Magazine | January 27, 2014, Issue

In to Win

America is a land of acronyms, and, useful as they are, acronyms can quickly curdle into jargon. SLAPP stands for “strategic lawsuit against public participation” — i.e., using legal action to cow an opponent into silence, and withdrawal from the public square. It was coined in the Eighties by Penelope Canan and George W. Pring at the University of Denver, and in the Nineties they turned it into a book: SLAPPs: Getting Sued for Speaking Out. And it proved so influential that by the Oughts various jurisdictions were passing “anti-SLAPP laws,” to the point where they’re now on the books of 28 states, one territory, and the District of Columbia. The purpose of an anti-SLAPP law is to get such suits quickly dismissed. So, when you find yourself the target of one and tootle along to see your lawyer, your first conversations are all anti-SLAPP this and anti-SLAPP that.

That’s what happened to me and this magazine. In a post at National Review’s website, I mocked Dr. Michael Mann, the celebrated global warm-monger, and his “hockey stick,” the most famous of all the late-Nineties global-warming climate models to which dull, uncooperative 21st-century reality has failed to live up. So he sued. We then filed an anti-SLAPP motion to dismiss. Our first court date was January 20th last year. That’s to say, we are now entering the second year of the anti-SLAPP phase of our case. So a law specifically designed to expedite a resolution of the matter has become just another bit of protracted, interminable, lethargic procedural ping-pong in an already sclerotic legal system.

In fairness to Dr. Mann, the two-year anti-SLAPP hearing is not entirely his fault. We are now having to start all over from scratch, with a brand new complaint, brand new motions to dismiss, and a brand new judge — all thanks to the original judge’s remarkable incompetence and careless management of her case. I’m an immigrant and I’m told that in America one shouldn’t criticize judges, but I’ve done so in England and Ireland, Canada and Australia, and I don’t really see why a third-rate judge should be any more immune from criticism than a third-rate plumber. At the risk of oversimplifying, I wonder if in a republic a society’s natural monarchical reverence doesn’t simply wind up getting transferred elsewhere — in this case to omniscient robed jurists. At any rate, it seems to me that a fear of offending judges is unbecoming in a free people. So screw that.

#page#But by far the biggest consequence of this ridiculous case is in these pages. If you are only a print subscriber (as opposed to an Internet reader), you will have no idea that National Review is in the midst of a big free-speech battle on one of the critical public-policy issues of our time. There have been no cover stories, no investigative journalism, no eviscerating editorials. NR runs specialized blogs on both legal matters and climate change, yet they too have been all but entirely silent. I assume, from this lonely outpost on NR’s wilder shores, that back at head office they take the view that it’s best not to say anything while this matter works its way through the courts. In other words, a law explicitly intended to prevent litigious bullies from forcing their victims to withdraw from “public participation” has resulted in the defendants themselves voluntarily withdrawing from “public participation.” That’s nuts.

Meanwhile, in the same period, Dr. Mann has been brandishing his hockey stick out on the campaign trail against Republican candidates. In Virginia, he appeared in the Democrats’ attack ads against Ken Cuccinelli, and helped get Clinton’s bagman Terry McAuliffe elected governor. When his candidate Mark Herring also prevailed over the GOP in the attorney general’s race, Mann crowed and published tweets from his acolytes congratulating him on “two fresh notches on your hockey stick.” That would seem, definitively, to move the hockey stick into the realm of political speech explicitly protected by the First Amendment — and perhaps one day, two or three or five years down the line, a D.C. court will agree. But it’s not much of a First Amendment that requires a bazillion dollars in legal fees and a half-decade vow of silence to enjoy the security thereof — all while the plaintiff’s using his freedom of speech to knock off your political allies.

I don’t think much about the First Amendment these days. As a practical matter, it’s simply not feasible in a global media market to tailor one’s freedom of expression to the varying local bylaws. So I take the view that I’m entitled to say the same thing in Seattle as I would in Sydney or Stockholm, Sofia or Suva. But, were Dr. Mann to prevail, it would nevertheless be the case that his peculiarly thin skin and insecurities would enjoy greater protection under U.S. law than they do in Britain, Canada, Australia, and other jurisdictions. It would thus be a major setback for the First Amendment.

That’s worth making a noise about. Up north, following a similar SLAPP suit from the Canadian Islamic Congress, my publisher Maclean’s, who are far less ideologically simpatico to me than NR, nevertheless understood the stakes — and helped get a disgusting law with a 100 percent conviction rate first stayed by a hitherto jelly-spined jurist and ultimately repealed by the Parliament of Canada. This too is a free-speech case. Free speech is about the right to thrash out ideas — on climate change, gay marriage, or anything else — in the public square, in bright sunlight. And you win a free-speech case by shining that sunlight on it, relentlessly. As we embark on our second year in the hell of the D.C. court system, that’s what I intend to do.

– Mr. Steyn blogs at SteynOnline (www.steynonline.com).

Mark Steyn — Mark Steyn is an international bestselling author, a Top 41 recording artist, and a leading Canadian human-rights activist. That’s to say, his latest book, After America (2011), is a top-five bestseller in ...

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