Two down, two to go.
On Monday, the Superior Court of the District of Columbia granted the Competitive Enterprise Institute’s motion to dismiss the Michael Mann suit, on the grounds that the think tank could not have acted with “actual malice” and could not therefore be liable. It signaled that it was likely to uphold a similar decision from March that had also granted National Review’s motion to dismiss the suit.
This is all to the good, but the court is, dismayingly, allowing the case against Mark Steyn and Rand Simberg to continue to a jury trial.
While the general direction of this seemingly never-ending case continues to be positive, it remains a national disgrace that it has got this far and taken this long.
A quick refresher for those who have lost track over the years: The lawsuit came about in response to a blog post on The Corner by Mark Steyn in 2012 criticizing Mann’s work. The climate scientist threatened to sue unless NR removed the post and apologized, which we, of course, refused to do. Mann then sued NR, Steyn, and the Competitive Enterprise Institute — Steyn had quoted a CEI article by Rand Simberg in his post.
Now, like National Review before it, CEI has been freed from the case on the eminently reasonable grounds that, because none of its employees had substantively engaged with Rand Simberg’s post about Michael Mann, they could not have exhibited “actual malice” toward him.
This was the right call. And yet, as welcome as it was, it did not go far enough. Clearly, neither Mark Steyn nor Rand Simberg should be expected to go to trial in order to defend speech that is protected by the First Amendment, and that they are still being harassed, eight years after this saga began, represents a continuing failure of the courts, of the anti-SLAPP laws that are designed to prevent precisely this sort of thing from happening, and, most importantly, of Michael Mann himself.
Thankfully, the rules set by the court have taken some more wind out of Mann’s sails. The court has denied Mann’s motion to declare that Steyn’s and Simberg’s statements were false as a matter of law, and insisted instead that this question must be presented to a jury. In addition, the court has disqualified all of Michael Mann’s proposed expert testimony — one of the so-called experts merely summarized Wikipedia — while allowing an expert selected by Steyn and Simberg who will criticize Mann’s statistical techniques. In effect, the court has prevented Michael Mann from doing before a jury what he has been attempting to do before America all along: wave his hands, point to his credentials, and silence anyone with the temerity to disagree with him.
Still, this is not how we should want to settle political or scientific questions in American life. If the Michael Manns of the world were to prevail, the United States would become a tremendously cramped place, in which journalists, advocates, teachers, and everyone else would be obliged to engage in debate with one eye turned back over their shoulders. In effect, Mann is attempting to set up a real “court of public opinion,” and to have it serve as an arbiter of truth. There are many ways of describing such an attempt, but “science” is not among them. We can only hope that the jurors who will be called upon to bring this case to a close will have enough sense about them to agree.