Description: Defamation action brought by climate scientist against authors and publishers of articles about scientist's work.
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Mann v. Competitive Enterprise Institute
Case Documents:
Filing Date Type File Action Taken Summary 07/22/2021 Order Download Defendants' motion for summary judgment granted in part, as it relates to claims against Competitive Enterprise Institute, and denied, in part, as it relates to claims against Rand Simberg, and plaintiff's motion for partial summary judgment against the Competitive Enterprise Institute and Rand Simberg on the issue of falsity, and motion to strike their affirmative defense that their statements were not “substantively false” denied. D.C. Court Said Climate Scientist Provided Sufficient Evidence of Actual Malice for Blog Authors but Not for Publisher. In climate scientist Michael Mann’s defamation lawsuit against individuals and organizations that published blog posts that characterized his work as fraudulent and attributed misconduct to him, a District of Columbia Superior Court denied summary judgment motions by the defendants on the issue of the individual authors’ “actual malice” and by Mann on the issue of the falsity of the blog posts. The court found, however, that Mann failed to offer evidence establishing that Competitive Enterprise Institute (CEI)—which published one of the blogs—acted with “actual malice.” (The court made a similar ruling in March 2021 with respect to National Review, Inc. the publisher of the other blog.) The court said this failure to establish actual malice was the result of the nature of the blog, which was “designed for low-effort management on the part of CEI, where outside writers enjoy a platform for their opinions, with only cursory review by a relatively low-ranking CEI employee prior to publication.” With respect to the author of the post on CEI’s blog, the court found that Mann offered “significant evidence” that would allow a reasonable jury to find that the author acted with actual malice. The court denied summary judgment on the issue of whether the article was false. 07/22/2021 Order Download Defendant Mark Steyn's motion for summary judgment denied and plaintiff's motion for partial summary judgment denied, in part, as to falsity as it applies to defendant Steyn. The court denied a motion by the author of the blog post on the National Review’s website for summary judgment on the issues of protected speech concerning public opinions, actual malice, truth, and whether Mann should be awarded damages. The court also denied Mann’s motion for summary judgment on the issue of whether statements in the blog post were false. 01/22/2021 Memorandum Download Memorandum of points and authorities filed in support of plaintiff's motion for partial summary judgment against National Review and Mark Steyn on the issue of falsity and motion to strike affirmative defenses of truth and substantial truth. 01/22/2021 Memorandum Download Memorandum of points and authorities filed in support of plaintiff's motion for partial summary judgment against Competitive Enterprise Institute and Rand Simberg on the issue of falsity and motion to strike affirmative defenses that their statements were not "substantially false." 01/22/2021 Motion for Summary Judgment Download Motion for summary judgment filed by defendants Competitive Enterprise Institute and Rand Simberg. 01/22/2021 Motion for Summary Judgment Download Motion for partial summary judgment filed by plaintiff against National Review and Mark Steyn on the issue of falsity and motion to strike affirmative defenses of truth and substantial truth. 01/22/2021 Motion for Summary Judgment Download Motion for partial summary judgment filed by plaintiff against Competitive Enterprise Institute and Rand Simberg on the issue of falsity and motion to strike affirmative defenses that their statements were not "substantially false." 01/22/2021 Motion for Summary Judgment Download Motion for summary judgment filed by defendant Mark Steyn. 08/29/2019 Order Download Motion to dismiss counterclaims of counter-plaintiff Mark Steyn granted. D.C. Court Dismissed Counterclaims in Climate Scientist’s Defamation Lawsuit. The D.C. Superior Court dismissed counterclaims brought by an individual writer against the climate scientist Michael Mann in Mann’s defamation lawsuit against National Review, the Competitive Enterprise Institute, and two individuals. The court said the writer had already availed himself of the remedy offered by D.C.’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute¬—i.e., a special motion to dismiss with lower burden of proof, a stay of discovery when the motion is pending, a special motion to quash discovery requests, and the recovery of attorneys fees. The court said the writer, having lost the special motion to dismiss, could not “seek the same remedy in the guise of a counterclaim”; the court concluded that the “Anti-SLAPP statute does not create an implied right to affirmatively assert a claim against the plaintiff.” The court also found that Mann’s lawsuit did not constitute state action and therefore dismissed the writer’s constitutional tort claim. In addition, the court found that the writer failed to allege elements of an abuse of process or a malicious prosecution claim. The court also declined to “create a new tort named abusive litigation.” 01/22/2014 Order Download Order issued denying motions to dismiss amended complaint. The District of Columbia Superior Court again denied motions to dismiss Mann’s lawsuit. The motions were directed at an amended complaint filed before the July 2013 decisions that denied motions by National Review and CEI to dismiss the original complaint. The “substantive” difference between the original complaint and the amended complaint was Mann’s assertion of one additional count, libel per se. In denying the motions, the new judge in the case (who replaced the retired Judge Combs Greene) ruled that, “regardless of whether the rulings embodied in the non-final orders of July 19, 2013, should be treated as ‘law of the case,’” he agreed with Judge Combs Greene’s conclusion that Mann had shown sufficient likelihood of success to defeat the special motion to dismiss the six counts in the original complaint under D.C.’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act. With respect to the new libel per se count, the court said that while some of defendants’ statements about Mann and his research were protected as “opinions and rhetorical hyperbole,” other statements—such as statements that Mann “molested and tortured data” or statements calling Mann’s work “fraudulent”—were “assertions of fact” that would be defamatory if proven false and would be actionable if made with actual malice. The court found that “[v]iewing the facts in the light most favorable to plaintiff, a reasonable jury is likely to find in favor of the plaintiff.” National Review, CEI, and individual defendant Rand Simberg filed notices of appeal for the January 22 decision. 09/20/2013 Order Download Competitive Enterprise Institute's motion for reconsideration denied. The court denied the Competitive Enterprise Institute defendants’ motion for reconsideration of the July 2013 decision denying their motion to dismiss. 09/12/2013 Order Download Order issued denying defendants' joint motion for interlocutory certification of the court’s July 19, 2013 orders. The court denied the defendants’ joint motion to certify for appeal the court’s July 2013 orders denying their motions to dismiss. In an order signed by the new judge assigned to the case after Judge Natalia M. Combs Greene’s retirement, the court ruled that the order denying the motions to dismiss did not meet the criteria for interlocutory review. The court noted that while the case “undoubtedly involves complex and important issues at the intersection of the First Amendment and the common law of defamation as applied to public figures,” the controlling questions of law were “relatively settled.” The court further noted that D.C.’s Anti-SLAPP (Strategic Lawsuit Against Public Participation) Act did not provide for interlocutory appeal. While noting that certification for appeal followed by reversal of the July 2013 decision could hasten the termination of the lawsuit, the court stated that “in the court’s view, reversal is unlikely, and it is more likely that an interlocutory appeal would unnecessarily prolong the litigation.” 08/30/2013 Order Download National Review's motion for reconsideration denied. The District of Columbia Superior Court denied the National Review defendants’ motion for reconsideration of the court’s July 2013 decision denying their motion to dismiss. The court rejected the National Review defendants’ contention that the denial of the motion to dismiss was grounded in the court’s “mistaken belief” that the National Review defendants, as opposed to the Competitive Enterprise Institute (CEI) defendants, had induced EPA to investigate Mann’s work and had criticized Mann for many years. The court concluded that any confusion over whether it was the CEI defendants or the National Review defendants who criticized Mann and who induced the EPA investigation was not a “material mistake” because those facts were not the basis for the court’s July 2013 decision. The court reiterated its view that at this stage the evidence demonstrated “something more than mere rhetorical hyperbole” on the part of the National Review defendants in their criticisms of Mann. The court also rejected the argument that it should dismiss Mann’s claim for intentional infliction of emotional distress (IIED). The court found the absence of analysis of this claim in the earlier decision (which focused on the defamation claim) to be inconsequential, given the similarities between IIED and defamation. 07/19/2013 Order Download Order issued denying National Review's motions to dismiss. 07/19/2013 Order Download Order issued denying Competitive Enterprise Institute's motions to dismiss. The District of Columbia Superior Court denied motions to dismiss the defamation lawsuit brought by the climatologist and Pennsylvania State University professor Michael Mann against National Review, the Competitive Enterprise Institute, and individual writers in connection with pieces published about Mann and his work that, among other things, called his work “intellectually bogus,” referred to Mann as the “ringmaster of the tree-ring circus,” and compared Penn State’s investigation of Mann’s work to the university’s handling of the Jerry Sandusky scandal. In orders denying motions to dismiss by the National Review defendants and the Competitive Enterprise Institute defendants, the court—though calling it a “very close case”—found that the defendants’ statements were “not pure opinion but statements based on provably false facts” and that the evidence demonstrated “something more and different tha[n] honest or even brutally honest commentary.” The court found that further discovery was warranted because there was “sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false.” 06/28/2013 Complaint Download Motion to amend complaint and amended complaint filed. 10/24/2012 Complaint Download Complaint filed. Michael Mann, an influential climatologist who was accused of manipulating climate change data, filed a defamation lawsuit against the National Review and Competitive Enterprise Institute for accusing him of academic fraud and for comparing him to convicted child molester Jerry Sandusky. -
National Review, Inc. v. Mann
Case Documents:
Filing Date Type File Action Taken Summary 11/25/2019 Order Download Certiorari denied. Supreme Court Denied Publishers’ Petitions in Climate Scientist’s Defamation Case; Alito Issued Written Dissent. The U.S. Supreme Court denied two petitions for writ of certiorari seeking review of a D.C. Court of Appeals decision that allowed climate scientist Michael Mann to proceed with a defamation lawsuit against the authors and publishers of articles attributing scientific misconduct to Mann. Justice Alito issued a written dissent asserting that the questions raised by the petitioners “go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” Alito wrote that one of the questions raised—whether a court or a jury should determine the truth of allegedly defamatory statements—was a “delicate and sensitive” question that “has serious implications for the right to freedom of expression,” especially given the “highly technical” matter at issue in this case and the “intense feelings” that the issue of climate change arouses in the jury pool. Alito also said the petitioners raised the “very important question” of where to draw the line between “a pungently phrased expression of opinion regarding one of the most hotly debated issues of the day” (which Alito said would be protected by the First Amendment and “a statement that is worded as an expression of opinion but actually asserts a fact that can be proven in court to be false” (which the First Amendment would not protect). Alito noted that he recognized that the D.C. court’s decision was “interlocutory” and that an ultimate outcome adverse to the petitioners could be reviewed later, but he said requiring a “free speech claimant to undergo a trial after a ruling that may be constitutionally flawed is no small burden.” 06/28/2019 Brief Download Brief filed by respondent in opposition to the certiorari petitions. 05/21/2019 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. National Review Seeks Supreme Court Intervention to Stop Climate Scientist’s Defamation Action. National Review, Inc. filed a petition for writ of certiorari seeking U.S. Supreme Court review of the D.C. Court of Appeals decision that allowed climate scientist Michael Mann’s defamation lawsuit to proceed against them in connection with articles that accused Mann of scientific misconduct. National Review’s petition presents the question: “Is the question whether a statement contains a ‘provably false’ factual connotation a question of law for the court (as most federal circuit courts hold), or is that a question of fact for the jury when the statement is ambiguous (as many state high courts hold)?” The National Review petition also presents the question of whether the First Amendment permits “defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as ‘deceptive’ and calling its creation a form of ‘scientific misconduct.’” -
Competitive Enterprise Institute v. Mann
Case Documents:
Filing Date Type File Action Taken Summary 05/23/2019 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. Competitive Enterprise Institute Seeks Supreme Court Intervention to Stop Climate Scientist’s Defamation Action. The Competitive Enterprise Institute (CEI) and a CEI commentator filed a petition for writ of certiorari seeking U.S. Supreme Court review of the D.C. Court of Appeals decision that allowed climate scientist Michael Mann’s defamation lawsuit to proceed against them in connection with articles that accused Mann of scientific misconduct. The questions presented are “[w]hether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern” and “[w]hether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.” -
Competitive Enterprise Institute v. Mann
Case Documents:
Filing Date Type File Action Taken Summary 01/03/2019 Amicus Brief Download Brief amicus curiae filed by Cato Institute supporting petition for rehearing. 12/27/2018 Petition Download Petition for rehearing en banc filed by National Review, Inc. 12/13/2018 Opinion Download Amended opinion issued. D.C. Appellate Court Left in Place Decision Allowing Climate Scientist’s Defamation Claims to Proceed. Two years after the District of Columbia Court of Appeals ruled that climate scientist Michael Mann could proceed with defamation claims against the authors and publishers of online articles, the appellate court responded to a petition for rehearing by issuing an amended opinion with only minor adjustments—the addition of one footnote and the revision of another. The appellate court thereby reaffirmed its conclusion that a reasonable jury could find that statements in two of the articles were false, defamatory, published by appellants to third parties, and made with actual malice. The articles accused Mann of scientific misconduct and compared his alleged misconduct to the conduct of Jerry Sandusky, a football coach at Penn State who was convicted of child sexual abuse. 03/13/2017 Response Download Response filed to petition for rehearing or rehearing en banc. 01/30/2017 Amicus Brief Download Amicus brief filed by online publishers in support of petition for rehearing. 01/26/2017 Petition for Rehearing Download Amicus brief filed by Stephen McIntyre in support of petition for rehearing or rehearing en banc. 01/25/2017 Amicus Brief Download Amicus brief filed by Dr. Judith A. Curry in support of petitions for rehearing or rehearing en banc. 01/19/2017 Amicus Brief Download Amicus brief filed by Cato Institute in support of rehearing. 01/19/2017 Petition for Rehearing Download Petition for rehearing and rehearing en banc filed by Competitive Enterprise Institute and Rand Simberg. 01/19/2017 Petition for Rehearing Download Petition for rehearing or rehearing en banc filed by National Review, Inc. 12/22/2016 Opinion Download Opinion issued affirming in part and reversing in part denial of special motions to dismiss. D.C. Appellate Court Said Climate Scientist Michael Mann’s Defamation Claims Could Proceed Against Authors and Publishers of Two Articles. The District of Columbia Court of Appeals upheld in part and reversed in part a trial court’s denial of special motions to dismiss defamation claims made by the climate scientist Michael Mann against three authors of online articles and Competitive Enterprise Institute and National Review, Inc., which published the articles on their websites. The Court of Appeals also reversed the denial of special motions to dismiss Mann’s claim of intentional infliction of emotional distress because the appellate court concluded that Mann had not demonstrated that he was likely to succeed in proving that he suffered severe emotional distress. The articles at issue in the action asserted that Mann had been “shown” to have behaved in a “deceptive” and “most unscientific manner” because he “molested and tortured data in the service of politicized science”; that he engaged in “academic and scientific misconduct”; that an investigation by his employer Pennsylvania State University was a “whitewash” or “cover-up”; and that a lawsuit threatened by Mann was “fraudulent” or “intellectually bogus and wrong.” The articles also likened Penn State’s investigation of Mann’s work to the university’s investigation regarding its former assistant football coach Jerry Sandusky, who was convicted of child sexual abuse. The appellate court concluded that a reasonable jury could find that statements in two of the articles were false, defamatory, published by appellants to third parties, and made with actual malice. In finding that Mann had met his burden of showing that a jury could find “actual malice” with respect to two of the articles, the appellate court said it would be for a jury to determine the credibility of the appellants’ assertions of “honest belief” in the truth of their statements and whether the belief was maintained “in reckless disregard of its probable falsity.” It would also be for a jury to consider the appellants’ objections to multiple investigation reports that found no evidence of misconduct by Mann. -
Steyn v. Mann
Case Documents:
Filing Date Type File Action Taken Summary 12/19/2013 Order Download Appeals dismissed without prejudice. The District of Columbia Court of Appeals dismissed the appeals of the D.C. Superior Court’s decisions as moot, given that Mann had filed an amended complaint and defendants had filed new motions to dismiss.