Politics & Policy

The D.C. Court of Appeals Undermines the First Amendment 

(Dreamstime image: Zimmytws)

Yesterday, the D.C Court of Appeals issued its decision in Michael Mann’s defamation case against us and the Competitive Enterprise Institute. The court dismissed Mann’s claims for intentional infliction of emotional distress, and also dismissed his claims based on an open letter written by our editor-in-chief Rich Lowry taking Dr. Mann to task for threatening to file this bullying lawsuit in the first place. At the same time, the court refused to dismiss the defamation claims against NR and CEI based on blog posts by Mark Steyn and Rand Simberg respectively criticizing Mann’s infamous “hockey stick” graph, which is widely touted as providing lead-pipe cinch scientific proof of man-made global warming.  

In refusing to dismiss these claims, the opinion is badly mistaken. Worse, it represents an unprecedented threat to the freedom of speech in our nation’s capital. There’s a reason that a broad coalition of groups including the ACLU, the Washington Post, the Cato Institute, and the Reporters Committee for Freedom of the Press filed briefs in support of NR in the case.

Properly understood, the First Amendment provides broad protection for free expression on matters of political and scientific controversy. It protects vigorous debate not only over the merits but also over the ethics of politically controversial scientific enterprises. In particular, it protects the right of all Americans — scientists, journalists, and even bloggers — to express caustic criticism of scientific theories that purport to resolve hot-button political controversies on matters as sweepingly consequential as the extent and cause of global warming.  

The court’s decision yesterday badly neglects these principles. It holds that NR can be subjected to a judicial trial and possible sanctions for publishing a blog post arguing that the infamous “hockey stick” graph is misleading, and that the underlying scientific techniques are so badly deceptive that they deserve to be denounced as a form of misconduct. The court’s decision thus declares open season on anyone who dares to criticize Mann for “molesting and torturing data” and (in the court’s words) engaging in “deception and wrongdoing” or “serious misconduct.” 

The court’s decision breaks chilling new ground.

By holding that such subjective characterizations are the type of “provably false” statements that can be stripped of First Amendment protection, the court’s decision breaks chilling new ground. It creates the Orwellian prospect of a legal proceeding where a jury is asked to impose significant penalties on journalists who have the “wrong” opinion on highly controversial issues such as: What counts as “wrongdoing” in the realm of scientific inquiry? Is the “hockey stick” graph deceptive and misleading, or does it fairly and accurately demonstrate a trend of man-made global warming? Are the techniques that Dr. Mann employed properly characterized as “molesting and torturing data” (a phrase itself open to interpretation) or are they appropriate methods of reconstructing global historical temperature trends? Should this type of scientific technique be considered misconduct, or is it morally and ethically appropriate? 

These are precisely the types of contestable, value-laden inquiries that the First Amendment leaves to be resolved through free and open debate, not punitive litigation. It does not allow our legal system to impose coercive penalties on people who express the “wrong” view. Nor can that conclusion be altered by the fact that certain self-proclaimed authorities may claim to have conducted “official investigations” that provide “definitive” answers to these eminently debatable questions. The idea that such official pronouncements can be used to shut down debate and to stifle dissenting opinions on pain of legal penalty runs against the spirit and the letter of the First Amendment. 

Where does this leave NR, and what’s next? The court’s decision comes at a very early stage, addressing only the initial question of whether the case should be dismissed because the speech in question is categorically protected by the First Amendment as a matter of law. By itself, that threshold issue is crucially important for the vibrancy of free expression in our nation’s capital, because the litigation process itself is often the punishment, and nobody should be subjected to the expense and hassle of legal proceedings for exercising his right to speak freely on matters such as this. For that reason, we intend to seek a prompt rehearing from the full D.C. Court of Appeals, followed if necessary by a petition for review in the United States Supreme Court. Given the Supreme Court’s broad protection of First Amendment rights in recent years, we like our chances on that front. But even after that, several rounds of litigation would still remain standing between Dr. Mann and any recovery against NR. We will aggressively assert the full panoply of legal and factual defenses available to us.

Without going into all the details, suffice it to say that the legal terrain is favorable, and we will fight for every inch. 

The Editors comprise the senior editorial staff of the National Review magazine and website.

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