The most important political takeaway from the Mann defamation case against denialists

I've been slowly slowly making my way through the 111-page court decision. I agree with the main takeaways elsewhere - Michael Mann won some important-if-only-intermediary victories against the Competitive Enterprise Institute/Rand Simberg and National Review/Mark Steyn, completely lost a less-important and weaker argument against Rich Lowry/National Review, and the fight goes on.

The real takeaway is what the denialists have not said in their own defense. Take it away, DC Court of Appeals:

Appellants do not argue that Mr. Simberg’s article, if capable of conveying a defamatory meaning, is not actionable because the statements that Dr. Mann engaged in deception and misconduct are true.

The first line of defense you as a defendant can use in a defamation case, when you've done a good job, is that what you've said is true. They don't even attempt to make that argument for Simberg, jumping instead to a version of the 'well that's just my opinion, man' argument (apologies to The Dude). You can use the truth argument even if you haven't done a great job if it has a some plausibility. In Simberg's case at least, they don't even want to waste a tiny amount of the court's attention on a truth defense, because it's so weak that they would just detract from their overall credibility. And this is true regardless of what happens ultimately in this case.


Some random notes below:


Casual readers who may want to check out the case, may choose to skip the first 50-plus pages of procedural wrangling. That part is interesting to see how a case moves forward, though.

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There's some confusion around on legal fees, so a couple of notes:  the usual American rule is each side pays its own legal fees, with exceptions. When plaintiffs win, they don't get fees from defendants, but the plaintiff attorneys often get paid part of the winnings. An exception to the above is the anti-SLAPP procedures this appellate opinion decided. Anti-SLAPP wasn't designed for this situation, btw, it was designed to protect little people from being bankrupted by big corporations when they criticize the corporations. Still, Big Denialists get to use it here, and if they win the anti-SLAPP motion, then defendants get their appropriate legal fees. Defendants lost two and won one of their motions. As to the first two, they won't get legal fees (nor will Mann) no matter what happens from here on out. As to Lowry/National Review, they will - but National Review could be on the losing side of the Steyn case, so we'll just have to see how that works out in the end.

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This thing, originally filed in 2012, is far, far, from over. Yes, that's American justice for you. At least we're not Italy. Anyway, absent a settlement that could theoretically happen anytime, I'd guess two more years at the trial level, then maybe one or two more years on appeal, and then a short additional delay before the US Supreme Court refuses to hear a final appeal. All I can say in marginal defense of my field is that it can move faster when absolutely necessary, for example with child custody or otherwise to prevent future harm. Otherwise, and especially as in here where both sides have lots of resources and no innate requirement for speed, things move slowly.

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A future, potential legal pitfall for Mann:

National Review takes a different position. It argues that it cannot be held liable for any of the statements made by Mr. Simberg or Mr. Steyn that appeared on its website. According to National Review, it is shielded from liability by the Communications Decency Act of 1996 (“CDA”), because its website is a “provider . . . of an interactive computer service” 49 that may not be “treated as the publisher or speaker of any information provided by another information content provider.” 50 47 U.S.C. § 230 (c)(1 ). Under the CDA “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” § 230 (c)(1). 47 U.S.C. § 230 (e)(3). This argument was not raised in the trial court and is not properly before us. See Akassy v. William Penn Apartments Ltd. P’ship , 891 A.2d 291, 304 n.11 (D.C. 2006) (“Generally, issues not raised in the trial court will not be considered on appeal.”).

This strikes me as a fairly weak argument, but still the appellate court is saying that now isn't the time for it to rule on this argument, so defendants can raise it again later in the proceedings.

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Something that opens up some interesting lines for discovery against CEI and National Review:

There is, in this case, another factor that a jury could take into account in evaluating appellants’ state of mind in publishing the statements accusing Dr. Mann of misconduct and deception. As the articles that form the basis of Dr. Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one side of the global warming debate that is opposed to the view supported by Dr. Mann’s research. Although animus against Dr. Mann and his research is by itself insufficient to support a finding of actual malice where First Amendment rights are implicated, bias providing a motive to defame by making a false statement may be a relevant consideration in evaluating other evidence to determine whether a statement was made with reckless disregard for its truth.

Discovery can explore how and why these organizations are so opposed to climate science. Let's see where that goes! I should probably note here that discovery isn't a blank check - you can only get to see evidence that's relevant to your case. Here the court is saying that motive is relevant - so let's see what they really believe and why they're doing this.