Monday, December 15, 2014

A Purposeful Avoidance of the Truth Is Sufficient to Establish Actual Malice

So Eli hied hisself down the DC Court of Appeals and picked up a copy of the oral argument in CEI and National Review vs. Michael Mann.  Having a new toy, the Bunny is now pleased to present a piece from Michael Mann's attorney, John Williams, somewhat in response to what was written at National Review on line by Charles Cooke

Judge Easterly, meanwhile, wanted to know how the plaintiffs could demonstrate “actual malice” if the defendants “genuinely” believe that “[man-made] climate change is a hoax.” “We don’t have to get to the question of whether climate change is real to look at the accusations,” Williams shot back. This did not seem to convince. “You need clear and convincing evidence for malice,” Easterly said. Simply stating that your critics disagree with you is insufficient. 
This description has caused great rejoicing amongst the Steyn Simberg crowd, but maybe no

As to what Eli thinks is going to happen, well, as National Law Journal points out, the court has to figure out if they are going to allow immediate appeals of SLAPP suit rulings, 
In May, the D.C. Court of Appeals ruled that an anonymous Wikipedia editor could appeal a judge's order denying a special motion to quash a subpoena for his identity. In that case, local attorney Susan Burke sued the editor over information posted on her Wikipedia page that she argued was defamatory. Judge Catharine Easterly (at left), one of the judges hearing Mann's case, wrote the opinion.

Lawyers for the defendants sued by Mann pointed to Burke's case in arguing that the court should allow immediate appeals for denials of special motions to dismiss. The D.C. government has supported that interpretation of the law. 
As the federal and local courts sort out the practical realities of the anti-SLAPP statute, cases testing the law continue to trickle up. On the heels of the Mann case in the D.C. Court of Appeals is a defamation lawsuit filed by a local doctor against a former patient who wrote a negative review on Yelp. A judge partially granted a motion to dismiss under the anti-SLAPP law. The case is being briefed.
So probably yes, immediate appeals will be allowed, but to avoid being snowed under, they are going to have to define the grounds for dismissing under the SLAPP law in detail.  Given that, the court will, IEHO and EINAL, either affirm the ruling of the court below, or set out clear rules and toss it back.



Charles Cooke's linked National Review piece concludes:

"in America, robust public debate is not actionable, but worthy of celebration instead."

Would Eli who has gotten a paw in edgewise in the comments following Cooke's remarks, care to ask Cooke why, in that spirit, National Review's new neocon management has banned so many of its Buckley era contributors from commenting on anything the Climate Wars included ?

I would , but NR's "robust debate " seems as hemetic as Willard's

Toby said...

There is a legal maxim "Ignorance of the law is no defence".

Writing a falsehood publicly, no matter how sincerely it is believed, is no defence either.

The malice comes from the professional obligation of the writer to check his or her facts, and the same onus lies on the journal.


Many at National Review view fact-checking as an affront to faith-based journalism

Hank Roberts said...

> if the defendants “genuinely”
> believe that “[man-made]
> climate change is a hoax."

Wait -- do the defendants at any point swear to tell the truth, the whole truth, and nothing but the truth? Are they at any risk of perjury here?

Phillip said...

If the lawsuit ever gets to the discovery phase I believe that Steyn, the NR, and the CEI will have to turn over their emails relating to Dr Mann and the whole Hockeystick controversy. IMO, they would make fascinating reading, and I suspect that they would clearly show malice.

JohnMashey said...

Discovery: yes ...
but as it happens, there is already plenty of evidence that happens to be public.
See Strange Scholarship in the Wegman Report, pp.28-32, of the various activities. Note the little boxes that include CEI people. Actually, there's an earlier connection between CEI and McKitrick that I didn't know about then.

See also p.40 [GMI2003] [GMI2005] and [GMI2005a] which include CEI involvement.
(Some of those may no logner be at GMI website, but look them up with Wayback if need be.]

Inquiring bunnies might wonder if Mann's lawyers might be aware of this history, but given that SSWR is referenced rather often in Chapter 15 of Mann's HSCW ... it might be a moot point.

Put that together with the various other players from the earlier Crescendo to Climategate Cacophony, and the number of potential characters in email discovery gets much larger. Put another way, CEI + GMI were key players at the nexus of bringing the attacks on Mann forward, and helping the Wegman Report get rolling, but there are still many as-yet-unknown connections.

Phillip said...

The wonderful thing about emails is they can open the curtains and shed light on all sorts of interesting, though unsavory, tidbits.

A few years ago when our neighbor sued us over the property line, his emails to his attorney would normally have been privileged, but he had cc'ed the surveyor who turned over the whole batch of emails, including their strategy to drop the lawsuit on us at Christmas. (He's such a Grinch) After the trial, several jurors told us that those emails were the most persuasive evidence presented, far more interesting than dry legalese.