Law & the Courts

Free Speech in Abeyance 

(Carlos Barria/Reuters)

We are disappointed that the U.S. Supreme Court has declined to take up our appeal in the case of National Review Inc. v. Michael E. Mann, and we can express our disappointment no better than did Justice Samuel Alito in his dissent from the denial of certiorari. “The petition in this case,” Alito writes,

presents questions that 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. If the Court is serious about protecting freedom of expression, we should grant review.

At stake in this case are nothing less than two of the core guarantees that undergird American life. The first is the promise that all people may engage in robust political debate without fear of retribution from the sensitive and the malicious. The second is the promise that when legal disputes do arise, they will be resolved in a timely manner — before, not after, the targeted party has been bled of precious time and resources. Thus far in National Review Inc. v. Michael E. Mann, neither of these guarantees has been upheld. We are now seven years into this saga, and there remains no end in sight. On the case rolls — a Jarndyce and Jarndyce for the 21st century.

Justice Alito notes that “in recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate.” And so it should. But one would expect that a Court that takes the time to superintend the marginal cases would have time for the foundational cases, too. And make no mistake: This is a foundational case. Aware of what is at risk here, a host of media organizations from across the entire political spectrum have filed amicus curiae briefs in support of National Review. We may not agree with the Washington Post, Time Inc., the ACLU, and the Cato Institute on everything — or, often, on much — but on this we all speak as one.

In response, we have heard little more than radio static. We appealed to the Supreme Court because no other institution seemed willing to bring this case to the close that it so richly deserves. Washington, D.C., in which city the suit was brought, operates under a well-written “anti-SLAPP” law, the sole intent of which is to prevent and cut short precisely this sort of litigiousness and harassment and thereby to protect free speech in America. And yet, for all the good it has done, that statute may as well be written on clouds. Seven years in, it has done nothing to convince the lingering D.C. Court of Appeals that it should do anything more than issue footnotes, and it has done nothing to convince the Supreme Court that this is a problem worthy of its attention. What, we can only wonder, would a non-expedited process look like?

We are told that justice delayed is justice denied — and, indeed, it is. But it is also true that justice delayed is justice made exorbitantly expensive, for never is the cliché that “time is money” more true than when lawyers are involved. Naturally, we have no intention of abandoning this fight; not yesterday, not today, not tomorrow. But we are frustrated that the nation’s highest court has elected to punt on the question, and thereby to guarantee that it will roll on without end in sight. This isn’t the process working, but failing, in the most drawn-out manner possible.

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