A few days before launching his lawsuit against what he called “this filthy organization,” Michael Mann wrote that there “is a possibility that I can ruin National Review.” Nearly a decade later, we are still fighting his attempt to do precisely that.
From the beginning of this affair, National Review has maintained that the case that Mann filed is frivolous, malicious, corrupt, and lacking entirely in legal justification. We maintain that still. The Supreme Court has ruled that the First Amendment is predicated upon “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and that matters of political dispute are in consequence exempt from superintendence. By attempting to litigate against his critics, Michael Mann has chosen to stand firmly on the other side of that national commitment. Were he to prevail, he would set a host of terrible precedents against free inquiry and open argument, and in favor of censorship.
That this case has been open-and-shut from the start was obvious not only to National Review, but to all who believe in the freedom of speech and the freedom of the press — which is why the amicus briefs that have been filed in our behalf range so widely across the political spectrum.
We’ve said we’d use every tool and argument at our disposal to defeat Mann, and that’s what we’ve done. Mark Steyn posted the blog item in dispute in July of 2012. Mann sued in October of that year, and we filed our first motion to dismiss in December of 2012.
When that was denied by the trial court, we filed a motion to reconsider. When that, too, was denied, we appealed to the D.C. Court of Appeals — twice. This brings us to 2014. After oral arguments, the Court of Appeals sat on the case for two years. Then, the court denied our appeal. This was in December of 2016. Because the opinion had myriad obvious flaws, we petitioned for a rehearing. Incredibly enough, the court then delayed for yet another two years. When the court finally issued an amended opinion, all it did was add one footnote and amend another.
Because the amended opinion didn’t fix any of the flaws of the original opinion, we petitioned for a rehearing yet again. This, too, was denied. Then, last May, we filed a cert petition before the U.S. Supreme Court. All indications are that the court seriously considered it, before denying the petition (with Justice Alito issuing a strong dissent).
Now, we are back in the trial court, with expensive and time-consuming discovery underway.
Mann’s plan to “ruin” us, as he put it in an email produced under discovery, is plainly to get to a trial with a politically sympathetic D.C. jury and hope that the finer points of the law and the First Amendment are lost. (Short of that, he is surely happy for the case to drag out further, draining us of energy and resources.)
But it’s clear that the case should never get to that point — hence our latest motion. Under the First Amendment, Mann has to prove that National Review published the Corner post with “actual malice.” That would require him to show that National Review actually believed that the post was “false” (or likely false) at the time of publication. That is absurd for a number of reasons, including — given the nature of The Corner — we didn’t even know about the post until after it was published. The case against National Review is thus nonsensical at its core. It is also barred by a federal statute, Section 230 of the Communications Decency Act, which protects online publishers for hosting content posted by outside contributors.
To be clear, the content of the post itself is also plainly protected First Amendment speech, as we have argued consistently and at length from the first letter our lawyers wrote in response to Mann’s initial legal threat to our brief before the Supreme Court.
So far, the courts have, to quote Churchill, elected to “go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent.” They brushed past the anti-SLAPP statute that was designed to prevent this from happening. Our hope is that the same won’t happen with Section 230, which is also meant to protect the free-speech rights of online publishers.
It is a matter of considerable irony that the only “malice” that the discovery process has uncovered is that exhibited by Michael Mann. When planning his suit, Mann described National Review as a “threat to our children,” beholden to “greedy fat cat corporate masters.” His stated intention was to bring us “down for good.” Needless to say, this is not how a country with a First Amendment or a culture of free speech is supposed to work. It’s past time that this suit is dismissed as incompatible with both, and a failure on the facts and the law.