You’ll forgive the wordplay, but the hard fact is this: We begin National Review’s 2019 Fall webathon against the backdrop of America’s most critical free-speech drama — Mann v. National Review. It’s our battle, yes, but it’s very much yours too, because the consequences of a courtroom defeat will be serious (an understatement if there ever was one) for all Americans. Hence we turn to you again for your financial support, to help us underwrite these critical legal efforts, on our behalf and yours, and also to help NR’s broader task of pouring unrelenting conservative fire on reinvigorated socialism, its full-throated advocates, and the apostles of Alinsky who prowl the world, seeking the ruin of souls and of America as our founders envisioned it.
On Mann: Right now, the quite liberal District of Columbia Court of Appeals — which has refused to toss the case despite the Supreme Court’s clear and plentiful established rulings about free speech — has ordered this case to go to a jury trial. The seven-year process of reaching this verdict has come with a price tag of well over a million dollars. So far. That may be a down payment on the battle’s possibly enormous final tally.
The slow, meandering legal process (here is our most recent editorial, which provides the case synopsis) has nothing on the matter’s massive, looming impact on a fundamental right possessed no less by NR magazine editors than by every other American. Earlier this year, after all appeal options with the D.C. court had been exhausted, NR turned to the U.S. Supreme Court to ask the justices to hear the case and to protect free speech. Our pending cert petition — which SCOTUS will rule on, possibly this week (a yes means it will take the case, a no means the trial proceeds in the D.C. court) — made several important points. Please do read it. But here is the heart of its argument:
Yet, in this case, the D.C. Court of Appeals held that a jury could impose defamation liability on a conservative media outlet for opining that the risks of climate change were being overhyped by misleading statistical analyses. Petitioner National Review, Inc. published a blog post that criticized the so-called “hockey stick” graph created by Respondent Dr. Michael Mann, a scientist who is a leading voice in the climate-change debate. The validity of the graph has itself been the focus of intense argument, with its opponents objecting to its cherry-picking of data and apples-to-oranges comparisons. The blog post at issue decried the graph as “deceptive” and “fraudulent,” calling its creation “wrongdoing” and “misconduct.”
Remarkably, the Court of Appeals concluded that a jury could treat those statements as “provably false” representations of fact and impose liability, without offending the First Amendment. In that court’s view, a reasonable jury “could” construe the statements as conveying not only a subjective and non-falsifiable value judgment about the graph’s legitimacy, but also some (never-specified) objective, verifiable fact about Mann’s conduct or his “integrity.” In view of that supposed possible construction, the court remanded the defamation case for discovery and trial.
If the D.C. Court of Appeals ruling is allowed to stand, it will mean this: If someone doesn’t like what you say — yeah, you — and doesn’t like your opinion, that someone, bogusly aggrieved, can take you to court, one that is specially scouted and selected, and there a jury will be empowered to determine whether your opinion is right or wrong. And on a larger scale, to determine the rightness or wrongness of . . . climate-change policy? Immigration? Tax policy? Trade policy? What’s next: your Second Amendment rights? Your freedom to assemble? To worship? Is it that hard to conceive that a jury in a cherry-picked location might hold, Constitution be damned, a respected creed illegal, an ancient dietary practice verboten, a sacred rite wrong, a venerable charity a hate group? When will habeas be corpsed?
Hyperbolic language, this? Nope. This process puts our rights under threat, our voice behind a gag.
A few weeks back, Wall Street Journal columnist William McGurn nailed the consequences of this fight NR is waging:
In some senses the Mann suit may represent the perfect storm for litigation because so many consider climate science beyond question. The opinion of the appellate court, for example, carries the whiff of a religious authority rendering final judgment — the idea being that university faculties and other authorities have spoken so debate must be closed.
There’s also the venue. This lawsuit didn’t go through the federal courts but through D.C.’s equivalent of state courts, where judges and juries probably aren’t the friendliest to conservatives. With so many publications, think tanks and activists keeping offices in the nation’s capital, it isn’t hard to see how Washington could quickly become the venue for similar lawsuits.
The larger point is that while so-called climate deniers might be the first defendants, they are unlikely to be the last. If the D.C. ruling stands, National Review asks in its petition to the high court, what’s to prevent, say, Charles Koch from suing Greenpeace for accusing him of having funded a “junk study . . . loaded with lies and misrepresentations of actual climate change science”? Or Steve Bannon from founding a deep-pocketed organization to sue Trump opponents, and then shopping for a venue where a friendly jury might agree that an over-the-top opinion is a defamatory statement of fact?
Whether the Supreme Court takes the case or it proceeds to trial in the D.C. court, there will be significant financial costs — above and beyond what our insurers bear — to NR. This being a mutual fight, we ask our readers, and any and all conservatives, and any and all believers in a vigorous First Amendment, to donate to our 2019 Fall webathon.
You can do this with assurance that NR’s combativeness is just as keen outside the courtroom. Look at some recent issues of the magazine: The current issue is an all-out take-down of Elizabeth Warren’s most egregious policy prescriptions; the issue prior to that focused on defending your Second Amendment rights; and earlier in the year we carpet-bombed socialism right after making a full-throated defense of free markets.
This place built and maintained by Bill Buckley — its mandate to defend and expand conservatism, to hound and excoriate leftism, entrusted by Bill to us — remains vital. The fact that it remains is because of the help of many over the years. That need for help remains. There are plentiful reasons right now to come to NR’s aid, to join it in the foxhole and the cockpit, to stand with it on the ramparts and at the deck guns. The enemies of our beliefs — and yes, they are enemies — are plentiful, financed, and determined. We aim to withstand them and defeat them.
“We” includes you. In advance of your selfless generosity, take our hand as we help you on top of the barricades, and accept our sincere thanks.
(Donations to the 2019 Fall Webathon can be made here. Contributions to National Review Inc., while vitally important, are not tax deductible. If you prefer to donate by check, please make yours payable to “National Review” and mail it to National Review, ATTN: 2019 Fall Webathon, 19 West 44th Street, Suite 1701, New York, NY 10036.)