Today, in the District of Columbia Court of Appeals, National Review filed a petition for rehearing en banc in the wake of the December 13 amended opinion issued by a three-judge panel of that court. As regular readers know, this case was initiated in 2012 by Penn State’s litigious climate professor, Michael Mann. NR filed its first petition for rehearing nearly two years ago, and it remained pending until the court issued its slightly modified opinion on December 13 (here’s our editorial response to that recent ruling).
The new “en banc” petition filed today calls for the full court to finally hear this incredible case. It can be read here.
Rehearing is also warranted due to the exceptional importance of the First Amendment rights at stake, which “are not limited to [this] case.” Tyler v. United States, 705 A.2d 270, 274 (D.C. 1997). Indeed, the “likelihood of recurrence” of this issue is extremely high, id., because the panel’s decision declares open season on a whole genre of criticism—alleging the deceptive use of statistics and the misleading presentation of data—that is utterly commonplace in political and scientific debate. If the panel decision stands, it creates a real risk that defamation suits will “becom[e] an instrument for the suppression of” opposing viewpoints. Snyder, 131 S.Ct. 1219.
This case illustrates the danger, as any adjudication of “falsity” here would turn the jury into a Ministry of Truth on a variety of political and scientific issues, including:
- whether the undisputed use of proxy data spliced together with modern instrument data after 1960 creates a “deceptive” picture of global warming;
- whether Mann’s use of Principal Component Analysis was a misleading technique that misleadingly displays an upward temperature curve; id.;
- whether Mann’s undisputed actions are properly characterized as academic or scientific “misconduct,” based on no specified standard;
To resolve these questions, a jury would be forced to take sides in an ongoing debate about hotly disputed issues of science and public policy, and proper academic standards.
The importance of this issue is especially acute in the nation’s capital, where vigorous debate over climate change and similar issues is the very lifeblood of deliberative democracy. The panel’s decision strikes at the heart of this process, and it will cut both ways: Mann himself has blasted his opponents for engaging in “pure scientific fraud,” “knowingly lying about the threat [of] climate change,” and issuing “deceptive . . . report[s]” on the topic. NR Br. 6-7. Under the panel’s reasoning, big oil companies and other well-heeled interests can begin launching their own lawsuits asking juries in Texas or Oklahoma to silence such criticism. The panel thus opens a dangerous new frontier in the strategic use of lawsuits to silence political opponents. This Court should act now and spare the Supreme Court the task of eliminating this extreme outlier in the nation’s First Amendment jurisprudence.