meant to benefit, there is no indication that the statute was not meant to create such a right of action, and a remedy for Steyn is consistent with the purposes and public policy considerations underpinning the statute.

2. Steyn’s second counterclaim, for constitutional tort, is appropriate because Mann’s lawsuit infringing on Steyn’s First Amendment rights qualifies as state action under the Fourteenth Amendment, and the lawsuit by its very existence creates a chilling effect on free speech.

3. Steyn’s third counterclaim, for abusive litigation, is an appropriate use of the common law to remedy tortious use of the court system. It does not impinge on Mann’s right of access to the courts, which Mann’s abusive conduct has rendered unprotected.

The problem is, this is pretty much what got shredded in the Mann counterclaims because they each imagine the law as Steyn would like it to be, not as it is.  The first relies on an implied right, and, of course, implied to whom is always an issue and the lawyers have an answer

Steyn, like other cultural commentators who routinely advocate on issues of public interest, is “one of the class for whose especial benefit the statute was enacted.”

which is about a nanometer from asserting that cultural commentators can say any damn thing they want without being held to any standard of truth.  That, bunny friends, is carving out a hole that any blogger can jump into and viscerates the law, but you have to work with what you have.  Eli fully understands that he is working close to Lucia L. territory here, but what the heck.

To Eli at least (Brian will probably have a say), the second claim gets pretty close to saying that anyone who sues another is a state actor, because they are asking the court to impose restrictions or penalties on another.  The filing pulls a Pielke

Public discourse on the important subject of the extent of alleged man-made global warming should not be chilled by the threat of tort damages for expressing criticism. Rather, such public debate should be encouraged. Uninhibited and robust public debate depends on a better informed citizenry that can receive and evaluate all sides of an issue. It is essential to self-government. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” That bedrock principle applies here when the courts are used by a public figure plaintiff like Mann to limit the stock of information and silence critics.

The card comes out of the bottom of the deck in that last sentence, switching from scientific debate to the right to utter any untruth about others.  Mann's suit was not to stop Steyn from talking about climate science, it was to stop Steyn from baselessly asserting that Mann faked his results.

Oh well, the pros from Dover have arrived and this will get boring.